Citation Nr: 21075170 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 17-20 781 DATE: December 17, 2021 ORDER Entitlement to a disability rating of 100 percent for posttraumatic stress disorder (PTSD) is granted for the entire period on appeal. Entitlement to special monthly compensation (SMC), pursuant to 38 U.S.C. § 1114(s), is granted for the entire period on appeal, subject to controlling regulations governing the payment of monetary awards. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran's service-connected PTSD has resulted in total occupational and social impairment. 2. For the entire appeal period, the Veteran has been in receipt of a 100 percent rating for a single disability (PTSD) with additional service-connected disabilities independently ratable at 60 percent or higher. CONCLUSIONS OF LAW 1. The criteria for an initial 100 percent evaluation for PTSD have been met for the entire period on appeal. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to SMC under 38 U.S.C. § 1114(s) have been met. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from March 1969 to September 1970, and in the United States Army from September 1977 to June 1996. During his periods of service, he earned the Good Conduct Medal (6th Award), National Defense Service Medal (2nd Award), Vietnam Service Medal with One Star, Rifle Marksman Badge, Republic of Vietnam Campaign Medal with Device, Combat Action Ribbon, Republic of Vietnam Meritorious Unit Citation (Gallantry Cross Medal, Color with Palm), Republic of Vietnam Meritorious Unit Citation (Civil Actions Medal, First Class Color with Palm), Meritorious Service Medal, Army Commendation Medal, Army Achievement Medal (2nd Oak Leaf Cluster), Noncommissioned Officer Professional Development Ribbon (with Numeral Three), Army Service Ribbon, and Overseas Service Ribbon (with Numeral Four). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board videoconference hearing in October 2021. 1. Entitlement to a higher rating for PTSD Disability ratings 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 Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when assigning disability ratings. See generally 38 C.F.R. § 4.1. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran contends that he is entitled to a rating in excess of 50 percent for his service-connected PTSD. PTSD is evaluated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is warranted where 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. A 70 percent rating is warranted where 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); inability to establish and maintain effective relationships. A 100 percent rating is warranted where there is 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; memory loss for names of close relatives, own occupation, or own name. The use of the term "such as" in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (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." The Veteran appeared for a VA PTSD examination in November 2013. He reported that he had been married for five years and has three children whom he talks to "every now and then." The Veteran had recently moved to be closer to family and indicated that he enjoyed visiting with his sister frequently. He also stated that he spent a lot of time watching television. The examiner indicated that the Veteran's level of occupational and social impairment could be best summarized as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The examiner noted symptoms of anxiety, suspiciousness, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. In a February 2014 VA treatment note, the Veteran reported experiencing nightmares, flashbacks, intrusive thoughts and images, anger, avoidance of situations that reminded him of his traumas, and depressed mood. He also reported significant impairment in his interpersonal functioning, noting that his wife was about to "desert" him. He further indicated that his best friend had already deserted him. The Veteran also endorsed concerns with death and "darkness." He reported that he frequently felt the darkness was out to get him and trying to consume him. Subsequently, in a March 2014 VA treatment note, the Veteran experienced thoughts of killing his wife. He stated that he sometimes gets so angry when they are having a disagreement that he wants to "shake her up" or "shake the life into her." He denied having access to weapons. He also denied ever physically assaulting his wife or being physically assaulted by his wife in the recent past. An August 2014 VA treatment note indicates the Veteran experienced military-related nightmares and dreams two to three times a week. He slept two to five hours per night; however, he did not nap during the daytime. He indicated that he tried to go fishing and watch television. He did not go out when upset with other or if someone is upset with him to avoid confrontation. At the time of examination, he still reported forgetfulness, anger issues, irritability, avoidance, hypervigilance, exaggerated startle response with loud noise, and inability to tolerate crowds. He denied any suicidal or homicidal ideation and auditory or visual hallucinations. A March 2015 VA treatment note indicates the Veteran presented with no new complaints. He reported that his sleeping pattern had improved, but experienced nightmares and dreams two to three times a week. He slept two to five hours per night, but he napped during the daytime. He reported seasonal depression in the winter. He also endorsed isolative behavior, as he wanted to avoid confrontation. He still experienced recurrent intrusive thoughts, avoidance, and hypervigilance. He preferred to be alone and was startled by loud noise. He expressed intolerance with crowds. At the time of examination, he reported no psychotic symptoms. He did not verbalize any suicidal or homicidal thoughts. In April 2016, the Veteran was hospitalized for PTSD symptoms. A private psychiatric evaluation was associated with the Veteran's claims file in January 2019. The Veteran reported recurrent nightmares, flashbacks depression, anxiety attacks exacerbated by arge crowds, exaggerated startle response, forgetfulness, mood swings, and irritable behavior. He noted that crowds of people escalated his hypervigilance. He also reported intrusive thoughts described as "distracting." In further discussing his symptoms, the Veteran reported immense relationship and interpersonal stress, frequent trauma recollections, social isolation, and communication and cognitive issues. He indicated that the disability impacted his memory, as well as his ability to concentrate and maintain conversations. He also described significant difficulty falling asleep, which caused fatigue daily. The Veteran indicated that he was most comfortable when isolated at home. He stated that he was able to bathe and dress himself independently; however, he stated that he may not complete the tasks daily. He occasionally participates in grocery shopping and yardwork, though his involvement had decreased due to his disability. In November 2019, the Veteran was hospitalized for PTSD with suicidal ideations. At the time of his Board videoconference hearing in October 2021, the Veteran testified to experiencing difficulty communicating with others. Though he lives with wife, he further reported that they fight all the time. He stated that he feels terribly lonely and has gone to the hospital just so he can talk to someone who seems to care about him. He reported that it is a daily struggle to live. The Veteran also testified to experiencing auditory hallucinations, difficulty keeping track of the date and year, and forgetting the names of close relatives. He expressed that he is worried about going senile. With resolution of reasonable doubt in the favor of the Veteran, the Board finds that the Veteran's PTSD has resulted in total occupational and social impairment for the entire period on appeal. The Veteran has consistently reported social isolation, anxiety, suicidal and homicidal ideation, depression, mood swings, nightmares, flashbacks, intrusive thoughts, inability to maintain sleep, impaired interpersonal functioning, anger, irritability, avoidance, hypervigilance, exaggerated startle response, and memory loss. Additionally, the Veteran has reported hospitalization for his PTSD symptomatology. Accordingly, the Board finds that his symptoms more closely approximate a 100 percent rating for PTSD during the entire appeal period. This 100 percent evaluation is a full grant of the benefits on appeal. The Board acknowledges that the results of the VA examinations, the symptoms described in the VA examination reports, and the VA treatment records do not indicate that the Veteran has experienced all the symptoms associated with a 100 percent rating for PTSD. However, the symptoms enumerated under the schedule for rating mental disorders are not intended to constitute an exhaustive list but serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular disability rating. Mauerhan, supra. Thus, the Board finds that there is total occupational and social impairment sufficient to warrant a 100 percent rating for the entire period on appeal, even though all the specific symptoms listed for a 100 percent rating are not manifested. Therefore, resolving reasonable doubt in favor of the Veteran, the Board finds that the preponderance of the evidence supports the assignment of a 100 percent rating for PTSD for the entire period on appeal. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. SMC The Veteran has been awarded a 100 percent rating for the entire appeal period for PTSD and the issue of entitlement to SMC has not been raised or adjudicated. However, such a claim is inherently part of an appealed rating claim where the criteria are raised. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008). As it pertains to the instant case, SMC is a special statutory benefit that is payable if a veteran has a single service-connected disability rated at 100 percent and 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. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i); see also Bradley, 22 Vet. App. 280. Here, the Veteran's other service-connected disabilities, including sleep apnea, insomnia, osteoarthritis, radiculopathy, and hypertension, are separate and distinct from his PTSD. When taken together, and excluding the 100 percent rating for PTSD, the Veteran's additional service-connected disabilities have a combined schedular rating of over 60 percent for the entire appeal period. Accordingly, SMC is warranted. See 38 U.S.C. § 1114(s). A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tracy O. Joseph, 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.