Citation Nr: 21067800 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 14-36 766 DATE: November 5, 2021 ORDER A 30 percent disability rating from October 30, 2006 to February 7, 2017 for PTSD is granted. A 50 percent rating from February 8, 2017 to May 7, 2018 for PTSD is granted. REMANDED Entitlement to special monthly compensation (SMC) based on loss of use of a creative organ due to erectile dysfunction is remanded. FINDINGS OF FACT 1. From October 30, 2006 to February 7, 2017, the Veteran's PTSD was manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal). 2. From February 8, 2017 to May 7, 2018, the Veteran's PTSD was manifested by occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. The criteria for 30 percent disability rating, but not greater, for PTSD from October 30, 2006 to February 7, 2017, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for an increased rating of 50 percent, but no greater, for PTSD from February 8, 2017 to May 7, 2018, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States from July 1967 to June 1982, including combat service in the Republic of Vietnam, where he served from January 1969 to January 1970. The Veteran's decorations include the Combat Infantryman Badge. In a September 2020 decision, the Board denied, entitlement to a rating in excess of 10 percent for PTSD from October 30, 2006 to February 7, 2017 and entitlement to a rating in excess of 30 percent from February 8, 2017 to May 7, 2018 for PTSD. The Veteran appealed the Board's decision to the United States Court of Appeals for Veteran's Claims (CAVC), resulting in a June 2021, joint motion for partial remand (JMPR) by the parties. Regarding entitlement to a TDIU prior to May 8, 2018, the Board remanded the claim for additional development in August 2021. Specifically, TDIU was granted from May 8, 2018, which was reported to be the date that the Veteran first met the schedular criteria for that rating. In August 2021, the Board remanded this issue to adjudicate the issue of entitlement to a TDIU prior to May 8, 2018 to include consideration of extraschedular referral as appropriate. The Board noted, that if benefits sought were not granted, the RO was required to issue the Veteran and his representative a SSOC and afford them an opportunity to respond in accordance with applicable procedures. This issue is awaiting further development by the Agency of Original Jurisdiction (AOJ); therefore, it is not before the Board at this time. The Board notes the Veteran, through his representative asserts that asserts that he is entitled to special monthly compensation (SMC) because the Veteran's service-connected PTSD caused sexual problems. At the February 2017 examination the Veteran stated, "the serotonergic meds all caused sexual side effects." However, he also stated that most of the medications he was taking were helpful initially, but the effects were not long lasting. He was not taking psychotropics at that time. See February 2017 Psychiatry Consultation Note. 1. Entitlement to a rating in excess of 10 percent for PTSD from October 30, 2006 to February 7, 2017 The Veteran seeks a rating in excess of 10 percent for PTSD from October 30, 2006 to February 7, 2017. In the JMPR, the parties agreed that the Board did not provide adequate reasons and bases for its decision not to award the Veteran a 30 percent rating during this period. Following a review of the record, and resolving all reasonable doubt in the Veteran's favor, the Board agrees and finds that a 30 percent rating is warranted for the Veteran's PTSD. From October 30, 2006 to February 7, 2017, the Veteran's PTSD is currently rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Rating Formula for Mental Disorders, a 10 percent rating is warranted for 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 when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). 38C.F.R. §4.130, Diagnostic Code 9411 (2019). A 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. Id. 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. Id. A 100 percent rating is assigned when symptoms such 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 cause total occupational and social impairment. Id. The Board finds that from October 30, 2006 to February 7, 2017, the Veteran's symptoms more closely approximated to the level of impairment associated with a 30 percent disability rating. The Veteran was afforded a VA PTSD examination in February 2007. The Veteran was diagnosed with PTSD with major depression and a cannabis abuse history. The Veteran also reported that he was prescribed an anti-depressant for his PTSD. During the examination the examiner noted that the Veteran presented well-groomed with a cooperative attitude and that his speech was normal. The trauma testing indicated findings of recurrent and intrusive distressing recollections of the in-service stressor. Veteran's mood was noted as good with his orientation of time in place noted as normal. The Veteran reported in the negative for panic attacks, homicidal thoughts or suicidal ideation. His long- and short-term memory was noted as normal. The examiner also noted that the Veteran make efforts to avoid activities, places, and people which sometimes arouse his recollections of his inservice stressor. The Veteran reported difficulty sleeping with irritability or outburst of anger with hypervigilance. Concerning functional and occupational limitations, the examiner did note the Veteran had heightened excitability and irritability. The examiner noted the Veteran did not have total occupational and social impairment due to PTSD signs and symptoms. The examiner did indicate the Veteran had reduced reliability and productivity due to his PTSD symptoms. The Veteran reported he had difficulty interacting with others and alleged that two of his marriages may have ended due to his temper/irritability. The Veteran reported that two/three year prior he attacked a neighbor and received an eight-month jail sentence. See February 2007 Initial PTSD Examination.). The Veteran also had other symptoms such as fatigability, heightened excitability, and easy startling. The Veteran's treatment records from July 2006 to August 2008 demonstrate occasional psychiatric evaluations for PTSD. The Veteran's VA treatment records, the February 2007 VA examination and the Veteran's lay statements show that the Veteran's PTSD disorder was manifested primarily by occupational and social impairment with occasional decrease in work efficiency and intermittent periods 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, mild memory loss (such as forgetting names, directions, recent events. The Board finds the severity, frequency, and duration of the Veteran's symptoms more closely approximate a 30 percent rating. The Veteran's symptoms included depressed mood, struggling with energy sleep impairment, easily angered, socially distant and behavioral outbursts. Moreover, as the parties highlighted in the JMPR, the Veteran's psychiatric disability was manifested by sleep impairment. The Veteran also exhibited occupational and social impairment in the form of decreased work efficiency and ability to perform occupational tasks during periods of significant stress as indicated by the examiner findings of his February 2007 VA examination. Therefore, after resolving reasonable doubt in the Veteran's favor, the Board finds his PTSD warrants a 30 percent rating, from October 30, 2006 to February 7, 2017. See 38 U.S.C. § 5017 (b); 38 C.F.R. §§ 3.102, 4.3. Such determination is based on a holistic analysis of the totality of the medical and lay evidence. Based on the evidence however, the Board finds that an evaluation in excess of 30 percent during the period is not warranted. Here, during this period the preponderance of the evidence is against a finding that the Veteran's PTSD was productive of flattened affect, panic attacks more than once a week, difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. Indeed, the Veteran's symptoms of depressed mood, anxiety, and chronic sleep impairment were contemplated by or more consistent with a 30 percent rating. 2. Entitlement to a rating in excess of 30 percent for PTSD from February 8, 2017 to May 7, 2018. The Veteran's service-connected PTSD has been assigned a 30 percent rating from February 8, 2018 to May 7, 2018. See May 2019 Rating Decision. After review of the medical and lay evidence in this case, the Board finds that a disability rating of 50 percent from February 8, 2017 to May 7, 2018 is warranted. August 2017 VA to May 2018 outpatient mental health treatment records reveal that the Veteran regularly attended therapy treatment for ongoing depression and PTSD. The Veteran was prescribed medication. During his sessions the examiner diagnosed a depressed mood, anxiety, and chronic sleep impairment. The Veteran also reported feeling so of low self-esteem and depression as a result of being medically unemployable. During his sessions the examiner diagnosed a depressed mood, anxiety, and chronic sleep impairment. The Veteran also reported feeling so of low self-esteem and depression as a result of being medically unemployable. At the Veteran's February 2017 psychiatry consultation, the Veteran reported he was concerned with his mood worsening. He stated, he had increased irritability, poor sleep, mild anhedonia, low energy and poor concentration. He denied current or prior manic or psychotic symptoms. See February 2017 Psychiatric Consultation Note. The Veteran reported a history of depressed mood five to six times a month, a history of trouble sleeping, increasing irritability, lacking motivation to do tasks that he was able to do, flashbacks and anger that have improved but he feels they are taking a turn for the worse. He reported that his depression worsened in the last six months and he felt more depressed and increased anger. The Veteran reported he became depressed after not working and his disability. See February 2017 Primary Care Note; October 2017 Psychiatry Outpatient Note. Upon review of the evidence of record, to include VA treatment records, the Board finds that a rating of 50 percent is warranted for the Veteran's PTSD. The Board determines that the evidence in the Veteran's medical treatment records and statements submitted by the Veteran reflect that the Veteran's PTSD symptoms most nearly most nearly approximate occupational and social impairment with reduced reliability and productivity approximating a 50 percent rating throughout this appeal. 38 C.F.R. § 4.7, 4.130; see also August 2017 to May 2018 Outpatient Treatment Records. Therefore, after resolving reasonable doubt in the Veteran's favor, the Board finds his PTSD warrants a 50 percent rating, from February 8, 2017 to May7, 2018. See 38 U.S.C. § 5017 (b); 38 C.F.R. §§ 3.102, 4.3. Such determination is based on a holistic analysis of the totality of the medical and lay evidence. The Board further finds that a rating in excess of 50 percent is not warranted during this period as the preponderance of the evidence is against the claim. Here, the evidence shows the Veteran denied having suicidal or homicidal ideation and he does not have an inability to establish and maintain effective relationships that cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. As such, a rating in excess of 50 percent is not warranted. REASONS FOR REMAND 1. Entitlement to SMC based on loss of use of a creative organ. The issue of entitlement to SMC based on the loss of use of a creative organ has been raised by the record. See June 2021 Appellate Brief; see also February 2007 Initial PTSD Examination. Specifically, in February 2017, the Veteran reported that his serotonergic medications, used to treat his service-connected psychiatric condition all caused sexual side effects. See February 2007 Psychiatric Examination Report: February 2017 Psychiatry Consultation. The Veteran, through his representative asserts that he is entitled to special monthly compensation based on loss of use of a creative organ. See August 2021 Appellate Brief; see also February 2007 Initial PTSD Examination; February 2017 Psychiatry Consultation February 2017 Psychiatry Consultation. The Board finds that clarity is needed to determine nature and etiology of any erectile dysfunction and its possible relationship to his service-connection PTSD. The Board finds that remand is warranted in order to schedule the Veteran for a VA examination and retrospective opinion. In Payne v. Wilkie, the Court held that the plain text of 38 U.S.C. § 1114 (k) does not limit potential entitlement to SMC(k) to Veterans with certain service-connected disabilities or preclude a theory of entitlement based on a "multi-link causal chain between the service-connected disability and the anatomical loss or loss of use of one or more creative organs." 31 Vet. App. 373, 385. Thus, the Board finds a VA opinion is necessary to assess whether the Veteran has suffered the loss of use of a creative organ as the result of his service-connected PTSD. The matters are REMANDED for the following action: 1. Associate with the record any VA clinical documentation pertaining to the treatment the Veteran received for his service-connected psychiatric disability and any sexual dysfunction, to include erectile dysfunction that are not already of record. 2. After the above development is completed, obtain an opinion from an appropriately qualified clinician to ascertain the respond to the following: (a.) The VA examiner should determine the onset of any sexual dysfunction, to include erectile dysfunction (b.) Provide a diagnosis for any and all erectile dysfunction or testicular conditions found to be present for the relevant portion of the appeal period. (c.) For each diagnosed erectile dysfunction or testicular disorder, address the Veteran's the nature and etiology any sexual dysfunction, to include whether it is at least as likely as not that the condition was caused or aggravated by his service-connected disabilities, to include medications used to treat his service-connected disabilities. The claims file, including a copy of this remand, must be made available to the examiner and the examiner should indicate in his/her report whether or not such was reviewed. All necessary tests and studies should be accomplished. The examiner must provide a complete rationale on which his/her opinion is based and must include a discussion of the medical principles as applied to the medical evidence and facts used in establishing his or her opinion. In providing a response, the examiner must consider all medications taken to treat the Veteran's service-connected conditions. The Veteran's lay assertions as to onset and continuity and symptomatology should be recorded and considered. If the examiner finds that he/she cannot provide an opinion without resorting to speculation, he/she should explain the inability to provide an opinion. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jordan, Jacquelynn 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.