Citation Nr: 21072437 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 19-35 452 DATE: December 3, 2021 ORDER Entitlement to an initial rating of 100 percent for posttraumatic stress disorder (PTSD) prior to April 27, 2018, is granted. Entitlement to special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s) prior to April 27, 2018, is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to April 27, 2018, is dismissed as moot. FINDINGS OF FACT 1. Resolving reasonable doubt in his favor, for the period prior to April 27, 2018, the Veteran's PTSD more closely approximated total occupational and social impairment. 2. For the appellate period prior to April 27, 2018, the Veteran's service-connected PTSD is in receipt of a total disability rating, and additional service-connected disabilities apart from his PTSD are ratable at 60 percent or more. 3. As a 100 percent schedular rating for posttraumatic stress disorder (PTSD) and entitlement to SMC have been assigned for the appellate period prior to April 27, 2018, there remain no questions of law or fact to be decided regarding entitlement to a TDIU for this period. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 100 percent for PTSD prior to April 27, 2018, are 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. The criteria for SMC under 38 U.S.C. § 1114(s) prior to April 27, 2018, have been met. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). 3. The appeal for entitlement to a TDIU for the period prior to April 27, 2018, is dismissed as moot. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 4.16, 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1969 to May 1971. This matter comes before the Board of Veteran's Appeals (Board) on appeal of rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). By way of history, a May 2015 rating decision granted service connection for PTSD and assigned an initial 70 percent evaluation, effective from December 31, 2014, the date of the Veteran's claim for service connection. See May 2015 Rating Decision; December 2014 Veteran's Application for Disability Compensation and Related Compensation Benefits (VA Form 21-526EZ). A July 2015 rating decision denied entitlement to a TDIU. See July 2015 Rating Decision. The Veteran perfected an appeal of those decisions. See 38 C.F.R. §§ 19.20, 19.21, 19.22, 19.52, 20.200, 20.201, 20.202, 20.203 (setting forth requirements and timeframe for initiating and perfecting an appeal under VA's legacy system). Thereafter, in a May 2018 decision, the agency of original jurisdiction (AOJ) granted a 100 percent evaluation for the PTSD, effective from April 27, 2018, the date of a private psychiatric evaluation submitted by the Veteran that included findings reflecting that the Veteran met the criteria for the higher 100 percent rating. See May 2018 Rating Decision and Codesheet (also granting entitlement to SMC at the housebound rate based on a single service-connected disability rated as total, with additional service-connected disabilities independently ratable at 60 percent or more, under 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i), effective from April 27, 2018, based upon the assignment of a 100 percent rating for the PTSD as of that date, and the 60 percent rating in effect for the service-connected atherosclerotic cardiovascular disease with coronary artery bypass graft). Accordingly, in light of the foregoing, and as explained in detail below, the issues have been characterized as reflected on the title page of this decision. In May 2020, the Veteran testified before the undersigned Veterans Law Judge at a virtual hearing. A copy of the transcript has been associated with the claims file. INCREASED RATINGS VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. See 38 U.S.C. § 1155 ; 38 C.F.R., Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The schedule recognizes that disability from distinct injuries or diseases may overlap. See 38 C.F.R. § 4.14. However, the evaluation of the same disability or its manifestation under various diagnoses, which is known as pyramiding, is to be avoided. Id. Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations, to the extent the evidence shows distinct time periods where the service-connected disability has exhibited signs or symptoms that would warrant different ratings under the rating criteria. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). In initial-rating cases, where the appeal stems from a granted claim of service connection with respect to the initial evaluation assigned, VA assesses the level of disability from the effective date of service connection. See Fenderson, 12 Vet. App. at 126. 1. Entitlement to a rating in excess of 70 percent for PTSD prior to April 27, 2018. The Veteran contends that symptoms and manifestations of his service-connected psychiatric condition warrant a rating in excess of the 70 percent currently assigned prior to April 27, 2018. For the reasons that follow, the Board concludes that a 100 percent initial evaluation is warranted for the Veteran's PTSD for the period prior to April 27, 2018. As noted in the introduction above, the Veteran's service-connected PTSD is in receipt of a 70 percent evaluation prior to April 27, 2018, under 38 C.F.R. § 4.130, Diagnostic Code 9411, according to VA's General Rating Formula for Mental Disorders (General Formula). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 100 percent. In this regard, under the General Formula, as pertinent to the present appeal, 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. See 38 C.F.R. § 4.130, Diagnostic Code 9411. The maximum 100 percent rating requires 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; and memory loss for names of close relatives, own occupation, or own name. Id. Under the 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. This is because the symptoms associated with each evaluation under the General Rating Formula do not 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, 442 (2002). Thus, the evidence considered in determining the appropriate evaluation of a psychiatric disorder is not restricted to the symptoms set forth in the General Rating Formula. See id. Rather, VA must consider all symptoms of a claimant's condition that affect his or her occupational and social impairment. Id. at 443. Accordingly, if the evidence demonstrates that the claimant's psychiatric disorder produces symptoms and resulting occupational and social impairment equivalent to that set forth in the criteria for a given rating in the General Rating Formula, then the appropriate, equivalent rating will be assigned. Id. In this regard, the Board must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126; Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (noting that the "frequency, severity, and duration" of a veteran's symptoms "play an important role" in determining the disability level). Additionally, while VA considers the level of social impairment, it shall not assign an evaluation based solely on social impairment. Id. Evaluating all the evidence of record, the Board finds that the frequency, severity, and duration of the Veteran's reported psychiatric symptomatology more closely approximates the criteria for a 100 percent rating for period prior to April 27, 2018. In this regard, the evidence reflects that the Veteran's service-connected psychiatric disorder has been productive of total occupational and social impairment throughout the entirety of the appellate period. See 38 C.F.R. § 4.130, DC 9411. See also Fenderson, 12 Vet. App. at 126. Significantly, the Board notes that, as discussed in the introduction above, the assignment of the 100 percent evaluation for the Veteran's service-connected PTSD effective from April 27, 2018, was based primarily upon the April 2018 psychiatric evaluation of Dr. S.A.R., the Veteran's private treating psychologist. See May 2018 Rating Decision; April 2018 PTSD Disability Benefits Questionnaire (DBQ) completed by S.A.R., Psy.D. In particular, Dr. S.A.R. documented symptoms and manifestations of the Veteran's PTSD including depressed mood; anxiety; suspiciousness; panic attacks occurring more than once a week; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; impairment of short and long term memory; difficulty in interpreting complex commands; impaired judgment; disturbances of motivation and mood; isolating behaviors; disturbances of motivation and mood; difficulty in establishing and maintaining effective work or social relationships; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships; suicidal ideation; obsessional rituals which interfere with routine activities; impaired impulse control (such as unprovoked irritability with periods of violence); persistent delusions or hallucinations; disorientation to time or place; and a "persistent feeling of danger of hurting himself or others." See April 2018 PTSD DBQ completed by S.A.R., Psy.D. Additionally, Dr. S.A.R. indicated that these symptoms had been present since approximately 2011, when the Veteran experienced "a sharp decline" in his functional ability due to increasing psychiatric symptoms. See id. These findings echoed those in a prior December 2015 letter in which Dr. S.A.R. noted that the Veteran's "severe" PTSD resulted in total occupational impairment and a "profound decline" in his social functioning. See December 2015 Letter from S.A.R., Psy.D. In that letter, Dr. S.A.R. stated that the Veteran experienced recurrent "hypnopompic hallucinations," with comorbid disorientation to time and place, and that the Veteran was "virtually immobilized by extreme anxiety," which resulted in "disturbance in his thought processes." See id. Accordingly, considering the findings reflecting that the Veteran's psychiatric impairment was generally consistent throughout the pendency of his claim, and in view of the symptoms identified by his private mental health treatment provider including the recurrent hallucinations, disturbance in thought processes, and disorientation to time or place, resulting in extreme social isolation and an inability to function in an occupational setting, the Board finds that for the entire appellate period, the Veteran's service-connected psychiatric disability resulted in total occupational and social impairment. 38C.F.R. §§ 4.7, 4.130, DC 9411. In so finding, the Board observes that the Veteran's documented symptoms did not meet all the enumerated criteria for a 100 percent rating. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Moreover, the Board acknowledges that examining VA clinicians have determined that the Veteran's psychiatric impairment was less than total. See, e.g., April 2017 and March 2017 VA PTSD DBQs. However, those VA examiners identified symptoms and manifestations of the Veteran's PTSD including depressed mood; anxiety; suspiciousness; panic attacks more than once a week; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; memory loss; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; and suicidal ideation. See id. Additionally, the May 2015 VA examiner described "severe" PTSD symptoms that "significantly impact his social, emotional and occupational functioning" and "his ability to be out in the world and perform job related duties." See April 2015 VA PTSD DBQ. Accordingly, the Board finds that the Veteran's symptoms, especially his depressed mood; anxiety; suspiciousness; panic attacks occurring more than once a week; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; impairment of short and long term memory; difficulty in interpreting complex commands; impaired judgment; disturbances of motivation and mood; isolating behaviors; disturbances of motivation and mood; difficulty in establishing and maintaining effective work or social relationships; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships; suicidal ideation; neglect of personal appearance and hygiene; obsessional rituals which interfere with routine activities; impaired impulse control (such as unprovoked irritability with periods of violence); persistent delusions or hallucinations; disorientation to time or place; and persistent feeling of danger of hurting himself or others, have been of the frequency, severity, and duration to have rendered the Veteran totally occupationally and socially impaired. See Mauerhan, 16 Vet. App. at 443 ; Vazquez-Claudio, 713 F.3d at 117 ; 38 C.F.R. § 4.126. In this regard, the Board observes that the Veteran is competent to report on factual matters of which he had firsthand knowledge, e.g., experiencing psychiatric symptoms. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board finds that the statements provided by the Veteran on psychiatric evaluation, during the course of his treatment, and during the pendency of the claim, including at his May 2020 Board hearing, regarding the effects of his psychiatric symptoms on his daily life, including his occupational impairment and social isolation, are competent and credible. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see, too, Baldwin v. West, 13 Vet. App. 1 (1999) (the Board must analyze the credibility of the evidence). Furthermore, as indicated, the Veteran's private psychologist, S.A.R., Psy.D., put forth findings and opinions that, when taken together, reflect that the Veteran's "severe" psychiatric symptomatology was of such frequency, severity, and duration so as to result in complete social and occupational impairment. See December 2015 Letter from S.A.R., Psy.D.; April 2018 PTSD DBQ completed by S.A.R., Psy.D. The Board finds this determination to be, at the very least, equally as probative as those of the April 2017 and March 2017 VA examiners, especially given that the examination reports were all based on an accurate medical history and sufficiently detailed the Veteran's psychiatric symptoms and impairments. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (noting that a VA examination report must be based upon consideration of the Veteran's prior medical history and describe the disability in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) ("It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion."). Thus, in light of the manifestations identified by his medical treatment providers, given his competent and credible statements concerning the frequency, severity, and duration of his psychiatric symptoms, and affording the Veteran the benefit of the doubt, the Board finds that the evidence in the VA examination reports of more moderate PTSD manifestations is reflective of the Veteran's waxing and waning psychiatric symptomatology and thus does not reflect sustained improvement. Therefore, staging the Veteran's rating to reflect these periods of improvement is unwarranted. See Fenderson, 12 Vet. App. at 126. In view of the foregoing, upon consideration of all evidence of record, and considering the evidence in the light most favorable to the Veteran, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran's service-connected psychiatric disability has been productive of total occupational and social impairment throughout the appellate period. See 38 C.F.R. § 4.3 ("When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant."). Accordingly, the criteria are met for an initial 100 percent evaluation for PTSD prior to April 27, 2018. See 38U.S.C. §5107 (a); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Entitlement to SMC under 38 U.S.C. § 1114(s) prior to April 27, 2018. Pursuant to 38 U.S.C. § 1114(s), when a veteran has a service-connected disability rated as total and has additional service-connected disability independently ratable at 60 percent or more, he is entitled to SMC. 38 U.S.C. § 1114 (s)(1). The United States Court of Appeals for Veterans Claims has held that VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C. § 1114. See Bradley, 22 Vet. App. at 294 (finding that SMC "benefits are to be accorded when a Veteran becomes eligible without need for a separate claim"). As detailed above, the Board has granted a 100 percent initial rating for the Veteran's PTSD prior to April 27, 2018. Because the Veteran now has a service-connected disability rated as total and additional service-connected disabilities independently ratable at 60 percent or more throughout the appellate period prior to April 27, 2018, the criteria for entitlement to special monthly compensation under 38 U.S.C. § 1114(s) are satisfied. See May 2018 Rating Decision Codesheet (reflecting that service connection is also in effect for atherosclerotic cardiovascular disease with coronary artery bypass graft, evaluated as 60 percent disabling from December 31, 2013, forward). Accordingly, entitlement to SMC at the (s) rate is granted for the entire appellate period prior to April 27, 2018. 3. Entitlement to a TDIU prior to April 27, 2018. The Board observes that, as a result of this decision, the Veteran has been granted a 100 percent initial disability rating prior to April 27, 2018, the maximum allowable for his PTSD, and therefore, the issue of entitlement to a TDIU for this period has essentially been rendered moot. See 38 U.S.C. § 7105; see Green v West, 11 Vet. App. 472, 276 (1998) (holding that, if a 100 percent schedular rating is granted, a veteran is not also entitled to TDIU for the same period); but see Bradley, 22 Vet. App. 280 (holding that, while no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation). Following the reasoning of Bradley, a TDIU must still be considered even if a veteran has already been awarded a separate 100 percent evaluation for a disability to potentially make the veteran eligible for SMC. However, as the Veteran in this case has already been granted SMC at the housebound rate for the appellate period prior to April 27, 2018, as discussed above, consideration of TDIU no longer serves any useful purpose. See 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). There thus remains no case or controversy concerning whether the Veteran is entitled to a TDIU prior to April 27, 2018, and the appeal with respect to the claim for TDIU for the period prior to April 27, 2018, is moot and must be dismissed. Sabonis v. Brown, 6 Vet. App. 426 (1994). JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. McCabe, 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.