Citation Nr: 21006026 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 11-00 046A DATE: February 3, 2021 ORDER Entitlement to an evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based on individual unemployability due to a service-connected disability (TDIU) from September 3, 2013 is granted. Entitlement to special monthly compensation (SMC) based on housebound status from September 3, 2013 is granted. FINDINGS OF FACT 1. The Veteran’s PTSD manifests in social and occupational impairment with deficiencies in most areas. 2. From September 3, 2013, the Veteran’s PTSD alone has prevented him from securing and maintaining substantially gainful occupation. 3. Due to the Board’s grant of TDIU based solely on PTSD, the Veteran has one service-connected disability rated at 100 percent and additional disabilities rated at 60 percent from September 3, 2013. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation in excess of 70 percent have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code (Code) 9411 (2020). 2. The criteria for entitlement to TDIU from September 3, 2013 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16 (2020). 3. The criteria for entitlement to SMC based on housebound status from September 3, 2013 have been met. 38 U.S.C. §§ 1114(s), 5107 (2012); 38 C.F.R. §§ 3.102, 3.350(i) (2020); Bradley v. Peake, 22 Vet. App. 280 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1970 to February 1972, March 2002 to August 2002, March 2005 to June 2006, and July 2006 to July 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA). This case was remanded in February 2020 for further development. In February 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. 1. Entitlement to an evaluation in excess of 70 percent for PTSD. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In any claim for an increased rating, “staged” ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran’s PTSD is currently rated at 70 percent under the General Rating Formula for Mental Disorders (General Formula). A 70 percent evaluation is warranted where there is occupational and social impairment, with deficiencies in most areas (such as work, school, family relations, judgment, thinking, or mood). This may be 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. 38 C.F.R. § 4.130, Code 9411. A 100 percent evaluation is warranted for total occupational and social impairment. This may be 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. Id. The list of symptoms in the General Formula is not intended to constitute an exhaustive list, but provides examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, 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. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Furthermore, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. As relevant to this case, the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), states that it was recommended that the use of Global Assessment of Functioning (GAF) scores be dropped for several reasons, including their conceptual lack of clarity and questionable psychometrics in routine practice. The Board recognizes the Court’s holding in Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) regarding the importance of GAF scores, however, as the medical community has determined that GAF scores are an unreliable measure of a psychiatric disability, the Board assigns the GAF scores mentioned in the record no probative value, and will not discuss them specifically. See also Golden v. Shulkin, 29 Vet, App. 221 (2018). During a June 2009 VA examination, the Veteran described himself as moody and impatient. He reported having slapped people. He was asocial and had no friends. He had obsessional rituals like checking on doors and locks, but these were not severe enough to interfere with his routine activities. He had homicidal ideation. The examiner opined he had occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks. His symptoms included depressed mood, suspiciousness, and chronic sleep impairment. In December 2009, a VA vocational rehabilitation specialist opined that the Veteran did not have a serious employment handicap and it was reasonably feasible to expect that he was capable of achieving a suitable vocational goal with the help of rehabilitation services. Social Security Administration (SSA) records reflect the Veteran worked full-time in security until September 2013, when he was released from employment due to speaking harshly to a client. See September 2009 and December 2013 SSA records. In December 2013, he reported that he heard voices telling him to “watch out” or not to “trust those people.” He would see images of things that happened long ago or things that would happen in the future. He endorsed having sensations of spirits, saying he could sense them but could not see them. He did not have any suicidal ideations or plans currently, but he had days when had a wish to die. The evaluator noted that he was able to do his own self-care and hygiene without assistance. While he had to take his time doing tasks, this was due to his knees rather than his psychological impairment. See December 2013 SSA records. During a January 2018 VA examination, the examiner opined that the Veteran had occupational and social impairment with reduced reliability and productivity. The Veteran was noted to have ongoing disturbing memories, mood swings, sleep disturbances, obsessive routines of checking doors and locks, increased depression, and irritability. He had difficulty establishing and maintaining effective work and social relationships and adapting to stressful circumstances, including work or a work like setting. He reported that he had difficulty managing anger that escalated rapidly in yelling often. He had a low tolerance for others at home and in public places. During a February 2020 Board hearing, the Veteran testified that he believed he could work but that he could not tolerate people who he believes are stupid and who talk to him “in ways that he does not appreciate.” During a September 2020 VA examination, the Veteran reported explosive anger that he could no longer control. He would wake in the middle of the night and check the windows and doors for safety. He reported hearing voices in his mind that he believed were his ancestors. When queried further, he stated that the voices are not spoken aloud, only within his mind. He heard them daily while awake. The September 2020 VA examiner opined that the Veteran had occupational and social impairment with reduced reliability and productivity. His symptoms included depressed mood, anxiety, chronic sleep impairment, and speech intermittently illogical, obscure, or irrelevant. The examiner opined that the severity of the Veteran’s PTSD was moderate, and that recent significant frustration and anger was due to a delay in allowing his wife a green card and was not an exacerbation of PTSD symptoms. The examiner noted that his report of hearing guiding voices from his ancestors was not considered to reflect psychosis; rather, he spoke with pride of his ancient heritage and lineage, its influence on him, and great feats accomplished. Thus, his reporting appeared to be associated with his cultural awareness. While the Veteran has severe manifestations of PTSD, such symptoms manifest in occupational and social impairment with deficiencies in most areas, and do not reflect total social impairment. Even if the Board were to concede total occupational impairment, the record reflects that the Veteran is able to conduct himself in public under most circumstances and is able to maintain a healthy relationship with his wife. He is generally functioning satisfactorily with self-care and normal conversation, and while he had homicidal ideation and reported slapping people on at least one occasion, there is no persistent indication that he is a danger to himself or others. Although he is asocial, there is no indication that he was unable to care for himself or undergo everyday tasks that require social interactions, such as grocery shopping, that are required for normal living. He reported that he does not have friends, but he has been able to maintain a healthy relationship with his wife; indeed, he was upset that she could not join him in the United States. As a result, the evidence does not reflect total social impairment, and a 100 percent evaluation is not warranted. 2. Entitlement to TDIU. TDIU may be assigned, where the schedular rating is less than total, when the veteran is unable to secure or follow substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In order to meet the schedular criteria for entitlement, the veteran must have either: (i) one disability rated at 60 percent or more; or (ii) two or more disabilities, with at least one disability rated at 40 percent or more and sufficient additional disability bringing the combined rating to at least 70 percent. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment and generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Id. The Veteran meets the schedular criteria for entitlement to TDIU because his service-connected PTSD is rated at 70 percent. The Board notes that the Veteran was provided the opportunity to submit his employment history and any other relevant information regarding his claim. See May 2020 VA correspondence. Although VA has a duty to assist the Veteran in substantiating his claims, that duty is not a one-way street and he must make efforts to assist VA in gathering evidence relevant to his claim. Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. App. 449, 452 (2000). Thus, the Board will proceed with adjudication. The record is consistent that the Veteran worked full-time in security until September 3, 2013. See, e.g., SSA records. Because the Veteran was working full-time and there is no evidence that such work was in a protected environment or was otherwise marginal employment, the Board finds that TDIU is not warranted prior to September 3, 2013. Although the SSA originally found the Veteran to not be disabled, see January 2014 SSA determination, it appears a later determination found the Veteran disabled since 2013. See SSA Profile and Benefit Data. The basis of the grant of benefits was not provided, but the January 2014 SSA determination reflects it considered the Veteran’s psychological disorder as a secondary diagnosis. The Veteran has reported that he stopped working to retire, see, e.g., January 2018 VA examination, but he also once reported that he was released from his employment due to speaking harshly to a client. See December 2013 SSA records. The Veteran has an associate degree in criminal justice, see December 2013 SSA records, and obtained a certificate in air condition maintenance. After service he worked as a machinist for 12 years. He most recently worked in security from approximately March 2009 to September 2013. See, e.g., September 2013 SSA records. As discussed above, the Veteran has expressed a low tolerance for people that he believes are stupid and that speak to him “in ways that he does not appreciate.” See February 2020 Board hearing. The record is consistent that he appears to have anger problems and difficulty maintaining work and social relationships. See, e.g., January 2018 VA examination. A September 2020 VA psychological examiner opined that the Veteran’s level of anger and irritation impaired interpersonal relationships that would likely interfere with a productive, collaborative work environment, and his sleep issues could result in a high rate of absenteeism and lack of concentration on the job. The Board has considered the Veteran’s work history in security and as a machinist, as well as his limited education history. As reflected by the context of his removal from work in 2013 due to negative interactions with a client, and after considering the September 2020 VA examiner’s opinion that the Veteran would have difficulty in a collaborative work environment, the Board finds that the Veteran’s PTSD has prevented him from securing and maintaining substantially gainful occupation since September 3, 2013, and TDIU is warranted. 3. Entitlement to SMC based on housebound status. SMC at the housebound rate is payable if a Veteran has a single service-connected disability rated at 100 percent and has an 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). A TDIU rating based on a single disability is permitted to satisfy the statutory requirement of a 100 percent rating. Bradley v. Peake, 22 Vet. App. 280, 293 (2008). The Board has awarded TDIU from September 3, 2013 due solely to the Veteran’s service-connected PTSD. As such, the first element of entitlement to SMC at the housebound rate is shown. The Veteran is service-connected for numerous additional disabilities involving different anatomical segments or bodily systems that are ratable at 60 percent from September 3, 2013, to include: fibromyalgia, rated at 20 percent; intervertebral disc syndrome of the lumbar spine, rated at 10 percent; left knee chondromalacia patellae, rated at 10 percent; right knee degenerative arthritis, rated at 10 percent; tinnitus, rated at 10 percent; left lower extremity radiculopathy, rated at 10 percent; and right lower extremity radiculopathy, rated at 10 percent. Thus, the requirements for SMC at the housebound rate have been met, and SMC is warranted from September 3, 2013. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Sandler, 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.