Citation Nr: 19133580 Decision Date: 05/01/19 Archive Date: 04/30/19 DOCKET NO. 18-04 071 DATE: May 1, 2019 ORDER Entitlement to an initial 100 percent rating for posttraumatic stress disorder (PTSD) with major depressive disorder (MDD) is granted for the entire appeal period, subject to controlling regulations governing the payment of monetary awards. Entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114(s) is granted, subject to controlling regulations governing the payment of monetary awards. FINDING OF FACT 1. The evidence is at least evenly balanced as to whether the symptoms and overall impairment caused by the Veteran’s service-connected PTSD with MDD have more nearly approximated total occupational and social impairment. 2. The Veteran’s service connected PTSD with MDD is now rated at 100 percent and the Veteran’s additional service-connected disabilities combine to be ratable at 60 percent or more. CONCLUSION OF LAW 1. The criteria for an initial rating of 100 percent for the Veteran’s service-connected PTSD have been met throughout the appeal period. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Codes (DCs) 9434-9411. 2. The criteria for SMC under 38 U.S.C. § 1114 (s) are met. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from January 1998 to December 2004. This case comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision which granted service connection for MDD and assigned a 50 percent disability rating. This disability was subsequently recharacterized as PTSD with MDD. The Veteran filed a notice of disagreement (NOD) in February 2016. The Veteran was issued a statement of the case (SOC) in November 2017, and, in January 2018, the Veteran timely filed her substantive appeal to the Board (via VA Form 9). A supplemental SOC (SSOC) was issued in April 2018. Higher Initial Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran’s service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, 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. The Veteran’s PTSD with MDD is rated pursuant to 38 C.F.R. § 4.130, DCs 9434-9411. These psychiatric disorders are rated under the general rating formula for mental disorders. Under this formula, a 50 percent rating is warranted for 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relationships, judgment, thinking, or mood, due to such symptoms as: 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 and 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); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted for 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; memory loss for names of close relatives, own occupation, or own name. Id. When determining the appropriate disability rating to assign, the Board’s primary consideration is the Veteran’s symptoms, but it must also make findings as to how those symptoms impact the veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula 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 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. The Court recently reiterated, “VA must engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran’s service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment.” Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). The Veteran contends that a 100 percent rating for her PTSD is warranted. For the following reasons, the Board agrees. The Veteran reported to her September 2015 VA examiner that her relationship with her husband is not good, she gets along with her two children “okay” while she rolled her eyes, she has no friends or social life, and when asked what she does for fun she replied “sleep.” The Veteran also noted suicidal ideation about once or twice a month, she becomes violent when angry and breaks property, a loss of appetite, depression, anxiety, suspiciousness, flattened affect, and she no longer talks to her friends or attends her children’s sports activities. In a February 2016 lay statement, the Veteran’s husband noted that her depression had taken her to a “black hole” where she often wishes she was dead, has major outbursts and feels separated and lonely. He described the Veteran’s economic inadaptability, noting that she cannot fit a job into her life due to her depression and has not worked since 2009. In a February 2016 psychiatric consultation, the Veteran reported continued depressed mood with associated irritability, a decrease in concentration, energy, interest in doing things and self-motivation, some anxiety and suicidal ideation while noting that her husband and children are strong protective factors. The Veteran noted in a December 2016 statement that she is depressed 90 percent of the time, suffers from panic attacks when she thinks of her military sexual trauma, has frequent nightmares that take her back to the triggering event, spends weeks at a time not leaving her house, is numb and lost the feeling of love, and avoids going back to work as much as she can. Accordingly, she described her symptoms as constant nightmares and flashbacks, severe episodes of depression, multiple panic attacks during the week, severe social anxiety and trust, homicidal and suicidal thoughts during depression and anxiety stages, no self-worth, and frequent avoidance from the public. Subsequent lay statements from her sister and brother-in-law also support this symptomatology. A May 2017 VA examiner indicated depressed mood, anxiety, chronic sleep impairment, flattened affect, difficulty establishing work and social relationships and suicidal ideation, while also reporting that the Veteran has no friends and does not socialize with anybody. The Veteran noted in her January 2018 substantive appeal that her depression causes her to have suicidal ideation and social impairment in every aspect of her life, lack of sleep, poor family relationships and distrust, social paranoia, unprovoked irritability with violence towards her family, lack of hygiene, severe memory loss, frequent disorientation, numbness and constant visions and hallucinations of her in-service sexual trauma. Lastly, a February 2018 VA examiner reported that the Veteran did not belong to any clubs, organizations or churches, had no close friends or social network and had no hobbies. Further, the Veteran was withdrawn and isolated, struggled with concentration, suffered from suicidal ideation, was constantly overwhelmed and paranoid, and is dealing with fractured family relationships. The above evidence reflects that the Veteran has had symptoms listed in the criteria for both 70 and 100 percent ratings for the entire appeal period and that she has chronic suicidal ideation, puts herself and others in persistent danger of physical harm, experiences disorientation to place, suffers from severe memory loss, has barely any social or familial relationships suffers from frequent irritability and paranoia, and cannot work due to her psychiatric symptoms. The evidence is thus at least evenly balanced as to whether the symptoms and overall impairment more nearly approximate the total occupational and social impairment in the criteria for a 100 percent rating. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to an initial 100 percent rating for PTSD is warranted for the entire appeal period. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Considering the Veteran is seeking a 100 percent disability rating, and this is the maximum schedular rating, the Board considers the benefit sought granted in full. Cf. Colayong v. West, 12 Vet. App. 524, 537 (1999) (“Hence, on remand the Board is required to address an extraschedular rating for the veteran’s service-connected Pott’s disease if it is not rated 100% as a schedular matter”) (emphasis added). Special Monthly Compensation under 38 C.F.R. § 1114 (s) Under 38 U.S.C. § 1114 (s), SMC is payable at the housebound rate if a veteran has a single service-connected disability rated as 100 percent and either of the following are met: (1) there is 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; or (2) she is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. 1114 (s). The Veteran is service connected for the following disabilities: herpes (noncompensable from September 27, 2016, 60 percent from April 26, 2018), migraine headaches (50 percent), PTSD (100 percent), bilateral shin splints (10 percent each), aphthous stomatitis (noncompensable), female sexual arousal disorder (noncompensable), and acne vulgaris (noncompensable). SMC benefits “are to be accorded when a veteran becomes eligible, without need for a separate claim.” Bradley v. Peake, 22 Vet. App. 280, 294 (2008) (citing Akles v. Derwinski, 1 Vet. App. 118, 121 (1991)). In other words, SMC is not “a wholly different benefit” but an issue within a claim for an increased or higher initial disability evaluation. In this case, the issue of entitlement to a 100 percent rating for PTSD is before the Board. Consequently, the issue of entitlement to SMC under 38 U.S.C. § 1114(s) is before the Board. (Continued on the next page)   As shown above, the Veteran is in receipt of a 100 percent rating for her service-connected PTSD, which meets the criteria for a single service-connected disability rated as totally disabling for § 1114 (s) purposes. In addition, the Veteran’s other ratings combine to exceed 60 percent. Because the Veteran has a single service-connected disability rated as totally disabling for § 1114 (s) purposes and additional service-connected disabilities ratable at 60 percent or more, the criteria for entitlement to SMC under 38 C.F.R. § 1114 (s) are met. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD JR Cummings, 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.