Citation Nr: 21004562 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 94-27 561A DATE: January 27, 2021 ORDER For the appellate period prior to August 4, 2014, entitlement to an initial disability rating of 100 percent for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) (hereinafter referred to as “PTSD”) is granted. For the appellate period prior to July 31, 2009, entitlement to special monthly compensation (SMC) at the housebound rate is granted. FINDINGS OF FACT 1. For the appellate period prior to August 4, 2014, the evidence is in equipoise as to whether the Veteran’s PTSD symptoms so adversely affected the attitudes of all contacts as to result in virtual isolation in the community. 2. For the appellate period prior to July 31, 2009, the Veteran has a service-connected disability rated as total (PTSD) and additional service-connected disabilities rated as at least 60 percent disabling. CONCLUSIONS OF LAW 1. For the appellate period prior to August 4, 2014, the criteria for an initial disability rating of 100 percent for PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.132, Diagnostic Code (DC) 9411 (as in effect prior to November 7, 1996). 2. For the appellate period prior to July 31, 2009, the criteria for SMC at the housebound rate are met. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty from January 1982 to November 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. The issue of entitlement to SMC at the housebound rate for the appellate period prior to July 31, 2009 has been raised by the record and added to the instant appeal. Akles v. Derwinski, 1 Vet. App. 118 (1991). The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Procedural History As detailed below, this matter has a complex procedural history. In an April 1994 rating decision, the RO granted service connection for an anxiety disorder and assigned a 10 percent disability rating, effective November 14, 1991. In a May 2014 rating decision, the RO assigned a 30 percent disability rating for anxiety disorder, effective May 21, 2013. In an August 2014 rating decision, the RO continued the 30 percent disability rating assigned for anxiety disorder. In a November 2014 rating decision, the RO assigned a 70 percent disability rating for anxiety disorder, effective August 4, 2014. In a September 2015 rating decision, the RO continued the 70 percent disability rating assigned for anxiety disorder. In an April 2016 rating decision, the RO granted service connection for PTSD and evaluated it along with the Veteran’s service-connected anxiety disorder, assigning a 10 percent disability rating from November 14, 1991, a 30 percent disability rating from May 21, 2013, a 70 percent disability rating from August 4, 2014, a temporary 100 percent disability rating due to hospitalization from September 8, 2015 to October 1, 2015, and a 70 percent disability rating from November 1, 2015. In a November 2016 decision, the Board granted service connection for alcohol abuse as secondary to the Veteran’s service-connected acquired psychiatric disability. In a May 2017 rating decision, the RO assigned a 100 percent disability rating for the Veteran’s acquired psychiatric disability (“anxiety disorder with posttraumatic stress disorder (PTSD) and alcohol abuse”), effective June 29, 2016. In a January 2018 decision, the Board assigned an initial disability rating of 30 percent for the Veteran’s acquired psychiatric disability prior to May 21, 2013, denied entitlement to a rating in excess of 30 percent between May 21, 2013 and August 3, 2014, denied entitlement to a rating in excess of 70 percent from August 4, 2014 to November 27, 2014, and granted a 100 percent disability rating beginning November 28, 2014. The Veteran timely appealed the Board’s January 2018 decision to the United States Court of Appeals for Veterans Claims (Court), and in June 2018, the Court granted the parties’ May 2018 Joint Motion for Partial Remand, vacating the Board’s decision to the extent that it denied entitlement to an initial disability rating in excess of 30 percent for the Veteran’s acquired psychiatric disability for the appellate period prior to August 4, 2014. In a March 2019 decision, the Board denied entitlement to a rating in excess of 30 percent for the Veteran’s acquired psychiatric disability for the appellate period prior to August 4, 2014. The Veteran timely appealed the Board’s March 2019 decision to the Court, and in November 2019, the Court granted the parties’ Joint Motion for Remand, vacating the Board’s decision due its failure to adequately consider evidence of suicidal ideation, other relevant lay evidence from the Veteran and her daughter, mother, and spouse, and a June 2016 private psychological examination. The matter has now returned to the Board for further appellate consideration. 1. Entitlement to an initial rating in excess of 30 percent for PTSD prior to August 4, 2014 Disability evaluations are determined by comparing a veteran’s present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where a veteran is diagnosed with multiple disabilities of the same body part or system, and it is unclear from the record which symptoms are attributable to each distinct disability, the Board is precluded from differentiating between the symptomatology and the disabilities. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to her through her senses. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In this matter, the Veteran filed a claim for service connection for PTSD in December 1991. The Board notes that VA revised the rating criteria for psychiatric disabilities effective November 7, 1996. When the regulations concerning entitlement to a higher rating are changed during the course of an appeal, the veteran may be entitled to resolution of her claim under the criteria that is more advantageous, although the revised rating criteria may be applied only prospectively from the effective date of the change forward unless the regulatory change specifically permits retroactive application. 38 U.S.C. § 5110(g); VAOPGCPREC 7-03; VAOPGCPREC 3-00; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Here, the former rating criteria (pre-1996) govern the claim for the period from December 1991 to November 7, 1996, and, for the period from November 7, 1996 to August 4, 2014, the severity of the Veteran’s PTSD must be considered under both the former (pre-1996) and revised (post-1996) rating criteria. The rating assigned must be based on whichever rating criteria is more favorable to the Veteran. See Kuzma, 341 F.3d 1327. Under the former rating criteria, effective prior to November 7, 1996, PTSD was evaluated under the General Rating Formula for Neuropsychiatric Disorders found in 38 C.F.R. § 4.132. See 38 C.F.R. § 4.132, DC 9411 (effective before November 7, 1996). Under the former rating criteria, a 10 percent rating was assigned where symptoms were less than what was required for a 30 percent rating with emotional tension or other evidence of anxiety productive of mild social and industrial impairment. A 30 percent rating was assigned where there was definite impairment in the ability to establish or maintain effective and wholesome relationships with people with the psychoneurotic symptoms resulting in such reduction in initiative, flexibility, efficiency, and reliability levels as to produce definite industrial impairment. A higher 50 percent rating was assigned where the ability to establish or maintain effective or favorable relationships with people was considerably impaired. By reason of psychoneurotic symptoms, the reliability, flexibility, and efficiency levels are so reduced as to result in considerable industrial impairment. A 70 percent rating was assigned where the ability to establish and maintain effective or favorable relationships with people was severely impaired. The psychoneurotic symptoms were of such severity and persistence that there is severe impairment in the ability to obtain or maintain employment. Id. A maximum 100 percent rating was assigned for PTSD where the attitudes of all contacts except the most intimate were so adversely affected as to result in virtual solation in the community. Totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality were present with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic and explosions of aggressive energy resulting in profound retreat from mature behavior and the Veteran was demonstrably unable to obtain or retain employment. Id. On November 7, 1996, the rating criteria for PTSD were revised and renumbered as 38 C.F.R. § 4.130, DC 9411. See 38 C.F.R. § 4.130, DC 9411 (effective November 7, 1996). The revised criteria for rating psychiatric disabilities, other than eating disorders, are set forth in the General Rating Formula for Mental Disorders (General Rating Formula). Under the General Rating Formula, a 10 percent rating is assigned for PTSD manifested by occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress or symptoms controlled by continuous medication. A 30 percent rating is assigned for PTSD manifested by occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of an inability to perform occupational tasks (although generally functioning satisfactorily with routine behavior, self-care, and conversation normal) due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned for PTSD manifested by 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. A 70 percent rating is assigned for PTSD manifested by 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 work-like setting), or an inability to establish and maintain effective relationships. Id. A maximum 100 percent rating is assigned for PTSD manifested by total occupational and social impairment due to such symptoms as gross impairment in thought process 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. Effective August 4, 2014, VA amended the portion of the Rating Schedule dealing with mental disorders and its adjudication regulations that define the term “psychosis” to remove outdated references to the Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV) and replace them with references to the updated Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094. The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the Agency of Original Jurisdiction on or after August 4, 2014. Id. VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014. See 80 Fed. Reg. 53, 14308 (March 19, 2015). In Golden v. Shulkin, 29 Vet. App. 221 (2018), the Court held that, given that the DSM-5 abandoned the Global Assessment of Functioning (GAF) scale and that VA has formally adopted the DSM-5, GAF scores are inapplicable to assign a psychiatric rating in cases where the DSM-5 applies when the appeal was certified after August 4, 2014. Although the Board notes that the instant appeal was certified to the Board in April 2016, as noted previously, the former rating criteria for PTSD (as in effect prior to November 7, 1996) also applies to the Veteran’s claim. Nevertheless, because of the Court’s emphatic pronouncement in Golden that the GAF scores are methodologically flawed and are particularly unreliable as applied to psychiatric disorders, in this decision, the Board will place no reliance on GAF scores for rating this Veteran’s PTSD. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the veteran’s symptoms, but it must also make findings as to how those symptoms impact a veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). 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, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Thus, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442. 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 rating 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 Board recognizes that the Court in Mauerhan, 16 Vet. App. 436, stated that the symptoms listed in VA’s General Rating Formula is not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. However, the Court further indicated that without those examples, differentiating between rating evaluations would be extremely ambiguous. In this matter, the Veteran is currently in receipt of a 30 percent disability rating for her PTSD for the appellate period prior to August 4, 2014. She asserts that a higher rating is warranted. On review of the evidence, both lay and medical, the Board finds that the manifestations of the Veteran’s PTSD more nearly approximated the criteria for a 100 percent disability rating under the former rating criteria for the entire appellate period prior to August 4, 2014. Specifically, the Board finds that the evidence is in equipoise as to whether the Veteran’s PTSD symptoms so adversely affected the attitudes of all contacts as to result in virtual isolation in the community prior to August 4, 2014. In May 2020, the Veteran underwent a comprehensive private “Independent Medical Evaluation” by Dr. P.W., clinical neuropsychologist, to address the presence and severity of her PTSD symptoms from the time of her discharge from active service in November 1991 through August 2014. After a three-hour interview with the Veteran, an interview with the Veteran’s daughter, review of the Veteran’s claims file, and objective psychological testing, Dr. P.Y. opined, “it is at least as likely as not that the attitudes of all [the Veteran’s] contacts, including the most intimate, were so adversely affected as to result in virtual isolation in the community since discharge from the military.” Dr. P.W. noted that after the Veteran experienced military sexual trauma (MST), “friends and peers would not speak to her and she was shunned,” she “became a pariah,” her “emotional state deteriorated” and “she became readily tearful and isolated.” Additionally, the Veteran was hospitalized for suicidal ideation during active duty. Dr. P.W. further opined that from 1991 to 2014, “evidence of fact documents [that the Veteran] was not able to emotionally engage in, manage, or sustain relationships in her life” and that “post-MST, she became detached, socially isolated, and fearful of others.” This level of social impairment also impacted her familial relationships, as the Veteran “was unable to be present and engaged in parenting her children” and her marriage “has been fraught with discord and disconnect since the beginning due to [the Veteran’s] high level of emotional duress, erratic behavior, and lack of ability to engage in emotional connectedness and boundaries established following the MSTs.” Dr. P.W. further noted that the Veteran “has not been able to establish, engage in, or maintain peer relationships since the MSTs,” and the Veteran indicated that she “purposefully distanced herself from friendships for fear of others’ motivations and low level of trust.” Dr. P.W.’s findings in the May 2020 private “Independent Medical Evaluation” are further supported by the testimony provided by the Veteran during the December 2020 Board hearing, June 2016 lay statements authored by the Veteran, her spouse, her mother, and her daughter, and a June 2016 private psychological evaluation of the Veteran by Dr. J.M., psychologist. At the December 2020 Board hearing, the Veteran testified that she felt isolated within the community and within her own family and that she felt she could not talk to her family members honestly about her mental health, to include feeling suicidal. Notably, in a June 2016 lay statement, the Veteran’s daughter wrote that after being discharged from the military, the Veteran was severely depressed and afraid to leave the home, would talk about how life would be better without her, she would not take showers or brush her teeth, and that she had hardly any friends and isolated herself from the world because she felt safer at home. After an interview with the Veteran and review of her claims file, Dr. J.M. opined, “the veteran’s service connected PTSD has imposed very severe limitations of social and occupational functioning since at least 1991 to the present.” See June 2016 private psychological evaluation report. Based on the foregoing, and with resolution of all reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s PTSD symptoms and impairment more nearly approximated the criteria for an initial disability rating of 100 percent under the former rating criteria for the period on appeal prior to August 4, 2014. A 100 percent rating is the maximum schedular rating available under the former rating criteria. 2. Entitlement to SMC SMC at the housebound rate is payable where the veteran has a single service-connected disability rated as 100 percent and (1) 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, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s). This requirement is met when the veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises, or if institutionalized, to the ward or clinical areas and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 C.F.R. § 3.350(i). In this matter, apart from her service-connected PTSD, the Veteran’s other service-connected disabilities include uterine fibroid with menorrhagia (rated as 30 percent disabling from November 14, 1991 and 0 percent disabling from July 31, 2009), a back disorder (rated as 10 percent disabling from November 14, 1991), right shin splint (rated as 10 percent disabling from November 14, 1991), left shin splint (rated as 10 percent disabling from November 14, 1991), and glomerulonephritis (rated as 10 percent disabling from November 14, 1991 and 0 percent disabling from December 2, 2014). Thus, for the appellate period prior to July 31, 2009, the Veteran’s additional service-connected disabilities combine to a rating in excess of 60 percent and are separate and distinct from the Veteran’s PTSD, as they involve different anatomical segments or bodily systems. (Continued on the next page)   Accordingly, as the Veteran has a single service-connected disability rated as total (PTSD) and she has additional service-connected disabilities that are independently rated as at least 60 percent disabling, the criteria for SMC at the housebound rate have been met for the appellate period prior to July 31, 2009. Effective July 31, 2009, the Veteran is no longer eligible for SMC at the housebound rate, as her combined disability percentage no longer meets the 60 percent threshold. Finally, neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. M. Gill, 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.