Citation Nr: 21026930 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 17-30 908 DATE: May 4, 2021 ORDER Entitlement to an initial rating of 70 percent for post-traumatic stress disorder (PTSD) with alcohol abuse, but no higher, is granted. Effective April 12, 2014, entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted, subject to the laws and regulations governing payment of monetary benefits. Effective April 12, 2014, entitlement to special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s) is granted, subject to the laws and regulations governing payment of monetary benefits. FINDINGS OF FACT 1. For the entirety of the appeal period, the severity, frequency, and duration of the Veteran's posttraumatic stress disorder (PTSD) symptoms most closely approximated occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. 2. Resolving reasonable doubt in the Veteran's favor, he has been unable to maintain or obtain substantially gainful employment due to service-connected PTSD since April 12, 2014, but no earlier. 3. From April 12, 2014, the Veteran's service-connected PTSD alone would support the assignment of a TDIU, and his other service-connected disabilities are ratable at 60 percent or more. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 70 percent, but no higher, 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. 2. The requirements for a TDIU from April 12, 2014, are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16. 3. The criteria for assignment of an effective date of April 12, 2014, for the grant of SMC pursuant to 38 U.S.C. § 1114(s) have been met. 38 U.S.C. § 1114(s), 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.350(i). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1974 to April 1976, from January 1991 to August 1991, and from April 2004 to November 2005. The matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision. By way of background, in February 2020, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript of the hearing is of record. The Board remanded the issues for further development. The requested development has been completed and the matters are again before the Board. Increased Rating Disability ratings are determined by evaluating the extent to which the Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes (DCs). 38 C.F.R. § 4.27. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. 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). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. In the case of an initial rating, VA must consider staged ratings to account for variations in the disability since the effective date of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). PTSD is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9411. Under the General Rating Formula For Mental Disorders, a 50 percent evaluation is warranted where there is 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 evaluation is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms 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 work-like setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating is provided where there is 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); and disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Nevertheless, all ratings in the general rating formula are associated with objectively observable symptomatology, and in Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013), the Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Indeed, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation 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. See 38 C.F.R. § 4.126(a). Entitlement to the assignment of an initial rating for posttraumatic stress disorder (PTSD) of 70 percent, but no higher, for the entire period on appeal is granted. The Veteran filed his service-connection claim for PTSD in May 2013. A 50 percent rating for PTSD has been in effect since May 29, 2013. The Veteran was afforded a VA examination in February 2014. As a result of the examination, the VA examiner indicated that the Veteran's psychiatric symptoms caused occupational and social impairment with reduced reliability and productivity. The examiner noted that the Veteran's symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances including work or a work-like setting. The examiner also noted that the Veteran was working at a VA hospital at the time of his examination. See February 2014 VA examination. In January 2015, upon review of the Veteran's VBMS chart and VA treatment records, a VA opinion provider stated that the Veteran's recent VA examination and treatment records indicate moderate symptoms of posttraumatic stress. The provider noted that the Veteran's psychiatrist had written that the Veteran would enter nursing school if not for his chronic pain and a looming surgery. He noted that the Veteran's prior VA examination provided few details but indicated that the Veteran's PTSD is associated with "occupational and social impairment with reduced reliability and productivity." He also noted that the Veteran was employed (at the time of the prior examination) and endorsed his difficulty in establishing and maintaining effective work and social relationship, and difficulty in adapting to stressful circumstances, including work or a work-like setting, but that he could not find any other specific occupational impairments due to PTSD in the available records. See January 2015 VA examination. A review of the record indicates that the Veteran has exhibited generally normal examination findings including cooperative and engaged behavior, good personal hygiene and grooming, good eye contact, normal speech, good mood, normal affect, linear and logical thought processes, normal thought content, intact memory, fair insight and judgment, good impulse control, and an appropriate fund of knowledge; he has generally denied suicidal and homicidal ideations, hallucinations, delusions, and manic/hypomanic symptoms. See September 2014, November 2018, July 2019, October 2019, and January 2020 VA treatment records. The record also reflects that the Veteran has reported taking care of his mother and also helping to make sure his daughter gets up and goes to work, dropping her off at work as well. See October 2019 VA treatment records. In October 2019, when asked how often he had been bothered by thoughts that he would be better off dead or of hurting himself in some way, the Veteran indicated "not at all." However, the record also reflects that he has reported suicidal/homicidal ideations on occasion, and he has endorsed symptoms of anxiety, depression, isolation, hypervigilance, easy startle, and flashbacks. See October 2019 and January 2020 VA treatment records. He has reported ongoing nightmares, and his mental health provider has noted that he has exhibited limited insight at times and his weaknesses include poor coping skills and psychosocial issues. See September 2014 and January 2020 VA treatment records. The record reflects that in January 2020 the Veteran reported he was seeking treatment because he had been miserable for some time; he has never been the same since returning from Iraq in 2006, and his current problems included inability to sleep, panic attacks, nightmares, and that he does not ever do anything or go anywhere. He reported good mood and no mood swings or periods of irritability. He also reported that his sleep was a little better and he was not taking anything. He reported that he had been taking trazodone but stopped because he felt groggy in the morning. He reported that he has nightmares now and then, and that he attended one PTSD session but did not like it, so he stopped going. He reported difficulties with employment and that being around too many people makes him anxious. See January 2020 VA treatment records. The record includes a statement provided by the Veteran's psychiatrist in April 2020 that the Veteran had been under her care since August 11, 2017, he has been diagnosed with PTSD, unspecified, and alcohol use disorder, and he has periods of sobriety lasting more than a month but his PTSD symptoms continue. The psychiatrist confirmed that the Veteran had been attending his scheduled appointments and had been compliant with his medication regimen. See April 2020 Psychiatrist Statement. During his hearing, the Veteran testified credibly about the symptoms caused by his PTSD with alcohol abuse. He testified that being around people just causes more and more anxiety and, as his anxiety increases, he looks for excuses not to work. He ends up drinking to the point that he does have an excuse not to be able to go to work and, as with his last job, it was either quit or be fired. The Veteran testified that documentation from his most recent employment noted he left due to health concerns, but they just put it down as that; however, it was just basically that he couldn't regularly attend work and he was drinking too much. He testified that he was always in sales prior to his last employment and that he had been an outgoing person and had a very active social life and business life. The Veteran testified that he wakes up with panic attacks due to his CPAP mask, and that he had frequent panic attacks for a month after he stopped using the CPAP. In addition to his CPAP-triggered panic attacks, he also has them as a result of sudden noise and depression. He testified that when he was able to quit drinking for a week it did not change his sleep issues; he sleeps for two hours, and maybe once or twice a month he will have a good night's sleep. He contends that his disability from February 2014, at the time of his last C&P examination, was "pretty much full blown, as what he has now." He explained that he takes care of his mother, but he does not really have any other family or friends that he interacts with. He testified that his mood gets low, it sometimes lasts for a long time, and at times it has caused suicidal thoughts; this happens once a month, easily. See February 2020 Hearing Transcript. The record reflects that, in April 2020, the Veteran reported that he had stopped drinking for a month after his hearing to see if it would be any different and if his PTSD symptoms would change; it didn't, so he went back to drinking again. He reported that his sleep has been up and down, that he feels anxious from time to time because of the current virus situation, and that he has nightmares now and then. The Veteran was afforded his most recent PTSD VA examination in May 2020. The examiner indicated that the Veteran's symptoms attributable to PTSD included anxiety, depressed mood suspiciousness, mildly flattened affect, mild memory difficulties, sleep difficulties, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to highly stressful circumstances including work or a work-like setting. During the examination, the Veteran was neatly groomed, casually dressed, and had a calm and flexible affect. He was polite, respectful, adequately sociable, pleasant, and cooperative. He responded appropriately to the use of humor once during the evaluation and was easy to engage in brief casual conversation. There was no evidence of psychomotor retardation or agitation at any time, and no tics or tremors were noted. He had normal speech. He maintained good eye contact, focus on questions asked, attention, and concentration. He referenced some mild difficulty with memory. His judgment and abstract thinking were intact, and his use of basic vocabulary was good. There was no evidence of delusional beliefs, acute dangerousness, responding to internal stimuli, or formal thought disorder. The VA examiner noted that the Veteran had occupational and social impairment with reduced reliability and productivity. See May 2020 VA examination. The record includes a statement submitted by the Veteran in September 2020 in which he contends he has told providers of his plans for suicide, he has anger issues and sleep problems, he cannot relate to people and he has paranoia and anxiety to the point where he feels like he can't breathe. In his statement, he explained that his life has changed from being an outgoing person that enjoyed interpersonal relationships to being a person that can't sleep, can't work without conflict, and can't have relationships with others. See September 2020 Statement. Taking all factors into consideration with application of the approximating principles of 38 C.F.R. § 4.7, and the benefit-of-the-doubt doctrine, the Veteran's PTSD most nearly approximates occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking or mood. Indeed, his PTSD was manifested at times by alcohol abuse, suicidal thoughts, difficulty in maintaining relationships, and impaired judgment. He has testified credibly regarding frequent suicidal ideations, anxiety, and panic attacks. For these reasons, an increased initial rating from 50 to 70 percent is warranted. The Board finds, however, that a 100 percent schedular rating is not warranted. Indeed, total occupational and social impairment is not demonstrated by the record. While the Veteran's representative argues that the Veteran had "total occupational and social impairment" based on the way his PTSD manifests in his drinking and makes him completely unable to work, the record does not support a finding that the Veteran has total social impairment; the record reflects that the Veteran maintains a relationship with his mother and daughter, that he takes care of his mother, and that he has been able to interact appropriately with others during examinations. Moreover, at no time has any examiner indicated that total occupational and social impairment exists. Upon review of the evidence as a whole, while the Board finds the Veteran's symptoms to be severe (warranting the assignment of a 70 percent rating for the entirety of the appeal period), the Board finds that his PTSD does not manifest in total occupational and social impairment, warranting the assignment of a 100 percent schedular rating at any time during the period under review. Entitlement to a TDIU Under the applicable criteria, all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 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. See 38 C.F.R. §§ 3.340(a)(1), 4.15. In determining whether unemployability exists, consideration may be given to a veteran's level of education, special training, and previous work experiences, but not to her age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. A total disability rating for compensation purposes 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 service-connected disabilities, provided that, 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 ratable at 40 percent or more, and the combined rating must be 70 percent or more. See 38 C.F.R. § 4.16(a). The Veteran filed his claim for a TDIU in April 2014, and it is part and parcel with the initial rating claim for PTSD adjudicated above. Service connection has been in effect throughout the appeal period for multiple disabilities. Since May 29, 2013, the Veteran has been in receipt of rating of 50 percent for obstructive sleep apnea, 10 percent for a shoulder disability, and for PTSD alone at a rating of 70 percent. Accordingly, for the entirety of the period under review, the Veteran has met the schedular requirements for TDIU under 38 C.F.R. § 4.16(a). The key question at issue is whether the Veteran's service-connected disabilities, in and of themselves, have at least as likely as not, rendered the Veteran unable to secure or follow gainful employment at any time during the period under review. The evidence of record supports a finding that the Veteran's service-connected PTSD with alcohol abuse at least as likely as not prevents him from obtaining or maintaining substantially gainful employment as of April 12, 2014. As an initial matter, the Veteran reported on his application for a TDIU that he last worked full-time, and he became too disabled to work, on April 7, 2014. He reported that his most recent employment was as a nursing assistant, and that prior to that, he worked as an EMS. See April 2014 VA Form 21-8940. The Veteran contends that he is unable to engage in substantial gainful employment, he has panic attacks 4 to 5 times per week, he has had past suicidal ideations, he has had past inpatient treatment for psychiatric issues, and he is unable to maintain adequate grooming and interpersonal relationships. He is unable to work within the national economy, even at the sedentary level. See June 2017 VA Form 9. The Veteran's employer completed a statement confirming his last day of employment was April 12, 2014. The statement noted that the Veteran had left the job due to health concerns. See August 2014 VA Form 21-4192. There is no evidence that the Veteran has worked since April 2014. At his hearing, the Veteran explained that his last job had been at a VA hospital assisting mentally disturbed Veterans in a lockdown unit to help Veterans that were going through similar things to what he went through. The Veteran testified that documentation from his most recent employment noted he left due to health concerns, but they just "put it down as that" and it was just basically that he couldn't regularly attend work and he was drinking too much. Prior to that, he worked with EMS in an ambulance, but after a while that got to be too much; the more he is around people, the more he drinks. Prior to that, he was always in sales. He testified that he has been through detox on inpatient treatment twice but that the symptoms still persist. He contends that his PTSD, and the alcohol abuse it has caused, interferes with his ability to attend work regularly and that he is unable to obtain and sustain gainful employment. He testified that being around people causes more and more anxiety, and that as he gets more and more anxiety, he looks for excuses not to work and ends up drinking even more. He testified that he ends up drinking to the point that has an excuse not to be able to go to work and, as with his last job, it was either quit or be fired. See February 2020 Hearing Transcript. The Board notes that the record includes an opinion provided as a result of a March 2014 VA examination that the Veteran's obstructive sleep apnea does not impact his ability to work. See March 2014 VA examination. Similarly, as a result of a November 2014 VA examination, the VA examiner noted that the Veteran's shoulder disability impacted his ability to work to the extent that he should avoid heavy lifting with the right shoulder; however, no restrictions were noted to sedentary work. See November 2014 VA examination. Based on the foregoing, the Board finds that the evidence is at the very least in equipoise that the Veteran is unable to secure and follow a substantially gainful occupation due to his service-connected PTSD with alcohol abuse alone. The record indicates that the Veteran has reported difficulties with employment and that being around too many people makes him anxious. The Veteran has testified credibly that his PTSD with alcohol abuse causes serious employment limitations, particularly with respect to his ability to attend work regularly or to be around others. After considering the Veteran's total service-connected disability picture, coupled with the Veteran's work history and education, the Board finds it is at least as likely as not that the Veteran's PTSD with alcohol abuse renders him unable to secure or follow gainful employment since April 12, 2014. As such, the Board finds that TDIU is warranted. Entitlement to SMC The Court has held that VA has a "well-established duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); A.B. v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C. § 1114. See Bradley, 22 Vet. App. at 294 (finding that SMC "benefits are to be accorded when a Veteran becomes eligible without need for a separate claim"). SMC at the housebound rate is payable, in pertinent part, where (1) a veteran has a single service-connected disability rated as 100 percent and (2) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). A TDIU may satisfy the requirement for a single disability rated total, if awarded on the basis of a single disability. Bradley, supra. Here, the Board has found that it is the Veteran's PTSD with alcohol abuse alone that renders him unable to maintain any form of substantially gainful employment, as of the date of April 12, 2014, his last day of work. As of that date, in addition to a TDIU based exclusively on PTSD with alcohol abuse, the Veteran is in receipt of service connection for obstructive sleep apnea, rated 50 percent disabling, and a right shoulder disability, rated as 10 percent disabling. Thus, as of April 12, 2014, the Veteran is in receipt of a TDIU for his PTSD alone and additional service-connected disabilities ratable at a combined rating greater than 60 percent. Accordingly, the Veteran is entitled to SMC pursuant to 38 U.S.C. § 1114(s) from April 12, 2014. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Fulmer, Associate 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.