Citation Nr: 21022193 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 17-54 151 DATE: April 15, 2021 ORDER An initial rating in excess of 70 percent for a psychiatric disorder, characterized as posttraumatic-stress disorder (PTSD), is granted as of January 31, 2014, and a rating in excess of 70 percent is denied. A total disability rating based on individual unemployability (TDIU) prior to July 13, 2015, is granted as of January 31, 2014. Special monthly compensation (SMC) based on housebound status is granted as of January 31, 2014. Dependents’ Educational Assistance (DEA) benefits under 38 U.S.C. Chapter 35 for the period prior to July 13, 2015, is granted as of January 31, 2014. FINDINGS OF FACT 1. Prior to July 13, 2015, the Veteran’s psychiatric disorder was manifested by occupational and social deficiencies in most areas; there is no showing of total occupational and social impairment. 2. Prior to July 13, 2015, the Veteran’s service-connected disabilities prevented him from obtaining and retaining substantially gainful employment during the period on appeal. 3. The Veteran meets the criteria for a total evaluation based on individual unemployability (TDIU) due to his service-connected diabetes and complications related thereto; the Veteran also has additional disabilities ratable at 60 percent or more. 4. The Veteran was found to be permanently and totally disability as of January 31, 2014. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 70 percent for an acquired psychiatric disorder, characterized as PTSD, prior to July 13, 2015, and in excess of 70 percent, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.130, Diagnostic Code (DC) 9411. 2. Prior to July 13, 2015, the criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.16. 3. Prior to July 13, 2015, the criteria for SMC at the housebound rate have been met. 38 U.S.C. §§ 1114(s), 5107; 38 C.F.R. §§ 3.350, 3.351, 3.352. 4. The criteria for entitlement to DEA benefits under 38 U.S.C. Chapter 35 prior to July 13, 2015, have been met. 38 U.S.C. §§ 3500, 3501, 3512, 5113; 38 C.F.R. §§ 21.3020, 21.3021, 21.3046, 21.4131. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from December 2003 to December 2007. These matters come before the Board of Veterans’ Appeals (Board) on appeal originally from a June 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This June 2015 rating decision granted service connection for PTSD at a 30 percent disability rating, effective January 31, 2014. The Veteran filed a timely notice of disagreement in April 2016. Then, in April 2017 the RO issued a rating decision that increased his PTSD disability rating to 70 percent, effective July 13, 2015, which is the date he filed his claim for TDIU. This decision also granted entitlement to TDIU, entitlement to special monthly compensation based on housebound criteria being met, and basic eligibility to dependents’ educational assistance were all granted effective July 13, 2015. The Veteran argues, and the Board agrees that the date these entitlements should have arose is January 31, 2014. The RO characterized these claims as earlier effective date claims. However, the Board is recharacterizing the claims as discussed below. The Veteran testified before the undersigned Acting Veterans’ Law Judge in January 2021 via videoconference. A transcript of that hearing is of record. 1. Entitlement to an initial rating increase for PTSD The Veteran is seeking an increased rating for his service-connected psychiatric disorder. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In the case of an initial rating, the entire evidentiary record from the time of a veteran’s claim for service connection to the present is of importance in determining the proper evaluation of disability. Fenderson v. West, 12 Vet. App. 119 (1999). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Hart v. Mansfield, 21 Vet. App. 505 (2007). As of July 13, 2015, the Veteran’s psychiatric disorder has been assigned an initial disability rating of 70 percent under 38 C.F.R. § 4.130, DC 9411. As an initial matter, the Board finds that this 70 percent rating should have been granted throughout the entire period on appeal, as such the effective date is January 31, 2014. In order to warrant the next higher 100 percent rating, the evidence must demonstrate total occupational and social impairment due to such 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; and/or memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, DC 9411. After a review of the evidence of record, the Board determines that a rating in excess of 70 percent is not warranted for any period on appeal. Indeed, while the Veteran has occasional symptoms that could support a higher rating, the Veteran’s symptoms do not otherwise cause total occupational and social impairment. Specifically, in an April 2015 VA examination, the Veteran endorsed symptoms of depressed mood, anxiety, difficulty in adapting to stressful circumstances including work and social relationships, and chronic sleep impairment. However, these stated symptoms do not represent the level of total impairment contemplated by the diagnostic code. Moreover, the examiner found that the Veteran was capable of managing his own affairs. There was no evidence of delusions, hallucinations, panic attacks, obsessive/ritualistic behaviors, homicidal thoughts, episodes of violence, or a thought disorder. As such, the examiner opined that the Veteran’s psychiatric symptoms caused occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. Similarly, in a January 2016 VA examination, the Veteran endorsed symptoms of depressed mood, anxiety, suspiciousness, memory impairment, chronic sleep impairment, disturbances in motivation and mood, inability to establish and maintain effective relationships, impaired judgement, impaired abstract thinking, and panic attacks. However, these stated symptoms do not represent the level of total impairment contemplated by the diagnostic code. Moreover, on examination, the examiner reported that the Veteran presented as appropriately dressed and adequately groomed. His behavior was appropriate, and he was alert/oriented in all spheres. As such, the examiner opined that the Veteran's psychiatric symptoms caused occupational and social impairment with reduced reliability and productivity. During a September 2018 the Veteran reported no suicidal or homicidal ideation and was oriented in all spheres. Further, in March 2019, he reported a generally “good” mood, and exhibited a normal coherent thought process during a psychiatric appointment. In view of these clinical evaluations, the Board finds that the Veteran does not exhibit objective symptomatology that would be sufficient to warrant a rating in excess of 70 percent for the period on appeal. Next, the Board has also considered the extent to which there are other indications of total occupational and social impairment, such as gross impairment of the thought process or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, disorientation to time or place. See Mauerhan, 16 Vet. App. 436, 444 (2002). In this regard, the Veteran’s disorder reflects a moderate impact on his social and occupational functioning. Nevertheless, the evidence does not indicate that a rating in excess of 70 percent is warranted. Specifically, the January 2016 VA examiner stated while the Veteran would have reduced social and occupational and social impairment, there is no indication that there was total social and occupation impairment. Of note, the Veteran stated that he cares for his children as a single parent. Moreover, in October 2020 he expressed that he was currently pursuing a college degree and performing well academically. Therefore, he did not display total social and occupational impairment even when factoring in other relevant criteria outside of the rating code. Mauerhan, 16 Vet. App. 436, 444. In considering the appropriate disability rating, the Board has also considered the statements from the Veteran that his service-connected psychiatric disorder is worse than the ratings he currently receives. 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 evidence favorable to the claimant. See 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. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his acquired psychiatric disability and ankle disorder according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). On the other hand, such competent evidence concerning the nature and extent of the Veteran’s acquired psychiatric disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. Specifically, while the Veteran reported that he had depressed mood, anxiety, panic attacks, and sleep difficulties, these symptoms were discussed and addressed by the VA examiners and treating medical providers. 2. Entitlement to TDIU The Veteran has asserted that prior to July 13, 2015, he has been unable to work because of his service-connected disabilities. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). A total disability rating for compensation purposes may be assigned on the basis of “individual unemployability,” or 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 service-connected disabilities. 38 C.F.R. § 4.16(a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. The Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected conditions and advancing age, which would justify TDIU. 38 C.F.R. §§ 3.341(a), 4.19; See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). In this case, the Board determines that TDIU should be granted prior to July 31, 2015. As an initial matter, the Board notes that the Veteran met the schedular requirements for TDIU throughout the period on appeal without taking into consideration his PTSD. The Veteran is service connected for thoracolumbar degenerative disc disease (40 percent); cervical spine degenerative disc disease (20 percent); left knee strain (10 percent); painful nose scar (10 percent); left upper extremity radiculopathy (10 percent); and PTSD (70 percent). In making this decision, the Board places significant probative value of the Veteran’s testimony that he could not work because of his severe issues with chronic sleep impairment that causes extreme absenteeism, which led to termination. This was supported by both his April 2015 and January 2016 VA examinations, with both examiners opining that his PTSD symptoms would cause interference with occupational tasks. Furthermore, the record reflects his last employment ended in June 2013. Accordingly, entitlement to TDIU prior to July 13, 2015 is granted. Specifically, TDIU is granted as of January 31, 2014. See Owens v. Brown, 7 Vet. App. 429, 433 (1995) 3. Entitlement to SMC based on housebound status The Veteran asserts that he is entitled to SMC based on housebound status or the need for aid and attendance prior to July 13, 2015. SMC at the housebound rate is warranted if the veteran has a 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. This requirement is met when the veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 U.S.C. § 1114(s); C.F.R. § 3.350(i). As emphasized by the Court, 38 U.S.C. § 1114(s) permits that a TDIU based on a single disability can satisfy the statutory requirement of a total rating. Bradley v. Peake, 22 Vet. App. 280, 291-94 (2008). In this case, the Board determines that SMC at the housebound rate is warranted as January 31, 2014 the date of the 70 percent PTSD rating. With respect to the statutory requirement for a total rating, the Board determines that the medical evidence reflects that the Veteran is unable to obtain and retain substantially gainful employment due to his service-connected psychiatric disorder that is rated at 70 percent. As such, TDIU is warrant solely for this disability. Next, the Veteran’s other disabilities including disabilities including thoracolumbar degenerative disc disease, cervical spine degenerative disc disease, left knee strain, painful nose scar, and left upper extremity radiculopathy are rated at a combined 70 percent rating, and therefore satisfies the requirement for a combined disability rating of 60 percent or more that is apart from the total (TDIU) rating. Therefore, entitlement to SMC at the housebound rate is established on a schedular basis as of January 31, 2014. 4. Entitlement to Dependents’ Educational Assistance The appellant is seeking DEA benefits prior to July 13, 2015. For the purposes of educational assistance under 38 U.S.C. Chapter 35, the child or surviving spouse of a Veteran will have basic eligibility if the following conditions are met: (1) The Veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the Veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the Veteran’s death; or (4) the Veteran died as a result of a service-connected disability. 38 U.S.C. §§ 3501, 3510; 38 C.F.R. §§ 3.807(a), 21.3021. In this case, it is not disputed that the Veteran’s grant of DEA benefits was provided in connection with the RO’s April 2017 determination that the Veteran was permanently and totally disabled due to his service-connected disabilities as of July 13, 2015. However, the Board finds that the Veteran to be permanently disabled as of January 31, 2014. Therefore, the award of DEA benefits prior to July 13, 2015 is warranted. Specifically, as of January 31, 2014. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Billinger, Associate Counsel