Citation Nr: 18137349 Decision Date: 09/20/18 Archive Date: 09/20/18 DOCKET NO. 14-39 413 DATE: September 20, 2018 ORDER Entitlement to a 100 percent disability for posttraumatic stress disorder (PTSD), prior to May 4, 2017, is granted. Entitlement to special monthly compensation benefits at the housebound rate under 38 U.S.C. § 1114(s), effective May 9, 2013, is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is moot. FINDINGS OF FACT 1. The probative medical evidence is at least in equipoise as to whether the Veteran’s PTSD manifested in total occupational and social impairment. 2. As a consequence of this decision, as of May 9, 2013, the Veteran has one service-connected disability (PTSD) rated as 100 percent disabling, and other service-connected disabilities rated in excess of 60 percent disabling. 3. Effective May 9, 2013, TDIU is moot. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 100 percent disability rating for PTSD, prior to May 4, 2017, have been met. 38 U.S.C. 1155 (2012); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for entitlement to SMC at the housebound rate have been met, effective May 9, 2013. 38 U.S.C. § 1114(s) (2012); 38 C.F.R. § 3.350(i) (2017). 3. Effective May 9, 2013, TDIU is moot. 38 U.S.C. 1155, 5107 (2012); 38 C.F.R. §§ 3.352, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from August 1969 to February 1975. In April 2016, the Veteran testified before the undersigned at a Travel Board hearing held at the Lincoln, Nebraska Regional Office. A transcript of that hearing is of record. The Board notes that a November 2017 rating decision granted a 100 percent disability rating, effective May 4, 2017, for the Veteran’s service-connected PTSD. This represents a full grant of the benefit sought on appeal as of May 4, 2017. However, the Veteran’s claim for an increased disability rating for PTSD prior to May 4, 2017, remains on appeal. Further, the Board notes that in some cases, but not all, the assignment of a total schedular rating renders a TDIU claim moot. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008). The Veteran may receive a total (100 percent) rating based on a combination of his service-connected disabilities, or for a single service-connected disability. Special monthly compensation (SMC) may be warranted in addition to his regular compensation if the Veteran has a total disability rating for a single disability, and additional service-connected disability or disabilities rated at 60 percent or more. The total rating for the single disability for SMC purposes may be schedular, or may be based on TDIU, so long as TDIU was granted solely because of that single disability. Thus, if the Veteran’s total rating is based on a combination of his service-connected disabilities (which, by definition, would mean that his individual service-connected disabilities are each rated at less than 100 percent), then TDIU is not moot if it could be granted on a single disability thereby making the Veteran eligible for SMC. However, if he has a single disability already rated at 100 percent, entitlement to TDIU becomes moot because he has already met that portion of the requirement for SMC. In this case, the assignment of the Veteran’s 100 percent schedular evaluation for PTSD renders the TDIU claim moot from the date of that total rating forward, or in other words from May 4, 2017. However, the Veteran’s claim for entitlement to TDIU prior to May 4, 2017, remains on appeal. Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Board decisions must be based on the entire record, with consideration of all the evidence. 38 U.S.C. § 7104. The law requires only that the Board address its reasons for rejecting evidence favorable to the veteran. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. While the Veteran is competent to report (1) symptoms observable to a layperson; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Because there is no universal rule as to competence, the Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). Contemporaneous records can be more probative than history as reported by a veteran. See Curry v. Brown, 7 Vet. App. 59, 68 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). 1. Entitlement to a disability rating in excess of 50 percent for PTSD, prior to May 4, 2017. The Veteran claims entitlement to a disability rating in excess of 50 percent for PTSD, prior to May 4, 2017. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Ratings are assigned based on the average impairment of earning capacity resulting from a service-connected disability. 38 C.F.R. § 4.1. Where two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). The current regulations establish a general rating formula for mental disorders. 38 C.F.R. § 4.130. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed.Cir.2004); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, because “[a]ll nonzero disability levels [in § 4.130] are also associated with objectively observable symptomatology,” and the plain language of the regulation makes it clear that “the veteran’s impairment must be ‘due to’ those symptoms,” “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio, 713 F.3d at 116-17. Pursuant to Diagnostic Code 9411, PTSD is rated 50 percent disabling when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent evaluation is warranted where there is objective evidence demonstrating occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to suicidal ideation; obsessional rituals which interfere with routine activities, speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, or effectively; impaired impulse control, such as unprovoked irritability with periods of violence; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances, including work or a work-like setting; and the inability to establish and maintain effective relationships. A maximum 100 percent evaluation is for application when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. The evidence delineated below does not represent all of the extensive evidence in the claims file, but is representative of the evidence of record and encompasses or is fully representative of evidence that is favorable to the Veteran’s claim. In September 2014, the Veteran underwent a VA examination to determine the severity of his PTSD. The Veteran’s diagnosis of PTSD was confirmed. The VA examiner noted that the Veteran exhibited symptoms of depressed mood, anxiety, panic attacks that occur weekly or less often, and disturbances of motivation or mood. The VA examiner further noted: [T]he Veteran was pleasant and cooperative with exam. He has good eye contact. His speech was soft. His [thought process] was logical and linear. No hallucination. No [suicidal ideation/homicidal ideation. [Veteran’s] mood was described as "angry/anxious" and affect was broad and full range. Sensorium was clear. Insight and judgment were adequate. Finally, the VA examiner noted that the Veteran’s PTSD manifested in occupational and social impairment with reduced reliability and productivity. The Veteran submitted a PTSD disability benefits questionnaire (DBQ) completed by his VA psychiatric treatment provider in September 2014. The PTSD DBQ confirmed the Veteran’s diagnosis of PTSD. The DBQ clinician noted that the Veteran exhibited symptoms of depressed mood, anxiety, suspiciousness, panic attacks more than once a week, near continuous panic or depression, chronic sleep impairment, memory loss of names of close relatives, impairment of short or long term memory, impaired judgment, disturbances of mood or motivation, difficulty adapting to stressful circumstances, suicidal ideation, persistent delusions or hallucinations, and disorientation to time or place. The DBQ examiner noted that the Veteran’s PTSD manifested in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. Finally, at an April 2016 hearing before the undersigned Veterans’ Law Judge (VLJ), the Veteran offered testimony regarding the severity and symptoms of his PTSD. The Veteran testified to memory loss, including the names of close relatives, persistent delusions and hallucinations occurring daily, panic attacks more than once a week, chronic sleep impairment, impairment of short and long term memory, continuous disturbances of motivation, an inability to maintain relationships with immediate relatives and friends, a strained relationship with his wife, angry outburst, and suicidal ideation occurring more than once a month. The Veteran also stated that his inability to maintain effective relationships with co-workers and memory loss were primary reasons for him retiring from his job in November 2012. The Board finds that the Veteran is competent to report his PTSD symptoms and has presented credible statements in this regard. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In this regard, the Veteran is competent to report on factual matters of which he has first-hand knowledge, e.g., experiencing an increased level of PTSD symptomatology. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Based upon the above discussed evidence, the Board finds that the probative evidence of record is at least in equipoise as to whether the Veteran’s PTSD manifests in total occupational and social impairment, due to such symptoms as: persistent delusions or hallucinations occurring daily; panic attacks more than once a week; persistent danger of hurting self; angry outburst; disorientation to time or place; and memory loss for names of close relatives. See 38 C.F.R. § 4.130, Diagnostic Code 9411. The Veteran “need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” Gilbert, 1 Vet. App. 49. Entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. Under the benefit of the doubt doctrine established by Congress, when the evidence is in “relative equipoise, the law dictates that the Veteran prevails.” Id. Resolving all reasonable doubt in favor of the Veteran, the Board finds that entitlement to a 100 percent disability rating is warranted. 2. Entitlement to Special Monthly Compensation Special monthly compensation (SMC) is payable at the housebound rate where the Veteran has a single service-connected disability rated as 100-percent disabling and, in addition: (1) has a service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability, and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). As of May 9, 2013, in addition to the schedular 100 percent evaluation for bilateral hearing loss, service connection was in effect for numerous other service-connected disabilities independently ratable at 60 percent. Accordingly, the Veteran is entitled to SMC at the housebound rate. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), prior to May 4, 2017 The United States Court of Appeals for Veterans Claims (Court) has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994). Thus, if VA has found a Veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. However, a grant of a 100 percent disability does not always render the issue of TDIU moot. VA’s duty to maximize a claimant’s benefits includes consideration of whether his disabilities establishes entitlement to special monthly compensation (SMC) under 38 U.S.C. 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley, 22 Vet. App. at 294. Specifically, SMC payable at the housebound rate may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. See Bradley, 22 Vet. App. 280 (analyzing 38 U.S.C. 1114 (s)); see also 75 Fed. Reg. 11,229 -04 (March 10, 2010) (withdrawing VAOPGCPREC 6-1999). As a result of this decision, the Veteran is granted Special Monthly Compensation (SMC) under 38 U.S.C. 1114(s), effective May 09, 2013, based on his 100 percent schedular rating for PTSD and additional service-connected disabilities that are independently rated at 60 percent or more. Accordingly, the grants of a 100 percent rating for the Veteran’s service-connected PTSD and SMC on account additional disabilities that are independently rated at 60 percent or more render the issue of entitlement to TDIU moot for the period prior to May 4, 2017. Bradley, 22 Vet. App. at 293; see also Buie, 24 Vet. App. 242. Thus, for the period prior to May 4, 2017, to the benefit sought, the appeal of the claim for TDIU is moot and must be dismissed. Sabonis v. Brown, 6 Vet. App. 426 (1994). ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Riordan, Associate Counsel