Citation Nr: 21002431 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 20-13 971 DATE: January 13, 2021 ORDER 1. Entitlement to a disability rating of 70 percent for posttraumatic stress disorder (PTSD), beginning October 14, 2016, is granted. 2. Entitlement to an award of a total disability rating based on individual unemployability (TDIU) due to PTSD, beginning October 14, 2016, is granted. 3 Entitlement to special monthly compensation (SMC) based on housebound status pursuant to 38 U.S.C. § 1114(s) beginning September 18, 2018, is granted. FINDINGS OF FACT 1. For the period beginning October 14, 2016, the Veteran’s PTSD is most closely manifested by psychiatric symptomatology resulting in occupational and social impairment in most areas but not total occupational and social impairment. 2. The evidence is sufficient to show that the Veteran is unable to secure and follow a substantially gainful occupation due to his service-connected PTSD. 3. From September 18, 2018, the Veteran had a service-connected disability rated as total and additional separate and distinct service-connected disability ratable at 60 percent or more. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 70 percent for PTSD, beginning October 14, 2016, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for the award of a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § § 3.102, 3.340, 3.341, 4.16. 3. From September 18, 2018, the criteria for SMC based on housebound status pursuant to 38 U.S.C. § 1114 (s) have been met. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from October 2000 to August 2006 and is a Veteran of the Gulf War Era. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a November 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) which is the agency of original jurisdiction (AOJ). In this rating decision, the RO granted the Veteran service connection for his PTSD (also claimed as anxiety condition and antisocial disorder with cannabis use disorder) and awarded a 70 percent disability rating, effective September 18, 2018. A subsequent rating decision in January 2020 granted the Veteran entitlement to an earlier date for his service-connected PTSD to October 14, 2016, the date he first filed his claim for PTSD (Notice of Intent), at a 50 percent disability level, and changed the effective date for his 70 percent rating from September 18, 2018 to October 10, 2018. This was stated to be the day the evidence first demonstrated that an increased was warranted, which was the date of the VA examination of October 10, 2018. By letter dated April 24, 2020, the Veteran’s representative requested a 90-day extension in which to prepare and submit additional evidence and/or argument in support of this appeal. In a letter dated May 13, 2020, the Board advised the Veteran and his representative that the request for an extension was granted. Additional evidence and argument were received at VA. The 90-day extension period has expired, and the matter returns to the Board for adjudication. 1. Entitlement to an increased disability rating for PTSD. The Veteran seeks a higher initial rating for his PTSD conditions, currently rated at a 50 percent disability rating level, beginning October 14, 2016; and thereafter at a 70 percent rating level effective October 10, 2018. The Veteran is presumed to be seeking the maximum possible evaluation. AB v. Brown, 6 Vet. App. 35 (1993). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in the condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). The Board will also consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” in all claims for increased ratings. Id. The Veteran’s service-connected PTSD is evaluated under the criteria of DC 9411 which provides that such disability is evaluated pursuant to the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. The General Rating Formula provides that a 50 percent rating is warranted 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 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. Id. A 70 percent evaluation is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); and inability to establish and maintain effective relationships. Id. A 100 percent evaluation is assignable where 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); and disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The evaluation under 38 C.F.R. § 4.130 is “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating” under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed.Cir.2013). The symptoms listed are not exhaustive, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas” - i.e., “the regulation... requires an ultimate factual conclusion as to the Veteran’s level of impairment in ‘most areas.’” Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, Diagnostic Code 9411. Additionally, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). Furthermore, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). In evaluating the level of disability, it is also necessary to evaluate such from the point of view of a Veteran working or seeking work. 38 C.F.R. § 4.2. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed or experienced, and which are within the realm of his or her personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159 (a). However, a lay witness is not competent to establish facts or opinions which require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 470 (1994). As is relevant to this case, a Veteran is not competent to either diagnose or make a nexus opinion in psychiatric issues. Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014) (holding that “PTSD is not the type of medical condition that lay evidence... is competent and sufficient to identify”). Therefore, “VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to.” Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Relevant Evidence of Record and Analysis In March 2020, VA received lay “buddy” statements from the Veteran’s father, J.S., his fiancé, R.R., and D.C., his previous manager at his last job. D.C. stated that the Veteran worked for him from February to August 2018, only 30 hours per week part time, and that during that time he watched the Veteran struggle both physically and mentally. He noted that the Veteran gets flustered quickly, that if he gets too much put on him, he gets flustered an does not know what to do next. The Veteran seemed to push to get his tasks done quickly, but would miss details, and he would have to go back and fix things. He would noticeably fixating on a single task when he had several to accomplish. The Veteran was noted to overwork himself which exacerbated other physical disabilities, including his back, for which he would not return to work the next day. Other injuries to his neck and back also caused him limitation. The Veteran was noted to not handle upset customers very well, not that he would get angry with them, but the interactions would become award, in that his eyes would remain wide open and he would just keep talking, not knowing when to stop. D.C. would have to intervene. The Veteran was also stated to not tolerate “crap,” that he did not interact with people well, and did not have patience to deal with upset customers. D.C. stated that sometimes he would have to force the Veteran to go home and he pushed himself “too far’ and was struggling. Eventually the Veteran quit, due to his disabilities. The Veteran’s fiancé, R.R., stated that she has known the Veteran for about three years, and that both his physical and mental disabilities have been difficult for the Veteran socially, physically, in his ability to function and perform daily tasks, all of which have impacted his ability to work. She noted his problems with his back, legs, and feet conditions, the pain from which limits his ability to stand or walk for periods of 15 minutes of more. These conditions and his pain impact his ability to drive and sleep. She noted that he does not get much sleep, due to the pain, that it takes him a long time to fall asleep, and due to his frequent, nightly, nightmares and cold sweats from which he wakes up in a panic. He sometimes takes naps, but usually he stays exhausted which makes him foggy most days. She also noted that he is paranoid, that every interaction with someone is a negative situation, he has difficulty controlling his emotions, and he needs to be in control of things. He has lots of social anxiety, has very few friends, and avoids events and functions to avoid anything negative happening. He has panic attacks which cause him to shut down and self-isolate. When he gets overwhelmed, he either shuts down or overreacts, after which he again isolates himself. The Veteran’s father, J.S., described the Veteran’s long-standing difficulties which have impacted his ability to work since he left the military. This includes his physical disabilities and limitation, as well as his psychological conditions, including anxiety, short temper, difficulty being around others, adverse reactions to noises, and self-isolation. All of these difficulties have greatly impacted the Veteran since he left the military. The Veteran’s private psychologist, H.H., PhD., submitted a VA Disability Benefits Questionnaire (DBQ), dated February 27, 2020, with an attached summary statement, and several medical articles, mostly related to PTSD and employability issues. In her summary of his activities of daily living she records the Veteran as being socially isolated and withdrawn, stating “I can’t stand people.” He described near-continuous panic or depression affecting his ability to function effectively, and difficulty establishing and maintaining relationships and difficulty adapting to stressful circumstances including work. She believes his PTSD, cannabis use disorder, and social impairment are emotionally debilitating. She noted that his symptoms have an impact on his day-to-day functioning and that he has had approximately 15 jobs since his military discharge. She asserts the DSM affirms that individuals with this symptomology typically have few friends and inability to keep a job. Dr. H.H. opined that the Veteran cannot sustain the stress from a competitive work environment or be expected to engage in gainful activity due to his PTSD and cannabis use disorder. She noted that the Veteran lives with his fiancé and that they are in a significant relationship. She also noted that the Veteran handles the household finances. In his Application for Increased Compensation Based on Unemployability, VA Form 21-8940, TDIU, filed March 2020, the Veteran states that his last employer was a McDonalds in North Carolina, where he worked in maintenance from July 2016 to August 2016. The information from McDonald’s stated that the Veteran quit without notice. Elsewhere in the record the Veteran states that he quit so that he could move to Colorado to live with a friend. He also stated that he lived in a tent on the friend’s property. In his December 5, 2016 VA psychological evaluation, the examiner noted in the occupational history section that the Veteran stated he worked 15 jobs since his discharge, that he last worked Aug 2016 but left because he moved to Colorado where his buddy lived so he could save to pay for child support bills. He also stated that he was homeless often, he does not do well being alone, and he tried to kill himself adding “There are things that I know that you can’t know because you don’t have the background for it.” The Veteran also reported that he was seen was at a private facility and did not disclose any information to the staff there because he did not feel they had the security clearance necessary to discuss his experiences from service In a November 7, 2016 VA Homeless program note, the Veteran reported that since his discharge from the military his primarily work was in warehousing and construction, though he states he would like to go back to school and get a business management degree. The Veteran stated he has had difficulty with employment “due to my PTSD”, stating if he gets angry, he just won’t go back to work. The Veteran reports he then did not have any real income and that he was receiving small amounts of cash for some projects on the ranch where he is camping. Elsewhere he stated that he was living off funds he received through the GI Bill. As initially noted in his October 2018 VA psychological evaluation, the Veteran currently lives in Maine with his fiancé of then three years, R.R., along with her son and two of his own children. The Veteran was noted to have earned his GED, and that he attended some college but never earned his degree. He worked at O’Reilly’s until August 2018 when he “left for medical reasons” - not stated to be psychological disabilities. Analysis Based on the record before it, the Board finds that the Veteran is entitled to an initial disability rating of 70 percent disabling, due to the severity, frequency, and duration of his PTSD and related symptoms being most closely indicative of occupational and social impairment with deficiencies in most areas. See 38 C.F.R. § 4.130, DC 9411. This rating is applicable during the entire appeal period. The Board finds significant that the Veteran had at least 15 different jobs in the approximately 10 years from his discharge from the military in August 2006, to his quitting his job at McDonalds’ in August 2016. He also attended college for a period. While he states that he also suffered problems due to his other service connected disabilities, from his back, legs, and feet, the disabilities which actually impacted whether the Veteran would continue to show up for work, or impacted his ability to do his work with or without assistance from other workers, and his interactions with customers and his family, were his psychological symptoms. These include his paranoia, inability and difficulty dealing with other people, including customers, his daily nightmares and cold sweats which prevent him from getting required sleep, his extreme effort to get his job done which exacerbated his physical disabilities, and the resulting cognitive impairments, along with his grossly inappropriate behavior of stare wide eyed and talking non-stop when dealing with upset customers, which can be stated as illogical, obscure, or irrelevant speech. The Veteran exhibited an obsessive like effort to do things right at his work, on his own, including his fixation on a single task assigned, which he would then continue to the point of exhaustion or staying past his work shift, requiring his manager to intervene. He displayed sever self-isolation to the point of failing to help himself or which adversely impacted his relationships at home and work. The Veteran experienced several periods of homelessness as well, due to lack of money. The Veteran abruptly quit his job at McDonalds to move to Colorado to live on a friend’s property. Much of this information was not before the VA examiners and only brought before the Board in the 2020 “Buddy” statements and his private psychologist. Their statements are not inconsistent with the remainder of the record. In 2017 the Veteran moved to Maine with his fiancé, finding substantially gainful employment where he worked for six months until his own decision to leave. The Veteran’s manager at this job, D.C., submitted a written statement, which is described above, where he indicates that the Veteran did have considerable difficulty at his job due to his psychological, PTSD, symptoms, but he did perform his duties with D.C.’s help and assistance, until the Veteran decided to quit. The opinions of the Veteran’s private psychologist, Dr. H.H., that he cannot sustain the stress from a competitive work environment or be expected to engage in gainful activity due to his PTSD and cannabis use disorder, are countered by the remainder of the record and, significantly, the statements of D.C. with whom the Veteran actually worked. The Board finds D.C.’s statements concerning the Veteran’s occupational capabilities to be more probative than those of Dr. H.H., who did not actually observe the Veteran in the work environment. Concerning the social impairment aspect of his PTSD symptoms, the evidence shows that the Veteran started what turned out to be a significant relationship with his fiancé sometime in 2017 (his March 2020 VA examiner noted he had been in that relationship for 3 years). But even before that, in November 2016 he reported that he had a good relationship with his ex-wife. He also reported at least one friend that he is close enough to let him stay with him when he was between jobs and in a semi-homeless situation (the record is unclear whether the Veteran was staying in the friend’s house or in a tent outside, but it was still with a friend). The Veteran also was in frequent contact with his father and one brother and his sister as well as some other acquaintances. Though having difficulty, the Veteran has shown he is able to maintain some effective social relationships with his fiancé and their children, his father, and a few others. Dr. H.H. also indicated that even though these symptoms are emotionally debilitating, she found him to have significant, but not total, social impairment. The frequency, duration, and severity of his symptoms during this period more closely equate is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, which is the criteria for a 70 percent disability rating. This is the same level of severity which both the VA examiner and his private psychologist ascribed. See Private PTSD DBQ, Dr. H.H., February 27, 2020, Section IV, page 2. The Veteran is not entitled to a higher 100 percent rating as he has not exhibited total occupational and social impairment. This Veteran has shown a consistently ability to maintain some productive relationships with significant others, family members, and at least one friend throughout the appeal. While the Veteran clearly shows significant social impairment, it’s not total social impairment. In reaching these conclusions, the Board has considered and applied the benefit of the doubt doctrine where the evidence indicated this was appropriate. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Accordingly, the Board grants the Veteran’s claim for a higher initial disability rating for PTSD, awarding a 70 percent disabling rating, but no higher, beginning October 14, 2016. 2. Entitlement to an award of a total disability rating based on individual unemployability (TDIU) The Veteran claims that he is entitled to the award of TDIU. Based on various service-connected disabilities, the Veteran has been found to be 100 percent disabled on a combined schedular basis, effective September 18, 2018. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is unable, by reason of their service-connected disability or disabilities, to secure or follow a substantially gainful occupation consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The grant of a TDIU is essentially an award of increased disability compensation. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Generally, a claim for TDIU is moot where a 100 percent schedular rating was awarded for the same period. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). However, in certain limited circumstances a 100 percent combined schedular disability rating does not render the issue of TDIU moot. VA’s duty to maximize a Veteran’s benefits, where appropriate, includes consideration of whether his disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114(s). See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Entitlement to SMC under 38 U.S.C. § 1114(s) may be warranted if the Veteran has a single service-connected disability rated at 100 percent and has an additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability. (Emphasis added). For 38 U.S.C. § 1114(s) purposes, entitlement to TDIU for a single disability constitutes a 100 percent rating for a single service-connected disability. See Bradley, 22 Vet. App. at 292, 294, see contra, Buie, 24 Vet. App. at 243 (“a total disability rating based on individual unemployability that is based on more than one underlying disability does not satisfy the first requirement of section 1114(s) that a claimant have ‘a service-connected disability rated as total.’”). Thus, the Board must review the Veteran’s claim for TDIU over the entire appeal period, including the periods where he is already rated 100 percent disabling. After review of the applicable record, and based on the evidence and analysis stated above, the Board finds that the Veteran is entitled to a finding of TDIU due to his PTSD symptoms and their impact on his ability to obtain and maintain substantially gainful employment. Given the Veteran’s early difficulties with employment, as shown in his long work history of numerous manual labor type jobs; his numerous periods of homelessness due to him being out of work or not having enough money; and the particular difficulties he had at his most recent job in Maine, described by his manager D.C., to be primarily due to difficulties from his PTSD symptoms, the Board finds that the Veteran is entitled to this TDIU due to his PTSD, for the entire appeal period, beginning October 14, 2016. Entitlement to TDIU beginning October 14, 2016, for the entire appeal period is granted. 3. Entitlement to SMC. From October 14, 2016, the Veteran is now in receipt of a TDIU. The Board has determined that the TDIU was awarded on the basis of the Veteran’s service-connected PTSD only. The Court has held that a 100 percent schedular rating does not necessarily render the issue of entitlement to a TDIU moot, as the TDIU could in certain circumstances render the Veteran eligible for SMC benefits pursuant to 38 U.S.C. § 1114(s). See Buie v. Shinseki, 24 Vet. App. 242 (2010); Bradley v. Peake, 22 Vet. App. 280 (2008). In this particular case, the Veteran is additionally service connected for numerous disabilities. From September 18, 2018, the Veteran’s disabilities other than PTSD include right upper extremity peripheral neuropathy (rated 40 percent), irritable bowel syndrome (rated 30 percent), left upper extremity peripheral neuropathy (rated 30 percent), lumbar spondylosis (rated 10 percent), tinnitus (rated 10 percent), bilateral lower extremity sciatic nerve radiculopathy (rated 10 percent each), bilateral lower extremity femoral radiculopathy (rated 10 percent each), degenerative arthritis of the cervical spine and (rated 10 percent). These disabilities when combined together are rated at least 60 percent. During this period starting September 18, 2018, the Veteran now has a single disability, TDIU on the basis of PTSD only, rated as 100 percent and an additional separate and distinct service-connected disabilities, rated at least 60 percent disabling. The Veteran now meets the statutory criteria for SMC pursuant to 38 U.S.C. § 1114 (s) from September 18, 2018. Entitlement to SMC pursuant to 38 U.S.C. § 1114 (s) is now warranted from September 18, 2018. Prior to that time, the Veteran was only rated a combined 50 percent disabling for the disabilities other than PTSD. Therefore, he was not entitled to SMC pursuant to U.S.C. § 1114 (s) prior to September 18, 2018. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Bannach, 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.