Citation Nr: 21008033 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 15-38 264 DATE: February 11, 2021 ORDER Entitlement to a disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD), prior to February 9, 2015, is denied. Entitlement to a 100 percent disability rating for PTSD, from February 9, 2015 is granted. Entitlement to a total disability rating based on individual unemployability (TDIU), from January 31, 2014 to February 8, 2015, is granted. Entitlement to special monthly compensation (SMC), is denied. FINDINGS OF FACT 1. Prior to February 9, 2015, the severity, frequency, and duration of the Veteran’s PTSD symptoms resulted in occupational and social impairment in most areas. 2. Beginning February 9, 2015, the preponderance of the evidence reflects that the Veteran's PTSD was productive of total occupational and social impairment. 3. The preponderance of the evidence demonstrates that the disabilities for which the Veteran has been awarded service connection preclude employment from January 31, 2014 to February 8, 2015. 4. The Veteran’s service-connected disabilities, other than PTSD, have disability ratings less than 60 percent. CONCLUSIONS OF LAW 1. Prior to February 9, 2015, the criteria for in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.130, Diagnostic Code (DC) 9411. 2. Beginning February 9, 2015, the criteria for a disability rating of 100 percent for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.130, DC 9411. 3. The criteria for an award of a TDIU between January 31, 2014 and February 9, 2015 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. 4. The criteria for an award of SMC, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.350, 4.14.14, 4.21, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1987 to February 1999. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board and were remanded for additional development in November 2019 and October 2020. The case is once again before the Board.   Duty to Assist In October 2020, the matters were remanded to obtain private treatment records, based on a previous indication from the Veteran that he would like the VA to obtain the records on his behalf. Specifically, the record contains a January 2014 VA Form 4142 authorizing the VA to obtain private records from Dr. E.H., the Veteran’s private psychiatrist. However, that authorization expired due to the passage of time before VA could act upon it. In October 2020, the RO sent the Veteran a VA Form 21-4142 requesting authorization to obtain the private treatment records. The Veteran did not complete the authorization or otherwise submit the records on his own behalf. The duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Accordingly, the Board’s October 2020 remand has been substantially complied with by VA. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that only substantial, and not strict, compliance with the terms of the remand order is required). Increase Rating for PTSD In the September 2014 rating decision on appeal, the Veteran’s PTSD was initially evaluated as 30 percent disabling. During the pendency of this appeal, the Agency of Original Jurisdiction (AOJ) granted an increased rating of 70 percent prior to August 29, 2016 and 100 percent thereafter. The Veteran contends that an increased rating is warranted for his service-connected PTSD prior to August 29, 2016. The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 100 percent. For the reasons set forth below, the Board concludes the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 100 percent prior to February 9, 2015; however on and after that date the Veteran’s PTSD did more nearly approximate the level of impairment required for a disability rating of 100 percent. Legal criteria 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 noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. 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. Prior to February 9, 2015 The evidence of record shows the Veteran’s PTSD was manifested by symptoms associated with a 70 percent rating such as suicidal ideation, near-continuous panic, and inability to establish effective relationships. Additionally, the Veteran had hallucinations, which are associated with a 100 percent rating. The Veteran’s private clinician reported the Veteran’s hallucinations and illusions as: hearing is name called, hearing cars in his driveway, hearing noises in his house and seeing shadows. He also had symptoms not listed with a specific rating, such as hypervigilance and easy startling, distressing dreams, and fatigability. The Board finds the severity, frequency, and duration of the Veteran’s unlisted symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. Specifically, distressing dreams is similar to chronic sleep impairment; and fatigability is similar to, and likely attributed to chronic sleep impairment which is contemplated in the 30 percent criteria. The Board finds hypervigilance and easily startling is similar to anxiety and suspiciousness which are contemplated by a 30 percent rating. These symptoms do not rise to the level of total occupational and social impairment. The Veteran’s psychiatrist reported the Veteran’s recent memory was severely impaired and his working memory was 90 percent impaired with indications of prefrontal cortex dysfunction. The Board finds the level of impairment caused by the Veteran’s memory loss more closely approximates the level contemplated by the 30 and 50 percent rating criteria, which accounts for mild memory loss (such as forgetting names) and impairment of short term and long term memory (such as retention of highly learned material and forgetting to complete tasks, forgetting names, directions and recent events). The record does not demonstrate the occurrence of the more severe memory loss contemplated by a 100 percent disability rating, such as forgetting names of close friends, own occupation or own name. The Board notes that the Veteran expressed suicidal ideation, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran’s suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. The Veteran regularly denied intent, or a plan involving self-harm in existing treatment records. See September 2013 treatment records. In August 2014, the examiner determined the Veteran did not pose a threat of danger or injury to himself or others. Additionally, the Veteran’s private psychiatrist reported the Veteran had feelings of helplessness and suicide “at times.” The Board finds that “at times” does not indicate a persistent danger as contemplated by the 100 percent rating and is similar to the ideation contemplated by 70 percent. In January 2014, the Veteran’s private psychiatrist stated the Veteran was unable to sustain social relationships and he was moderately compromised in his ability to sustain work relationships. In July 2014, a VA examiner reported the Veteran had “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.” With respect to his social functioning, the Veteran reported being married 25 years to his second wife and has two children. While the Veteran’s psychiatrist reported the Veteran did not socialize, the Veteran’s treatment records report that he socialized with his family. Notably, he helped his sister move in 2014. Prior to February 9, 2015, the Board finds the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 70 percent rating. The August 2014 VA examiner reported the Veteran experienced occupational and social impairment with reduced reliability and productivity with deficiencies in most areas. The preponderance of evidence does not demonstrate that the Veteran was totally occupationally and socially impaired. The record shows the Veteran continued to visit with his daughter and helped his sister with her move. Moreover, the Veteran’s psychiatrist reported he was moderately compromised in his ability to sustain work relationships. While the Veteran did experience symptoms of hallucination and delusions which are contemplated by a 100 percent rating, the evidence overall does not demonstrate the level of impairment associated with a 100 percent rating. As noted above, the Veteran’s other remaining symptoms were either contemplated by or more consistent with a 70 percent rating. In short, prior to February 9, 2015, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran’s symptoms resulted in the level of impairment required for a 100 percent rating. The criteria for a 100 percent or higher rating are not met and the appeal must be denied. From February 9, 2015 The Board concludes that beginning February 9, 2015, the Veteran’s PTSD more nearly approximated the level of impairment required for a disability rating of 100 percent. On February 9, 2015, the Veteran’s private psychiatrist submitted a statement indicating the Veteran’s symptoms had worsened. This evidence of record shows the Veteran’s PTSD was manifested by symptoms associated with a 100 percent rating such as disorientation of time and place and severely impaired memory. The Veteran’s psychiatrist stated the Veteran’s memory had progressed to the point that he could not remember what he read or would get lost when traveling. The Board finds this analogous to being disoriented to time or place which is contemplated by a total disability rating. The Veteran’s symptoms had progressed to approximate total social and occupational impairment because the frequency and duration of his symptoms increased. The Veteran’s feelings of depression and inability to engage went from “most of the time” to “all of the time.” The Veteran’s psychiatrist concluded he was permanently and totally disabled and unemployable. As the most probative evidence of record shows total occupational and social impairment, the maximum 100 percent rating is warranted beginning February 9, 2015. C.f. Swain v. McDonald, 27 Vet. App. 219, 224 (2015) (stating that, in determining when an increase is “factually ascertainable,” a date should not be assigned mechanically from the date of an examination, but from the date that the increase in disability can be first factually ascertainable). The February 9, 2015 statement from the Veteran’s psychiatrist is the first notation in the record that this increase in severity was factually ascertainable. TDIU and SMC The issue of entitlement to TDIU had been raised as part of the underlying claim for an increased rating for PTSD. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Following implementation of the present Board decision, the Veteran will be in receipt of a schedular 100 percent evaluation for PTSD beginning February 9, 2015. A TDIU benefit contemplates a schedular rating less than total for the disability or disabilities on which the TDIU would be based. See 38 C.F.R. § 4.16(a). A TDIU is considered a lesser benefit than a 100 percent schedular rating, and the grant of a 100 percent rating generally renders moot the issue of entitlement to a TDIU for the period when the 100 percent rating is in effect. An exception to this is that a separate award at the housebound rate of a TDIU predicated on a single disability (perhaps not ratable at the schedular 100 percent level) when considered with another disability separately rated at 60 percent or more may warrant payment of SMC under 38 U.S.C. § 1114(s). Bradley v. Peake, 22 Vet. App. 280 (2008). In other words, a TDIU claim will not automatically be moot, but rather the Board must consider the specific facts of the case. In this case, the period on appeal for whether the Veteran is entitled to a TDIU is from January 31, 2014 to February 8, 2015; and consideration as to whether a SMC is warranted thereafter. Legal Criteria 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 (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. The United States Court of Appeals for Veterans Claims (Court) has held that the term “unable to secure and follow a substantially gainful occupation” in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component related to the individual veteran’s ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran’s history, education, skill and training, (b) the veteran’s physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58 (2019). As sedentary is defined as “doing or requiring much sitting” the Board finds that sedentary employment is a job where the worker primarily sits down. MERRIAM-WEBSTER’S COLLEGEIATE DICTIONARY 1123 (2003). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such 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). VA’s policy is to grant TDIU in all cases where a service-connected disability causes unemployability regardless of the percentage evaluations. 38 C.F.R. § 4.16(b). In situations where the percentage evaluations do not allow TDIU under § 4.16(a), an extraschedular TDIU may be awarded under § 4.16(b). The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 4.16 in the first instance. The Board, however, is not precluded from considering whether the case should be referred to the Director of VA’s Compensation Service for consideration of an extraschedular TDIU rating. SMC at the housebound rate 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). The Court has held that although a TDIU may satisfy the “rated as total” element of section 1114(s), a TDIU based on multiple underlying disabilities cannot satisfy the section 1114(s) requirement of “a service-connected disability” because that requirement must be met by a single disability. A TDIU based on a single disability alone, however, does not preclude the award of SMC benefits when the Veteran's remaining service-connected disabilities are collectively ratable at 60 percent or higher. See Buie, 24 Vet. App. at 250. Analysis Here, service connection is in effect for PTSD, rated as 70 percent prior to February 9, 2015, and 100 percent thereafter; postoperative right shoulder dislocation, rated as 20 percent disabling from February 2, 1999; postoperative anterior cruciate right knee repair, rated as 10 percent disabling from February 2, 1999; left knee chondromalacia, rated noncompensable prior to February 2, 1999, and 20 percent disabling thereafter; scar (right knee, right shoulder and left knee), rated noncompensable; and upper right peripheral neuropathy, rated noncompensable prior to November 30, 2012, then 10 percent disabling prior to July 1, 2016, then noncompensable thereafter. Thus, from the beginning of the period on appeal, the Veteran is in receipt of a combined disability rating of 80 percent disability rating from January 31, 2014 to February 8, 2015, and a 100 percent disability rating thereafter. Accordingly, the Veteran meets the schedular criteria for consideration for the assignment of a TDIU beginning January 31, 2014. See 38 C.F.R. § 4.16(a). Regarding the Veteran’s education history; the Veteran reported having a high school education, and the record indicates that he obtained an associate degree in computer information technology in 2006. See December 2019 VA examination. Regarding the Veteran’s employment history; the Veteran was provided a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, however, the record reflects that the Veteran did not return the VA Form 21-8940. During his December 2019 examination, the Veteran reported that he had worked in the computer field. Following a disagreement with his employer, he left that employer to start his own computer repair business until 2013. He reported that he had to quit work because he became withdrawn, very angry, argumentative, and wasn’t sleeping. He also couldn’t concentrate on the computers he was trying to repair. In light of the above, a TDIU from January 31, 2014 to February 8, 2015 is warranted. The Veteran’s employment history indicates that he worked in the computer repair field. Repairing computers takes a significant level of concentration and ability to function independently. The Veteran has provided competent and credible evidence as to how his symptoms interfere with his ability to work and why he left the work force. The Veteran’s statements are supported by his psychiatrist’s statements that he agitates easily and had low energy and little interest in anything. Despite the August 2014 examiner’s statements that the Veteran had occasional decreased work efficiency and intermittent periods of inability to perform occupational tasks, the Board finds that any doubt can be resolved in the Veteran’s favor to grant a TDIU solely based on his mental impairments rendering him unable to secure and follow a substantially gainful occupation. Accordingly, the Veteran’s claim for entitlement to a TDIU effective January 31, 2014 to February 8, 2015, is granted. The effective dates are assigned based on the evidence indicating that the Veteran stopped working in December 2013, prior to the appeal period, and has been awarded a 100 percent disability rating for his PTSD beginning February 9, 2015. To the extent the Veteran is seeking entitlement to SMC based on his PTSD rating, the Board notes that SMC at the housebound rate 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). Although the Veteran now has a disability rated as 100 percent disabling effective February 9, 2015, the remaining service-connected disabilities are not collectively ratable at 60 percent or higher. Moreover, the Veteran does not contend, and the record does not reflect, that the Veteran is housebound based on his service-connected disabilities. Accordingly, the criteria for SMC have not been met. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.V. Palatt, 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.