Citation Nr: 21007399 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 17-56 424 DATE: February 9, 2021 ORDER A 100 percent disability rating is awarded for service-connected (posttraumatic stress disorder (PTSD) from January 6, 2015. REMANDED Entitlement to an initial disability rating in excess of 50 percent for service-connected PTSD prior to January 6, 2015 is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to January 6, 2015, claimed originally entitlement to TDIU prior to September 15, 2016, is remanded. FINDING OF FACT From January 6, 2015 to the present, the severity, frequency, and duration of the Veteran’s symptoms most closely approximate total occupational and social impairment. CONCLUSION OF LAW The criteria for entitlement to a 100 percent disability rating for service-connected PTSD since January 6, 2015 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.14, 4.130, DC 9411 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from February 1964 to February 1966. This matter before the Board of Veterans’ Appeals (Board) is on appeal from a July 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York (Agency of Original Jurisdiction (AOJ)). The Veteran testified at a video conference hearing before the undersigned in March 2019. A transcript of the proceeding is of record. This matter was previously before the Board in July 2019. The Board, after granting entitlement to an earlier effective date for the award of service connection for PTSD, remanded the issues on appeal so the AOJ could consider the appropriate rating for PTSD prior to March 3, 2017 and entitlement to TDUI prior to September 15, 2016. A review of the file reflects that the AOJ determined a 50 percent disability rating was appropriate for the Veteran’s PTSD from April 16, 2010. The Board thus finds that the AOJ substantially complied with the remand directive in accordance with Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board further notes that the Veteran has reported being in receipt of disability benefits with the Social Security Administration (SSA). However, SSA has reported that medical records no longer exist. As such, there is no further duty to attempt to obtain SSA records. 1. Entitlement to a 100 percent disability rating for PTSD prior to March 3, 2017 Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability is resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson v. Brown, 12 Vet. App. 119, 126–27 (1999). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994); Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The Veteran’s PTSD is rated under 38 C.F.R. § 4.130, DC 9411. All psychiatric disabilities are evaluated under a general rating formula for mental disorders. Evaluation under § 4.130 is symptom-driven, meaning that symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). In Vazquez-Claudio, the United States Court of Appeals for the Federal Circuit explained that the frequency, severity and duration of the symptoms also play an important role in determining the rating. Id. at 117. Significantly, however, 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. 38 C.F.R. § 4.21; Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443; see also Vazquez-Claudio, 713 F.3d at 117. A 50 percent disability rating for PTSD is warranted when the Veteran’s symptoms manifest as follows: 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 (i.e. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and/or difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, DC 9411. PTSD evaluated at 70 percent disabling requires the following manifestations: 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 that 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); and/or the inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned for mental conditions manifesting with 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 or minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The mental health diagnostic criteria currently in DSM-V published by the American Psychiatric Association no longer utilizes Global Assessment of Functioning (GAF) scores. The DSM-V is applicable for cases certified to the Board on or after August 4, 2014. In this case, the appeal was initially certified in 2017. Therefore, the DSM-V applies. In Golden v. Shulkin, 29 Vet. App. 221 (2018), the Court noted that although GAF scores were designed to help quantify and summarize the severity of symptoms associated with mental disorders, the DSM-V eliminated GAF scores because of their “conceptual lack of clarity” and “questionable psychometrics in routine practice.” The Court further commented, “Although it is true that examiners no longer use these scores, an adjudicator is not permitted to rely on evidence that the American Psychiatric Association itself finds lacking in clarity and usefulness. Any reliance on evidence that expert consensus-as adopted by VA-has determined to be unreliable would be impossible to justify with an adequate statement of reasons or bases.” Therefore, the Board will not discuss the scores in the context of examinations governed by DSM-IV but will consider the narrative evaluations and apply appropriate weight. A review of the Veteran’s file reveals the following evidence regarding his PTSD. The Veteran filed his initial claim for PTSD in April 2010. VA treatment records from that time document that the Veteran suffered from PTSD and depression, and was being seen by a civilian psychiatrist Dr. R.B. He stated that he tried to block out memories from his time in the military and avoids crowds and people. He reported that he was fired from his job as a laborer on two occasions due to anger problems, but his boss rehired him each time. The Veteran said he and his late wife fought a lot and that while his daughters talk to him, they have “little to do” with him. He was close to his son, but his biggest support came from the friends he had made at church. CAPRI VA treatment records during this time record that the Veteran’s thoughts appeared well-organized and his speech was clear and coherent; he has an appropriate affect and he was oriented x 3. The Veteran first began psychiatry treatment with VA in September 2010. At that time, the provider recorded, “The patient has depressive symptoms. His mood is low and he had occasional tearful episodes. His energy is low and he has no motivation to do things. He isolates at times. His enjoyment is decreased. He states that he feels useless at times. Sleep and appetite are fair. He denies any [suicidal ideation]/no safety issues, states he would not do this to his children…He has nightmares, flashbacks, and some relieving [sic] experience. He also has some hypervigilance and states that loud noises make him very nervous and he is very jumpy. He denies any psychotic symptoms.” The psychiatrist described the Veteran further as pleasant, cooperative, and soft-spoken. His range of affect was full and his thought process was within normal limits. Judgment and insight appeared good. At another appointment the following month, the physician reported he had no suicidal or homicidal ideations and denied hallucinations; his symptoms appeared largely the same at this appointment and others for the remainder of 2010. His last appointment with a psychiatrist appears to have taken place in December 2010. In March 2012, the Veteran reported for a mental health consult, where he reported previously discontinuing services previously due to high co-pays. At this appointment, he denied suicidal/homicidal ideations and presented with good hygiene and organized, goal-directed thoughts. Correspondence from the Veteran dated May 2012 included endorsements of waking up in the middle of the night in a cold sweat thinking about his military experience. In April 2012, the Veteran received an intake assessment performed by a military sexual trauma counselor. He reported having poor sleep, periods of despair, and vague, fleeting suicidal ideation with no plan. These thoughts had lessened as he had gotten older. He was oriented x 3, but presented with flat, blunted affect and impaired memory function. His judgment was fair and he did not have any delusions or hallucinations. The Veteran reported having nightmares and difficulty falling/staying asleep. He received Social Security Administration (SSA) benefits which he reported was due to a psychiatrist not believing he should be working. He had limited contact with his two sons, and no contact with his daughters. Subsequent therapy notes thereafter document his treatment over the following months, reflecting that he experienced symptoms comparable to those noted on his intake assessment. His counselor provided a letter in December 2012, explaining that the Veteran was “cut off” from his daughters and has guarded relationships with his 2 sons. She described him as fairly isolated and depressed but wrote that he denied suicidal ideation at that time. He attended church activities on occasion. Contemporaneous CAPRI VA treatment notes document that the Veteran was oriented with organized/goal-directed thoughts and no suicidal/homicidal ideation. He continued to experience depressive symptoms including self-isolation and lack of motivation. By July 2012, the Veteran reported he was doing much better; his mood was slightly brighter and his affect was brighter. His energy and motivation improved and he was isolating less. He adamantly denied suicidal ideations or thoughts of self-harm. These improvements were reflected in treatment notes from October 2012 and January 2013. A treatment note from July 2013 documents that the Veteran had been out of his medication for two months and was experiencing mild to moderate depressive symptoms with decreased energy and motivation, feeling isolated at times. His sleep was fair. He denied suicidal ideation and expressed that his medication helped with passive suicidal thoughts in the past. Mental health clinic notes from December 2013 and March 2014 continued to report that the Veteran’s symptoms were improving after he began taking his medication once more at the end of October 2013. In July 2014, a mental health outpatient note documented that the Veteran continued to experience mild to moderate ongoing depressive symptoms, but did not endorse suicidal ideation or thoughts of self-harm. At his following appointment in October 2014, his symptoms included depression and recurrent dreams (nightmares) about the sexual assault he suffered in service. His affect was mood congruent and his thought processes were goal-directed. His thought content revealed no intention to hurt himself or others. He was cognitively alert and oriented x 3. His attention, concentration, memory, insight, and judgment were found to be fairly intact. At his January 2015 psychiatric appointment, the Veteran reported that he still felt depressed and sleeps poorly at night, despite his increased dosage of anti-depressants. His decreased interest in pleasurable activities resulted in him staying at home over the holiday season, despite his son’s invitation to spend time with him. He reported visual hallucinations in the form of seeing deceased relatives. His affect was mood congruent and his thought processes were goal-directed. His thought content revealed no intention to hurt himself or others. He was cognitively alert and oriented x 3. His attention, concentration, memory, insight, and judgment were found to be fairly intact. These symptoms were also reported during his April 2015 psychiatric appointment; the Veteran continued to report feeling depressed with poor motivation and interest for pleasurable activities. By June 2015, the Veteran reported feeling better with less depressed mood. At his September 2015 psychiatric session, the Veteran continued to report feeling less depressed, but maintained that he still experienced flashbacks. He denied any intention to hurt himself or others “even though at times he feels so hopeless that he has thought about not [wanting] to live anymore.” He did not indicate an intention to hurt himself during the evaluation, however. The Veteran continued to see improvement by the time of his February 2016 evaluation, reportedly feeling more sociable and less depressed despite still experiencing flashbacks. He had no passive thoughts about death at that time. The Veteran reported feeling lonely during his July 2016 appointment, though his depressive symptoms had lessened and other symptoms remained the same. The Veteran received his first VA examination for PTSD in November 2016. The examiner remarked that the Veteran’s PTSD manifested with occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. His symptoms at that time were recorded as depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, impairment of short- and long-term memory, difficulty in understanding complex commands, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships. Other symptoms attributable to PTSD included crying spells, guilt, hopelessness, loss of usual interests, low self-esteem, and diminished sense of pleasure. In March 2017, the Veteran underwent a second VA examination. At that time, the examiner stated that the Veteran’s PTSD symptoms manifested as total occupational and social impairment. The examiner recorded the Veteran’s symptoms as including depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, impairment of short- and long-term memory, difficulty in understanding complex commands, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and suicidal ideation. Following this VA examination, the AOJ awarded a 100 percent disability rating for the Veteran’s PTSD, effective March 3, 2017 – the day of the VA examination. The Veteran contends, however, that the symptoms of his PTSD warranted a 100 percent disability rating prior to March 3, 2017. Instead, he suggests his PTSD should be rated as 100 percent disabling from August 2013. Based on a thorough review of the record – including the Veteran’s lay evidence, medical treatment records, and VA examinations – the Board finds that the Veteran is entitled to a 100 percent disability rating from January 6, 2015, the date of the psychiatry appointment where the Veteran endorsed experiencing hallucinations. As stated previously, a 100 percent rating is assigned for mental conditions manifesting with 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 or minimal personal hygiene, disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. For the time period prior to January 6, 2015, the Board addresses this issue in the REMAND below. REASONS FOR REMAND 1. Entitlement to initial disability rating in excess of 50 percent for service-connected PTSD prior to January 6, 2015. 2. Entitlement to TDIU prior to September 15, 2016 Additional and potentially relevant VA clinic records were received in July 2020 which have not been considered by the AOJ. By letter dated November 25, 2020, the Board contacted the Veteran to determine whether he wanted to waive AOJ consideration of this evidence in the first instance. The Veteran did not respond. As such, the Board must remand this case for AOJ consideration of evidence not submitted by the Veteran in the first instance. It is not categorically true that assignment of a total schedular rating always renders a TDIU claim moot, particularly as it relates to possible entitlement to special monthly compensation (SMC) under 38 U.S.C. §§ 1114(s). See Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008); see also Buie v. Shinseki, 24 Vet. App. 242, 248 (2010). SMC at the housebound rate is payable where 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, that are separate and distinct from the 100 percent service-connected disability and involve different anatomical segments or bodily systems. See 38 U.S.C. §§ 1114(s); 38 C.F.R. §§ 3.350(i). Under Bradley, a TDIU may be warranted in addition to a schedular 100 percent evaluation if the TDIU could be granted for a disability other than the disability for which a 100 percent schedular rating was in effect. The Court reasoned that under such circumstances, there would be no “duplicate counting of disabilities.” Id. Here, the Board acknowledges the Veteran is now in receipt of an evaluation of 100 percent for his service-connected PTSD from January 6, 2015 to the present. However, though he has a 100 percent rating for this condition, he does not have any other service-connected disabilities. Consequently, consideration from January 6, 2015 as to whether the Veteran’s combination of service-connected disabilities warrants a 100 percent TDIU rating is not warranted. See 38 C.F.R. §§ 4.16(a). Thus, entitlement to a TDIU is dismissed as moot from January 6, 2015. For the period prior to January 6, 2015, however, the Veteran’s disability rating for his service-connected PTSD does not meet the schedular threshold percentage requirements for consideration of a TDIU under 38 C.F.R. § 4.16(a) at the present time. More specifically, the Veteran does not have one disability ratable at 60 percent or more, or, at least one disability ratable at 40 percent or more with a combined disability rating of 70 percent. Accordingly, entitlement to a TDIU on a schedular basis cannot be considered. That notwithstanding, all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the TDIU threshold percentage standards, should be referred to the Director of Compensation Service for extraschedular consideration. 38 C.F.R. § 4.16(b). Therefore, all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the TDIU threshold percentage standards, should be referred to the Director of Compensation Service for extraschedular consideration. Id. In this regard, the Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16(b) in the first instance but must first remand the claim for referral to VA’s Director of Compensation Service if such consideration is warranted. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Recently, the Court addressed the appropriate standard for the Board to apply in determining whether to remand the issue of entitlement to a TDIU pursuant to 38 C.F.R. § 4.16(b) for referral to the Director. Ray v. Wilkie, 31 Vet. App. 58 (2019). The question for the Board is whether there is sufficient evidence to substantiate a reasonable possibility that a Veteran is unemployable by reason of his service-connected disabilities. Id. In this case, there is sufficient evidence to substantiate a reasonable possibility that the Veteran was unemployable due to his service-connected disabilities. The record reflects that while the Veteran was still employed, he was fired from his position twice due to his anger issues; he was only re-employed because his manager liked him. Indeed, he even has difficult relationships with his children. As far back as November 2010, he has also endorsed experiencing suicidal ideation. Based on these contentions, the Board finds that, prior to January 6, 2015, there is sufficient evidence to substantiate a reasonable possibility that a Veteran was unemployable by reason of his service-connected PTSD. Consequently, a remand for entitlement to a TDIU pursuant to 38 C.F.R. § 4.16(b) for referral to the Director is warranted. The matters are REMANDED for the following action: 1. The AOJ should refer the Veteran’s claim of entitlement to TDIU on an extraschedular basis prior to January 6, 2015 to the Director of Compensation Service to determine whether an extraschedular rating is warranted under 38 C.F.R. § 4.16(b). (continued on the next page) 2. Thereafter, readjudicate the claims. If any benefit sought on appeal remains denied, furnish the Veteran and his representative, if any, a supplemental statement of the case and an appropriate period of time to respond. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Victoria A. Banis, 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.