Citation Nr: 21067590 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 13-10 498 DATE: November 4, 2021 ORDER From April 15, 2011, a 100 percent initial disability rating for posttraumatic stress disorder (PTSD) is granted. Entitlement to special monthly compensation (SMC) at the housebound rate from April 15, 2011, to February 14, 2013, is granted. FINDINGS OF FACT 1. From April 15, 2011, the date of service connection, the evidence is at least evenly balanced as to whether the symptoms and impairment caused by the Veteran's PTSD more nearly approximate total occupational and social impairment. 2. From April 15, 2011, to February 14, 2013, the Veteran had a single service-connected disability evaluated as 100 percent disabling with additional service-connected disabilities independently ratable as at least 60 percent. 'CONCLUSIONS OF LAW 1. The criteria for an initial 100 percent disability rating for PTSD have been met for the entire period on appeal. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.125, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for establishing entitlement to SMC at the housebound rate from April 15, 2011, to February 14, 201, have been met. 38 U.S.C. § 1114; 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters The Veteran had honorable active duty service with the United States Army from July 2005 to December 2005 and from July 2006 to October 2007, to include service in Iraq. This matter is before the Board of Veterans' Appeals (Board) on appeal from December 2011 and April 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, in November 2018, the Board denied the issues of entitlement to a rating higher than 70 percent for PTSD prior to May 4, 2017, and a total disability rating based on individual unemployability (TDIU) prior to May 4, 2017. The Veteran appealed the Board's November 2018 decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2019 Order, the Court granted an August 2019 Joint Motion for Remand (JMR) vacating the Board's November 2018 decision, and remanding the matters for further consideration and instructions consistent with the JMR. In March 2020 and April 2021, the Board remanded the issues for additional development. The issues have returned to the Board for further appellate consideration. The Board notes that the Veteran presented testimony before a Veterans Law Judge (VLJ) in August 2015. A transcript of the hearing has been associated with the Veteran's electronic claims file. The VLJ who conducted the hearing is no longer employed by the Board. In September 2021, a letter was sent to the Veteran, which offered him the opportunity to elect to appear again for a new Board hearing. The Veteran was provided 30 days from the date of the letter to make his election. Absent any indication from the Veteran, the Board will proceed with adjudicating the claims. The Veteran did not submit any correspondences within 30 days of the date of the letter. Thus, the Board will proceed with adjudicating the Veteran's claims. INCREASED RATING Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The Schedule is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When two evaluations are potentially applicable, VA will assign the higher evaluation when the disability more nearly approximates the criteria for the higher rating. 38 C.F.R. § 4.7. VA will resolve reasonable doubt as to the degree of disability in favor of the Veteran. 38 C.F.R. § 4.1. If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. In accordance with 38 C.F.R. §§ 4.1, 4.2 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities at issue. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability. Each disability is viewed in relation to its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). The Board notes that where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. 38 C.F.R. §§ 4.1, 4.2 (2016); see also Francisco v. Brown, 7 Vet. App. 55 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), however, the Court held that "staged ratings" are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. Section 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). VA must consider all favorable lay evidence of record. 38 U.S.C. § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all of the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 1. From April 15, 2011, a 100 percent initial disability rating for PTSD is granted. The Veteran asserts entitlement to a higher disability rating for his PTSD. The Veteran has been service connected for PTSD since April 15, 2011, when he was rated as 50 percent disabled. Subsequently, in an April 2017 rating decision, his rating was increased to 70 percent, effective April 15, 2011. The Veteran's rating was again increased to 100 percent, effective May 4, 2017, in a March 2018 rating decision. The Veteran contends that a 100 percent rating is warranted for the entire appeal period. The Veteran's PTSD is rated according to the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Rating Formula, a 50 percent disability rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability rating is warranted when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). See 38 C.F.R. § 4.130. In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed.Cir. 2013), the Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score. According to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health illness." There is no question that the GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). VA implemented DSM-5, effective August 4, 2014, and the Secretary, VA, determined that DSM-5 applies to claims certified to the Board on and after August 4, 2014. 79 Fed. Reg. 45,093, 45, (Aug. 4. 2014). The RO certified the Veteran's appeal to the Board in November 2017; hence; DSM-5 is for application in this claim. Nonetheless, with the adoption of the DSM-5, the general rating criteria remain the same, aside from no longer assigning a GAF score. 38 C.F.R. § 4.126(d). The Board finds that after careful consideration of the record, a 100 percent rating is warranted for the Veteran's PTSD for the entire appeal period. A December 2010 mental health record notes that the Veteran reported a dissociative episode that occurred about two-and-a-half weeks prior. The Veteran was told by his girlfriend that he had gotten out of bed in the middle of the night and told her to seek safety. He then went outside and began speaking in a foreign language, broke someone's bicycle, and pounded on parked cars near him. The Veteran indicated that he had several charges against him and that he had a pending court date. An April 2011 mental health record notes that the Veteran was distressed about "having yet another dissociative episode about 2 weeks ago." During this episode, the Veteran had pointed his weapon at a female who cut him off and honked at him. The Veteran was startled and did not remember actually getting his gun out of the glove compartment. He came to himself when he realized that the woman was crying. The Veteran also reported another incident where he and his brother got into a fight with a gang of six guys. The Veteran was arrested after the fight. The Veteran indicated that he was concerned about his anger and dissociative episodes. It is noted that, at that time, the Veteran was open to referrals to an inpatient PTSD program. The record reflects that the Veteran sought psychiatric counseling with the Vet Center in 2011. A January 2011 Vet Center progress note shows that the Veteran went home for the holidays and had punched his brother over a small disagreement. A subsequent January 2011 Vet Center progress note shows that the Veteran detailed the dissociative episode that he had reported in the previously discussed December 2010 VA mental health record. The Veteran reported that he had been recently arrested for disorderly conduct, destruction of property, and destroying police property. He had a nightmare, blacked out, and screamed, "they are coming to kill us all." He then went outside of the apartment building, destroyed a bike, and thought that people coming out of the apartment building were enemy insurgents. The police were called, and the Veteran did not start to remember what happened until he sat down on the wet grass after being handcuffed. A March 2011 Vet Center progress note shows that the Veteran reported that he had gotten into another fight and was arrested. He indicated that this was his third arrest. He stated that, "once again, he blacked out and does not remember most of what happened." He and the counselor talked about the possibility of seeking inpatient psychiatric treatment. The Veteran agreed to consider this. In a June 2011 letter from the Veteran's Vet Center counselor, the counselor noted that the Veteran had applied for inpatient treatment at the Salisbury VA medical center (VAMC). The Veteran underwent a VA psychiatric examination in June 2011. The examiner noted a diagnosis of PTSD. The Veteran reported a post-service episode where he was found on the road from his house with a gun. He indicated that following separation from service, his mood became difficult to control and he would get angry very easily. He was irritable most of the time. He described episodes of physical aggressive nature where he would lose his temper. He stated that he had been arrested four times for physical altercations since returning from Iraq. The Veteran indicated that he worked and that, occasionally, he had to leave work because of his irritability. Outside of work, he isolated and stayed to himself most of the time. The Board notes that, during the August 2015 hearing, the Veteran testified that he last worked in 2011 as a cook for a few weeks and was fired due to an altercation with an employer. A November 2011 mental health suicide prevention note shows that the Veteran's Vet Center counselor had called VA to check on the status of the Veteran after she had brought him to the emergency department the night prior. The counselor reported that the Veteran had called her at approximately 9PM the night prior. He was very depressed and had stated that "nothing was working and that he would be better off dead." He also reportedly stated that he would not go out alone. The counselor was concerned about the Veteran's suicidal and homicidal potential and sent an ambulance to take him to the VA emergency department. A January 2014 VA treatment record shows that the Veteran reported that he had been incarcerated for two years. A February 2014 VA psychiatric treatment record shows that the Veteran reported that he had been arrested four times and had spent six months in jail. A statement received in August 2015 from the Veteran's mother indicated that since the Veteran's return home from his service, he has had many emotional problems. The Veteran's mother stated that the Veteran struggled to get out of bed on most days and that he talks to no one. She and the Veteran's father took him in after learning that he had been living on the streets. The Veteran had been evicted from his apartment for not paying his rent and being very hostile towards other tenants, which led to several arrests for assault. The Veteran's mother further stated that when the Veteran moved in with them, he would not leave his room for days at a time and would hardly eat. She also indicated that he was unable to maintain employment. Each job was short-lived, as he was fired for fighting and missing too many days. The Veteran underwent a VA psychiatric examination in May 2017. The Veteran reported that he was last employed two years prior and had lost his job after six months due to a fight with a coworker. Prior to that, he had worked as a farm laborer on an intermittent basis. The Veteran underwent another VA psychiatric examination in April 2021. The Veteran reported experiencing visual hallucinations. He reported that he sees his friend that was killed in Iraq. He also reported that he sees an individual that looks like him from behind like the individual is walking away. In a May 2021 VA addendum opinion, the examiner opined that, prior to May 4, 2017, the Veteran's occupational and social impairment can be best summarized as occupational and social difficulties with deficiencies in most areas such as work, school, family relations, judgment, thinking, and mood. While the examiner noted the Veteran's 2010 and 2011 dissociative episodes as discussed above, it is unclear as to whether the examiner reviewed all pertinent evidence; specifically, the November 2011 VA treatment record noting the Veteran's suicidal and homicidal ideations, the 2014 VA treatment records noting the Veteran's multiple incarcerations, and the statement received in August 2015 from the Veteran's mother. Thus, the Board finds the May 2021 VA examiner's opinion to be of limited probative value. The above evidence reflects that during the entire claim period, the Veteran has been unable to maintain employment and that he is significantly socially isolated. The record reflects that he worked short-lived jobs during the appeal period; however, he has been unable to sustain any gainful employment due to his psychiatric symptoms. He has otherwise been unemployed during the entire claim period, and the evidence reflects that he would be severely impaired from performing any employment due to his psychiatric symptoms. He has a severe lack of motivation and concentration and has a history of violent behavior towards others. Although the Veteran lives with his parents, the evidence shows the Veteran's inclination to socially isolate himself, as he stays in his room for days at a time. Based on the totality of the evidence, the Board finds that there is sufficient evidence to show that the severity of the Veteran's PTSD more closely approximates the criteria for a 100 percent disability evaluation throughout the period on appeal. ENTITLEMENT TO SMC 1. Entitlement to SMC at the housebound rate from April 15, 2011, to February 14, 2013, is granted. Furthermore, based on the award of a 100 percent rating herein for the Veteran's PTSD, and the fact that the remainder of his service-connected disabilities combine to at least 60 percent disabling for the entire appeal period, the issue of entitlement to SMC at the housebound rate has been raised. Akles v. Derwinski, 1 Vet. App. 118, 121 (1991); Bradley v. Peake, 22 Vet. App. 280 (2008) (finding that SMC "benefits are to be accorded when a veteran becomes eligible without need for a separate claim"); Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2011) (requiring the Board to consider awarding SMC at the housebound rate if a veteran meets the requisite schedular or extraschedular criteria). Specifically, SMC provided by 38 U.S.C. § 1114(s) is payable where a 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 C.F.R. § 3.350(i). In this regard, the Veteran is in receipt of a 100 percent rating for PTSD as of April 15, 2011, and has additional service-connected disabilities, to include a right eye disorder (evaluated as 30 percent disabling for the entire period), migraine headaches (evaluated as 10 percent disabling as of March 31, 2021), traumatic brain injury (evaluated as 40 percent disabling from April 15, 2011; 0 percent disabling from February 15, 2013; 10 percent disabling from May 19, 2021), and, erectile dysfunction (evaluated as 0 percent disabling for the entire period), that result in a combined rating of at least 60 percent from April 15, 2011, to February 14, 2013. 38 C.F.R. § 4.25. Therefore, SMC at the housebound rate is warranted from April 15, 2011, to February 14, 2013. (Continued on next page) In reaching this decision, the Board observes that the Veteran has alleged, in the alternative, that his service-connected disabilities in combination, to include his PTSD, render him unemployable and, thus, he is entitled to a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). However, as the Board has herein granted a 100 percent rating for the Veteran's PTSD, plus SMC at the housebound rate from April 15, 2011, to February 14, 2013, and a grant of a TDIU thereafter would not result in SMC, such claim is moot. Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008). B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. MacDonald, 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.