Citation Nr: 19169587 Decision Date: 09/10/19 Archive Date: 09/09/19 DOCKET NO. 15-27 119A DATE: September 10, 2019 ORDER From December 30, 2011, an initial rating of 70 percent, but no higher, for posttraumatic stress disorder with depressive disorder not otherwise specified (PTSD) prior to the Veteran’s death is granted. From December 30, 2011, an initial rating of 60 percent, but no higher, for coronary artery disease (CAD) prior to the Veteran’s death is granted. From December 30, 2011, a total disability rating due to individual unemployability (TDIU) prior to the Veteran’s death is granted. From December 30, 2011, special monthly compensation (SMC) at the housebound rate prior to the Veteran’s death is granted. FINDINGS OF FACT 1. From December 30, 2011, the Veteran’s PTSD prior to his death was manifested by symptoms that more closely approximated occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. 2. From December 30, 2011, the Veteran’s CAD prior to his death was manifested by limitations that more closely approximated a workload of greater than three METs but not greater than five METs resulting in dyspnea and fatigue, or left ventricular dysfunction with an ejection fraction of 30 to 50 percent; but not chronic congestive heart failure, a workload of three or fewer METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction of less than 30 percent. 3. From December 30, 2011, the Veteran’s PTSD prior to his death precluded him from securing or following a substantially gainful occupation. 4. From December 30, 2011, the Veteran had additional service-connected disability or disabilities prior to his death that were independently ratable at 60 percent, separate and distinct from his total rating for PTSD. CONCLUSIONS OF LAW 1. From December 30, 2011, the criteria for an initial rating of 70 percent, but no higher, for PTSD prior to the Veteran’s death are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. 2. From December 30, 2011, the criteria for an initial rating of 60 percent, but no higher, for CAD prior to the Veteran’s death are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.104, DC 7005. 3. From December 30, 2011, the criteria for a TDIU prior to the Veteran’s death are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. 4. From December 30, 2011, the criteria for SMC at the housebound rate prior to the Veteran’s death are met. 38 U.S.C. § 1114; 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from December 1965 to December 1967, including service in the Republic of Vietnam for which he was awarded the Purple Heart, Bronze Star Medal, and Combat Infantryman Badge. He died in February 2018. The appellant is his surviving spouse, and she has been substituted for the Veteran for purposes of processing his claims pending at the time of his death to completion. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Board dismissed certain issues on appeal and remanded for additional development the issues of entitlement to a TDIU, entitlement to an increased initial rating for PTSD, and entitlement to an increased initial rating for CAD. The issue of SMC at the housebound rate is raised by the record and is part and parcel of the increased rating claims on appeal. The Board acknowledges the appellant’s May 2019 Notice of Disagreement (NOD) with the June 2018 rating decision that denied service connection for the cause of the Veteran’s death. That issue is not presently before the Board and thus it will not be addressed in this decision. 1. From December 30, 2011, an initial rating of 70 percent, but no higher, for PTSD prior to the Veteran’s death is granted. Through her attorney, the appellant asserts that an initial 70 percent rating is warranted for the Veteran’s PTSD from the date of service connection until his death. The Board agrees. Prior to his death, the Veteran was in receipt of an initial 30 percent rating prior to November 16, 2016, and a 50 percent rating thereafter. This appeal arose from his disagreement with his initial rating for PTSD, and thus the period on appeal is from December 30, 2011, the effective date of service connection for PTSD. The Veteran reported for an initial VA psychiatric examination in November 2012. He reported occasional suicidal thoughts and feeling anxious, nervous, tense, and “on edge” most days. He reported vivid flashbacks of Vietnam with olfactory hallucinations and derealization, as well as longstanding hypervigilance and feeling detached and disconnected since witnessing the combat death of his close friend in Vietnam. The Veteran also reported hyperarousal symptoms, such as sleep disturbances, restlessness, irritability, and agitation, and noted that prior to his retirement he was a “workaholic” and would voluntarily put in 60-hour weeks at his job as a meat cutter despite only being paid for 40 hours. The examiner noted that the Veteran’s PTSD symptoms had recently worsened significantly, likely as a result of retirement. See November 2012 Psychiatric Examination Report. The Veteran’s VA social work and mental health treatment notes show that in January 2014, he reported active suicidal ideation with a plan and stated that he kept his gun beside his bed and did not want a gun lock because he needed it available for protection. He refused to discuss his plan with a VA psychiatrist or consider inpatient treatment and stated that the reason he had not killed himself was because of the effects that it would have on his family. See January 21, 2014 VA Treatment Notes. At a November 2016 psychiatric examination, the examiner noted the Veteran’s numerous depressive and PTSD symptoms, including loss of motivation to complete activities of daily living, difficulty in adapting to stressful circumstances including work or a work like setting, and “vague suicidal ideation with a cogent plan.” See November 2016 Psychiatric Examination Report. A November 2017 treatment note indicates that the Veteran had not been seen by mental health since December 2016 and he was “very depressed” and also feeling numb, had resumed drinking liquor and was also taking narcotic pain medication, and stated that his wife had hidden his gun due to her fear that he would shoot himself. See November 28, 2017 VA Treatment Note. In December 2018, the appellant submitted a report from Dr. M.C., a psychiatrist, based on a review of the case file. Dr. M.C. discussed the Veteran’s mental health history in detail, including his examination reports and treatment notes since December 2011. Dr. M.C. opined that the Veteran’s PTSD symptoms were far more severe than acknowledged by VA examiners. He explained that the Veteran used alcohol and extensive work hours as mechanisms to mitigate the emotional disarray caused by his PTSD, but these were no longer available after he became sober in 1999 and retired in 2009, and as a result he was “severely impaired” due to suicidal ideation, social isolation, and an inability to engage in reasonable interpersonal interactions including unprovoked anger and panic attacks. See December 2018 Dr. M.C. Opinion. The Board finds that throughout the appeal, the Veteran’s PTSD prior to his death more closely approximated occupational and social impairment with deficiencies in most areas, due to symptoms such as suicidal ideation and difficulty in adapting to stressful circumstances (including work or a worklike environment). The Board acknowledges that the December 2012 and November 2016 examiners opined that the Veteran’s PTSD was productive of impairment best described as occupational and social impairment with occasional decrease and work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. However, the Board finds that the most probative evidence of record is the report of Dr. M.C., in which he described the Veteran’s severe impairment due to his PTSD symptoms with deficiencies in areas such as social interaction, healthy work habits, mood, and motivation. In this regard, the Board finds that Dr. M.C.’s conclusion is based on an integration of the Veteran’s own credibly self-reported symptoms together with his service history, post-service work history, and the symptoms reported by the Veteran’s wife, while the other examiners of record provided a summary opinion as to the Veteran’s occupational and social impairment based on a recitation of symptoms with no rationale tying these symptoms to the examiners’ conclusions. Moreover, the Board finds that Dr. M.C.’s opinion better matches the severity of the recurrent passive suicidal ideation, with periods of active suicidal ideation with a plan, that the Veteran credibly reported throughout the appeal. See Bankhead v. Shulkin, 29 Vet. App. 10 (2017) (explaining that passive suicidal ideation alone, without active suicidal ideation or plan, can support a rating of 70 percent for a psychiatric disability). The Board acknowledges that the Veteran’s documented symptomatology worsened in severity during the appeal. However, the record does not support a total schedular rating for PTSD, as the evidence does not show that he experienced total occupational and social impairment. Indeed, the appellant and her attorney do not argue otherwise. Thus, an initial 70 percent rating for PTSD, but no higher, is warranted throughout the appeal prior to the Veteran’s death. 2. From December 30, 2011, an initial rating of 60 percent, but no higher, for CAD prior to the Veteran’s death is granted. The appellant asserts that an initial 60 percent rating for CAD prior to the Veteran’s death is warranted. The Board agrees. Prior to his death, the Veteran was in receipt of an initial 30 percent rating for CAD prior to November 16, 2016, and a rating of 60 percent thereafter. This appeal arose from his disagreement with his initial rating for CAD, and thus the period on appeal is from December 30, 2011, the effective date of service connection for CAD. The appellant’s attorney does not assert that a rating in excess of 60 percent for CAD is warranted at any time during the appeal. See December 2018 Appellate Brief. The Board agrees that a schedular 100 percent rating for CAD is not supported by the record, and thus will discuss whether an initial 60 percent rating for CAD is warranted. The Veteran presented for heart condition examinations in November 2012 and November 2016. The November 2012 examiner stated that the Veteran’s left ventricular ejection fraction (LVEF) was observed to be 52% per a June 18, 2012 echocardiogram (EKG) by Dr. R.F. See November 2012 VA Heart Condition Examination Report. However, the Board observes that in addition to the June 18, 2012 EKG, a June 14, 2012 echocardiogram by Dr. R.F. observed an LVEF of 49%. See June 14, 2012 Dr. R.F. Cardiac Report. These two EKG findings were taken only four days apart and only differ by a few percentage points. However, the 49% LVEF warrants an initial 60 percent rating, while the 52% LVEF warrants an initial 30 percent rating. The record does not show that one reading or the other is more probative or more accurately reflects the severity of the Veteran’s CAD in November 2012. Moreover, the record does not indicate that the Veteran’s LVEF at that time did not accurately reflect the severity of his CAD. Thus, the Board resolves any reasonable doubt with respect to this issue in the appellant’s favor and will apply the rating criteria to the more favorable LVEF, which warrants an initial 60 percent rating under DC 7005. The Board acknowledges that the Veteran’s 60 percent rating from November 16, 2016 was awarded pursuant to interview-based metabolic equivalent testing (METs) by the November 2016 examiner, and that examiner opined that interview based METs testing was a more accurate measure of his CAD severity that LVEF. See November 2016 Heart Condition Examination Report. However, this does not weigh against an initial rating of 60 percent based on LVEF, as the November 2016 examiner’s opinion is based on his assessment of how accurately the Veteran’s then-current metrics reflected the severity of his disability at that time. Thus, they do not necessarily weigh in favor of finding that METs more accurately reflected the severity of the Veteran’s CAD in November 2012. Thus, prior to the Veteran’s death an initial 60 percent rating, but no higher, for CAD is warranted. 3. From December 30, 2011, a TDIU prior to the Veteran’s death is granted. The appellant asserts that the Veteran’s PTSD prevented him from securing or following a substantially gainful occupation. See December 2018 Appellate Brief at 4. The Board agrees. Where the evidence does not support the award of a total disability rating under the criteria in the Rating Schedule, a veteran may be entitled to a TDIU. As the Board has awarded the Veteran an initial 70 percent rating for his PTSD and an initial 60 percent rating for his CAD, he meets the rating criteria for a schedular TDIU. As the appellant’s attorney argues that the Veteran’s PTSD alone precluded substantially gainful employment throughout the appeal, the Board will focus on the impairment caused by this disability. The Veteran retired in 2009. See December 2018 VA Form 21-8940. He had a high school education and worked as a meat cutter. Id. While the Veteran retired due to reaching an eligible age, the evidence shows that after he retired his PTSD symptoms worsened significantly. See November 2012 VA Psychiatric Examination Report. Thus, the reason for his retirement does not weigh against his claim. Initially, the Board finds that the most probative evidence of record regarding the effects of the Veteran’s PTSD symptoms on his ability to secure or follow a substantially gainful occupation is the December 2018 opinion of Dr. M.C. In this regard, the November 2012 and November 2016 examiners did not describe how the Veteran’s PTSD symptoms would impact his ability to work. In contrast, Dr. M.C. explained that the Veteran’s symptoms of suicidal ideation, hopelessness, helplessness, and despair are not consistent with functioning in any modern occupational setting. See December 2018 Dr. M.C. Report at 8. Moreover, Dr. M.C. explained that the Veteran’s inability to appropriately manage interpersonal reactions or respond to stressful work interactions would be an anathema to the Veteran and preclude his functioning in an occupational setting. Id. Dr. M.C.’s opinion is probative, and there is no probative evidence to the contrary. In this regard, the Board acknowledges that the Veteran sold peanuts at the flea market on some Sundays following his retirement. See, e.g., December 20, 2016 VA Treatment Note. However, a few hours of work one day a week of self supervised marginal employment does not preclude the award of a TDIU or demonstrate that the Veteran was able to secure and follow a substantially gainful occupation. Thus, the Board finds that prior to the Veteran’s death, his PTSD precluded substantially gainful employment since December 30, 2011, and he is entitled to a TDIU from that date. 4. From December 30, 2011, SMC at the housebound rate prior to the Veteran’s death is granted. Although the issue of entitlement to SMC at the housebound rate was not claimed, that issue is part and parcel of the increased rating claim on appeal, is raised by the record, and VA has a well-established duty to maximize a claimant’s benefits. One of the instances where SMC at the housebound rate is payable is when a veteran has a single service-connected disability rated as 100 percent disabling and has additional 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. For this purpose, a TDIU may satisfy the requirement for a single disability rated at 100 percent. Prior to his death, the Veteran was in receipt of a TDIU for PTSD alone from December 30, 2011, and he was also in receipt of an initial 60 percent rating for CAD from that date. Accordingly, SMC at the housebound rate prior to the Veteran’s death is warranted from December 30, 2011. E. Blowers Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.M. Badaczewski, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.