Citation Nr: 21040123 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 16-56 258 DATE: July 2, 2021 ORDER Entitlement to an increased rating of 70 percent, but no higher, for service-connected posttraumatic stress disorder (PTSD) with major depressive disorder, effective January 21, 2016, is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an increased rating higher than 70 percent rating for service-connected PTSD with major depressive disorder, effective July 5, 2019, is denied. REMANDED Entitlement to a rating of total disability due to individual unemployability based upon service-connected disorders (TDIU) is remanded. Entitlement to special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s) is remanded. FINDING OF FACT Resolving all reasonable in the Veteran's favor, the evidence of record suggests that the Veteran's service-connected posttraumatic stress disorder (PTSD) with major depressive disorder has manifested in suicidal ideations throughout the period on appeal (in this case, since January 21, 2016); however, there is no credible or competent evidence of record suggesting both total occupational and social impairment at any time on appeal. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased rating of 70 percent, but no higher, for service-connected posttraumatic stress disorder (PTSD) with major depressive disorder, effective January 21, 2016, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Codes 9411, 9434. 2. The criteria for entitlement to an increased rating higher than 70 percent rating for service-connected PTSD with major depressive disorder, effective July 5, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Codes 9411, 9434. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1968 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal of separate rating decisions issued October 6, 2015 (for TDIU) and February 3, 2016 (for the psychiatric disorder)each by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Timely and valid Notices of Disagreement were received on October 16, 2015 and June 22, 2016, respectively. By way of background, the Veteran filed a VA Form 21-8940 received on June 16, 2015, and an initial claim for service connection for a psychiatric disorder received on January 21, 2016. The psychiatric disorder was initially awarded a 50 percent rating as PTSD but was recharacterized as PTSD with superimposed major depressive disorder rated 70 percent disabling effective July 3, 2019. See Rating Decision (June 16, 2020). As higher ratings are available throughout the period on appeal, the claim is recharacterized accordingly as now reflected on the title page. See AB v. Brown, 6 Vet. App. 35 (1993). The increased rating was awarded after the Veteran's claims were remanded by the Board on April 29, 2019. Most recently, the Veteran was issued a Supplemental Statement of the Case (SSOC) on June 16, 2020. The Board accordingly reasserts jurisdiction. 1. Entitlement to a 70 percent rating for service-connected posttraumatic stress disorder (PTSD) with major depressive disorder effective January 21, 2016, but no higher and no earlier, is granted. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. A 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). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is entitlement to a higher initial rating assigned following a grant of service connection, evaluation of the medical evidence since the award to consider the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). 38 C.F.R. § 4.130 delineates a schedule of ratings for mental disorders other than eating disorders, based upon the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition ("DSM-5"). The Veteran's claimed mental disorders (prior to July 5, 2019: PTSD, Diagnostic Code 9411; thereafter, PTSD with major depressive disorder, Diagnostic Codes 9411, 9434) are governed by the general rating formula within § 4.130. As per the General Rating Formula, a 50 percent rating is warranted when the Veteran exhibits 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. See 38 C.F.R. § 4.130, Diagnostic Codes 9411, 9434. A 70 percent rating is warranted when the Veteran exhibits 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; speech intermittently illogical, obscure, or irrelevant; 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); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted when the Veteran exhibits 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 held that the evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms, but also that those symptoms have caused occupational and social impairment in most of the referenced areas" - i.e., "the regulation...requires an ultimate factual conclusion as to the Veteran's level of impairment in most areas." Vazquez-Claudio, 713 F.3d at 117-118; 38 C.F.R. § 4.130, Diagnostic Code 9411. Further, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission," and must also "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." 38 C.F.R. § 4.126(a). The Board is mindful of the holding in Bankhead v. Shulkin, and the Board takes note that suicidal ideations are a factor listed at 70 percent in the general rating formula, but not at 50 percent or below. 29 Vet. App. 10, 20 (2017). As Bankhead indicates, it is improper to discount a suicidal ideation due to a lack of an apparent plan to kill one's self. Accordingly, the Board will not discount any of the Veteran's confirmed suicidal ideations because of a lack of plan or desire to follow through on his suicidal ideations. Though the list of symptoms in 38 C.F.R. § 4.130 are not restrictive requirements, the Board takes the Veteran's suicidal ideation as important evidence that his symptoms more closely resemble a 70 percent rating instead of 50 percent. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002); 38 C.F.R. § 4.7. The Board has fully, carefully, and sympathetically reviewed the Veteran's complete medical history within the claims file, including psychiatric examinations conducted both prior to and after the April 2019 remand. A February 2016 VA examination report notes that the Veteran had suicidal ideation. A March 2016 VA examination report also notes obsessional rituals which interfere with routine activities. See also VA Examination (May 6, 2016 ) (rec'd Sept. 2, 2019); C&P Exam ( July 5, 2019 ). These exams both indicate the presence of suicidal ideations. See Examination (May 6, 2016), at Section III, Question No. 3 (marking boxes next to "suicidal ideation," "obsessional rituals which interfere with routine activities," "impaired impulse control (such as unprovoked irritability with periods of violence)," "neglect of personal appearance and hygiene," and "inability to establish and maintain effective relationships" each with a X); Examination (July 5, 2019), at Question Nos. 2c and 4. Resolving all reasonable doubt in the Veteran's favor, the Board concludes that he is entitled to a 70 percent rating throughout the period on appeal, i.e., January 21, 2016. To this extent only, the Veteran's appeal for increased ratings for his PTSD either with major depressive disorder (effective July 5, 2019) or without (prior to July 5, 2019) is granted. Meanwhile, the Board has given careful and serious consideration to the remaining portion of this claim, i.e.: for a rating in excess of 70 percent at any time on appeal. Under 38 C.F.R. § 4.130, the only rating higher than 70 percent is 100 percent, but the Board ultimately concludes that there is simply no evidence of record suggesting both total occupational and total social impairment. The evidence shows that he has been married to his wife for 33 years, after 6 years of being together prior to marriage. See Examination (July 5, 2019), at Question No. 2a. The Veteran has three adult children and five grandchildren who all live out of statehe reports a strained relationship with one daughter but "good" relationships with the other two children. Id. He also has two siblings who live close to him, who will make contact with the Veteran if they have not heard from him in a while. Id. The Veteran also indicated that he sees his siblings at major holidays. Id. Meanwhile, the Veteran reported having one friend with whom he would play dominoes; however, this contact has decreased due to the friend's unavailabilitynot due to any increased psychiatric symptom. Id. In addition to the above, even though the Board concedes the Veteran reported "not [] keeping up with his hygiene regularly," see id. at Question No. 2c, and even though the examiner appears to have checked "persistent delusions or hallucinations" as present with no other evidence to this effect, see id. at Question No. 4, the examiner indicated that the Veteran is oriented to time, place, person, and situation. See id. at Question No. 5. Meanwhile, there is no indication that the Veteran has forgotten his own name, the names of any of his above close family members, or his former occupation. As a result, the Board cannot escape the conclusion that he simply does not exhibit both total occupational and social impairment. The Board acknowledges the listed symptoms in the diagnostic criteria are not exhaustive but serve as examples of the type and degree of symptoms or effects that would justify a particular rating. Mauerhan, 16 Vet. App. at 442. Additionally, the Board has not required the presence of a specified quantity of symptoms to warrant a higher rating for a mental disorder. However, based on the Veteran's capabilities outlined above, the Board finds that the Veteran has not demonstrated the type and degree of symptoms, or their effects, resulting in total occupational and social impairment justifying a rating of 100 percent. Overall, the Veteran has demonstrated serious symptoms consistent with the 70 percent rating. The Board recognizes that it is denying the claim for increased ratings for the Veteran's psychiatric disorder. The Board acknowledges that his symptoms may in fact have increased in severity throughout the period on appeal. However, the Board cannot escape the conclusion that even though the symptoms appear to evince entitlement to a 70 percent rating throughout the period on appeal, the evidence simply does not suggest entitlement to any higher rating than that at any time on appeal. Ultimately, the Board finds that there is no failure to afford the Veteran substantial compliance with previous remand directives as to his PTSD, see Stegall v West, 11 Vet. App. 268, 271 (1998) and that any further remand for PTSD with or without major depressive disorder would only unnecessarily impose additional burdens upon the Board with no reasonable possibility of any benefit flowing to the Veteran. Soyini v. Derwinski, 1 Vet. App. 540 (1991). In making its determinations in this case, the Board has carefully considered the Veteran's contentions with respect to the nature of his PTSD and notes that his testimony is competent to describe certain symptoms associated with that disability. The Veteran's history and symptom reports have been considered and has been contemplated by the disability ratings that have been assigned. Moreover, the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence when evaluating the pertinent symptoms of the Veteran's PTSD. As such, although the Board accepts the Veteran's testimony concerning the matters he is competent to address, the Board relies upon the competent medical evidence with regard to the specialized evaluations of functional impairment, symptom severity, and details of clinical features of the service-connected condition at issue. The Board has also considered whether a staged rating under Hart, supra is appropriate for the Veteran's PTSD; however, as stated above, the Board finds that his symptomatology has never manifested in both total occupational and social impairment, and subject to this limitation, there is no other higher benefit available to the Veteran for his psychiatric disorder. Therefore, assigning a staged rating for such disability is not warranted. Finally, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the claim adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Accordingly, while a higher 70 percent rating is granted, effective January 21, 2016, a rating higher than 70 percent for PTSD, effective July 5, 2019, is denied. To the extent that any further increase in disability rating is not assigned, there is no doubt to resolve. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to a rating of total disability due to individual unemployability based upon service-connected disorders (TDIU) is remanded. 2. Entitlement to special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s) is remanded. The Veteran first filed a VA Form 21-8940 seeking TDIU for numerous disorders not including any psychiatric disorder. See VA Form 21-8940 (rec'd June 16, 2015). Prior to this Board decision, the Veteran was 100 percent disabled from combined service-connected disorders effective July 11, 2018; therefore, the Agency of Original Jurisdiction concluded that any TDIU claim was moot thereafter. See SSOC (June 16, 2020). By operation of the Veteran's increased rating claim for a psychiatric disorder above, the Veteran is now rated 70 percent for one service-connected disorder by itself (namely, psychiatric) effective January 21, 2016. This disorder is listed as a reason why the Veteran left previous employment on a later VA Form 21-8940 received in March 2020, but not the earlier form. To the extent that the Veteran filed a claim for an increased rating for his psychiatric disorder and may have later attributed his unemployability to same, the Board infers a claim for TDIU based upon his service-connected psychiatric disorder. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Separate from the Veteran's psychiatric disorder, the Veteran appears to have other service-connected disorders that separately by themselves would render the Veteran at least 60 percent disabled. The Board concludes that the Veteran's case also raises the issue of derivative entitlement to SMC under 38 U.S.C. § 1114(s). VA has a duty to maximize benefits and policy to consider entitlement to SMC where applicable. See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991); AB, 6 Vet. App. 35 at 38; Bradley v. Peake, 22 Vet. App. 280 (2008). See also 38 C.F.R. § 3.103(a) (noting VA's obligation to "render a decision which grants every benefit that can be supported in law"). The Board accordingly concludes that the Veteran is entitled to have his claim for a TDIU remanded to also consider whether he is entitled to special monthly compensation. See Stegall v. West, supra. The matters are REMANDED for the following action: 1. Implement a 70 percent rating for the Veteran's PTSD effective January 21, 2016under Diagnostic Code 9411 prior to July 5, 2019, and under hyphenated code 9411-9434 thereafter in recognition of superimposed major depressive disorder. 2. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his attorney and afford them an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. Readjudicate the Veteran's claim for a TDIU and special monthly compensation (SMC) under 38 U.S.C. § 1114(s). The AOJ should alternatively develop the claim for a TDIU as either (a) due to the Veteran's service-connected disorders prior to January 21, 2016, but that were duly rated during the period on appeal or (b) including the Veteran's psychiatric disorder, rated as 70 percent disabling effective January 21, 2016. Whether or not the Veteran must report to an additional examination is left to the discretion of the Regional Office. If any portion of the Veteran's above claims should remain denied, then the Veteran and his representative should be issued a Supplemental Statement of the Case (SSOC) and should be afforded a reasonable opportunity to respond, in accordance with appellate procedures. SARAH B. RICHMOND Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael B. Engle, 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.