Citation Nr: 21014147 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 17-17 075A DATE: March 11, 2021 ORDER Entitlement to a disability rating of 70 percent, but no higher, for service-connected posttraumatic stress disorder (PTSD) is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected PTSD is granted. The appeal seeking entitlement to special monthly compensation and special monthly pension has been withdrawn. FINDINGS OF FACT 1. Throughout the appeal, the severity, frequency, and duration of the Veteran’s symptoms caused deficiencies in most areas but did not more closely approximate total occupational and social impairment. 2. Throughout the appeal, the Veteran has been unable to secure or follow a substantially gainful occupation because of his service-connected PTSD. 3. At the October 2020 Board hearing, the Veteran knowingly withdrew his claims seeking entitlement to special monthly compensation and special monthly pension. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 70 percent, but no higher, for service-connected PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for a TDIU due to service-connected PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.16. 3. The criteria for withdrawal of the appeal as to the claims for entitlement to special monthly compensation and special monthly pension by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active military service from May 1989 to October 2000 with foreign service including in Southwest Asia, Somalia and Rwanda. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from Department of Veterans Affairs (VA) Regional Office (RO)’s rating decisions issued in April 2013 and May 2015. The Veteran testified before the undersigned Veterans Law Judge at a virtual hearing held in October 2020. The transcript is associated with the Veteran’s claims file. During the pendency of the Veteran’s appeal, the rating for his service-connected PTSD was increased from 30 percent to 50 percent effective September 12, 2016. See February 2018 rating decision. The Veteran has continued to seek a higher rating. Hence, the issue on appeal has been amended to reflect this change in rating. 1. Entitlement to a disability rating in excess of 30 percent prior to September 12, 2016, and in excess of 50 percent thereafter, for service-connected PTSD The Veteran contends that the reports from his private treating physician supports a 70 percent disability rating for his service-connected PTSD. The Board agrees. 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). The Veteran has submitted Psychiatric/Psychologic Impairment Questionnaire completed by one of his treating mental health providers in August 2016. This provider sets forth that his PTSD causes the following symptoms; deficiencies in family relations; deficiencies in mood; persistent irrational fears; difficulty in adapting to stressful circumstances; intrusive recollections; unprovoked hostility and irritability; inability to establish and/or maintain effective relationships; depression affecting the ability to function independently, appropriately and effectively; and suicidal ideation. See August 2016 report. She further stated that the description of symptoms set forth in this questionnaire applies to as early as May 2009. She reiterated her findings in a letter dated in October 2020. The Veteran’s symptoms more closely approximated the symptoms associated with a 70 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. However, the evidence does not demonstrate the level of impairment associated with a 100 percent rating, i.e., total occupational and social impairment. 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. The current claim began in January 2011. The Board finds the May 2013 VA 21-4138 can be reasonably read as a notice of disagreement with the April 2013 rating decision denying an increase for PTSD. The evidence shows that the Veteran’s service-connected PTSD has been manifested by symptoms associated with a 70 percent rating (i.e., frequent suicidal ideation, near-continuous depression affecting the ability to function independently, appropriately and effectively; difficulty in adapting to stressful circumstances; and inability to establish and maintain effective relationships). The Veteran also reports auditory and visual hallucinations, which are a symptom associated with a 100 percent rating. He also had symptoms that are associated with ratings lower than 70 percent such as sleep impairment, depression, memory problems, flattened affect, difficulty in understanding complex commands and disturbances of motivation and mood. Finally, he has symptoms. that are not listed with a specific rating, such as flashbacks, intrusive recollections, nightmares, exaggerated startle response, hypervigilance, paranoia, unprovoked irritability and anger that does not result in violent outbursts. 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. The Veteran reported that some of these symptoms were not present daily but would increase in severity. 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’s treatment records show that he regularly denied thoughts, intent, or a plan involving self-harm. The Board acknowledges that the Veteran was hospitalized in March 2012 for a few days due to suicidal ideation with a plan. However, he actually denied active suicidal ideation or an intent to harm himself at the time of his admission and during the hospitalization. See March 7, 2012 Psychiatry Health and Physical note. He also reported the last time he had a plan to harm himself was in 1993. Therefore, although there is evidence of suicidal ideation, the evidence fails to establish that the Veteran has been in persistent danger of self-harm such that the higher rating is not warranted at any time during the appeal on this basis. While the Veteran did experience symptoms contemplated by a 100 percent rating, i.e., persistent hallucinations, 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 or less rating. Further, while the Veteran has been granted a total disability rating based on individual unemployability due to service-connected disability, he was not totally socially impaired. While his VA treatment records show the Veteran reported marital difficulties resulting from his PTSD symptoms (primarily issues with anger), the medical evidence overall does not demonstrate that he has been unable to engage in meaningful social contact, especially with his family as he has been married for many years, has a young son that he goes hunting with and he speaks to his father and brother (who live long distance) on the telephone on a regular basis. In addition, the Board acknowledges that there is evidence against the Veteran’s claim. Specifically, a September 2012 VA examination in which the examiner indicated objective testing and the interview demonstrated the Veteran was exaggerating his symptoms and, therefore, an opinion as to the severity of his PTSD could not be given without resorting to speculation. Moreover, the VA treatment records do not show the level of occupational and social impairment that the Veteran contends as they do not show persistent reports of suicidal ideation and total occupational impairment. For example, they show his report that he was terminated from his last employment in April 2009 due to the closing of the factory where he worked as an assembler. Hence, the Board finds the evidence to be at equipoise. Resolving reasonable doubt in the Veteran’s favor, the Board finds that his PTSD symptoms are consistent with the criteria for a 70 percent rating, but no higher. In short, 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. However, the criteria for a 70 percent rating are met, and the appeal is granted to that extent. 2. Entitlement to a TDIU due to service-connected disability The Veteran contends that he has been unable to secure and follow a substantially gainful occupation due to his service-connected PTSD. Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of a service-connected disabilities: Provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). To establish a total disability rating based on individual unemployability, there must be an impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. In reaching such a determination, the central inquiry is whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation; provided that permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 4.15. The Veteran is service-connected for PTSD at 70 percent pursuant to this decision. He has additional service-connected disabilities including left shoulder impingement syndrome (20 percent), hypertension (10 percent), tinea corporis (10 percent), left knee osteochondral lesion with degenerative changes (10 percent), tinnitus (10 percent) and gastroesophageal reflux disease (10 percent) . Thus, he meets the minimum schedular requirements for a TDIU under 38 C.F.R. § 4.16(a). However, the evidence must still show that the veteran is unable to pursue a substantially gainful occupation due to his service-connected disabilities, either individually or jointly. For a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor, which takes this case outside the norm. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Factors to be considered are the veteran’s education, employment history and vocational attainment. See Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991) In the August 2016 and October 2020 statements from the Veteran’s treating mental health provider, she set forth the occupational limitations caused by the Veteran’s PTSD symptoms and opines that he was not capable of performing gainful employment as he would likely be limited in most types of jobs. The Veteran contends that he has not been able to obtain employment since being let go from his job as an assembler in 2009 because of his PTSD. He has stated that he is unable to go out alone and that he does not drive due to anxiety and his medications. Furthermore, the evidence demonstrates that the Veteran was found to be unemployable as of April 2009 by the Social Security Administration in July 2012 due primarily to his service-connected PTSD (i.e, anxiety related disorders). In contrast, VA treatment records do not show the Veteran to have total occupational impairment due to his service-connected PTSD. The September 2012 VA examiner also stated that he was not able to opine as to the severity of the Veteran’s PTSD symptoms because of indications on objective testing and on the interview that he was exaggerating his symptoms. Hence, the Board finds the evidence is at equipoise. However, after resolving reasonable doubt in the Veteran’s favor, the Board finds that entitlement to a TDIU due to the Veteran’s service-connected PTSD is warranted throughout the appeal period. Having found that a TDIU is warranted on a single service-connected disability, the claim of entitlement to special monthly compensation (SMC) for statutory housebound benefits has been raised by the record as the Veteran has additional disabilities as previously listed. Bradley v. Peake, 22 Vet. App. 280 (2008). Under 38 U.S.C. § 1114(s), SMC based on housebound status is payable where a Veteran has a single service-connected disability rated as 100 percent disabling and either 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 is otherwise “permanently housebound” by reason of such disability or disabilities. In this case, although the Veteran has one service-connected disability that is rated as totally disabling (i.e., 100 percent based on individual unemployability), the combined evaluation for his other service-connected disabilities is only 50 percent and, therefore, SMC at the housebound rate is not warranted. See 38 C.F.R. § 4.25. 3. Entitlement to special monthly compensation and special monthly pension is dismissed The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. Here, the Veteran withdrew the appeal of his claims seeking entitlement to special monthly compensation and special monthly pension on the record with representation and advice from his attorney during the October 2020 hearing before the Board. Upon questioning by the undersigned Veterans Law Judge, the Veteran stated on the record that he wished to withdraw these claims and understood the consequence of doing so. The Board finds that the withdrawal of the appeal of these issues is “explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant.” DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see also Acree v O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal as to the claims for entitlement to special monthly compensation and special monthly pension, and it is dismissed to that extent. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.M. Kreitlow 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.