Citation Nr: 21028314 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 12-29 490 DATE: May 11, 2021 ORDER Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with depression is denied. From September 12, 2015, entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected posttraumatic stress disorder (PTSD) with depression is granted. From June 3, 2016, entitlement to special monthly compensation (SMC) at the housebound rate under 38 U.S.C. § 1114(s) is granted. FINDINGS OF FACT 1. The clinical signs and symptoms of the Veteran's PTSD do not approximate total occupational and social impairment. 2. From September 12, 2015, the symptoms of the Veteran's service-connected PTSD have been of the nature as to prevent him from obtaining and retaining substantially gainful employment. 3. From June 3, 2016, the Veteran has additional service-connected disabilities independently ratable at 60 percent or more disabling. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 70 percent for PTSD with depression have not been met. 38 U.S.C. §§ 1155, 5107(b) (2018); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2020). 2. From September 12, 2015, the criteria for entitlement to a TDIU due to PTSD with depression have been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. § 4.16 (2020). 3. From June 3, 2016, the criteria for entitlement to special monthly compensation (SMC) at the housebound rate under 38 U.S.C. § 1114(s) have been met. 38 U.S.C. § 1114(s) (2018); 38 C.F.R. § 3.350 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from August 1988 to July 1992. This appeal arose from an August 2016 rating decision. In June 2017, February 2018, and July 2020, the Board remanded the claim of entitlement to an increased rating for PTSD for further evidentiary development. During the pendency of the appeal, the Agency of Original Jurisdiction (AOJ) granted an initial 70 percent rating for the Veteran's PTSD. Because the maximum benefit was not granted now or during the pendency of the appeal period, the issue of entitlement to a higher evaluation remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). While the appeal for the issue of entitlement to an increased rating for PTSD was pending, the Veteran filed a claim for TDIU, asserting that his PTSD prevented from securing or following any substantially gainful occupation. He also asserted that he had to leave his place of unemployment due to his psychiatric disorder in his November 2016 Notice of Disagreement (NOD). Therefore, the issue of entitlement to a TDIU is part-and-parcel of the increased rating claim on appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Although a TDIU rating was awarded from September 7, 2017, it was not granted for the entire appeal period. Harper v. Wilkie, 30 Vet. App. 356 (2018). The issue of entitlement to a TDIU remains on appeal as part-and-parcel of the increased rating claim because it was not granted in full. See Harper, supra; see also Payne v. Wilkie, 31 Vet. App. 373 (2019). Accordingly, the Board has jurisdiction over the issue of entitlement to a TDIU prior to September 7, 2017 and will address the issue in the current decision. Additionally, entitlement to SMC is an "inferred issue" in the context of an increased rating claim that must be considered when the record indicates it may be available, even if the Veteran does not place eligibility for this ancillary benefit at issue. Akles v. Derwinski, 1 Vet. App. 118, 121 (1991). Accordingly, based on the evidence of the record, this issue has been added for appellate consideration. 1. Entitlement to a rating in excess of 70 percent for PTSD with depression is denied. The Veteran's PTSD with depression is currently rated at 70 percent in accordance with the criteria set forth in the Schedule for Rating Disabilities, 38 C.F.R. Part 4, Diagnostic Code 9411. Under the General Rating Formula for Mental Disorders, a 100 percent evaluation is warranted if 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); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The United States Court of Appeals for the Federal Circuit has acknowledged the "symptom-driven nature" of the General Rating Formula and 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." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit has explained that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating." Id. at 117. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). On the other hand, if the evidence shows that a Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443. Turning to the relevant evidence of the record, the report of a May 2016 VA examination noted that the Veteran experienced occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. The Veteran reported sleeping difficulties, such as experiencing nightmares. He experienced more stress due to the lack of sleep. The Veteran reported entering a treatment facility for PTSD and substance use addiction. In a September 2016 Primary Care Note, the Veteran reported having increased nightmares. In an October 2016 Mental Health Note, the Veteran reported waking up with nightmares and having trouble falling asleep. He endorsed concentration difficulties, flashbacks and isolation. See July 2017 VA Medical Treatment Records. In December 2016, the Veteran asserted that his PTSD symptoms were worsening. He reported that his medication to treat his nightmares stopped working. His hypervigilance increased. He experienced derealization and had auditory hallucinations. He denied experiencing any other psychotic symptoms, such as manic episodes, excessive worrying, inability to control worrying, obsessive thoughts or compulsive behaviors. Mental status examination did not show any gross impairments. See July 2017 VA Medical Treatment Records. At the August 2017 VA Examination, it was reported that two years prior, the Veteran experienced suicidal ideations which led to attending counseling on a weekly basis. The Veteran was currently separated from his wife due to increasing irritability. It was noted that since the Veteran's initial evaluation, his symptoms had worsened. His nightmares, mood swings, social withdrawal and irritability impacted his marital relationship. It was noted that those same symptoms led to his loss of employment, compromising his ability to communicate appropriately with others. The Veteran's psychiatric symptoms included depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, near- continuous panic or depression affecting ability to function, chronic sleep impairment, mild memory loss, flattened affect, difficulty understanding complex commands, disturbances in motivation and mood, impaired abstract thinking, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, and suicidal ideation. Regarding behavioral observations, the Veteran was polite and cooperative. He was mildly guarded. There was no psychomotor agitation or retardation noted. He displayed no eccentricities of speech. The Veteran was hypervigilant when responding to sounds. He was capable of managing his own affairs. The examiner opined that the Veteran's PTSD resulted in occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking or mood. At the February 2021 VA Examination, the Veteran reported having a good relationship with his wife but expressed that she struggled with his symptoms. The Veteran remained in contact with his two sons. He played golf once a week with two older Veterans. He reported that he went to church most weeks. The Veteran currently ran a farm with livestock. His symptoms included depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, flattened affect, disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and suicidal ideation. The Veteran was oriented to person, time and place. His appearance was appropriately groomed. Affect was flat. Speech was logical, coherent and consistent. He was capable of managing his own affairs. The examiner opined that the Veteran's PTSD resulted in occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking or mood. After a thorough consideration of the evidence of the record, the Board finds that the frequency, duration, and severity level of the Veteran's PTSD symptoms are adequately contemplated by the current 70 percent evaluation and that, therefore, the next higher rating of 100 percent is not warranted. The evidence does not establish that the Veteran exhibits total occupational and social impairment due to his symptoms. The Veteran maintains good relationships with his children. He engages in recreational activities, such as golf, with two other Veterans. As noted in the behavioral observations and mental status examinations, the Veteran's thought process has been clear, and he communicates well. He also acts appropriately at the examinations. The Veteran has always been oriented to time, person, and place. His appearance (grooming, attire and hygiene) has always been appropriate and clean. Although he reports experiencing memory difficulties (in terms of having problems remembering tasks), he does not forget the names of his family members or himself, which is specifically contemplated by the 100 percent rating criteria. While he experiences irritability, anxiety, mood disturbances, nightmares, flashbacks, sleep disturbances, memory difficulties, and suicidal ideations, the evidence shows that he has not ever had any homicidal ideations or been deemed to be in a danger to himself or others. The Veteran's psychiatric symptoms are adequately contemplated and evaluated by the current 70 percent rating assigned. The Board also notes that the Veteran reported experiencing auditory hallucinations in 2016. However, he has not exhibited persistent delusions or hallucinations, which are required for a 100 percent rating. There have been no reports of hallucinations since that 2016 notation. In summation, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 70 percent for the Veteran's PTSD. The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, the doctrine is not applicable. 2. TDIU is granted from September 12, 2015. As stated previously, the Veteran is awarded a TDIU rating from September 7, 2017, the date his claim was received. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In this matter, the Veteran asserts that his psychiatric condition precluded him from obtaining and maintaining substantially gainful employment. The Veteran's PTSD is rated at 70 percent for the appeal period. Therefore, the Veteran meets the schedular rating solely based on his PTSD alone. The relevant evidence of the record supports that the Veteran was precluded from obtaining or maintaining substantially gainful employment due solely to his PTSD. At the May 2016 VA Examination, the Veteran reported being unemployed since returning from a treatment facility for his PTSD and substance abuse. The Veteran stated that he previously worked in IT selling equipment and websites. The Veteran indicated that the job was still waiting for him when he was "ready." The Veteran felt that he would not ever be ready to return to work. In October 2016, the Veteran reported not working. He helped his father on the farm. He stated that he quit his last job due to issues with drug use. The Veteran felt that he needed to get his PTSD symptoms controlled before returning to work. See October 2016 Mental Health Note. At the August 2017 VA Examination, it was again noted that the Veteran had to take leave from his job due to the worsening of his PTSD symptoms. It was also noted that the Veteran did not have any energy, focus, or concentration to return to pursue any educational endeavors. In a September 2017 Veterans Application for Increased Compensation based on Unemployability (VA Form 21-8940), the Veteran reported working in IT sales from 2010 to 2015. He reported losing 5 months of time due to illness. The Veteran noted completing up to two years of college. He did not have any other training or education before and since becoming too disabled to work. After a thorough consideration of the evidence of the record, the Board finds that the Veteran's psychiatric symptoms solely prevented him from obtaining and maintaining substantially gainful employment. The evidence shows that when the Veteran's psychiatric symptoms worsened, he was not able to perform his job duties. He took time off to enter treatment facility due to his psychiatric symptoms. The Veteran's symptoms included concentration difficulties, memory difficulties, disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. In total consideration of the Veteran's symptoms, educational background, and occupational history, the Board finds that the Veteran's psychiatric symptoms render him unable to secure or follow substantially gainful employment and significantly impact his ability to perform the physical and mental acts required by employment prior to September 7, 2017. In this matter, the Veteran reported the date of September 11, 2015 as being the last day he worked full time. Therefore, from September 12, 2015, the Veteran is entitlement to a TDIU rating due to his PTSD. 3. Entitlement to SMC at the housebound rate under 38 U.S.C. § 1114(s) is granted from June 3, 2016. In order for a SMC to be warranted, the Veteran has to have a single service-connected disability that is rated at totally disabling, and one or more additional service-connected disability or disabilities independently ratable at 60 percent or more, or by reason of such Veteran's service-connected disability or disabilities is permanently housebound. See Bradley v. Peake, 22 Vet. App. 242, 280 (analyzing 38 U.S.C. § 1114 (s)); see also 75 Fed. Reg. 11,229-04 (March 10, 2010) (withdrawing VAOPGCPREC 6-1999). A TDIU rating based solely on one disability is deemed a single disability rated at totally (100 percent) disabling for the purpose of determining entitlement to SMC. Since a TDIU rating due solely to the Veteran's PTSD may be awarded, the Veteran is now eligible and entitled to receive SMC in accordance with 38 C.F.R. § 1114 (s). The Veteran is service-connected for psoriasis, which is independently rated at 60 percent (from June 3, 2016). The Veteran is also service connected for tinnitus and loss of taste. Based on this Board's decision, the Veteran has a single service-connected disability rated as total (due to a TDIU rating) and additional service-connected disabilities independently rated at 60 percent or more. Accordingly, entitlement to SMC under 38 U.S.C. § 1114 (s) beginning June 3, 2016 is warranted. Roya Bahrami Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Middleton, 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.