Citation Nr: 21005065 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 14-22 330 DATE: January 28, 2021 ORDER A rating of 70 percent for posttraumatic stress disorder (PTSD) prior to April 26, 2016 is granted. A total rating based on individual unemployability (TDIU) prior to April 26, 2016 is granted. Special monthly compensation (SMC) due statutory housebound from June 29, 2012 is granted. FINDINGS OF FACT 1. Prior to April 26, 2016, the Veteran’s PTSD has been productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood, for the entire appeal period; total social impairment has not been demonstrated. 2. Prior to April 26, 2016, the Veteran’s service-connected disabilities are as likely as not of such nature and severity as to prevent him from securing or following substantially gainful employment. 3. From April 26, 2016, the Veteran is in receipt of 100 percent evaluation for his PTSD. 4. From June 29, 2012 he Veteran PTSD alone caused impairment to warrant a receipt of TDIU, and his remaining service-connected disabilities are ratable as greater than 60 percent disabling when combined. CONCLUSIONS OF LAW 1. The criteria for an initial 70 percent rating, but no higher, for PTSD prior to April 26, 2016 are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.21, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to TDIU prior to April 26, 2016 are met; and from April 26, 2016 are moot. 38 U.S.C. §§ 1105, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25. 3. From June 29, 2012, the criteria for special monthly compensation (SMC) due to being housebound are met. 38 U.S.C. § 1114(s), 5107(b); 38 C.F.R. § 3.350(i). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1968 to November 1971. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The most recent Board decision was in March 2018, at which time the claim for entitlement to a disability rating in excess of 30 percent prior to April 26, 2016, for PTSD were denied. The Veteran appealed the March 2018 denial to the United States Court of Appeals for Veterans Claims (Court). In October 2019, the Court issued a Memorandum Decision that vacated the appeal and remanded the issues.   1. A rating of 70 percent for PTSD prior to April 26, 2016 The Veteran’s PTSD has been evaluated as 30 percent disabling from June 29, 2012 to April 26, 2016 under Diagnostic Code 9411which evaluates impairment from PTSD. Diagnostic Code 9411 uses the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). In pertinent part, the next-higher 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned 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; or memory loss for names of close relatives, own occupation or own name. Turning to the evidence of record, the Veteran submitted a statement from his private physician in January 2013. The physician noted that the Veteran’s PTSD caused sleep impairment, paranoia in that he could not sit without facing a room, and that loud noises drove him “crazy.” He further noted the Veteran was tired, weak, debilitated, and frightened at times. He had memory loss that had worsened with time, and he could not complete a mini mental examination, nor could he do serial 7’s or serial 6’s. The Veteran submitted a second medical letter in January 2013 from a private physician who noted that the Veteran’s most salient symptoms included being startled by loud noises, fearfulness, irritability, memory loss, and forgetfulness. In September 2013, the Veteran underwent a VA examination. He reported being divorced and that he currently lived with his sister. He denied social impairment. Occupationally, the Veteran reported that he was a state trooper until 1985 and quit to start a private security company which closed in 1996. He worked as director of security for another company but two years prior they stopped paying him and took away his car. He indicated that he did not know the reason and he had not worked since that time because of his chronic fatigue syndrome. The examiner documented symptoms of avoidance of places, activities, and people related to his trauma, sleep impairment, hypervigilance, depressed mood, and disturbances of motivation and mood. It was noted that symptoms caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. The examiner found that the Veteran exhibited 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 medication. In January 2014, the Veteran submitted a Review PTSD Disability Benefits Questionnaire (DBQ). The examination noted symptoms of depressed mood, anxiety, short and long-term memory impairment, flattened affect, difficulty in understanding complex commands, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and the inability to establish and maintain effective relationships; and found that the Veteran exhibited occupational and social impairment with reduced reliability, and impairment with deficiencies in most areas. The Veteran submitted a private evaluation dated in October 2020. The evaluator reviewed the documents and opined that, for the period from June 2012 to April 2016, the Veteran’s psychiatric symptoms resulted in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, and mood. Having reviewed the relevant evidence, and resolving any doubt in favor of the Veteran, the Board finds that an initial rating of 70 percent for the period prior to April 26, 2016 is warranted. Significantly, the evidence shows that he had disturbances of motivation and mood, difficulty adapting to stressful circumstances including work or a work-like setting, difficulty in establishing and maintaining effective work and social relationships, and the inability to establish and maintain effective relationships. As such, the Board finds that the frequency and severity of such symptoms most nearly approximate social and occupational impairment with deficiencies in most areas, such as judgment, thinking, or mood. The Board also finds that a higher rating of 100 percent is not warranted as the competent evidence does not reflect total social and occupational impairment. In this regard, the Veteran maintained relationships with his sister and son during this period. He described living with his son as good and explained that they respected each other’s boundaries. He also denied having social impairment in September 2013. He also reported avoidance, being frightened at times, and having to keep his back to the wall when he went out, but the Board finds that this relevant evidence tends to support a severity indicative of a deficiency in family and social relations, but not total social impairment. Regarding occupational impairment, he lost his job abruptly in 2011 and has not worked ever since. The January 2014 evaluator indicated he could not sustain employment. Taking all evidence into account, the Board finds that the frequency and severity of such symptoms most nearly approximate deficiencies in most areas, such as judgment, thinking, or mood. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran’s symptoms resulted in the level of impairment required for a 100 percent rating. In sum, the Board finds that when viewed against other evidence of record, to include private and VA treatment records, the 2013, 2014, and 2014 evaluations, the Veteran’s overall disability picture is more nearly approximated by the 70 percent evaluation, and not a 100 percent rating. Therefore, after looking at the totality of the Veteran’s PTSD picture, the Board finds that the preponderance of the evidence warrants a rating of 70 percent, but no higher, for the period prior to April 26, 2016. 2. TDIU prior to April 26, 2016 The Veteran contends that his service-connected disabilities prevent him from securing or following substantially gainful employment. See 11/17/2020 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. The issue of entitlement to a TDIU is under the Board’s jurisdiction as part and parcel of the underlying increased rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). A total disability rating may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation due to service-connected disabilities. 38 C.F.R. §§ 3.340, 4.16(a). This is so, provided that the unemployability is the result of a single service-connected disability ratable at 60 percent or more, or the result of two or more service-connected disabilities, where at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Prior to April 26, 2016, including the above determination, the Veteran was service-connected PTSD, rated as 70 percent disabling; chronic fatigue syndrome, rated as 40 percent disabling; residuals of prostate cancer, rated as 40 percent disabling; and erectile dysfunction, rated as noncompensable. Therefore, the schedular requirements for TDIU per §4.16(a) have been met. Even so, it must be found that he was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Consequently, the Board must determine whether the Veteran’s service-connected disabilities preclude him from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a “living wage”). Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). An inability to work due to advancing age may not be considered. 38 C.F.R. §§ 3.341 (a), 4.19. In making its determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background. See 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19. Entitlement to TDIU is based on an individual’s particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The United States Court of Appeals for Veterans Claims (Court) has held that the term unable to secure and follow a substantially gainful occupation in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation 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. Second, there is a non-economic component dealing with the individual veteran’s ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran’s history, education, skill and training, (b) the veteran’s physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). After review of the evidence, the Board concludes that prior to April 26, 2016, the Veteran’s service-connected disabilities were as likely as not of such nature and severity as to prevent him from securing or following substantially gainful employment. 38 C.F.R. §§ 3.340, 4.16(a). A VA Form 21-8940 indicated that the Veteran last worked in 2011. He indicated that all his service-connected disabilities prevented him from securing or following any substantially gainful employment. Although, he also reported that his last employment did not end due to a disability. He had a high school education and no other pertinent training. January 2013 correspondence from his physician explained that he had varying degrees of chronic fatigue. It affected him daily, but he was not on any medication. Regarding his PTSD, the physician noted that he had memory loss that had gotten worse over time. His prostate surgery was also noted. In combination, he was tired, weak, debilitated, and frightened. A September 2013 PTSD VA examiner found that the Veteran exhibited 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 medication. A September 2013 VA examination documented that his chronic fatigue syndrome caused a 60 percent restriction in routine daily activities. Symptoms also included generalized weakness, sleep disturbance, inability to concentrate, and forgetfulness. A prostate cancer VA examination in September 2013 documented the Veteran to have a voiding dysfunction that caused increased urinary frequency. The examiner indicated that it did not impact his ability to work. An October 2020 psychiatric evaluator opined that for the period from June 2012 to April 2016, the Veteran’s psychiatric symptoms resulted in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, and mood. These symptoms included suspiciousness, panic attacks, chronic sleep impairment, memory loss, disturbances of motivation and mood, difficulty adapting to stressful circumstances including work or a work-like setting, difficulty in establishing and maintaining effective work and social relationships, and the inability to establish and maintain effective relationships. It was indicated that he likely could not secure and follow substantially gainful employment due to his psychiatric symptoms. The evidence shows that the Veteran has not worked throughout the appeal period and he last worked in security in about 2011 at which time his employment abruptly ended. Symptoms related to his PTSD and chronic fatigue syndrome impact his memory, his energy and sleep, mood, social and occupational relationships, his ability to concentrate, and adapt to stressful circumstances. In light of the above, the Board finds that the competent and probative evidence is at least in equipoise as to whether the Veteran’s service-connected psychiatric, chronic fatigue syndrome, and residual of prostate cancer rendered him unable to secure and maintain gainful employment. His difficulty with disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, inability to establish and maintain effective relationships, difficulty in adapting to stressful circumstances, fatigue, and his memory issues, when taken in conjunction with his educational background and occupational history, preclude him securing and following substantially gainful employment. The Board finds that entitlement to a TDIU is warranted for the period prior to April 26, 2016. 38 C.F.R. §§ 4.3, 4.16(a). 3. (SMC due to being housebound or the need for aid and attendance The Veteran asserts that his service-connected disabilities warrant SMC based on being homebound or for the need for regular aid and attendance. As noted above, the Veteran received a schedular 100 percent rating for his PTSD with an effective date of April 26, 2016, and his claim for individual unemployability from that date is determined to be moot. The Court has recognized that a 100 percent rating under the Schedule for Rating Disabilities indicates that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Thus, if VA has found a Veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. See Locklear v. Shinseki, 24 Vet. App. 311, 314 n.2 (2011) (finding entitlement to TDIU mooted from the effective date of a 100 percent schedular disability rating); see also Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period). SMC may be granted to a Veteran for aid and attendance from another person or for being housebound. In other words, a Veteran may receive SMC for either needing the regular aid and attendance of another person or for being housebound but not for both simultaneously. SMC by reason of the need for regular aid and attendance of another person is a greater monthly benefit than SMC by reason of being housebound. 38 U.S.C. § 1114(l), (s). Bedridden means the Veteran is, in fact, required to remain in bed. 38 C.F.R. § 3.352(a). The fact that the Veteran has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. In determining the need for aid and attendance of another person, several factors are for consideration. These include: (1) the inability of the Veteran to dress or undress himself or to keep himself ordinarily clean and presentable, (2) the frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the Veteran’s particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.), (3) the inability of the Veteran to feed himself through loss of coordination of his upper extremities or through extreme weakness, (4) the inability of the Veteran to attend to the wants of nature, (5) incapacity, physical or mental, which requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment, and (6) the Veteran being bedridden. Id. Granting SMC for aid and attendance requires at least one of the above disabling factors be met. Turco v. Brown, 9 Vet. App. 222 (1996). Regarding being bedridden, however, a favorable determination will not be based solely upon an opinion that the Veteran’s condition is such as would require him to be in bed. 38 C.F.R. § 3.352(a). Such a determination instead must be based on the actual requirement of personal assistance from others. Id. As implied from above, it is not required that all the disabling factors be found to exist before a favorable determination is made. The particular personal functions the Veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary the evidence establish the Veteran is so helpless as to need regular aid and attendance, not that there is a constant need. The performance of the necessary aid and attendance service by a relative or other member of the Veteran’s household will not prevent a favorable determination. 38 C.F.R. § 3.352(c). The regulations also provide additional compensation based on being housebound where the veteran (1) has, in addition to a single, permanent service-connected disability rated 100 percent disabling, excluding ratings based on unemployability under 38 C.F.R. § 4.17. However, the total and permanent disability rating is additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. A veteran will be considered housebound where the evidence shows that, as a direct result of his service-connected disability or disabilities, he is substantially confined to his 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 lifetime. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). Substantially confined does not mean that the Veteran is unable to leave his dwelling and the immediate premises at all. Hartness v. Nicholson, 20 Vet. App. 216 (2006); Howell v. Nicholson, 19 Vet. App. 535 (2006). Turning to the evidence of record, VA treatment records show the Veteran was able to attend numerous appointments at VA throughout the appellate period and there was no indication that the Veteran was so helpless as to need regular aid and attendance. His September 2013 VA examinations for PTSD and chronic fatigue syndrome did not document that the Veteran was so helpless as to need regular aid and attendance. The chronic fatigue examination found that his restriction for daily activities was 60 percent but did not indicated he needed help with activities for daily living. For instance, the only activities noted to be restricted were for sexual intercourse and difficulty standing and running. The Veteran’s April 2016 VA examination that documented total occupational and social impairment also did not show that he needed regular aid and attendance. It was noted that he lived with his son, but there was no indication that it was due to a necessity for care. Rather, the Veteran reported that part of the reason it worked well was that they both respected each other’s boundaries. He did have some memory issues and fatigue that affected his daytime functioning. The examiner did not find, nor did the Veteran report that he had trouble performing activities of daily living and he was found to be capable of managing his finances. In a November 2020 affidavit, his son reported that he had to repeat thing due to the Veteran’s memory problems. He also described him his deteriorating mood and increasing fatigue.   As noted above, a TDIU may satisfy the “rated as total” element of section 1114(s) when the TDIU is based on a single disability, but not multiple disabilities. Buie v. Shinseki, 24 Vet. App. 242, 250 (2010). In this instance, while the Veteran’s other disabilities also impact his occupational function, the VA examination and private evaluation reports support a finding that the Veteran’s PTSD alone renders him completely disabled on an occupational basis. The most severe symptoms that rendered him unable to obtain gainful employment were related to his PTSD. Specifically, he was noted to have symptoms of short and long-term memory impairment, flattened affect, difficulty in understanding complex commands, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and the inability to establish and maintain effective relationships. The October 2020 evaluator opined that, for the period from June 2012 to April 2016, the Veteran’s psychiatric symptoms resulted in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, and mood. Additionally, he was unable to secure and follow substantially gainful employment due to the PTSD symptoms. Taken into account all the medical and lay evidence, along with this October 2020 opinion, there is sufficient information to support a finding that TDIU is warranted on the basis of the Veteran’s PTSD alone. (CONTINUED ON THE NEXT PAGE)   With PTSD warranting a TDIU rating, the equivalent of a 100 percent disability rating under Bradley and Buie, the only remaining consideration for entitlement to SMC at the (s) level is whether the other service-connected disabilities would yield a combined rating of at least 60 percent. The other disabilities are chronic fatigue syndrome, rated as 40 percent disabling; residuals of prostate cancer, rated as 40 percent disabling; and erectile dysfunction, rated as noncompensable. These ratings, when combined in accordance with 38 C.F.R. § 4.25, yield a combined rating of at least 60 percent. As such, the criteria for an award of SMC under 38 U.S.C. § 1114(s) from June 29, 2012 is warranted. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Cruz, 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.