Citation Nr: 21005937 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 14-10 789A DATE: February 2, 2021 ORDER For the entire rating period on appeal, a 70 percent rating, but no higher, for posttraumatic stress disorder (PTSD) is granted. For the rating period from July 27, 2009 to August 11, 2015, entitlement to a total disability rating based on individual unemployability (TDIU) is granted. For the appeal period from August 12, 2015 to November 30, 2019, special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114 (s) is granted. For the rating period beginning December 1, 2019, entitlement to a TDIU is granted. REMANDED Entitlement to service connection for right eye disability is remanded. FINDINGS OF FACT 1. The Veteran’s PTSD has been productive of occupational and social impairment in most areas, but has not been manifested by total social impairment. 2. For the rating period from August 12, 2015 to November 30, 2019, the Veteran’s service-connected residuals of prostate cancer is a service-connected disability rated as total, and his other service-connected disabilities combined to a 60 percent rating. 3. For the rating period from July 27, 2009 to August 11, 2015, and beginning December 1, 2019, the Veteran’s physical and mental disabilities render him unable to secure or follow substantially gainful employment. CONCLUSIONS OF LAW 1. For the entire rating period on appeal, the criteria for a 70 percent rating, but no higher, for PTSD 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. For the rating period from July 27, 2009 to August 11, 2015, the criteria for entitlement to TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. 3. For the rating period from August 12, 2015 to November 30, 2019, the criteria for SMC at the housebound rate are met. 38 U.S.C. §§ 1114 (s), 5103, 5107; 38 C.F.R. §§ 3.102, 3.350. 4. For the rating period beginning December 1, 2019, the criteria for entitlement to TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from February 1966 to August 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). These claims were last before the Board in October 2016 where they were remanded for additional development. Rating for PTSD—Laws and Analysis Under the General Formula for Mental Disorders (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. 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). 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. A 100 percent rating is assigned for 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; or memory loss for names of close relatives, own occupation or own name. Service connection was granted for PTSD with night sweats in a June 2004 rating decision and a 30 percent disability rating was assigned, effective January 13, 2004. An October 2020 rating decision assigned a 50 percent disability rating, effective July 14, 2020. Based on the evidence of record, the Board finds that the Veteran’s PTSD symptoms have remained relatively consistent throughout the rating period on appeal. Further, the Board finds that the evidence of record is at least in equipoise as to whether the Veteran’s PTSD disability more nearly approximates the 70 percent rating criteria for the entire period on appeal. The Veteran has consistently reported having depressed mood, anxiety, suspiciousness, chronic sleep impairment, nightmares, mild memory loss, flattened affect, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, occasional homicidal thoughts, and social isolation. See e. g., July 2020 VA examination report; December 2009 VA treatment record (noting moderate to severe PTSD); February 2011 SSA psychological evaluation. The Board finds that some of these symptoms are specifically included in the 70 percent rating criteria under DC 9411 and more nearly approximate occupational and social impairment, with deficiencies in most areas. Accordingly, and resolving reasonable doubt in his favor, a 70 percent rating for PTSD is warranted for the rating period on appeal. Nonetheless, for the entire rating period on appeal, PTSD symptomatology does not more nearly approximate the criteria for a 100 percent rating. The Veteran’s PTSD symptoms do not more nearly approximate total social impairment and do not contemplate the symptomology considered under the 100 percent rating criteria. Although the Veteran lives alone, he has indicated that he takes care of his dogs and is able to perform all activities of daily living. The Veteran also indicated that he used to fish and occasionally attends church. See February 2011 SSA psychological evaluation. VA treatment records in July 2016 indicate that the Veteran had a girlfriend. A 2014 VA treatment record noted that the Veteran had a “good friend whom he confides in.” In reaching this conclusion regarding the degree of occupational and social impairment, the Board has considered all the Veteran’s psychiatric symptoms and impairment, whether or not the symptom is specifically listed in the rating criteria, considering such symptoms as “like or similar to” the symptoms in the rating criteria. See Mauerhan, 16 Vet. App. at 442 (stating that the symptoms listed in VA’s general rating formula for mental disorders is not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and that, without those examples, differentiating between rating evaluations would be extremely ambiguous); Vazquez-Claudio, 713 F.3d at 116-17 (the rating criteria under § 4.130 is “symptom-driven” and “a veteran may only qualify for a given rating under [this criteria] by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration”). With this in mind, the evidence shows that the Veteran’s overall PTSD picture is already adequately contemplated by the 70 percent rating granted herein. The Veteran does suffer from disturbance of motivation and mood (depression and anxiety), and sleep impairment, but these symptoms are specifically contemplated in the 30, 50, and 70 percent rating criteria. The same is true with the rare homicidal ideation, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships, which are symptoms specifically contemplated under the 70 percent PTSD rating. For these reasons, the evidence does not demonstrate total social impairment and does not more nearly approximate the symptoms contemplate under the 100 percent rating criteria. Accordingly, a 70 percent rating for PTSD, but no higher, is warranted for the entire initial rating period on appeal. SMC—Laws and Analysis The Court 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, 38 (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 SMC under 38 U.S.C. § 1114. See Bradley, 22 Vet. App. 280, 294 (2008) (finding that SMC “benefits are to be accorded when a Veteran becomes eligible without need for a separate claim”). Special monthly compensation 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. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). Subsection 1114(s) requires that a disabled Veteran whose disability level is determined by the ratings schedule must have at least one disability that is rated at 100 percent in order to qualify for the special monthly compensation provided by that statute. Under the law, subsection 1114(s) benefits are not available to a Veteran whose 100 percent disability rating is based on multiple disabilities, none of which is rated at 100 percent disabling. In this case, the Veteran was awarded a 100 percent schedular rating for residuals of prostate cancer from August 12, 2015 to November 30, 2019. Because the Veteran has a single service-connected disability rated as total (i.e., prostate cancer) and had additional service-connected disabilities (i .e., PTSD and tinnitus) that are independently rated as at least 60 percent disabling, the criteria for SMC at the housebound rate have been met for rating period from August 12, 2015 to November 30, 2019. Thus, entitlement to SMC at the housebound rate under 38 U.S.C. § 1114 (s) is granted for the rating period from August 12, 2015 to November 30, 2019. TDIU—Laws and Analysis VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In arriving at a conclusion, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). The law provides that a total disability rating may be assigned where the schedular rating is less than total, when the person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; disabilities resulting from common etiology or a single accident; disabilities affecting a single body system; multiple injuries incurred in action; or multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). For a veteran to prevail on a claim for a TDIU rating, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). As it pertains to the rating period from July 27, 2009 to August 11, 2015, and beginning December 1, 2019 (and pursuant to the Board’s grant of a 70 percent rating for PTSD herein), the schedular requirements for the assignment of a TDIU pursuant to 38 C.F.R. § 4.16(a) are met for these periods. The Veteran contends that his service-connected “PTSD, high blood pressure, agent orange and mini strokes” have caused him to be unemployable. See January 2014 VA Form 21-8940; July 2019 VA Form 21-8940; see also July 2020 PTSD VA examination (Veteran reported “missing significant periods of work due to service-related mental health condition.”). The Board notes that the Veteran is not currently service-connected for high blood pressure or mini strokes and that therefore, these disabilities cannot be considered when determining the Veteran’s unemployability. On his January 2014 VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, the Veteran indicated he last worked in November 2010 as a Heating and AC technician. On his July 2019 VA Form 21-8940, the Veteran indicated that he last worked in 2015 as the Director of Maintenance at a nursing facility. The record indicates the Veteran’s education level is reported as 3 years of college with training in HVAC Energy Management. Id. Upon review of the record, and after resolving all doubt in favor of the Veteran, the Board finds that entitlement to TDIU is warranted, based on the combined effects of his service-connected disabilities. Recent medical records note psychiatric symptoms including: circumlocutory speech, suspiciousness, depression, disturbances of motivation and mood, impaired judgment, mild memory loss, forgetting recent events, chronic sleep impairment, impaired abstract thinking, difficulty in adapting to work, flattened affect, circumstantial speech, anxiety, difficulty in establishing and maintaining effective work and social relationships, forgetting directions, and difficulty in adapting to stressful circumstances (including work or a worklike setting). Further, a May 2019 VA examiner noted that the Veteran’s residuals of adenocarcinoma of the prostate include the following symptoms: requiring the wearing of absorbent materials which must be changed more than four times per day, awakening to void five or more times per night, and daytime voiding interval less than one hour. Additionally, the July 2020 PTSD VA examiner noted that “Veteran cannot tolerate being around other people in any setting for more than a few minutes,” while the May 2019 VA examiner noted “frequent urination and residual weakness in left leg as a result of [prostate cancer] treatment does not allow him to perform physical labor.” His physical and mental disability symptoms, considered together, as likely as not render the Veteran unable to obtain or maintain gainful employment consistent with his work history. Accordingly, entitlement to a TDIU is warranted for the rating period from July 27, 2009 to August 11, 2015, and beginning December 1, 2019. REASONS FOR REMAND Right Eye The Veteran was afforded a VA eye examination and medical opinion in July 2020. At that time, the Veteran was diagnosed with optic atrophy and age-related cataracts. As it pertains to the optic atrophy diagnosis, the Board finds that the VA examiner did not provide an adequate rationale for the negative nexus opinion rendered. In this regard, the examiner acknowledged the Veteran’s head/eye injury in service and noted that the Veteran’s vision loss appeared to have occurred sometime after July 1968. However, although the Veteran’s vision problems may have occurred after service discharge, the examiner did not address whether the Veteran’s optic atrophy (despite of the onset date of symptoms) was related to the in-service injury. In other words, the likely etiology of the Veteran’s optic atrophy was not provided. As such, an additional medical opinion is required. The matters are REMANDED for the following actions: 1. Obtain an addendum medical opinion from a qualified VA physician regarding the etiology of the Veteran’s optic atrophy disorder of the right eye. If it is determined that a new VA examination is necessary, schedule the Veteran for an appropriate VA examination. Following a review of the claims file, the examiner is asked to address the following questions: (a) State whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed right eye optic atrophy is related to the in-service eye injury. The Veteran has indicated that he had problems with acuity soon after the injury (i. e., 1969-1970). (b) If the examiner finds that the Veteran’s optic atrophy is not related to service, please indicate the likely etiology of the disorder (e. g., age-related, congenital, etc.). A rationale should be provided for all opinions rendered. 2. Then, readjudicate the claim on appeal. Romina A. Casadei Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. N. Wilson, Associate 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.