Citation Nr: 21073627
Decision Date: 12/09/21	Archive Date: 12/09/21

DOCKET NO. 17-16 595
DATE: December 9, 2021

ORDER

An initial 70 percent rating, but no higher, for posttraumatic stress (PTSD), from October 23, 2003, to August 14, 2019, except for during the period when the Veteran received a temporary total rating, is granted. 

Special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114 (s) from April 12, 2021, is granted.

REMANDED

The issue of an initial rating higher than 10 percent for intervertebral disc syndrome with lumbosacral strain, spinal fusion, and degenerative disc disease (low back disability), prior to April 12, 2021, is remanded.

The issue of a rating higher than 40 percent for a low back disability, since April 12, 2021, is remanded. 

The issue of SMC pursuant to 38 U.S.C. § 1114 (s) prior to April 12, 2021, is remanded. 

FINDINGS OF FACT

1.  From October 23, 2003, to August 14, 2019, the Veteran's PTSD symptoms and overall impairment more nearly approximated occupational and social impairment with deficiencies in most areas, but they did not more nearly approximated total social and occupational impairment.

2.  From April 12, 2021, in addition to the Veteran's TDIU due to service-connected PTSD, the Veteran has separate additional service-connected disabilities ratable as 60 percent or more.

CONCLUSIONS OF LAW

1.  The criteria for an initial rating of 70 percent, but no higher, for PTSD, from October 23, 2003, to August 14, 2019, have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411.

2.  The criteria for SMC at the housebound rate, from April 12, 2021, have been met. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350. 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from May 1972 to February 1981.    

This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2015 and August 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO).  

In December 2020, the Board, in pertinent part, denied a rating higher than 50 percent for PTSD from October 23, 2003, to August 15, 2019, and a rating higher than 10 percent for a low back disability. 

The Veteran appealed the portion of the December 2020 Board decision that denied a rating higher than 50 percent for PTSD from October 23, 2003, to August 15, 2019, and a rating higher than 10 percent for the low back disability to the United States Court of Appeals for Veterans Claims (Court).

In a July 2021 Order, the Court granted a Joint Motion for Partial Remand (Joint Motion), vacating the portion of the December 2020 Board decision that denied a rating higher than 50 percent for PTSD from October 23, 2003, to August 15, 2019, and a rating higher than 10 percent for the low back disability and remanding it for action consistent with the terms of the Joint Motion.  Specifically, with respect to the higher than 50 percent for PTSD from October 23, 2003, to August 15, 2019, the parties to the Joint Motion, found that in the Board's December 2020 Decision, it failed to provide an adequate statement of reasons or bases for denying the claim, as the Board failed to discussed that, "approximately [three] years ago... [the Veteran] started hearing voices telling him that he was no good and told him to kill himself" and that he "continue[d] to hear voices that tell him negative things [one-to-two] times per week."  See April 2014 VA discharge summary (April 2014).  

Notably, in the December 2020 Board decision, the Board granted a 70 percent rating for PTSD, since August 15, 2019, and remanded the issues of a total disability rating based on individual unemployability (TDIU) and service connection for sleep apnea and headaches.  The July 2021 Joint Motion did not disturb the portion of the Board's decision denying a rating in excess of 70 percent for PTSD from August 15, 2019.

Also of note, the issues of a TDIU, service connection for sleep apnea and headaches, that were remanded in the December 2020 Board decision, will be decided in a separate appeal, as the Veteran opt those issues into the modernized review system, also known as the Appeals Modernization Act (AMA), from a September 2021 supplemental statement of the Case (SSOC).

The issues of higher ratings for PTSD and low back disability raise the issue of SMC under 38 U.S.C. § 1114 (s).  VA has a duty to maximize benefits and policy to consider entitlement to SMC where applicable. See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991); AB, 6 Vet. App. 35 at 38, Bradley v. Peake, 22 Vet. App. 280 (2008).  See also 38 C.F.R.§ 3.103 (a) (noting VA's obligation to "render a decision which grants every benefit that can be supported in law").  

Higher Initial Ratings

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Rating Schedule.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.  

When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim.  Fenderson v. West, 12 Vet. App. 119 (1999).  Staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

An initial rating higher than 50 percent for PTSD, from October 23, 2003, to August 14, 2019.

From October 23, 2003, to August 14, 2019, the Veteran's PTSD is rated as 50 percent disabling pursuant to 38 C.F.R. § 4.130, DC 9411.  

All acquired psychiatric disorders, with the exception of eating disorders, are evaluated under the General Rating Formula for Mental Disorders.  

Under this criteria, a 50 percent rating is assigned 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 establishing effective work and social relationships.  38 C.F.R. § § 4.130, DC 9411.

A 70 percent rating is assigned 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 work-like setting); inability to establish and maintain effective relationships.  Id.

A 100 percent rating is assigned when there is evidence of 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 and place; memory loss for names of close relatives, own occupation or name.  Id.

When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126 (a). When evaluating the level of disability from a mental disorder, VA will also consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126 (b).

Under the General Rating 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). 

The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. On the other hand, if the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004); Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002).

For the following reasons, an initial 70 percent rating for PTSD, from October 23, 2003, to August 14, 2019, is warranted. 

From October 23, 2003, to August 14, 2019, the Veteran's PTSD symptoms and overall impairment more nearly approximated occupational and social impairment with deficiencies in most areas due, at least in part, to suicidal ideation.

For example, the evidence indicates that as early as October 2003, the Veteran began reporting that he attempted suicide and that he had suicidal ideations throughout the period on appeal.  See, e.g., psychological assessment (October 2003) (where the Veteran reported that he had attempted suicide with pills and had thoughts about cutting himself a year earlier).  Indeed, the Board's determination is in line with a longstanding history of homicidal and suicidal ideation, which has been documented in the October 2003 psychological assessment; a February 2005 preventative medical screening note; a January 2008 VA examination; a June 2009, call to his treating psychiatrist; an April 2014 VA discharge summary (showing that he reported that, "approximately [three] years ago... he started hearing voices telling him that he was no good and told him to kill himself" and that he "continue[d] to hear voices that tell him negative things [one-to-two] times per week."); and an August 2019 VA examination report (showing that he had two prior suicidal attempts).  

Moreover, throughout the period that is on appeal, the Veteran reported psychiatric symptoms including irritability; depressed mood; anxiety; suspiciousness; chronic sleep impairment; delusions; decreased concentration; hallucinations; impaired thought processes; and difficulty in establishing and maintaining effective work and social relationship.  See, e.g., VA treatment record (November 2013). The record also shows that he has a history of domestic violence, to include numerous fights with his past wives due to his temper.  See, e.g., VA treatment record (October 2003). 

Accordingly, the Board finds that the Veteran's symptoms, chiefly his suicidal ideation, more nearly approximate occupational and social impairment with deficiencies in most areas.  See Bankhead, 29 Vet. App. at 10.

For the following reasons, an initial rating higher than 70 percent for PTSD, from October 23, 2003, to August 14, 2019, is not warranted.

The Veteran's PTSD symptoms and overall impairment did not more nearly approximate the criteria for the next higher rating of 100 percent, as the evidence indicates that the Veteran's PTSD symptoms did not result in total occupational and social impairment prior to January 17, 2017, and since January 17, 2017, his PTSD symptoms resulted in total occupational impairment, but not total social impairment.

Specifically, as to total occupational impairment, although the Veteran experienced some occupational impairment (as he reported that his PTSD symptoms made it difficult to maintain his route and duties as a mail carrier), his PTSD symptoms did not result in total occupational impairment, prior to January 17, 2017, as the Veteran was employed full-time as a city letter carrier.  See, e.g., veteran's application for increased compensation based on unemployability (April 2021).

Since, January 17, 2017, the Veteran was unemployed, in part, due to his PTSD symptoms.  During this period, the Veteran reported that he had difficulty concentrating and that he had difficulty working with others due to his PTSD.  See VA treatment record (July 2019). In a February 2018 correspondence, the Veteran through his attorney, reported that his stress and anger interfered with his ability to continue working effectively. 

With respect to social impairment, the Board acknowledges that the Veteran's PTSD has resulted in serious social impairment throughout the period under review.  However, in light of evidence that he was consistently cooperative with examiners and clinicians and has volunteered, and maintained ties with his wife/ and/or fiancée, the Board cannot find adopt a finding of total social impairment.

To this extent, the evidence is unclear whether the Veteran is currently married or has a fiancée. For example, during the period under review, the evidence shows that the Veteran reported that although he had been divorced three times, he had been married to his fourth wife for 23 years.  See, e.g., VA examination report (January 2014).  Additionally, the evidence shows that although the Veteran and his wife have had difficulties in their marriage, his wife was supportive of him.  See VA treatment records (July 2014; July 2019).  For example, during a July 2019 VA treatment visit, the Veteran reported that his wife was supportive of him and that his wife lived in Texas for a period for her job, and that his wife visited the Veteran.  However, more current VA treatment records indicate that the Veteran was a "divorced...male, that his "wife" was coming to visit, and that he was going to see his "fiancé."  See VA treatment record (April 2021).  Regardless, the evidence demonstrates that for the appeal period on review, the Veteran was in a relationship and maintained ties with his wife.

Also, the evidence shows that during VA examinations and VA treatment visits, the examiners and treatment providers noted that the Veteran was "cooperative" and that his mood was pleasant. See, e.g., VA treatment record (March 2016). 

As to whether the Veteran attended social events during the appeal period on review, the evidence shows that the Veteran was a volunteer at a local VA a few hours a week. See VA treatment record (March 2019).

To reach a finding of total social impairment, the evidence would need to show that the Veteran did not have close relationships, such as that he shares with his wife or fiancée or the ability to interact socially, as he has with clinicians and examiners and as a volunteer at a local VA throughout the period on appeal.  Therefore, the evidence shows that the Veteran's PTSD has not resulted in total social impairment, at any time, from October 23, 2003, to August 14, 2019.

In addition, the above evidence reflects that although the Veteran had delusions or hallucinations, there was no grossly inappropriate behavior, or that he was unable to perform activities of daily living.  He did not have memory loss for names of close relatives, own occupation or name.  He was not found to be a persistent danger of hurting others.  As such, the Veteran's PTSD symptoms from October 23, 2003, to August 14, 2019, did not more nearly approximate the criteria for a 100 percent rating for PTSD. 

Accordingly, an initial 70 percent rating, but not higher, for PTSD, from October 23, 2003, to August 14, 2019, is warranted.

In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38C.F.R. §3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).

SMC

SMC is payable where the 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. This requirement is met when the Veteran is substantially confined as a direct result of service-connected disabilities to his or her 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 or her lifetime. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i).

Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of TDIU predicated on a single disability may form the basis for an award of SMC. Bradley v. Peake, 22 Vet. App. 280 (2008) (holding that there could be a situation where a veteran has a schedular total rating for a particular service-connected disability, and could establish a TDIU rating for another service-connected disability in order to qualify for SMC under 38 U.S.C. § 1114 (s) by having an additional" disability of 60 percent or more). Additionally, where TDIU is based on one service-connected disability and there are service-connected disabilities that constitute the required additional disability under Section 1114(s), SMC may be awarded. Buie v. Shinseki, 24 Vet. App. 242, 250 (2010).

In this case, the Board finds that the Veteran's TDIU award may be based solely as due to his PTSD.  To this extent, in a September 2021 rating decision, the AOJ awarded a TDIU, effective August 15, 2019, due to his low back disability and his PTSD.  As shown above, the Board, herein, found that the Veteran's PTSD resulted in total occupational impairment, since January 17, 2017, due to the severity of his symptoms.  In sum, the Board finds that the Veteran's award of a TDIU may be predicated solely on his service-connected PTSD.

Although the Veteran's PTSD is not rated as 100 percent, for SMC purposes the TDIU satisfies the requirement of a "service-connected disability rated as total." See Buie, 24 Vet. App. at 251; Bradley, 22 Vet. App. at 293.

Effective April 12, 2021, the Veteran's other service-connected disabilities include a low back disability (rated as 40 percent disabling); allergic rhinitis (rated as 10 percent disabling); tinnitus (rated as 10 percent disabling); right lower extremity radiculopathy (rated as 10 percent disabling); and left lower extremity radiculopathy (rated as 10 percent disabling).  As such, the Veteran's service- connected disabilities, from April 12, 2021, satisfies the requirement for 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. 

Thus, the Veteran has a single service-connected disability rated as 100 percent by way of his TDIU predicated on his service-connected PTSD and has additional service-connected disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. Therefore, the criteria for SMC at the housebound rate are met from April 12, 2021. 

REASONS FOR REMAND

1.   The issue of an initial rating higher than 10 percent for low back disability, prior to April 12, 2021, is remanded.

2.   The issue of a rating higher than 40 percent for a low back disability, since April 12, 2021, is remanded. 

As indicated above, in December 2020, the Board, in pertinent part, denied a rating higher than 10 percent for the Veteran's low back disability.  The Board, in part, relied on a May 2016 VA back examination report when it denied a rating higher than 10 percent for the Veteran's low back disability.

In the above-referenced the July 2021 Joint Motion, the parties to the Joint Motion agreed that the Veteran must be afforded a VA back examination that complies with the Court's decisions in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), and Jones v. Shinseki, 23 Vet. App. 382, 389 (2010), as the May 2016 VA examiner failed to adequately explain her inability to estimate the degree of functional impairment during flareups.  

In May 2021, the Veteran was last afforded a VA examination to assess the severity of his low back disability.  In the May 2021 VA examination, the VA examiner checked the box reflecting that the Veteran did not have low back flare ups and indicated that there was no evidence (statements from the Veteran) to suggest pain, fatigability, weakness, lack of endurance, or incoordination which significantly limit the Veteran's functional ability with flare-ups and thus, the examiner did not provide estimated range of motion measurements during flareups.

To this extent, although the Veteran denied flare ups at the May 2021 examination, the Veteran reported that he had low back flare-ups during the appeal period.  See, e.g., private treatment report (November 2013).  And, thus, the May 2021 VA examiner's finding that the Veteran did not have low back flare ups was inaccurate.  

As such, a remand is warranted to schedule the Veteran for a VA examination to assess the severity of his low back disability, to include compliance with Sharp v. Shulkin, 29 Vet. App. 26 (2017), and Jones v. Shinseki, 23 Vet. App. 382, 389 (2010), and to ensure compliance with the July 2021 Joint Motion.

3.  The issue of SMC pursuant to 38 U.S.C. § 1114 (s) prior to April 12, 2021, is remanded. 

The issue of a SMC pursuant to 38 U.S.C. § 1114 (s) prior to April 12, 2021, is inextricably intertwined with the issue of an initial rating higher than 10 percent for low back disability, prior to April 12, 2021, that is remanded herein; therefore, the issue of SMC pursuant to 38 U.S.C. § 1114 (s) prior to April 12, 2021, must also be remanded.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).

The matters are REMANDED for the following action:

1.  Obtain updated VA treatment records.

2.  Schedule the Veteran for a VA examination to determine the current severity of his service-connected low back disability.  All necessary tests should be conducted.  The claims file must be sent to the examiner for review.

The examiner should examine the Veteran and provide findings in accordance with the currently applicable disability benefits questionnaire, to include compliance with Sharp v. Shulkin, 29 Vet. App. 26 (2017), and Jones v. Shinseki, 23 Vet. App. 382, 389 (2010) as explained by the parties to the Joint Motion.  Additionally, the VA examiner must address that the Veteran reported that he had low back flare ups during the appeal period and provide the Veteran's limitation of motion of his low back during periods of flareups. Specifically, the examiner must consider the VA examinations as well as private and VA treatment records noting the presence and frequency of flare-ups from October 23, 20013, to the present.  

All opinions must be supported by a detailed rationale.

2.  After the above development has been completed readjudicate the issues on appeal, including the inextricably intertwined issue of SMC pursuant to 38 U.S.C. § 1114 (s) prior to April 12, 2021.  If the benefits sought is not granted to the Veteran's satisfaction, send the Veteran and his attorney a Supplemental Statement of the Case and provide an opportunity to respond.  If necessary, return the case to the Board for further appellate review.

 

 

Tiffany Dawson

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Castillo, 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.