Citation Nr: 21021671 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 13-34 610 DATE: April 13, 2021 ORDER For the entire period on appeal, an initial rating of 100 percent for posttraumatic stress disorder (PTSD) is granted, subject to the laws and regulations governing payment of monetary benefits. For the entire period on appeal, special monthly compensation (SMC) at the housebound rate is granted, subject to the laws and regulations governing payment of monetary benefits. FINDINGS OF FACT 1. Resolving all reasonable doubt in his favor, the Veteran's PTSD symptoms have more nearly approximated total occupational and social impairment for the entirety of the initial rating period on appeal. 2. For the entire period on appeal, the Veteran is in receipt of a 100 percent rating for PTSD and had additional service-connected disabilities independently ratable at 60 percent or more. CONCLUSIONS OF LAW 1. For the entire period on appeal, the criteria for an initial rating of 100 percent for PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411 (2020). 2. For the entire period on appeal, the criteria for SMC at the housebound rate are met. 38 U.S.C. §§ 1114(s), 5107 (2012); 38 C.F.R. § 3.350 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Navy from November 1959 to June 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2020, the Board, in pertinent part, remanded this matter for additional development. In a February 2021 rating decision, during the pendency of this appeal, the RO increased the rating for PTSD from 30 to 70 percent, for the entire initial rating period on appeal. Because the increased rating was not awarded for the entirety of the claims period, the appeal did not become final. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); AB v. Brown, 6 Vet. App. 35 (1993). The issue of entitlement to SMC at the housebound rate is raised by the record and has been accordingly added to the present appeal. Akles v. Derwinski, 1 Vet. App. 118 (1991). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and his representative, and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Rating Claims Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where a veteran is diagnosed with multiple disabilities of the same body part/system, and it is unclear from the record which symptoms are attributable to each distinct disability, the Board is precluded from differentiating between the symptomatology and the disabilities. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to her through her senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. [CONTINUED ON NEXT PAGE] 1. Entitlement to an initial rating in excess of 70 percent for PTSD. The Veteran is in receipt of a 70 percent initial disability rating for PTSD under 38 C.F.R. § 4.130, DC 9411. He contends that a higher rating is warranted. The Veteran's PTSD is rated under the general rating formula for rating mental disorders pursuant to 38 C.F.R. § 4.130, DC 9411. Under such formula, a 70 percent rating is warranted when the psychiatric disorder results in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such an 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 inability to establish and maintain effective relationships. A total schedular rating of 100 percent is warranted when the disorder results in 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 mental and personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. In applying the above criteria, the Board notes that, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. See 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181 (1998), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). Prior to August 4, 2014, one factor in evaluating psychiatric disorders was the global assessment of functioning scale (GAF). The scale was meant to represent psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM - IV)). Under DSM-IV a GAF score of 61 to 70 reflects some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, with some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflects moderate symptoms, such as flat affect and circumstantial speech, occasional panic attacks, or moderate difficulty in social or occupational functioning (e.g., few friends or conflicts with peers or co-workers). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood, (e.g., depressed man avoids friends, neglects family, and is unable to work). See Carpenter v. Brown, 8 Vet. App. 240, 242-44 (1995). VA regulations were amended to remove references to the DSM-IV, and to replace them with references to the Fifth Edition of the same treatise (DSM-5). 79 Fed. Reg. 45,093-02, 45,094 (August 4, 2014). DSM-5 abandoned the global assessment of functioning score as a tool for evaluating the severity of psychiatric disorders. The Veteran filed the pending claim before the effective date of the regulatory change. Since the regulatory change implementing the DSM-5 criteria applies only to applications for benefits received by VA on or after August 4, 2014, the Board may consider any global assessment of functioning scores in the Veteran’s treatment records and examination reports. When evaluating mental health disorders, the factors listed in the Rating Schedule are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating; the analysis should not be limited solely to whether a veteran exhibited the symptoms listed in the Rating Schedule. Rather, the determination should be based on all of a veteran's symptoms affecting his level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The lists of symptoms under the Rating Schedule are meant to be examples of symptoms that would warrant the disability evaluation but are not meant to be exhaustive. Id. In January 2012, correspondence from the Veteran’s psychiatrist was associated with the claims file. Therein, the provider noted the following symptoms: nightmares, flashbacks, hyper-vigilance, and chronic paranoia. The provider relayed that the Veteran previously self-medicated the PTSD symptoms with alcohol. In February 2012, the Veteran’s VA treatment records were associated with the claims file. On April 18, 2011, a VA provider noted a diagnosis for adjustment disorder with anxiety and depression; a GAF score of 65 was reported. On the same day, another VA provider relayed that the Veteran’s chronic depression was much worse during the previous two weeks, because it was the anniversary of the assault in the military. In December 2011 and January 2012, the Veteran reported hypervigilance, paranoia, and poor sleep. The Veteran also reported that his anxiety attacks were less frequent. In April 2012, the Veteran was afforded a VA examination. The VA examiner noted a diagnosis for PTSD. The VA examiner reported a GAF score of 69. The VA examiner noted occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The VA examiner reported the following symptoms: depressed mood, anxiety, suspiciousness, chronic sleep impairment, and flattened effect. An October 2012 a VA Psychiatry Attending Note indicated more frequent panic attacks and nightmares, isolation, and chronic paranoia. An October 2012 Residual Functional Capacity Evaluation indicated the Veteran would miss work, leave work early, and be unable to complete simple repetitive tasks, more than three days a month due to his service-connected acquired psychiatric disability. More than once per month, the Veteran would respond inappropriately to normal pressures and constructive criticisms in the workplace. In November 2012, correspondence from the Veteran’s treating VA psychiatrist was associated with the claims file. The psychiatrist opined that, “(the Veteran has) been suffering from anxiety and frequent panic attacks. He also has chronic paranoia; isolative from others and has poor social interactions. Due to physical and mental limitations, he is unable to secure or maintain gainful occupation.” The Board notes that the provider opined on the combined effect of the Veteran’s physical and mental limitations. In September 2014, the Veteran was afforded a VA examination. The VA examiner opined that the Veteran’s PTSD resulted in occupational and social impairment with reduced reliability and productivity. The examiner noted that the Veteran was continuously treated for PTSD after the last VA examination. The VA examiner noted the following symptoms: depressed mood, anxiety, suspiciousness, panic attacks, near-continuous panic or depression, chronic sleep impairment, mild memory loss, flattened effect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, suicidal ideation, and intermittent inability to perform activities of daily living. In November 2016, a disability benefits questionnaire (DBQ) was associated with the claims file. Therein, the provider noted diagnoses for PTSD and major depressive disorder, resulting in occupation and social impairment with reduced reliability and productivity. The provider identified the following symptoms: depressed mood, anxiety, suspiciousness, chronic sleep impairment, memory loss, difficulty understanding complex commands, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances. In December 2017, a Clinical Interview report was associated with the claims file. After interviewing the Veteran, and undergoing a thorough and deliberate review of the evidence, the examiner relayed that, “it seems that the Veteran would therefore, unlikely be able to adequately sustain and maintain meaningful gainful employment due to the ongoing social and occupational problems resulting from his chronic and debilitating service connected posttraumatic stress disorder and associated symptoms.” The examiner opined that, “Veteran cannot sustain the stress from a competitive work environment or be expected to engage or adequately function in gainful work activity due to his service commented PTSD. More specifically, the Veteran’s current mental functional impairment which prevent employability, but are not limited to, are as follows . . ..” The examiner also opined that, “this Veteran’s PTSD with associated mood disorder and psychosis continues uninterrupted with increased symptoms and severity to disable and prevent him from gainful employment since at least the date of his claim (11/23/2010) through present time.” In November 2019, the Veteran was afforded a VA examination. The VA examiner opined that the Veterans PTSD symptoms resulted in occupation and social impairment with occasional decrease in work efficiency and intermittent period of inability to perform occupational tasks. The Veteran reported that he last worked in 2000. The VA examiner reported the following symptoms: depressed mood, anxiety, and chronic sleep impairment. The Board notes that, during the claim period, both VA and private medical examiners have indicated that the Veteran’s PTSD symptoms did not result in total occupational and social impairment under the criteria found in 38 C.F.R. § 4.130, DC 9411. However, the Board observes that the October 2012 Residual Functional Capacity Evaluation identified considerable and/or severe workplace impact from the Veteran’s PTSD symptoms. In November 2012, the psychiatrist opined that the Veteran’s service-connected physical and mental limitations rendered him unable to secure or maintain gainful occupation. The December 2017 VA examiner opined that PTSD symptoms prevented the Veteran from substantially gainful employment throughout the claim period. The Board notes that the December 2017 examiner thoroughly addressed the evidence and supplied a well-reasoned analysis and conclusion; consequently, the Board assigns more probative weight to the December 2017 examiner’s report and conclusion. Furthermore, the record reflects that the Veteran’s PTSD has manifested in symptoms that are consistent with intermittent inability to perform activities of daily living (ADLs) (including maintenance of minimal personal hygiene). See February 2021 VA examination report; December 2017 DBQ and attached statement from private psychiatrist; September 2014 VA examination report. In addition, the record indicates that the Veteran experiences significant social impairment due to his PTSD symptoms. See December 2017 DBQ (indicating the Veteran is isolated and withdrawn, avoids crowds, and has diminished participation in social activities); September 2014 VA examination report; October 2012 statement from treating VA psychologist, received by VA in November 2012 (noting that the Veteran is isolative from others and has poor social interactions). Finally, an October 2013 DBQ, submitted by the Veteran in November 2016, indicated that the Veteran’s PTSD symptoms resulted in memory loss for names of close relatives, own occupation, or own name. These symptoms are all consistent with the criteria for a rating of 100 percent for PTSD. For these reasons, and resolving all reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s PTSD symptoms, and resulting social and occupational impairments, more nearly approximate the criteria under DC 9411 for a rating of 100 percent for the entire initial rating period on appeal. 38 U.S.C. § 5107; 38 C.F.R. § 3.102, 4.3, 4.7, 4.130. 2. Entitlement to SMC at the housebound rate. SMC is payable at the housebound rate where the claimant has a single service-connected disability rated as totally disabling and one or more distinct service-connected disabilities, which are independently ratable at 60 percent or more and involve different anatomical segments or bodily systems. 38 U.S.C. § 1114(s)(1); 38 C.F.R. § 3.350(i). As decided herein, the Veteran has now been awarded a 100-percent rating for PTSD on a schedular basis for the entire period under review. He is also in receipt of service connection, in pertinent part, for bilateral upper and lower extremity radiculopathy, a left ankle disability, a cervical spine disability, and a lumbar spine disability, which have a combined disability rating of at least 60 percent for the entire period on appeal. As the Veteran has a single service-connected disability rated as totally disabling for 38 U.S.C. § 1114(s) purposes and separate service-connected disabilities with a combined rating of at least 60 percent, SMC at the housebound rate is granted for the entire period on appeal. 38 U.S.C. § 1114(s)(1). Megan R. Thomas Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board RLBJ, 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.