Citation Nr: 21022951 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 18-11 644 DATE: April 19, 2021 ORDER The claim for entitlement to service connection for a left eye condition is dismissed. A 70 percent rating for posttraumatic stress disorder (PTSD), previously rated as anxiety disorder with major depressive disorder, is granted for the periods prior to June 10, 2014 and since August 1, 2014. A total disability rating based on individual unemployability (TDIU) is granted effective January 29, 2016. Special monthly compensation (SMC) based on statutory housebound status under 38 U.S.C. § 1114(s) is granted effective January 29, 2016. REMANDED Entitlement to a rating in excess of 10 percent for right knee patellofemoral pain syndrome with degenerative joint disease is remanded. FINDINGS OF FACT 1. During the May 15, 2020 Board hearing, prior to the promulgation of a decision in the appeal, the appellant requested a withdrawal of the claim for service connection for a left eye condition. 2. Prior to June 10, 2014 and since August 1, 2014, the severity, frequency, and duration of the Veteran’s symptoms have more closely approximated occupational and social impairment with deficiencies in most areas. 3. The Veteran’s service-connected disabilities have precluded substantially gainful employment since January 29, 2016. 4. Since January 29, 2016, in addition to TDIU resulting from his PTSD alone, the Veteran has had additional service-connected disabilities independently ratable as at least 60 percent disabling. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a claim for entitlement to service connection for a left eye condition by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. Prior to June 10, 2014 and since August 1, 2014, the criteria for a 70 percent disability rating for 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, 9413. 3. The criteria for entitlement to TDIU have been met since January 29, 2016. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. 4. The criteria for SMC at the housebound rate have been met since January 29, 2016. 38 U.S.C. §§ 1114 (s), 5103, 5107; 38 C.F.R. §§ 3.102, 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2001 to May 2001, October 2003 to April 2005, August 2007 to September 2008, and May 2009 to June 2010. A Board hearing was held in May 2020. A transcript is of record. The Veteran was granted a temporary total rating for PTSD and SMC at the statutory housebound rate from June 10, 2010 to July 31, 2014. Because the Veteran’s benefits have been maximized, that period is not on appeal. Withdrawal 1. Left Eye Condition During the May 2020 Board hearing, the Veteran and his representative explicitly, unambiguously, and with a full understanding of the consequences, withdrew the issue of entitlement to service connection for a left eye condition. The undersigned clearly identified the withdrawn issue, and the Veteran and his representative affirmed that they were requesting a withdrawal as to those issues. See May 2020 Hearing Transcript at 2. The Veteran’s full understanding of the consequences are shown as he was acting on the advice of his representative and did not seek to give testimony on the withdrawn issue. See Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). 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. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the Veteran has withdrawn the issues of entitlement to service connection for a left eye condition. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. Increased Rating 2. PTSD The Veteran asserts the severity of his psychiatric disorder, which has been diagnosed as PTSD, anxiety disorder, and depressive disorder, entitles him to a rating in excess of 50 percent for the period prior to June 10, 2014, and since August 1, 2014. As noted above, the Veteran is already in receipt of a 100 percent rating for the period from June 10, 2014 to July 31, 2014 and that period is not on appeal. After a careful review of the evidence, the Board concludes the Veteran is entitled to a 70 percent rating for both of the appeal periods. However, his symptoms did not cause the level of impairment required for a disability rating of 100 percent at any point during either appeal period. The Board notes that the Veteran’s disability has been rated two separate Diagnostic Codes. Prior to September 4, 2014, the Veteran’s disability was rated under Diagnostic Code 9413 and Diagnostic Code 9413 thereafter. But both Diagnostic Codes are evaluated pursuant to the General Formula for Mental Disorders, and the Board will therefore conduct a single analysis. 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 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 Veteran was granted a temporary 100 percent rating for a period of hospitalization that lasted from June 10, 2014 until his discharge in July 2014. Less than two months later, on August 27, 2014, the Veteran again voluntarily admitted himself to a VA hospital for three days. At the time of his admission, the Veteran reported wanting to “snap people’s necks,” reported suicidal ideation and reckless activities, such as driving 120 miles per hour on his motorcycle in traffic. He had no history of self-harm but reported thoughts of crashing his motorcycle into a truck. He stated that he was having issues at work with multiple coworkers and his boss and indicated he would physically assault them if aggravated. Finally, he stated that although he realized his wife was trying to help him, he still had aggression toward her. A September 2014 VA examiner indicated the Veteran’s only symptoms were depressed mood, anxiety, and impaired impulse control. The examiner did not address the Veteran’s period of hospitalization for suicidal and homicidal thoughts, noting only a “recent increase in symptoms.” The examiner noted the Veteran’s report he was irritable with co-workers but had no disciplinary actions. During a May 2016 VA psychiatric examination, the Veteran reported his marriage was good and enjoyed activities with his children. The examiner described the Veteran’s symptoms as depressed mood, anxiety, and disturbances of motivation and mood. The Veteran most recently underwent a VA examination in August 2018. During the examination, the Veteran reported ongoing irritability and anger. His spouse stated he angered very quickly but was never physical, though she could see his fist clenching when he gets angry. The examiner described the Veteran’s symptoms as anxiety, suspiciousness, and disturbance of motivation or mood. The examiner opined that, in order to maintain employment, the Veteran would require a low stress work environment with loose supervision, indicating difficulty adapting to stressful circumstances. Overall, the Board finds the Veteran’s lay statements show that the Veteran’s generalized anxiety disorder has been manifested by symptoms associated with a 70 percent rating, including intrusive thoughts of suicide, impaired impulse control, difficulty adapting to stressful circumstances. Even after two hospitalizations, the Veteran continued to report suicidal ideation after the VA examination. See, e.g., December 2014 Notice of Disagreement; February 2015 Veteran Statement. And the Veteran has consistently reported difficulty with anger and angry outbursts and has not had any lasting relationships outside of his immediate family. See, e.g., July 2016 VA Treatment Records; February 2017 VA Treatment Records; August 2017 VA Treatment Records; May 2018 VA Treatment Records; July 2018 VA Treatment Records; May 2020 Hearing Transcript, at 10, 18-20. The Board also finds that the Veteran has demonstrated an inability to establish and maintain effective relationships. In August 2017 he was attempting to get more involved in local organizations. See August 2017 VA Treatment Records. But by November of the same year, he reported becoming more depressed, was losing friends, and had dropped his positions in local organizations. See November 2017 VA Treatment Records. Similarly, while the Veteran has at times reported a good relationship with his wife, as noted above, he has also expressed anger and irritation toward her. In a July 2018 VA treatment record, the Veteran stated his relationship was in distress, he was distancing from his daughter, was ready to pack his bags and leave, and only stayed because of his children. Therefore, although the Veteran has established or maintained some relationships, they have not been effective. Despite the brief periods of more mild symptomatology, overall, the Board finds the severity, frequency, and duration of the Veteran’s 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 Board notes that the Veteran expressed suicidal ideation, 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 and during the each of the VA examinations. And while he has made threats against others, there is no indication that his threats have led to physical violence. And although, as discussed below, the Veteran’s symptoms meet the requirements for TDIU, equivalent to total occupational impairment, the Veteran has not experienced total social impairment, as he still maintained a relationship with his wife and children, albeit with difficulty. Finally, the Veteran has experienced seizures or black outs since April 2014, which he contends are caused by his PTSD. The greater weight of the medical evidence of record, however, does not support the Veteran’s contention. In support of the Veteran’s assertion, in May 2015 a VA neurologist reported the black outs observed during an EEG did not show any concerning neurological changes and opined the most likely diagnosis was psychogenic seizures related to PTSD. However, the remainder of the medical evidence is contrary to the neurologist’s opinion. The May 2016 VA psychiatric examiner determined the seizures were unlikely related to the Veteran’s PTSD, explaining that the episodes had recent onset, but the Veteran had experienced PTSD symptoms since 2005 and he did not identify any triggers to the episodes. A June 2016 VA examiner, who evaluated the residuals of the Veteran’s traumatic brain injury (TBI), also opined the Veteran’s seizures were not related to his TBI. The examiner also determined, after in-depth discussions with two VA psychologists, that the seizures were not secondary to the Veteran’s PTSD. Finally, the August 2018 VA examiner also opined the Veteran’s black out episodes were not related to his PTSD because there were no trauma-related triggers and the black outs began a long time after the Veteran’s trauma occurred. In sum, the Board concludes that based on the symptomatology described in the evidence of record a disability rating of 70 percent, but no higher, is warranted for the periods prior to June 10, 2014 and since August 1, 2014. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). This rating contemplates the severity, frequency, and duration of the Veteran’s symptoms and is based on all the evidence of record. See 38 C.F.R. § 4.126(a). 3. TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation due to service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16.  A finding of total disability is appropriate “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.” 38 C.F.R. §§ 3.340(a)(1), 4.15.   Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a).   “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). “Marginal employment shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16(a) (2017).  The United States Court of Appeals for Veterans Claims (Court), in Ray v. Wilkie, 31 Vet. App. 58 (2019), interpreted the phrase “unable to secure and follow a substantially gainful occupation” under 38 C.F.R. § 4.16 (b). The Court defined the term to have 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, which is pertinent in this case, includes consideration of: 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.   As of this decision, the Veteran has met the schedular criteria for the entire appeal period. See 38 C.F.R. § 4.16(a). But the Board must still consider whether his service-connected disabilities have precluded him from securing and following substantially gainful employment for that period. See 38 C.F.R. §§ 3.341, 4.16(a); see also Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In a July 2018 VA Form 21-8940, Application for Increased Compensation Based on Unemployability, the Veteran reported he had last worked on January 15, 2016 as a forklift operator and had stopped working due to PTSD. Prior to operating a forklift, the Veteran worked in other manual labor positions, such as truck driver and loader. He indicated he had completed two years of high school education. The Veteran’s former employer provided a statement in January 2019 that indicated the Veteran had been terminated from his position as a forklift driver on January 29, 2016 because he was unable to perform his duties in a safe manner due to his disabilities. As noted above the August 2018 VA examiner opined that the Veteran would require a low stress work environment with loose supervision. Given the Veteran’s education and experience, it is not clear to the Board that the Veteran would be able to find employment that meets these requirements. The Board also finds significant the Veteran’s reports prior to his termination of anger and irritation with his co-workers and supervisors, which came close to physical altercation. See, e.g., September 2014 VA Treatment Records; September 2014 VA Examination Report; May 2020 Hearing Tr. at 20. Having considered the Veteran’s history, education, skill, and training along with the evidence of record, the Board finds that the Veteran was rendered unable to obtain and maintain a substantially gainful occupation due to the limitations resulting from his service-connected PTSD as of January 29, 2016, the date his former employer reported he was terminated. Having determined that the Veteran is entitled to TDIU based on his psychiatric disorders alone, the Board must also consider entitlement to SMC. 4. SMC VA’s duty to maximize a claimant’s benefits includes consideration of whether his disabilities establish entitlement to SMC under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability. The Court has held that TDIU may satisfy the “rated as total” element of section 1114(s) where TDIU is based a single disability. Buie v. Shinseki, 24 Vet. App. 242, 250 (2010). In accordance with the above decision, the Veteran has been awarded TDIU based solely on his service-connected PTSD effective January 29, 2016. In this case, the criteria for SMC at the (s) level has been met effective January 29, 2016. From that date forward, in addition to TDIU based on PTSD alone, the Veteran is service connected for additional disabilities independently rated at 60 percent or higher. In granting SMC, the Board has considered the Veteran’s current 10 percent rating for his right knee disability, which is being remanded. But because the claim is being remanded due an indication of worsening, which could potentially result in a higher rating, delaying the assignment of SMC does not benefit the Veteran where his current evaluation meets the rating requirement. SMC pursuant to 38 U.S.C. § 1114(s) is therefore warranted effective January 29, 2016. REASONS FOR REMAND 1. Right Knee During the May 2020 Board hearing, the Veteran asserted that his right knee patellofemoral pain syndrome has increased in severity since the Veteran was last examined by VA. See May 2020 Hearing Tr. at 22-24, 29. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his right knee disability. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right knee disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing and must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Readjudicate the claim. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Mine, 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.