Citation Nr: 21040393 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 15-12 207A DATE: July 3, 2021 ORDER An initial 100 percent disability rating for posttraumatic stress disorder (PTSD) effective July 16, 2012 is granted. Special monthly compensation (SMC) based on housebound status effective July 16, 2012 is granted. FINDINGS OF FACT 1. For the entire period on appeal the Veteran's PTSD manifested with symptoms that most closely approximate a total occupational and social impairment. 2. For the entire period on appeal the Veteran had a total rating for a single service-connected disability and additional service-connected disabilities combining to at least a 60 percent disability rating. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 100 percent 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 criteria for SMC at the housebound rate have been met. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active naval service from January 1978 to January 1998. This matter comes before the Board of Veterans Appeals (Board) on appeal from an April 2012 rating decision by the Department of Veterans affairs (VA) Regional Office (RO). Although a notice of disagreement was not received within one year of the April 2012 rating decision, new and material evidence was received during that period, tolling the appeal period. Beraud v. McDonald, 766 F.3d 1402, 1407 (Fed. Cir. 2014). The Veteran has raised the issue of entitlement to a total disability rating based on individual unemployability (TDIU) during the course of this appeal. However, a TDIU is only a part of an increased rating claim because it is an alternative means of reaching a total rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As a total schedular rating is awarded in this decision, the issue of a TDIU is moot. This matter was last before the Board in February 2021 and remanded for additional development. Based on that development, the Veteran was awarded a total rating for PTSD effective April 21, 2021. The remaining issue on appeal is entitlement to an increased rating for PTSD before April 21, 2021, when a 50 percent rating was assigned. 1. Increased Rating for PTSD The Veteran has appealed a rating of 50 percent for his PTSD and contends he is entitled to a higher rating. The Veteran's PTSD is currently rated at 50 percent under the General Rating Formula for Mental Disorders (General Formula). A 50 percent evaluation is warranted where there is occupational and social impairment with reduced reliability and productivity. This may be 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; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Code 9411. 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). This may be 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 evaluation is warranted for total occupational and social impairment. This may be 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 list of symptoms in the General Formula is not intended to constitute an exhaustive list but provides examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, 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 (Fed. Cir. 2013). When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. Suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas, and thus may be sufficient to warrant a 70 percent rating. Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017). For the period on appeal the Veteran's PTSD has manifested with symptoms that most closely approximate a total social and occupational impairment. For the entire period on appeal the Veteran has reported a chronic sleep impairment, irritability, hypervigilance, preoccupation with his PTSD stressor event, difficulty getting along with others and forming new relationships, memory problems and disturbances of mood and motivation. These reports are well documented in treatment records as well as noted by VA examiner in April 2012, March 2013, April 2021. They are also noted by two private medical examiners in November 2018 and November 2020. Additionally, affording the Veteran the benefit of the doubt, the record shows that during the entire period on appeal the Veteran has had chronic suicidal ideations. In September 2011, a treatment note indicated he questioned the reason for living. In his January 2013 report to the Social Security Administration (SSA) he indicated he had suicidal ideations. In July 2014 the Veteran had passive suicidal thoughts. In March 2015 the Veteran indicated he had suicidal thoughts that he suppresses. The VA examiner in April 2012 did not note suicidal ideations; however, the private examiners in November 2018 and November 2020 noted that suicidal ideations were present at least back to October 2011. This is consistent with the record. By April 2019, treatment records started referring to the Veteran's suicidal ideations as "chronic." The record supports the Veteran has been a danger to others, expressing homicidal ideations and physically attacking strangers in public over minor discrepancies. In March 2011, the Veteran resigned from his job, later stating he was concerned he would "take someone out." In March 2012, the Veteran indicated he had gotten into a violent altercation over a parking spot. At his April 2012 C&P examination, he disclosed three incidents where he became physically violent in public. He repeated this assertion at a January 2013 therapy session. In September 2012, the Veteran' mother-in-law indicated she had seen the Veteran argue with other drivers to a dangerous level and prefers not to drive with him anymore. In his December 2013 notice of disagreement, he reported he got angry with people and had thoughts of hurting people. He specifically stated he had daydreams of strangling his therapist; a similar remark is noted at the March 2013 C&P examination. In May 2014, he stated his anger control was getting better, but he was mostly avoiding going into public. The incidents also represent grossly inappropriate behavior. The Veteran has also reported audio and visual hallucinations. In his January 2013 report to the SSA he stated he suffered hallucinations where he sees and hear deceased military members. A June 2014 and January 2018 treatment not also notes hallucinations. At a November 2018 private examination, he reported the decease military members speak to him and tell him to take down people. In an April statement in support of claim he again reported hallucinations. They were also endorsed at the November 2020 private examination. Non-VA examiners in November 2018 and November 2020 have opined that the Veteran's PTSD has resulted in a total occupational and social disability. This is a more severe characterization than the April 2012 and March 2013 VA examiners. However, as the November 2018 examiner noted, the April 2012 examination does not appear to take note of the Veteran's suicidal ideations, nor does it consider the Veteran's persistent focus on his PTSD stressor event. Further, when viewed in connection to the whole record and the eventual disclosure of homicidal ideations, the April 2012 examiner's characterization is not consistent with the record. Similarly, the March 2013 examiner characterized the Veteran's condition as mild and transient despite the record indicating suicidal ideations, homicidal ideations, irritability, past physical altercations, preoccupation with is the PTSD stressor event, sleep impairment, concentration problems, and panic attacks. As a whole, the 2018 and 2020 private examinations are more consistent with the record and are more probative to determining the rating. The Veteran's combination of symptoms has resulted in a disability that most closely approximates a total occupational and social impairment. The Veteran's irritability and history of physical aggression preclude working with others or the general public under the normal stresses of the workplace. His problems with concentration, preoccupation with his PTSD stressor, and eventual audio and visual hallucinations would preclude working independently. He avoids going into public because his irritability and impulse control and is unable to form new social relationships. When he does enter public situations, he often poses a danger to others and gets into arguments and occasional physical altercations. He also has periods where he has to be told to maintain his hygiene by his spouse. Although, the Veteran's symptoms are not constantly at this severity, they do persistently manifest at this level throughout the period on appeal. Therefore, affording the Veteran the benefit of the doubt, a 100 percent rating for PTSD is warranted. 2. SMC Base Housebound Status SMC based on housebound status is raised by the Veteran's representative and is considered part of the claim for an increased rating. SMC at the housebound rate is payable if a Veteran has a single service-connected disability rated as 100 percent and has an additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). For the period on appeal the Veteran is awarded a 100 percent rating for PTSD. Additionally, the Veteran had service-connected disabilities of sinusitis rated at 30 percent, cervical degenerative changes rated at 20 percent, lumbar degenerative disc syndrome rated at 20 percent, right wrist degenerative changes rated at 10 percent, bilateral tinnitus rated at 10 percent, and irritable bowel syndrome rated at 10 percent. These disabilities combined to a 60 percent rating. (Continued on next page) Therefore, the Veteran met the schedular criteria for an award of SMC based on housebound status for the entire period on appeal. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Reed, 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.