Citation Nr: 21067336 Decision Date: 11/04/21 Archive Date: 11/03/21 DOCKET NO. 12-23 770 DATE: November 4, 2021 ORDER From August 5, 2008 to July 28, 2015, entitlement to a rating higher than 70 percent for posttraumatic stress disorder (PTSD) is denied. From July 29, 2015, entitlement to a 100 percent rating for PTSD is granted, subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. From August 5, 2008 to July 28, 2015, the Veteran's PTSD did not more nearly approximate total occupational and social impairment. 2. From July 29, 2015, the Veteran's PTSD more nearly approximates total occupational and social impairment. CONCLUSIONS OF LAW 1. From August 5, 2008 to July 28, 2015, the criteria for a disability rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. From July 29, 2015, the criteria for a disability rating of 100 percent for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1966 to March 1968. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In an April 2010 rating decision, the RO granted an increased evaluation of 50 percent for PTSD, effective October 2009. The Veteran requested a hearing before the Board. The requested hearing was conducted in August 2015 by a Veterans Law Judge that is no longer employed at the BVA as a Judge. A transcript is associated with the claims file. In a March 2016 decision, the Board denied entitlement to a rating higher than 50 percent for PTSD and to a TDIU, from October 5, 2009 and remanded the issues of entitlement to a rating higher than 30 percent for PTSD and to a TDIU, prior to October 5, 2009. The Veteran appealed the March 2016 Board decision to the Court of Appeals for Veterans Claims (Court); the parties submitted a Joint Motion for Partial Remand (JMPR). The Court vacated the Board's denial of entitlement to a rating higher than 50 percent for PTSD and to a TDIU, from October 5, 2009, and remanded the issues back to the Board. In June 2017, the Board remanded these claims for additional development. A second hearing was conducted in July 2019 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. In June 2020, the Board remanded these claims and directed the RO to review evidence received since the October 2018 supplemental statement of the case and to issue a supplemental statement of the case. On remand, the evidence was reviewed, and in an August 2020 rating decision, the RO granted a 70 percent rating for PTSD, effective December 14, 2018, a temporary total 100 percent evaluation, effective August 1, 2019, and a 70 percent rating, effective September 1, 2019. The RO also granted entitlement to a TDIU, effective December 14, 2018. In November 2020, the Veteran submitted a VA Form 20-0996, Request for Higher Level Review for the August 2020 rating decision, listing the issue of entitlement to a TDIU; however, neither the Veteran nor his representative check marked the box indicating that the Veteran intended to opt into the modernized appeals system and withdraw his claims from the legacy system. Because the November 2020 VA Form 20-0996 did not express the Veteran's intentions to withdraw any claims from the legacy appeal system, the Board proceeded with its appellate consideration of the claims under the legacy appeal system and remanded the claims in February 2021 for further development. In a May 2021 rating decision, the Veteran's rating for PTSD was increased to 50 percent, effective October 2, 2008. In a July 2021 rating decision, the Veteran's rating for PTSD was increased to 70 percent, effective from August 5, 2008, a 100 percent rating was assigned for hospitalization over 21 days from August 1, 2019, and a 70 percent rating assigned, effective January 1, 2020. Also, entitlement to a TDIU was granted, effective August 5, 2008. The issues remain on appeal, as the Veteran has not indicated satisfaction with the ratings assigned. A.B. v. Brown, 6 Vet. App. 35 (1993). When entitlement to a TDIU is raised during an appeal for an increased rating, it is considered part and parcel of the underlying increased rating claim. Rice v. Shinseki, 22 Vet. App. 447, 455 (2009). In such a situation, the claim for TDIU has the same appeal period as that of the increased rating claim. Here, the Veteran's claim for an increased rating for PTSD was received in August 2008; as noted, entitlement to a TDIU was granted in a July 2021 rating decision, effective the date of his claim, August 5, 2008. The Board acknowledges the holding in Harper v. Wilkie, 30 Vet. App. 356 (2018), however, the Veteran has been granted entitlement to a TDIU for the entire period on appeal, and as such, this issue is no longer before the Board. Increased Rating Entitlement to an increased rating for PTSD, currently rated as 70 percent disabling from August 5, 2008 with a temporary 100 percent rating from August 1, 2019 to December 31, 2019. Service connection for PTSD was established by a November 2005 rating decision, at which time a 30 percent rating was assigned, effective May 2005. The Veteran submitted a timely notice of disagreement with the rating assigned; however, a substantive appeal was not completed. A claim for an increased rating was received in August 2008. The Veteran's 30 percent rating was continued in an October 2008 rating decision. A notice of disagreement was received in October 2009. In April 2010, the Veteran's rating was increased to 50 percent, effective October 5, 2009. In a December 2019 rating decision, the Veteran was assigned a temporary total evaluation, effective August 1, 2019, and a 50 percent rating, effective September 1, 2019. In an August 2020 rating decision, the Veteran's rating was increased to 70 percent disabling, effective December 14, 2018, a 100 percent rating from August 1, 2019, and a 70 percent rating, from September 1, 2019. In a May 2021 rating decision, the Veteran's rating was increased to 50 percent, effective October 2, 2008. In a July 2021 rating decision, the Veteran's rating was increased to 70 percent, effective August 5, 2008. Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where entitlement to compensation has already been established and an increase in the disability rating is at issue, the most recent evidence is generally the most relevant, as the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). The current regulations establish a general formula for mental disorders. 38 C.F.R. § 4.130. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 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). Accordingly, the evidence considered in determining the level of impairment is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a Veteran's condition that affect the level of the Veteran's occupational and social impairment. As noted, the Veteran is rated as 70 percent disabled for the period on appeal, excluding a period with a temporary total rating from August 1, 2019 to December 31, 2019. A 70 percent evaluation is warranted where there is objective evidence demonstrating that the Veteran has occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to suicidal ideation; obsessional rituals which interfere with his routine activities, speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, or effectively; impaired impulse control, such as unprovoked irritability with periods of violence; spatial disorientation, neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances, including work or a work-like setting; and the inability to establish and maintain effective relationships. A 100 percent evaluation 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. Having carefully considered the Veteran's lay contentions, the medical evidence of record and the applicable law, the Board finds that the overall evidence shows that the Veteran's disability more closely approximates a 100 percent disability rating, demonstrating total social and occupational impairment, effective July 29, 2015, the date of a private evaluation wherein the Veteran endorsed experiencing persistent delusions. During the July 29, 2015 private evaluation, the psychologist noted the Veteran's speech was halting, stuttering, he was uneasy, vague, and refused to listen and went off on long, rambling digressive irrelevant monologues, demonstrating significant problems with concentration. The psychologist reported the Veteran was easily confused as well and tended to speak in either generalities or showing signs of alexithymia or an inability to conceptualize and express his feelings in a concise, verbal manner. The Veteran reported concentration and focus problems as well as memory problems. The psychologist noted that the Veteran's neuropsychological evaluation was negative for objective findings, therefore, these symptoms must be assumed to be due to PTSD. The Veteran reported he broke up with his prior girlfriend and currently lived alone in a home owned by his sister. He reported no relationships other than those of his family. Examination indicated impaired ability to abstract, attention span was short, speech patterns were tangential and circumstantial. The Veteran reported having some suicidal feelings and although he denied extreme anger toward himself or others, he reported assaulting people in the past. He denied paranoid ideation, but indicated he has a generalized distrust of others, stating that people look at him differently. The Veteran denied hallucinations but reported that people can read his mind and that he tries to mask his thoughts so they can not read his mind. He also reported feeling a "presence." The psychologist concluded by stating the Veteran confines his activities to his family only, he is unemployable, and cannot gather his thoughts together to complete any task or even listen to a conversation. Similarly, a November 2017 VA examination noted that the Veteran suffered from impairment of short- and long-term memory and that his memory impairment was a major symptom of PTSD. The examiner explained that the Veteran's brain functioning was normal, but he had significant memory problems due to PTSD. A Disability Benefits Questionnaire (DBQ) was completed in December 2018, at which time the mental health counselor stated that it was recommended that the Veteran avoid seeking employment due to the severity of his PTSD symptoms. The narrative report included with the DBQ states examination revealed impaired abstract thinking, depressed mood, and sad affect. The Veteran reported visual hallucinations in the form of seeing shadows in his peripheral vision, long standing suicidal ideation, and a diminished ability to care for himself. A private evaluation conducted in August 2020 indicates the Veteran reported long-standing suicidal thoughts, but that he previously did not report them due to fear of being hospitalized. It was noted that the Veteran indicated he experienced auditory hallucinations in 2019 in the form of voices of people talking to him. He also reported visual hallucinations in the form of shadows in his peripheral vision that bother and district him. The counselor reported the Veteran had difficulty making basic mental calculations, indicating difficulty with abstract thinking, but he was able to recall events from the recent and distant past. On the corresponding DBQ, the counselor opined that the Veteran had total occupational and social impairment. The evidence reflects symptoms and impairment more nearly approximating total social and occupational impairment have been shown from July 2015. The evidence indicates that the Veteran has persistent auditory and visual hallucinations, impairment in thought processes and communication, persistent danger of hurting himself, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), spatial disorientation, and memory loss. The Board finds the Veteran is entitled to a 100 percent rating, effective July 29, 2015, the date in which he reported experiencing persistent delusions. Prior to July 29, 2015, however, the Board finds the currently assigned 70 percent rating appropriately reflects the level of severity of the Veteran's psychiatric disorder. Prior to July 29, 2015, there is no evidence that the Veteran experienced symptoms of total social impairment. For example, prior to July 2015, the Veteran denied auditory and visual hallucinations or delusions. The evidence indicates that despite the Veteran's serious symptoms he was able to maintain some relationships, noting in a January 2011 VA examination that he continued to have positive relationships with his three adult daughters and his wife, at the time. Furthermore, during a January 2010 VA examination, the Veteran specifically denied hallucinations and reported enjoying playing with his dog and fishing. He denied panic attacks. Although he reported experiencing irritability, he denied any physical altercations. There were no problems with activities of daily living, and he was able to maintain minimum personal hygiene. Although recent memory was impaired, his remote and immediate memory were normal. Therefore, it cannot be said that the Veteran's symptoms approximated total social impairment to warrant a 100 percent rating for the period on appeal prior to July 2015. The Board notes the Veteran's serious symptoms prior to July 2015, particularly his long-standing suicidal thoughts, and memory problems. The overall evidence, however, indicates that for this time period, the Veteran clearly had significant, though not total, social, and functional impairment. As reported by the Veteran himself, he was able to maintain some relationships with family members, had some hobbies, and denied hallucinations and delusions. Regarding occupational impairment, prior to July 2015, the Board acknowledges that the Veteran had severe interference with his ability to work during this time period. Importantly, however, the Board specifically notes that the standards for the assignment of a TDIU are not the same as those for a 100 percent evaluation for a psychiatric disorder. While a TDIU may be warranted when a person is unable to follow a substantially gainful occupation, a 100 percent rating for a psychiatric disability states that total occupational and social impairment is needed. In this case, prior to July 2015, the Veteran's symptoms were not so severe that he had total social impairment and total occupational impairment. The Board notes the lay assertions of the Veteran, and these statements have been considered in the granting of the 100 percent rating, from July 2015. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). To the extent that they have argued that a 100 percent evaluation is warranted for the entire appeal period, however, these assertions are outweighed by more probative evidence provided by the examinations of qualified medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). Furthermore, the symptoms described in the lay statements for the period prior to July 2015 comport with the 70 percent rating that is currently assigned. As such, these lay statements do not provide any basis upon which to assign any higher rating for the period prior to July 2015. The Board has also considered the Veteran's symptoms which are not included in the rating criteria listed under 38 C.F.R. § 4.130 and whether they constitute symptoms that would be comparable in type and degree (frequency, severity, and duration) to the criteria for a 100 percent rating. See Mauerhan, 16 Vet. App. at 443; Vazquez-Claudio v. Shinseki. Though the Veteran's symptoms have been shown to be severe and manifest with frequency, the Board, in weighing all of the evidence, does not find that these symptoms are of a comparable severity to the symptomatology required for a rating of 100 percent, prior to July 2015. Finally, while the Veteran has not claimed special monthly compensation (SMC), VA has a duty to maximize benefits and policy, and to consider entitlement to SMC where applicable. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Entitlement to SMC is part of an increased rating claim, and VA should consider the issue when it is reasonably raised by the record, regardless of whether a Veteran has specifically pled it. See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991). SMC at the housebound rate is payable where the Veteran has a single service-connected disability rated as 100 percent and 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); 38 C.F.R. § 3.350 (i). Here, the Board has assigned a 100 percent disability rating for PTSD, effective July 29, 2015; however, he does not have additional service-connected disabilities independently ratable at 60 percent, separate and distinct from his PTSD. As such, entitlement to SMC is not warranted. In sum, the Board finds that the Veteran's impairment due to his psychiatric disability is most consistent with a 70 percent disability rating, prior to July 29, 2015, and a 100 percent rating, thereafter. In reaching this conclusion, the Board has resolved all reasonable doubt in the Veteran's favor. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C. § 5107 (b). TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Andersen, 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.