Citation Nr: 21008462 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 04-14 687 DATE: February 17, 2021 ORDER Entitlement to an initial rating of 70 percent, but no higher, from January 8, 2008 for PTSD is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to special monthly compensation (SMC) based on housebound status pursuant to 38 U.S.C. § 1114(s) from January 8, 2008 is granted, subject to controlling regulations governing the payment of monetary awards. FINDINGS OF FACT 1. From the January 8, 2008 effective date of service connection, the evidence is at least evenly balanced as to whether the symptoms and overall impairment caused by the Veteran's PTSD have more nearly approximated occupational and social impairment with deficiencies in most areas, but it has not more nearly approximated total occupational and social impairment at any time during the appeal period. 2. From January 8, 2008, the Veteran's service-connected PTSD alone rendered him unable to secure and follow a substantially gainful occupation. 3. From January 8, 2008, the Veteran has entitlement to a TDIU based solely on service-connected PTSD and additional separate and distinct service-connected disabilities ratable at 60 percent or more. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for an initial uniform rating of 70 percent, but no higher, for PTSD from the January 8, 2008 effective date of service connection have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1-4.10, 4.130, DC 9411. 2. From January 8, 2008, the criteria for a TDIU based exclusively upon service-connected PTSD have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 4.1-4.10, 4.16, 4.25, 4.26. 3. From January 8, 2008, the criteria for SMC pursuant to 38 U.S.C. § 1114(s)(1) 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 from December 1948 to September 1952, January 1953 to September 1953, and December 1954 to October 1970. This case initially came before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA), which granted service connection for PTSD with a 30 percent disability rating effective January 8, 2008. In July 2020, the Board remanded the case for additional development, and it has returned to the Board. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The claims are also subject to compliance with the March 2020 and July 2020 Board remands. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) The instant decision reflects substantial compliance with the remand instructions from these Board remands. Id.; D’Aries, supra. The August 2020 response from the Veteran confirms that private medical records from Dr. H are unavailable and that his treatment is limited to VA medical care. The Veteran was afforded a VA-contract PTSD examination in October 2020. The agency of original jurisdiction readjudicated the case in October 2020. Neither the Veteran, nor his representative has otherwise identified a specific notification, assistance or remand compliance error for the decided claims. The Board finds that appellate adjudication for the issues decided in the instant decision may proceed without prejudice to the Veteran. See Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). Increased Rating for PTSD Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran is service-connected for PTSD, currently rated as 30 percent disabling from January 8, 2008 until January 17, 2014 and 70 percent disability thereafter. PTSD is rated according to the General Rating Formula for Mental Disorders (General Rating Formula) as discussed below.  When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission.  The rating agency shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination.  38 C.F.R. § 4.126(a).  When evaluating the level of disability from a mental disorder, VA will also consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment.  38 C.F.R. § 4.126(b).  In this case, the schedular criteria for rating psychiatric disabilities incorporates the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-V) criteria. See 38 C.F.R. §§ 4.125, 4.130 (2014); 79 Fed. Reg. 149, 45094 (August 4, 2014); 80 Fed. Reg. 53, 14308 (March 19, 2015). As relevant, under the General Rating Formula, a 30 percent rating is assigned for occupational and social impairment with occasional decrease in efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned when symptoms show 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 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 when symptoms such 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 cause total occupational and social impairment.  Under the General Rating 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).  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.  On the other hand, if the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned.  Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004); Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002).  On January 8, 2008, the Veteran filed a service connection claim for PTSD. In September 2008, Dr. H, a treating psychologist, furnished a letter in support of the claim. He treated the Veteran for PTSD with two individual psychology consultations and numerous group therapy sessions. The Veteran responded well to group therapy but continued to experience anger, intrusive thoughts and nightmares. He issued a guarded prognosis and recommended continued therapy. He characterized the Veteran as struggling with relationships and irritability. The Veteran also had nightmares and intrusive thoughts about military stressors. In February 2009, the Veteran had a VA PTSD examination with a psychologist. He received Mental Health (MH) treatment under Dr. H from 2005 to 2008. He was not currently participating in MH group therapy but was interested in doing so. He denied any relevant legal history. He had been married to his current wife for 50 years. He spent time with his wife and nearby siblings. Mental status examination (MSE) was notable for irritability when discussing past events. The Veteran’s recent memory, attention and concentration were poor and the reason he no longer drove. He acknowledged passive suicide ideations. He experienced panic attacks on a weekly basis. He endorsed constant depression, described as a low mood and amotivation. In addition, the psychologist reported that the Veteran had feelings of detachment and crying spells. She assessed PTSD and recommended regular psychiatric treatment for symptom management. November 2010 VA treatment records showed that the Veteran had an initial consultation with the MH clinic. He was accompanied by his wife. His wife reported great frustration with the Veteran’s irritability. The Veteran reported that he had struggled for years with road rage, frustration, irritability and sadness over physical problems and losses in his family. He was greatly concerned about his inability to drive and physical limitations. He had sleep disturbances due to pain. He had occasional suicide ideation but denied any intent or plan. He denied any psychiatric hospitalization history. He was last treated with medication, group therapy and individual therapy from April 2007 until January 2008 at a different VA facility with some benefit. He currently lived with his wife of 52 years and two dogs. He had retired in 1989. MSE showed the Veteran to have an appropriate appearance and eye contact. His speech was normal. He exhibited an irritable and dysphoric mood. Perception and thought content were normal. The clinician assessed superficial insight, intact judgment and fair impulse control. She diagnosed major depressive disorder (MDD), single episode, severe without psychotic features. In January 2014, the Veteran had a VA PTSD examination with a psychologist. He diagnosed PTSD and assessed its severity as occupational and social impairment with reduced reliability and productivity. The Veteran continued to live with his wife and occupied himself by reading and attending yard sales and auctions. He had friends but did not visit them. He did not like to go shopping and avoided crowds. He often complained and was upset if he visited a restaurant. He reportedly no long drove due to irritability and relied on his wife for transportation. He had been retired since 1989. He reported being seen by a psychiatrist twice but denied engaging in therapy. His symptoms included the following: depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss such as forgetting names, directions or recent events, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or work-like setting, and impaired impulse control, such as unprovoked irritability with periods of violence. In October 2020, the Veteran had a PTSD examination with a psychologist. She diagnosed PTSD and MDD. It was not possible to differentiate these diagnoses. She assessed its severity as occupational and social impairment due to mild or transient symptoms. The Veteran had moved with his wife from California to Arkansas to be near friends and because they liked the area. His adult son also lived with him and provided assistance. He described his marriage as alright and stated that his wife took good care of him. He also reported being close to his son. He cited his hearing loss and irritability as having the most negative impacts on his marriage. He had been retired for many years and used to spend time repairing equipment. He was no longer able to do so due to arthritis. He now spent his time reading. He reported that he had not received MH treatment since the last VA examination. He did not believe his past treatment was helpful. For PTSD symptoms, he reported difficulty sleeping and poor self-esteem. He estimated sleeping about four hours per night. He occasionally talked about Vietnam with an old friend but sometimes the conversations upset him. He was afraid of crowded places and loud noises. He experienced irritability from benign events. He described himself as withdrawn and distrustful. He generally had a depressed mood. He felt helpless due to physical limitations. He denied any suicidal or self-harm thoughts. Recently, he described experiencing visual hallucinations while awakening. The psychologist summarized the following PTSD symptoms: depressed mood, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. For TDIU, she commented that the Veteran’s physical problems appeared to be the primary source of impairment. However, his psychiatric symptoms also contributed to occupational impairment. For the following reasons, the symptoms of Veteran's PTSD warrant a uniform 70 percent initial rating, but no higher, under the General Rating Formula since the effective date of service connection on January 8, 2008. As for occupational impairment due to PTSD symptoms, the record suggest that irritability is a primary symptom and its frequency, severity and duration is significant. The Veteran’s irritability symptoms would limit any work tasks involving interactions with others and preclude any customer facing responsibilities. The February 2009 and January 2014 VA PTSD examinations also noted that the Veteran’s PTSD disability picture included poor concentration and memory problems. These memory impairment symptoms would also pose significant occupational impairment from limited ability to follow instructions and complete work tasks in a timely manner. The Board finds that the overall severity of the Veteran’s PTSD disability picture more nearly approximates occupational impairment with deficiencies in most areas during the course of the appeal. As for social impairment, the Veteran has maintained a longstanding marriage and relationship with his adult son despite his PTSD symptoms. Nonetheless, he has limited social activity due to irritability, distrustfulness and avoidance of crowds. He has generally stayed at home, avoided strangers and engaged in solitary activities. The Board finds that the Veteran’s PTSD symptoms more nearly approximated deficiencies in social function throughout the claims period. The rating period extends over a decade. However, the lay and medical evidence do not show any significant change in the Veteran’s baseline occupational and social function due to PTSD symptoms over the rating period. The Board finds that the degree of occupational and social impairment due to PTSD symptoms is consistent with deficiencies in most areas of function applies for the entire rating period. In making these determinations, the Board has considered that the February 2009, January 2014 and October 2020 psychologists assessed that the Veteran had lesser occupational and social impairment from PTSD symptoms. However, the February 2009 psychologist reported PTSD symptoms to include poor memory, attention and concentration as well as passive suicide ideations, weekly panic attacks and crying spells. The January 2014 psychologist assessed the frequency, severity and duration of the PTSD symptoms as including difficulty adapting to stressful circumstances, including work or work-like setting, and impaired impulse control, such as unprovoked irritability with periods of violence. Then, the October 2020 psychologist noted MDD as an intertwined diagnosis and the Veteran’s reports indicate the frequency, severity and duration of his MDD symptoms was substantial. Overall, the additional information found within these VA examination reports can be interpreted to support a greater degree of impairment than the general assessments given by the examining psychologists. The Board does not find the February 2009, January 2014 and October 2020 psychologist assessments persuasive to show a lesser degree of occupational and social impairment from PTSD symptoms than deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A higher, 100 percent rating is not, however, warranted. The weight of the medical and lay evidence is against a finding that the frequency, severity and duration of the Veteran’s PTSD symptoms more nearly approximated total occupational and social impairment at any time. 38 C.F.R. § 4.130, DC 9411. None of the psychiatric assessments include reports suggesting total occupational and social impairment due to PTSD symptoms. There is no history of legal difficulty due to PTSD symptoms. The Veteran has resided with his spouse in a private residence throughout the claims period without any period of psychiatric hospitalization or notable hardship. He was able to successfully move with his wife to a different area of the country in approximately 2017. In October 2020, the Veteran reported some social engagement with friends. Although the Veteran has referred to visual hallucinations with awakening and passive suicide ideations, there is no indication that the frequency, severity and duration of these symptoms substantially affect his daily activities or causes his overall functioning to more nearly approximate total occupational and social impairment for any period of time. In sum, the Veteran’s general psychosocial background implies a lesser degree of occupational and social impairment from PTSD symptoms than contemplated by the total rating criteria. With these considerations, the criteria for a 100 percent rating have therefore not been met. For the above stated reasons, an initial rating of 70 percent, but no higher, is warranted for service-connected PTSD since the effective date of service connection on January 8, 2008. As the preponderance of the evidence is against a higher rating, the benefit of the doubt doctrine is not for application. Entitlement to SMC(s) SMC(s) is payable at a specified rate if the Veteran, as the result of service-connected disability, has a single service-connected disability rated as total, and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or, (2) by reason of such veteran's service-connected disability or disabilities, is permanently housebound. For the purpose of this subsection, the requirement of "permanently housebound" will be considered to have been met when the veteran is substantially confined to such veteran's house (ward or clinical areas, if institutionalized) or immediate premises due to a service-connected disability or disabilities which it is reasonably certain will remain throughout such veteran's lifetime. A threshold issue is whether the Veteran has a single service-connected disability rated as total (100 percent). Id. From January 8, 2008, the Veteran is service-connected for the following disabilities: PTSD, 70 percent disabling; cervical spine, 20 percent disabling; lumbar spine, 20 percent disabling; gout, 20 percent disabling; gout, right ankle, 10 percent disabling; amputation, left ring finger, 10 percent disabling; left hip, 10 percent disabling; right hip 10 percent disabling; left knee, 10 percent disabling; right knee 10 percent disabling; right lower extremity peripheral neuropathy, 10 percent disabling; left lower extremity peripheral neuropathy, 10 percent disabling and two noncompensable disabilities. In sum, the Veteran does not have a single disability rated as total. 38 C.F.R. § 3.350(i). Alternatively, the single total disability requirement for SMC(s) may be satisfied by a TDIU award based upon a single disability. Bradley v. Peake, 22. Vet. App. 280, 290 (2008); Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). Thus, the Board will consider whether a TDIU is warranted exclusively based upon service-connected PTSD. Cf. Youngblood v. Wilkie, 31 Vet. App. 412, 418, n. 4 (2019) (taking no position on whether VA was required, pursuant to its duty to maximize benefits, to look back at the prior rating decision granting TDIU based on multiple disabilities and determine whether one of the multiple disabilities based on which the Veteran had been granted TDIU could serve as a basis for TDIU by itself). TDIU may be assigned when a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16. The Veteran is now service-connected for PTSD with a 70 percent rating from January 8, 2008. His service-connected PTSD meets the schedular TDIU rating criteria throughout the claims period. See Harper v. Wilkie, 30 Vet. App. 356, 362 (2018); 38 C.F.R. § 4.16(a). In analyzing TDIU claims, the central inquiry is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" as having two components: one economic and one noneconomic. The economic component means 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. The non-economic component includes consideration of the following: The Veteran's history, education, skill, and training; whether the Veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the Veteran has the mental ability to perform the activities required by the occupation at issue. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The above discussion concerning the evidence and analysis for the PTSD claim above is incorporated by reference. In addition, the Veteran filed VA Form 21-8940 Veterans Application for Increased Compensation based on Unemployability in May 2009 and again in May 2011. He reported that he had not worked for many years. He last worked at a site manager at a park. He had also worked in quality assurance and warehouse labor positions at Castle Air Force Base. He had completed a general education diploma (GED) and taken some college courses. As to the non-economic TDIU component of physical capability in Ray, supra, the functional impairment beginning January 8, 2008 from the service-connected PTSD shows occupational impairment affecting some physical occupational tasks. The sleep disturbance symptoms associated with PTSD would impair the Veteran’s ability to perform physical tasks due to fatigue. Ray, 31 Vet. App. at 73. Given the above, the Board finds that from January 8, 2008, the Veteran has some physical limitations due to fatigue associated with service-connected PTSD. As to the non-economic mental capability in Ray, supra., the Veteran’s irritability, low mood and poor short term memory attributable to his service-connected PTSD pose mental impairment in completing a wide variety of occupational tasks associated with general labor or administrative work. The January 2014 VA psychologist assessed the Veteran’s PTSD symptoms as resulting in difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or work-like setting, and impaired impulse control, such as unprovoked irritability with periods of violence. Meanwhile, the February 2009 VA examination report noted that the Veteran’s recent memory was so poor that he could no longer drive by himself. Although the October 2020 VA psychiatrist indicated the Veteran’s physical limitation posed greater occupational impairment, he specifically noted that the Veteran’s PTSD induced irritability and sleep disturbances would pose occupational difficulties with work attendance, ability to complete work tasks and interpersonal relationships. Given the above, the Board finds that the Veteran has psychiatric limitations due to service-connected PTSD symptoms that significantly impair his ability to secure work consistent with his education and occupational experience. These psychiatric limitations include or are analogous to those outlined by the Court in Ray in determining whether the Veteran can secure and follow a substantially gainful occupation. Ray, 31 Vet. App. at 73. When considering the Veteran’s work and education history and physical and mental impairments due exclusively to service-connected PTSD, the evidence is at least in a state of relative equipoise as to whether the Veteran is unable to secure and follow a substantially gainful occupation within the meaning of the applicable regulation. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"); 38 C.F.R. § 4.16. For the foregoing reasons, the evidence is thus at least evenly balanced as to whether the Veteran's service-connected PTSD, alone, has precluded him from securing or following a substantially gainful occupation. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a TDIU due exclusively to PTSD from January 8, 2008 is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. From January 8, 2008, the Veteran now has entitlement to a TDIU based upon single disability, PTSD, and an additional separate and distinct service connected disabilities, rated at least 60 percent disabling. Bradley, 22 Vet. App. at 292-93. The Veteran meets the statutory criteria for SMC pursuant to 38 U.S.C. § 1114(s) from January 8, 2008. Entitlement to SMC pursuant to 38 U.S.C. § 1114(s) is now warranted from January 8, 2008. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. D. Simpson, 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.