Citation Nr: 21074198 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 13-31 599 DATE: December 14, 2021 ORDER Entitlement to an initial 100 percent rating for posttraumatic stress disorder (PTSD) is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities beginning December 1, 2011, is dismissed. Entitlement to special monthly compensation (SMC) based on housebound status beginning December 1, 2011, is granted. REMANDED Entitlement to a TDIU due to service-connected disabilities prior to December 1, 2011, is remanded. FINDINGS OF FACT 1. For the entire appeal period, the occupational and social impairment from the Veteran's PTSD has more nearly approximated total. 2. From December 1, 2011, the Veteran was in receipt of a 100 percent schedular rating for a single service-connected disability plus additional service-connected disabilities having a combined rating of at least 60 percent involving different anatomical segments or bodily systems. CONCLUSIONS OF LAW 1. The criteria for an initial 100 percent rating for PTSD have been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 3.102, 4.7, 4.130, Diagnostic Code 9411 (2020). 2. The criteria for entitlement to SMC based on housebound status beginning December 1, 2011, have been met. 38 U.S.C. §§ 1114(s), 5107 (2018); 38 C.F.R. §§ 3.102, 3.350(i) (2020). 3. Entitlement to a TDIU beginning December 1, 2011, is dismissed as moot. Vettese v. Brown, 7 Vet. App. 31 (1994); Holland v. Brown, 6 Vet. App. 443 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active naval service from March 1963 to May 1965. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran died in March 2015. The appellant is his surviving spouse, who has been properly substituted in the appeal. By way of history, the Board denied entitlement to an increased rating for PTSD, most recently in December 2019. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In November 2020, the Court granted a Joint Motion of the parties, vacated the Board's decision, and remanded the case to the Board for action consistent with the Joint Motion. In May 2021, the Board remanded the case for additional development. It has since been returned to the Board for further appellate action. Increased Rating - PTSD Prior to his death, the Veteran contended that his PTSD was worse than that contemplated by the currently assigned initial rating. In March 2009, the Veteran underwent a private mental status examination. He stated that he was married and had been married six times. He described his marriage as "up and down." He reported that he worked in construction for his entire life. He stated that he quit his last job approximately ten years ago because of his back. He described some interpersonal problems with people on the job. He added that he left jobs because of alcohol. He endorsed depression, awakening at night, alcohol abuse, reexperiencing, avoidance, problems sleeping, anger spells, temper problems, aggressiveness, difficulty concentrating, vigilance, and startle response. He reported that he attempted suicide fifteen years ago playing Russian roulette. He recalled taking a bottle of nitroglycerin once but only getting a headache. He reported feeling of harming others when he became mad. The private clinician observed that the Veteran was impatient and irritable, had some memory problems, dressed "roughly," and appeared to be a somewhat acting-out type of personality. The Veteran was afforded a VA psychiatric examination in November 2010. He stated that he was married to a "supportive" wife. He reported a close relationship with his adult son from his third marriage. He described a quality social relationship with his church and veterans' organization. For leisure, he watched TV and gardened with his wife. He endorsed depression, depressed mood, anxiety, problems sleeping, impulsive spending, intrusive thoughts, hyperarousal, withdrawal, and short- and long-term memory loss. His last panic attack was in the 1980s. With his wife's assistance, he was fully oriented, maintained minimal personal hygiene, and was able to carry out basic activities of daily living (ADLs). The examiner determined that the Veteran had occupational and social impairment with deficiencies in most areas. In October 2011, the Veteran had a VA psychiatric examination. He described his relationship with his wife as "fair" but supportive. He added that his relationship with his family as "pretty good" and with his son as "very good." He stated that his son helped with the mowing and maintenance on the home. He related that he had a couple of friends. In the past year, he participated in bingo a few times. He used to ride motorcycles but stopped due to physical limitations. He stopped attending organizational activities for veterans after he stopped drinking. The Veteran endorsed depression, anxiety, suspiciousness, disturbances of motivation and mood, insomnia, nightmares, mild memory loss, and difficulty concentrating. He has not had any legal problems since his conviction and jail time in 2002. He stopped drinking five years ago and had remained sober. He denied any suicidal ideation, plan, or intent. The examiner noted that the impact of the Veteran's PTSD and depressive symptoms appeared to be mild at that time. The examiner noted that this was in marked contrast to his past arrest history beginning in 1964, noting that he had a history of being charged (but not necessarily convicted) ten times for DUI and seven times for assault, including domestic violence, a sexual assault, and a malicious wounding charge. The examiner indicated that it appeared that alcohol abuse at the time was the primary cause of his loss of employment and noted that the Veteran's overall occupational and social abilities had improved since he discontinued his alcohol abuse several years ago. The Veteran reported that his last three marriages ended due to his drinking behavior and there was domestic violence in his marriages. It was noted that due to his sobriety, he had connected with a community organization (church), stayed away from social settings that would entice him to drink, and maintained a stable relationship with his current wife and a good relationship with his son. The examiner determined that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Prior to the Veteran's death in March 2015, VA medical center records showed that the Veteran reported depression due to chronic pain and lung cancer diagnosis, intrusive thoughts, and marital discord in 2012. Additionally, he had thoughts of having a bottle of whiskey in October 2012. In 2013, the Veteran reported significant marital problems. He described his wife as verbally abusive because she yelled at and insulted him and called him lazy and dumb. He endorsed depression, anxiety, stress, and intrusive thoughts. In October 2013, he reported some passing suicidal ideations without plan or intent. He denied having any alcohol in the past eight years. In April 2014, a VA psychiatrist observed that the Veteran had depression, stress, worry, impaired judgment, impaired insight, poor attention, memory deficits, and tangential thought processes/associations. At a September 2014 VA psychiatry visit, the appellant reported that the Veteran was "a bit too confused" to remember to take his medications; however, the Veteran had been compliant with her support and guidance. At the time, a VA chief psychiatrist observed that the Veteran did not know the current year or exact date and had poor insight and judgment. In January 2015, a VA psychiatrist found that the Veteran's ability to make decisions may have been affected by his cognitive impairment which may be exacerbated by his medication regimen. In September 2019, the appellant participated in a private telephone interview. The private psychologist opined that the Veteran's PTSD was both chronic and severe and at least as likely as not caused total occupational and social impairment from at least March 2009 until his death in March 2015. The private psychologist pointed to symptoms such as persistent danger of hurting self or others and intermittent inability to perform ADLs, including maintenance of minimal personal hygiene. The private psychologist concluded that the Veteran's substance abuse developed secondary to his PTSD as a form of self-medication. Further, the private psychologist opined that the Veteran was at least as likely as not rendered fully unable to successfully secure and follow substantially gainful employment from at least March 2009 until his death in March 2015. The appellant reported that the Veteran navigated severe and chronic PTSD symptoms such as depressed mood, anxiety, panic attacks, near-continuous depression, chronic sleep impairment, lack of energy, impairment of short- and long-term memory, impaired judgment, difficulty concentrating, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, obsessional rituals, impaired impulse control, persistent danger of hurting self or others, neglect of personal appearance and hygiene, and intermittent inability to perform ADLs (including maintenance of minimal personal hygiene). The Veteran reportedly told the appellant that his PTSD ramped up right after he was medically discharged, and he struggled with alcohol to medicate his misery. The appellant described the Veteran as a binge drinker who would leave and not come back for days or get arrested for drunk driving. After the Veteran stopped working, he would leave more frequently and for longer. The appellant mentioned that the Veteran had anger management problems and was arrested for battery 15 or 20 times. The appellant stated that the Veteran could not handle stress and would get upset and binge. The appellant reported that she managed the Veteran's medication, doctor's appointments, and finances. The appellant had to "harp on" the Veteran and help him with taking a shower and keeping clean. The appellant recalled that the Veteran lost his jobs because of his drinking. The RO obtained an additional VA psychiatric opinion in May 2021. The examiner found that the Veteran's alcohol use/abuse was at least as likely as not proximately due to or the result of his PTSD. Based on the evidence of record, the examiner concluded that the Veteran would have had at least occupational and social impairment with reduced reliability and productivity. After the Veteran's relapse in 2013 and declining health issues, the examiner determined that the Veteran had at least occupational and social impairment with deficiencies in most areas. With regard to the Veteran's ability to function in an occupational environment, the examiner noted that the Veteran exhibited a number of symptoms of PTSD (with associated anxiety and depression) that would likely have severely impaired his ability to work in both sedentary and more active work environments, even if he had been physically able to do so. Symptoms such as irritability, poor anger management, exaggerated startle response, social withdrawal and alienation, poor coping strategies and his inability to tolerate being around even small groups of people would likely have severely interfered with the Veteran's ability to interact and relate effectively with others (even in a one-on-one setting). Additional symptoms such as difficulty with concentration, problems with focus, the presence of intrusive thoughts, anxiety, and hypervigilance would have likely seriously interfered with the Veteran's ability to effectively manage workplace tasks and demands in a consistent and productive manner. Poor sleep and associated daytime fatigue, avoidance, low mood and motivation, poor self-esteem, and difficulty functioning in stressful situations would likely have further reduced workplace reliability and efficiency. Thus, it appeared it would have been extremely difficult for the Veteran to secure or to maintain occupational engagement across all occupational environments and settings due to the severity of his PTSD and associated symptoms of anxiety and depression since in/around 2001 when he was last employed. Additionally, the appellant described the Veteran's impulsive behavior, anger management issues, memory impairment, inability to hold down a job, multiple legal problems for DUI and assault, unprovoked fighting, binge drinking, and depression. The appellant once tried to awaken the Veteran and he swung punches at her. The Veteran reportedly would hit the appellant on multiple occasions when he was drunk. The appellant could not rely on the Veteran's judgment or memory. Upon review of the record, the Board finds that the Veteran was entitled to a 100 percent rating for the entire appeal period prior to his death. In this regard, the Veteran had total occupational and social impairment. The evidence showed that the Veteran's PTSD had been manifested by depression, anxiety, stress, anger, disturbances of motivation and mood, chronic sleep impairment, nightmares, difficulty concentrating, suicidal thoughts, memory loss, difficulty in adapting to stressful circumstances, history of impaired impulse control, difficulty in establishing and maintaining effective work and social relationships, history of gross impairment in thought process, disorientation to time or place, and intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene). Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that when the Veteran's disability picture is considered as a whole, it is apparent that the Veteran's symptoms more closely approximated those contemplated by a 100 percent rating and as such, a higher rating is warranted for his PTSD. 38 C.F.R. § 4.130, Diagnostic Code 9411. The Board acknowledges that the results of the VA examinations, private evaluations, mental health treatment records, and the lay assertions of record do not indicate that the Veteran experienced all symptoms associated with a 100 percent rating. However, the symptoms enumerated under the schedule for rating mental disorders are not intended to constitute an exhaustive list, but rather are intended serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular disability rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the Board finds that there is total occupational and social impairment sufficient to warrant a 100 percent rating even though all the specific symptoms listed for that rating are not manifested. TDIU/SMC from December 1, 2011 The Court has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443 (1994), citing Swan v. Derwinski, 1 Vet. App. 20 (1990). Generally, if VA has found a veteran to be totally disabled as a result of a particular service-connected disability or a combination of disabilities pursuant to the rating schedule, there is no need, and no authority to otherwise rate that Veteran totally disabled on any other basis. Herlehy v. Principi, 15 Vet. App. 33 (2001). The Board notes that the award of a 100 percent rating does not categorically render the question of TDIU moot. In Bradley v. Peake, 22 Vet. App. 280 (2008), the Court held that VA must consider a TDIU claim despite the existence of a schedular total rating and award SMC under 38 U.S.C.A. § 1114(s) if VA finds a separate disability supports a TDIU independent of the disability with a 100 percent rating. In this case, the Board has awarded an initial 100 percent rating for PTSD effective March 18, 2009. The Veteran also had additional service-connected disabilities, including: neuropathy of the right upper extremity (rated at 40 percent beginning December 1, 2011); neuropathy of the left upper extremity (rated at 30 percent beginning December 1, 2011); neuropathy of the left median nerve (rated at 10 percent from May 4, 1965 to December 1, 2011); hearing loss (rated at 10 percent from December 1, 2011); and dermatophytosis (rated at 0 percent from May 4, 1965). Thus, the Veteran had additional service-connected disabilities independently ratable at a combined rating of more than 60 percent beginning December 1, 2011. Accordingly, as both elements of entitlement to SMC at the (s) rate have been shown, the Board finds entitlement to SMC at the statutory housebound (s) rate is warranted beginning December 1, 2011. The grant of a 100 percent schedular rating for PTSD and SMC at the housebound rate renders the issue of entitlement to TDIU moot from December 1, 2011. REASONS FOR REMAND As noted above, entitlement to SMC at the housebound rate has been established effective December 1, 2011. Therefore, the issue of entitlement to TDIU is moot beginning from that date. The question remains as to whether the award of the 100 percent rating for PTSD renders the issue of entitlement to TDIU moot prior to December 1, 2011. Prior to December 1, 2011, aside from the 100 percent rating for PTSD, the Veteran was service connected for neuropathy of the left median nerve (rated at 10 percent), and dermatophytosis of the feet (rated at 0 percent). Thus, SMC may be warranted if the evidence shows that the Veteran was entitled to TDIU based solely on those other disabilities during that time period. During the Veteran's lifetime, he reported that the inability to use his hands due to nerve damage rendered him unable to work and that he last worked in the field of maintenance/construction in 1993. Therefore, the Board finds the issue of entitlement to TDIU based solely on service-connected disabilities other than PTSD is reasonable raised by the record. Accordingly, the issue of TDIU prior to December 1, 2011, is not moot. However, because the Veteran did not meet the schedular requirements of 38 C.F.R. § 4.16(a) for the assignment of a TDIU prior to December 1, 2011, the matter is referred to the Director of VA's Compensation Service for extraschedular consideration under 38 C.F.R. § 4.16(b). The matter is REMANDED for the following action: 1. Refer the TDIU claim prior to December 1, 2011, to the Director of VA's Compensation Service for extraschedular consideration under 38 C.F.R. § 4.16(b). Specifically, consideration should be given as to whether the Veteran's service-connected left median nerve neuropathy and/or dermatophytosis of the feet (irrespective of the 100 percent rating for PTSD) rendered him unable to secure or follow a substantially gainful occupation prior to December 1, 2011. 2. Then, readjudicate the remaining claim on appeal. If the decision remains adverse to the appellant, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. Sonja A. Mishalanie Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Ware, 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.