Citation Nr: 21003874 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 14-06 874 DATE: January 25, 2021 ORDER A 70 percent initial rating for posttraumatic stress disorder, with major depressive disorder and alcohol dependency (hereinafter, “PTSD”), is granted effective January 20, 2012. A higher rating at any time is denied. A TDIU (total disability rating due to individual unemployability) due to PTSD effective January 20, 2012, is granted. Special monthly compensation (SMC) at the “s” rate is granted, effective November 19, 2019. FINDINGS OF FACT 1. The Veteran’s PTSD causes social and occupational impairment with deficiencies in most areas for the entire period on appeal. 2. His PTSD causes unemployability for the entire period on appeal. 3. As of this decision, the Veteran’s PTSD has a total disability rating. His remaining service-connected disabilities combine to 60 percent or higher as of November 19, 2019. CONCLUSIONS OF LAW 1. The criteria are met for a 70 percent rating for PTSD effective from January 20, 2012. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.400, 4.130, DC 9411. 2. The criteria are met for a TDIU effective from January 20, 2012. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 3.400, 4.16. 3. The criteria are met for SMC starting from November 19, 2019. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i); Bradley v. Peake, 22 Vet. App. 280 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1967 to July 1969. This appeal is from a September 2012 rating decision. In August 2015, the Veteran had a personal hearing with the undersigned VLJ. In October 2020, the Board remanded this claim for the issuance of an SSOC, which has occurred. 1. A 70 percent initial rating for PTSD, is granted effective January 20, 2012. A higher rating is denied. The Veteran has appealed for a higher rating, and asserts that his symptoms more closely approximate the criteria for a 100 percent rating. His PTSD is rated as initially 50 percent disabling effective from January 20, 2012, and as 70 percent disabling effective from June 26, 2014, under 38 C.F.R. § 4.130, DC 9411. A 50 percent evaluation is warranted where 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and, difficultly 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; 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 worklike setting); and inability to establish and maintain effective relationships. Id. A 100 percent evaluation requires 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 symptoms listed above serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and are not intended to constitute an exhaustive list. See Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). When evaluating a mental disorder, one must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. See 38 C.F.R. § 4.126 (a). Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. See 38 C.F.R. § 4.126(b). After a review of the record, and in resolving all doubt his favor, the Board finds that a 70 percent rating is warranted for the period prior to June 26, 2014. The Veteran’s PTSD manifested with social and occupational impairment with deficiencies in most areas. The Board notes that the only evidence that shows his symptoms during this time-frame (prior to June 16, 2014) is the August 2012 VA examination. A February 2012 statement contains a few relevant facts regarding his then-current functioning. The August 2012 VA examination shows suicidal ideation, and thereafter it was consistently noted in his treatment records. Suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas, and can support a 70 percent rating. See Bankhead v. Shulkin, 29 Vet. App. 10 (2017). This symptom meets the requirement for a deficiency in the area of thinking. The August 2012 VA examiner opined that the Veteran’s PTSD was a primary cause of his impaired occupational functioning, as he had a history of confrontations with supervisors, and missing work due to his sleep impairment, which further exacerbated relationships with supervisors. His startle reaction was triggered by any loud noise, and caused him to fall from ladders, an activity that he discontinued. The examination report also shows chronic sleep impairment, mild memory loss, difficulty in adapting to stressful circumstances, which would negatively impact his work. The Veteran was noted to leave the house and forget what he left to do. These symptoms more than reasonably meet the requirement for a deficiency in the area of work. The record shows the Veteran is diagnosed with major depressive disorder secondary to his PTSD, which meets the requirement for a deficiency in mood. At the August 2012 VA examination, he was occasionally tearful with a sad affect and depressed mood. In February 2012, he reported that he started drinking again and did not think his marriage would survive that. At the August 2012 VA examination, he reported that she had discussed separating from him because of his symptoms. He also reported that drinking helped him to sleep. The record shows that the Veteran and his wife did briefly separate due to the effect of his symptoms on her life. Although they have been married for over twenty years, the Board finds that the evidence reasonably shows that his symptoms meet the requirement for a deficiency in family relations. Accordingly, based on the above, the Board finds that a 70 percent rating is warranted from January 20, 2012, the effective date of service connection. The Board considered whether a 100 percent rating is warranted at any time during the appeal period, but does not find that the Veteran’s PTSD causes total social and occupational impairment. As discussed in more detail below, the Board does find that his PTSD causes total occupational impairment; however, a 100 percent rating for PTSD requires total social impairment, along with total occupational impairment, which is not shown here. The record shows that he has been consistently oriented to person, place, and time. His thought processes have been coherent and logical. He has not demonstrated any grossly inappropriate behavior. He is generally able to perform his activities of daily living. The record does not show he has been hospitalized for PTSD. Although he has persistent suicidal ideation, he has not taken steps to commit suicide and consistently reports he has no plans to do so as it would hurt his wife. In addition, he has maintained his marriage for over twenty years, including reuniting following a brief separation. The record shows that he has some relationship with his sons, as he has access to their guns (see September 2015 VA treatment record) and they used to fish together (see June 2016 VA examination). Their April 2016 statements describe the Veteran’s difficulties and the impact they had on the family, but do not show or suggest their estrangement from him; rather, their statements attest to their support and understanding of his disability. Indeed, the record shows he lived with one of his sons for a time period during the separation from his wife. The record shows he has a few friends and that he participated in a pool league. In a September 2016 statement, his wife pointed out that he attends this league because it gives him an opportunity to drink, and the June 2014 VA examiner opined that his drinking is a serious problem. However, the record also shows he recognizes that he has a problem, and has taken steps, with various levels of success, to reduce his drinking. His alcohol use was in partial remission at the August 2012 VA examination, and since July 2017, he has reported drinking less frequently. He also noted at the June 2016 VA examination that he drinks responsibly, and does not drink and drive or act inappropriately towards others, which the record upholds. An April 2016 statement from a friend of the family notes the Veteran has punched holes in walls in anger or frustration, but the record does not show that he has been violent towards any people. This statement does not suggest that he punched the holes because of drunken behavior, and it is unclear whether he behaves destructively when drunk, but the record does not otherwise show this. In sum, the Board finds that a 70 percent rating is warranted as the Veteran’s PTSD causes social and occupational impairment with deficiencies in most areas. The Board does not find that he has total social and occupational impairment, and therefore a 100 percent rating is not warranted. The Board notes that the Veteran’s wife’s October 2016 statement suggests that the Veteran has erectile dysfunction that is related to his PTSD. However, she also noted that it was not specifically attributed to his PTSD, and the record does not otherwise show a relationship. The Board finds, to the extent that a secondary service connection claim has been raised, that it does not have jurisdiction over such a claim based on this record. The Veteran is advised to file a claim for service connection if he feels there is a relationship. 2. A TDIU (total disability rating due to individual unemployability) due to PTSD effective January 20, 2012, is granted. When any impairment of mind or body sufficiently renders it impossible for the average person to follow a substantially gainful occupation, that impairment will be found to be causing total disability. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of nonservice-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran’s service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). During the pendency of this claim, the Veteran applied for a TDIU on the basis of his PTSD. Although his claim was received in November 2019, it was received while his appeal for a higher rating for the same disability was pending, and therefore is considered “part and parcel” of his original claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). The AOJ (agency of original jurisdiction) granted TDIU effective from June 26, 2014, the date at which he previously met the schedular requirements for TDIU. As of this decision, he meets the schedular requirements as of January 20, 2012, the effective date of service connection. PTSD was his only service-connected disability prior to November 2019; therefore, his PTSD has already been found to be singularly responsible for the Veteran’s unemployability. The Board reaffirms this finding and finds that his PTSD prevented him from working since January 20, 2012. The record shows that the Veteran was in HVAC back when he worked, he stopped working in 2008. He has a ninth grade education, and specialized training in HVAC systems. Working with such systems requires some physicality, including climbing ladders, and also requires working with and for other people. As discussed above, the August 2012 VA examiner opined that the Veteran’s PTSD symptoms caused his occupational impairment over the years. He reported particular sensitivity to loud sounds, and that his startle response to them caused him to fall off ladders. He also reported difficulties getting along with supervisors, and that he would call off after having gotten drunk or because he had trouble sleeping the night before. His PTSD symptoms specifically cause the Veteran to be irritable, have difficulty concentrating, be hypervigilant, and have difficulty in adapting to stressful circumstances including at work. The record sufficiently shows the Veteran’s PTSD prevented him from performing both the physical and mental activities associated with working in HVAC from the date of his January 20, 2012, claim. Accordingly, the Veteran is awarded a TDIU effective January 20, 2012, because he meets the schedular requirements and his PTSD symptoms precluded work then. 3. SMC at the “s” rate is granted, effective November 19, 2019. The Veteran is in receipt of a TDIU based on his service-connected PTSD. After review of the evidence, the Board finds he is entitled to SMC at the housebound rate starting from November 19, 2019, which is the effective date of service connection for his other disabilities. The Court has held that VA has a “well-established” duty to maximize a Veteran’s benefits. Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). This duty to maximize benefits requires VA to assess all of a Veteran’s disabilities to determine whether any combination of disabilities establishes entitlement SMC under 38 U.S.C. § 1114. See Bradley, 22 Vet. App. 280, 294 (2008) (finding that SMC “benefits are to be accorded when a Veteran becomes eligible without need for a separate claim”). SMC is payable at the “s” rate (also referred to as the “housebound (HB) 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 HB by reason of service-connected disability or disabilities. 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i). A “single service-connected disability rated as total” under 38 U.S.C. § 1114(s) is not limited to cases where a 100 percent rating has been assigned via the application of one or more diagnostic codes in the rating schedule; rather, entitlement to TDIU may serve as the “total” rating for the purposes of SMC at the “s” rate if the TDIU is predicated upon a single disability. Bradley v. Peake, 22 Vet. App. 280 (2009). Aside from his TDIU for his PTSD, the Veteran is also service connected for the following disabilities, but not until November 19, 2019: Diabetes (20 percent), diabetic peripheral neuropathy of the right and left upper extremities (20 percent each), tinnitus (10 percent), diabetic peripheral neuropathy of the sciatic nerve of the right and left lower extremities (10 percent each), diabetic peripheral neuropathy of the femoral nerve of the right and lower extremities (10 percent each). These remaining disabilities, all service connected effective from November 19, 2019, combine to more than 60 percent. Accordingly, as of November 19, 2019, the Veteran has been entitled to SMC at the “s” rate. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Gibson 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.