Citation Nr: 21004016 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 10-17 911 DATE: January 25, 2021 ORDER Entitlement to an initial rating of 70 percent for posttraumatic stress disorder (PTSD) is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. Entitlement to special monthly compensation (SMC) based on statutory housebound status under 38 U.S.C. § 1114(s) for the period beginning March 8, 2018, and no earlier, is granted. FINDINGS OF FACT 1. For the entire appeal period, the severity, frequency, and duration of the Veteran’s PTSD symptoms were productive of occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking and mood, but was not manifested by total social and occupational impairment. 2. The Veteran’s PTSD precludes him from securing substantially gainful employment. 3. From March 8, 2018, the Veteran’s service-connected PTSD alone supported entitlement to TDIU, and he had additional service-connected disabilities independently ratable as at least 60 percent disabling. CONCLUSIONS OF LAW 1. The criteria for a 70 percent rating for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2019). 2. The criteria for entitlement to TDIU have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18 (2019). 3. From March 8, 2018, the criteria for SMC at the housebound rate were met. 38 U.S.C. §§ 1114(s), 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.350 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from November 1971 to November 1973. This matter was initially before the Board in September 2017, where it was remanded for additional development. Specifically, the Board determined that the Veteran’s Social Security Administration (SSA) records were necessary to adjudicate his claims. Additionally, the Veteran’s TDIU claim was inextricably intertwined with his remanded claims. The Veteran’s case returned to the Board in April 2019, where it was remanded again for additional development. The Board determined that the Veteran should be afforded an examination to assess the current severity of his service-connected PTSD. Further, his TDIU claim was inextricably intertwined with his increased rating for PTSD claim. Such development has been completed and the matter is once again before the Board for further appellate review. 1. Evaluation of PTSD The Veteran asserts that his PTSD symptomatology warrants a higher rating. 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 percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability is resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The Veteran submitted his claim of entitlement to service connection for PTSD in July 2010. The disability is currently evaluated as 50 percent disabling, effective July 27, 2010, under 38 C.F.R. § 4.130, Code 9411. All acquired psychiatric disorders, with the exception of eating disorders, are evaluated under the General Rating Formula for Mental Disorders. Under VA’s General Rating Formula, a 50 percent rating is assigned 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; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Code 9411. A 70 percent rating is warranted for 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 an 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 total schedular rating of 100 percent 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. Turning to the evidence, the Veteran was afforded a VA examination in September 2011. The Veteran was diagnosed with PTSD with recurrent major depression and alcohol abuse. The examiner noted that in the absence of alcohol abuse, he will remain manifesting PTSD along with major depression. He reported having issues with anger, irritability, and concentration. The Veteran’s symptoms consisted of depressed mood, anxiety, flattened affect, nightmares and sleep disturbances, disturbances of motivation and mood, and difficulty establishing/maintaining effective work and social relationships. The examiner opined that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The examiner also stated that the effects of the Veteran’s “PTSD symptoms on social and occupational functioning have been moderately severe.” He added, the “Veteran has difficulties relating to others and has tendencies for social isolation.” The Veteran was afforded a second examination in August 2013. The Veteran was diagnosed with PTSD and major depression. He reported hypervigilance, depressed mood, startled responses, and sleep disturbance with nightmares. The examiner noted that “despite medication and continuous therapy, the Veteran's symptoms of his PTSD and depression have remained stable across his mental health visits.” The Veteran’s symptoms consisted of depressed mood, anxiety, mild memory loss, disturbances of motivation and mood, and difficulty establishing/maintaining effective work and social relationships. The examiner opined that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran was afforded a third examination in November 2014. The Veteran was diagnosed with PTSD and major depression. He reported irritability, depressed mood, poor concentration/memory, and social isolation. The Veteran’s symptoms consisted of irritability, poor concentration, disturbed sleep, depressed mood, and anxiety. The examiner opined that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran was afforded a fourth examination in October 2020. He reported difficulty sleeping, a “short fuse,” low appetite, and decrease in interest to engage in activities. The Veteran’s symptoms consisted of depressed mood, chronic sleep impairment, disturbances of motivation and mood, inability to establish and maintain effective relationships, and neglect of personal appearance and hygiene. The examiner opined that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. Additional pertinent evidence includes VA treatment records and SSA records that evaluated the Veteran’s mental status at the time of his visits. According to treatment records during this appeal period, the Veteran was assessed by a medical professional. Throughout the period on appeal, the Veteran’s thought process was within normal limits and he reported no suicidal/homicidal ideation. See e.g., September 2011 VA Treatment record. However, he did report symptoms of low mood, poor concentration, impaired sleeping, and limited appetite. His mood was rated at 2.5 out of 10. During his clinic visit, his treating therapist noted that the Veteran has a history of “blanking out.” In a February 2012 VA treatment record, he reported outbursts twice a week, difficulties recalling names approximately twice a week, difficulty concentrating, and daily “mind wandering.” In a December 2012 VA clinic note, the Veteran reported changes in his behavior. Specifically, he stated that he carries a knife around for self-protection and not taking a bath/shower in a week. In a June 2014 VA clinic note, the Veteran reported that his energy levels were “up and down.” Additionally, he stated that his PTSD symptoms have not changed since his last visit. According to the Veteran’s April 2016 treatment record, he reported during the past 15 out of 30 days, his mental health was not good. In an October 2019 private treatment record, the Veteran reported feeling “down, depressed, or hopeless more than half the days.” In a February 2018 VA treatment record, he described his mood as “blah.” In a July 2020 treatment record, the Veteran reported a mood of 2 out of 10. He attributed his low mood to grieving over his son's death in 2018 and his wife's health issues. According to the Veteran’s SSA records, the Veteran was deemed markedly limited in the ability to accept instructions and respond appropriately to criticism from supervisors and the ability to set realistic goals or make plans independent of others. After review of the relevant medical and lay evidence of record, the Board finds that the overall social and occupational impairment caused by the Veteran’s PTSD throughout the appeal period has more nearly approximated impairment consistent with a 70 percent rating. While the VA examiners opined that the Veteran’s PTSD is productive of occupational and social impairment with reduced reliability and productivity, which would be consistent with a 50 percent rating, the examiners as well as the Veteran’s assessment in treatment records, report numerous PTSD symptoms of occupational impairment that fall within the criteria for a 70 percent rating. These symptoms include depressed mood, anxiety, chronic sleep impairment, impaired impulse control, spatial disorientation, neglect of personal appearance and hygiene, disturbances of motivation and mood, and difficulty establishing and maintaining effective work and social relationships. Where a Veteran’s disability falls between two ratings criteria and the intensity of the individual symptoms varies, the Board finds that the higher evaluation of 70 percent will be assigned, as the Veteran’s disability picture more nearly approximates the criteria for that rating. Additionally, the Board notes that the Veteran consistently suffered from severe PTSD symptoms over the years after service, despite treatment and medication. Therefore, resolving reasonable doubt in the Veteran’s favor, a 70 percent rating is warranted for the entire appeal period. However, the Board cannot factually ascertain that the Veteran’s symptoms meet the criteria for a 100 percent rating. Again, to warrant a rating of 100 percent the Veteran must demonstrate 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. In this case, there has been no record of medical or lay evidence demonstrating psychosis and gross impairment in thought processes or communication. Throughout the period on appeal, the Veteran denied hallucinations, homicidal ideation, and suicidal ideation. The Veteran’s speech has maintained a normal rhythm/rate at mental health visits and during examinations, despite a chronically depressed mood. Medical treatments document the Veteran as being logical, cooperative, and no showing of cognitive decline. While the Veteran reports difficulty in concentration, his symptoms have not demonstrated disorientation to time, place, or memory loss to the extent of being unable to recall names of close relatives or his own name. While the Board recognizes the difficulties that the Veteran’s symptoms have placed on both himself and his family, the VA examination and medical records are persuasive, as they provide expertise opinions based on their training and clinical experience to determine the frequency, severity, and duration of the Veteran’s PTSD symptoms. Therefore, the preponderance of the evidence is against a finding that those symptoms have amounted to total occupational and social impairment as to warrant a rating of 100 percent during the period in question. As the preponderance of the evidence is against this finding, the “benefit of the doubt” rule is not applicable, and the Board must deny the claim for a rating in excess of 70 percent. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to TDIU In an August 2013 Report of General Information, the Veteran contacted the RO to report that he was currently in receipt of Social Security Administration (SSA) benefits since April 2005 and that he had retired due to his psychiatric disorder. He further stated that he could not work. Additionally, in his November 2015 notice of disagreement, the Veteran stated that his current rating for PTSD did not accurately reflect his current level of disability as he had not worked since 2004. As such, a claim for a TDIU has been raised by the record and is part of the current appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). For VA purposes, total disability exists when there is any impairment of the mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). 38 C.F.R. § 4.16(a) provides that consideration of such a rating is warranted if a veteran has one service-connected disability rated 60 percent or more or, if there are two or more such disabilities, there must be at least one that is rated 40 percent or more, with all disabilities combining to 70 percent or more. 38 C.F.R. § 4.16(a). In determining unemployability, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The sole fact that a veteran is unemployed or has difficulty securing employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). In making a determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the U.S. Court of Veterans Appeals (now the U.S. Court of Appeals for Veterans Claims) (CAVC) discussed the meaning of “substantially gainful employment.” In this context, it noted the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total ‘basket case’ before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. The CAVC has defined being unable to secure and follow a substantially gainful occupation as having an 1) an economic component of earning more than marginal income (outside of a protected environment as determined by the U.S. Department of Commerce as the poverty threshold for one person and 2) a non-economic component of the individuals ability to secure or follow that type of employment; factors to consider include: the Veteran’s history, education, skill, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Ray v. Wilkie, 31 Vet. App. 58, 62 (2019). Factors that may be relevant include, but are not limited to, the Veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and whether the Veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity.) Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Although TDIU was raised in the record, the Veteran filed his application for TDIU in April 2020, which stated that he has been too disabled to work since November 2004. He contends that he is entitled to TDIU based on his service-connected disabilities. Combined, these conditions make it difficult for him to secure and follow substantially gainful employment. The Veteran held a combined evaluation for compensation of 90 percent. He is service-connected for PTSD, rated as 70 percent disabling; a 20 percent rating for degenerative changes of the lumbar spine; a 20 percent rating for peripheral neuropathy of the left lower extremity; a 20 percent rating for peripheral neuropathy of the right lower extremity; a 10 percent rating for tinnitus; a 10 percent rating for duodenal ulcer; and a noncompensable ratings for bilateral chronic otitis externa. The record reflects that the Veteran has a training as a teacher. He has not been employed since November 2004, which is when he retired. Relevant medical treatment records during the period on appeal indicate that the Veteran had difficulty with employment due to his service-connected PTSD. In a December 2005 physical fitness for duty re-evaluation, Dr. S.C., a licensed psychologist, determined that the Veteran “is not fit to resume work activity as a schoolteacher.” The psychologist noted the Veteran’s symptoms of sleep disturbances, nightmares, “blanking out” and poor sleep care. It was also added that the Veteran’s mental status has not improved. The examiner opined that prognosis was “poor” for a complete recovery. Additionally, the severity of his mood instability and impaired concentration/attention “pose an unnecessary risk if returned to teaching.” According to the Veteran’s SSA disability records, the Veteran was deemed markedly limited in the ability to accept instructions and respond appropriately to criticism from supervisors and the ability to set realistic goals or make plans independent of others. In his November 2014 VA examination, the Veteran stated that when he told his employer that “he would hurt a child that tried to hurt him,” the school system decided to retire him. The Veteran’s treatment record reflects no change in his PTSD symptoms. According to a July 2020 treatment record, the Veteran reported a mood of 2 out of 10. Throughout the appeal period, the Veteran’s treatment records indicate that his mood remain at either 2 or 2.5 out of 10. Reviewing the totality of the evidence of record in light most favorable to the Veteran, and resolving reasonable doubt in his favor, the Board finds that the Veteran is precluded from securing or following a substantially gainful occupation due to his service-connected PTSD. This decision is based on the Board’s review of the cumulative evidence of record, which also includes the VA examination reports and an independent assessment dated December 2005. Given the Veteran’s level of education, his employment history, and his level of disability due to his service-connected PTSD, the Board finds that it is unlikely that the Veteran could secure or follow a substantially gainful occupation consistent with his educational level and occupational experience. As noted in Moore, the Board must address the TDIU question in a practical manner. Here, it is unlikely that the Veteran would be able to find a work environment that would allow him to miss multiple days due to his depressed mood, irritability, anger, and psychological effects of his service-connected PTSD. Specifically, the Board finds that the symptoms described by the Veteran, and noted by the examiners, due to his service-connected PTSD render him unable to obtain or maintain substantially gainful employment. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Therefore, entitlement to TDIU is granted. 3. SMC VA has a ‘well-established’ duty to maximize a claimant’s benefits. See 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 claimant’s disabilities to determine whether any combination of disabilities establishes entitlement to SMC pursuant to 38 U.S.C. § 1114. See Bradley, 22 Vet. App. 280, 294 (2008). SMC is payable at the housebound rate where the Veteran has a single service-connected disability rated as 100 percent and, in addition: (1) has 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). Subsection 1114(s) requires that a disabled Veteran whose disability level is determined by the ratings schedule must have at least one disability that is rated at 100 percent in order to qualify for the special monthly compensation provided by that statute. Under the law, subsection 1114(s) benefits are not available to a Veteran whose 100 percent disability rating is based on multiple disabilities, none of which is rated at 100 percent disabling. The United States Court of Appeals for Veterans Claims (Court) has held that although TDIU may satisfy the “rated as total” element of section 1114(s), TDIU based on multiple underlying disabilities cannot satisfy the section 1114(s) requirement of “a service-connected disability” because that requirement must be met by a single disability. Buie v. Shinseki, 24 Vet. App. 242, 250 (2010). As discussed above, the record reflects that the Veteran’s PTSD precludes gainful activity. Thus, the record establishes that the Veteran’s PTSD alone rendered him unemployable, and the award of TDIU satisfies the “rated as total” element of subsection 1114(s). Moreover, for the period beginning March 8, 2018, the Veteran had additional disabilities whose combined evaluation was 70 percent. Specifically, he was in receipt of a 20 percent evaluation for peripheral neuropathy of each femoral nerve, a 20 percent evaluation for degenerative arthritis of the lumbar spine, a 20 percent evaluation for peripheral neuropathy of the left sciatic nerve, a 10 percent evaluation for tinnitus, and a 10 percent evaluation for duodenal ulcer. Thus, from March 8, 2018, the award of SMC at the housebound rate is warranted. The Board additionally observes that prior to September 15, 2014, the Veteran’s additional disabilities were independently rated as less than 60 percent disabling. Thus, entitlement to SMC at the statutory housebound (s) rate is not applicable for that period. J. K. Barone Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Adeleke, Tomi 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.