Citation Nr: 22012252 Decision Date: 03/03/22 Archive Date: 03/03/22 DOCKET NO. 17-32 620 DATE: March 3, 2022 ORDER A rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to May 17, 2017, is denied. An effective date prior to May 17, 2017, for the grant of special monthly compensation (SMC) based on housebound status is denied. REMANDED A rating in excess of 70 percent for PTSD from May 17, 2017. FINDINGS OF FACT 1. The Veteran served on active duty from September 1967 to December 1970. 2. Prior to May 17, 2017, PTSD was manifested by symptoms of depressed mood, anxiety, mild memory impairment, difficulty concentrating, and chronic sleep impairment. 3. The Veteran did not qualify for SMC based on housebound status prior to May 17, 2017; no document filed prior to May 17, 2017, could be construed as a claim for SMC. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for PTSD prior to May 17, 2017, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9411 (2021). 2. The criteria for an effective date prior to May 17, 2017, for SMC based on housebound status have not been met. 38 U.S.C. §§ 1114, 5110 (2012); 38 C.F.R. §§ 3.155, 3.350, 3.400 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran testified before the undersigned Veterans Law Judge (VLJ) in September 2021. A copy of the transcript has been associated with the record. Turning to the relevant laws and regulations, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. All psychiatric disabilities are evaluated under a General Rating Formula for Mental Disorders ("General Rating Formula"). Under the General Rating Formula, a 50 percent rating is warranted under the General Rating Formula for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect, circumstantial, circumlocutory, or stereotyped speech, panic attacks occurring more than once a week, difficulty in understanding complex commands, impairment of short-term memory (i.e. retention of only highly learned material or forgetting to complete tasks), impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing effective work and social relationships. A 70 percent rating is warranted under the General Rating Formula for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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 an 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 an inability to establish and maintain effective relationships. A 100 percent rating is warranted under the General Rating Formula 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 the ability to maintain minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. The symptoms listed under the rating criteria are meant to be examples of symptoms that would warrant the rating, but they are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). For the period prior to May 17, 2017, PTSD was rated as 30 percent disabling. The Veteran testified at a September 2021 Board hearing that in that time period, he stayed by himself often and was extra cautious around people. He noted that he could not stand to be with anyone except his wife. He also reported that he had functions with his family which he would attempt to go to but that he had issues with anger and irritability. He also testified to some suicidal ideations. VA treatment records from September 2014 reflected symptoms of anger, irritability, being on guard, disturbed sleep with dreams, amotivation, and work stress. His mood was noted to be stable, and without any exacerbations. At a November 2014 VA examination, the Veteran reported living with his wife of 19 years, with their 18 year old son. He noted spending his time watching television and writing poetry or drawing but that he had issues finishing the projects. He stated that he had been working for 9 years but that he had trouble getting along with supervisors sometimes and had an argument with a woman in the cafeteria. He reported passive thoughts of suicide without any intent or plan, stating that he just seemed mostly apathetic about life. He said that he felt disconnected from others and had issues with sleep and nightmares. He denied any legal issues but endorsed depression, anxiety, and chronic sleep impairment. The examiner noted that the Veteran was alert and oriented and fully cooperative. He was well-groomed and his mood was fair. His speech and thought content were within normal limits with logical thought processes. There was no evidence of delusions or hallucinations and his memory and attention appeared intact. He also denied any suicidal or homicidal ideations. The examiner opined that PTSD manifested as occupational and social impairment with occasional decreases in work efficiency and intermittent episodes of inability to perform occupational tasks, although generally functioning satisfactorily with routine behavior, self-care, and conversation. This evidence is consistent with a 30 percent rating. December 2014 VA treatment notes reflected that the Veteran's PTSD mood and sleep were stable without any medication changes. VA treatment notes from January 2015 showed complaints of anger, irritability, being on guard, disturbed sleep, and dreams. He reported he finished his school program and applied for a new job but still felt depressed. In June 2015, the Veteran reported that he was doing okay, and keeping busy with work. He denied any major changes in his mood or life. He was casually dressed with good hygiene, was cooperative, and had good eye contact. Speech and though processes were normal but he noted and up and down mood. He reported having some hopelessness and guilt, and restless sleep. He denied any suicidal or homicidal ideation, intent, or plan. He reported pushing any thoughts out of his mind. Judgment and insight were good and he was alert and oriented. In August 2015, the Veteran reported that his mood was good and stable but noted that he continued to have issues with his sleep. The examiner noted no changes to his dosage or medication. In November 2015, he reported the same symptoms of anger, irritability, and sleep disturbances. He stated that he was still applying for new jobs, but that he did not like taking his medications. He denied any suicidal or homicidal ideations, plan, or intent. He did state that he had thoughts in the past of life not being worth living, but that he had no plan or intent. His mental status examination was normal again with cooperation, good hygiene, normal speech and thought patterns. He reported occasionally hearing a voice telling him to do "stupid things" but that he ignored it. In May 2016 VA treatment notes, the Veteran denied suicidal or homicidal ideation, intent, or plan. He was feeling down ever since a diagnosis of prostate cancer and that he had some paranoia; however, he denied suicidal or homicidal ideation, intent, or plan. He was alert and oriented, with good hygiene, cooperation, and normal thought processes. There was no change in his medications. VA treatment notes from August 2016 to March 2017 reflected similar symptomatology and mental status examination. The Veteran was alert and oriented, cooperative, and well-groomed. Thought processes were logical, and goal directed. He denied suicidal or homicidal ideation, intent, or plan. He continued to complain of sleep issues and noted that he was not interested in participating in a PTSD group. The Veteran's main symptoms were anger, irritability, being on guard, nightmares, and amotivation. He continued to note problems with his wife but they remained together, and also that he was applying for jobs without success. An increase in dosage of Prozac was noted in March 2017. The medical evidence and lay observable evidence reported during the appeal period does not show that the symptoms or functional impairment were consistent with a 50 percent rating. The medical evidence did not show flattened affect, circumstantial, circumlocutory, or stereotyped speech, panic attacks at any level of frequency, more than mild memory loss, or impaired judgment or abstract thinking, or symptoms like or similar to those. By contrast, the Veteran was able to participate in a VA examination and multiple treatments and assessments successfully and cooperatively. While he reported occasional suicidal thoughts and voices, he consistently denied ideation, intent, or plan. He also remained gainfully employed and married throughout the entire time period, without any clear evidence of disciplinary issues at work, or abnormal marriage issues. He also was found capable of managing his financial affairs and maintained a relationship with his son. Additionally, the Veteran was consistently found to be well-groomed, with good hygiene and good eye contact. Further, during the appeal period, he completed an educational degree with which he was applying for new employment. The record likewise does not show difficulty in understanding complex commands or impaired abstract thinking. Thus, the medical evidence does not support a rating in excess of 30 percent during this time period. The Board has considered the December 2021 private assessment which found that the Veteran's PTSD was much more severe than contemplated by the 30 percent rating assigned prior to May 17, 2017. While this report was considered, many of the symptoms discussed by the private clinician were already properly contemplated in the assigned rating. Importantly, the clinician addressed periods of hospitalizations and severe but transient symptoms which did not occur in the relevant appeal period. Specifically, the clinician discussed symptoms of occasional strife at work and amotivation as well as the sporadic complaints of hearing voices. She also reported command hallucinations which did not appear in the medical record despite multiple treatments. Importantly, many of the symptoms that she discussed were already contemplated by the assigned 30 percent rating, including sleep impairment, anger, depression, and lack of motivation. The Board has considered the totality of the medical evidence, to include the December 2021 medical opinion report. In this regard, less probative weight is assigned to the December 2021 medical opinion when considered in light of the multiple treatment records. Specifically, the Veteran sought regular treatment during this appeal period and the findings in those records are in stark contrast to the findings of the private clinician. Additionally, private report is more exaggerated than the symptoms complained of by the Veteran during regular treatment which mostly consisted of depression, anxiety, anger, and sleep impairment. In addition, the private clinician did not evaluate the Veteran until December 2021, which is outside the appeal period. Thus, when compared in contrast to the voluminous records of treatment which took place specifically during the period under consideration, the private opinion is afforded less probative weight. The Board has considered the Veteran and his wife's lay statements that his disability is worse, including an April 2016 statement from his wife suggesting more severe symptoms of erratic heavier, depression, fluctuating moods, and nightmares. While they are competent to report symptoms because this requires only personal knowledge as it comes to them through their senses, they are not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Rather, the symptoms identified by his wife have been considered and are properly contemplated by the assigned 30 percent rating. Moreover, such competent evidence concerning the nature and extent of the Veteran's PTSD has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which this disability is evaluated. Moreover, as the examiner has the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinion great probative value. As such, these records are more probative than the Veteran's subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable and the appeal is denied. Earlier Effective Date for Grant of SMC The Veteran contends he is entitled to an effective date earlier than May 17, 2017, for the award of SMC based on the need for aid and attendance. For the following reasons, the Board finds an earlier effective date is not warranted. SMC benefits by reason of being housebound are payable if the veteran has a single permanent disability rated 100 percent disabling and has either (1) additional service connected disability or disabilities independently ratable at 60 percent or more, or (2) is "permanently housebound" by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). The disability or disabilities independently ratable at 60 percent or more must be separate and distinct from the 100 percent service-connected disability and must involve different anatomical segments or bodily systems. 38 C.F.R. § 3.350(i)(1). The Veteran was granted SMC based on housebound status in May 2017 based on his 100 percent rating for prostate cancer with PTSD rated at 70 percent or more from December 25, 2016. He has not provided an argument as to what date he believes to be an appropriate effective date for the grant of SMC. To the extent that the Veteran's claim is based on entitlement to a higher rating for PTSD prior to May 2017, the Board has found that the evidence does not support a higher rating prior to that date. Further, the evidence shows that the service-connected prostate cancer was rated as 100 percent effective December 25, 2016; however, the separate disabilities did not combine to at least 60 percent disabling until May 17, 2017, as the Veteran was previously only in receipt of service connection benefits for PTSD at 30 percent, and hepatitis C, which was rated as noncompensable. As such, the evidence does not support a finding that the Veteran had a single service connected disability rated as 100 percent disabling and a sufficient additional disability independently ratable at 60 percent or more disabling to warrant a finding of statutory housebound status prior to May 17, 2017, and an earlier effective date for SMC based on housebound status is not warranted. Therefore, the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND With respect to the appeal of a rating in excess of 70 percent for PTSD since May 17, 2017, a remand is necessary. Specifically, at the Board hearing, the Veteran testified that his symptoms had worsened in severity since his last examination. Additionally, he submitted a private psychological assessment which suggested worsening symptomatology. Finally, he reported that he had received treatment in the preceding months for PTSD at a VA facility; however, the most recent VA treatment records were almost two years prior. Thus, remand is necessary. The matter is REMANDED for the following actions: 1. Identify and obtain any outstanding, pertinent, VA and private treatment records and associate them with the claims file. 2. Schedule the Veteran for an examination to assess the current status of PTSD in accordance with the relevant rating criteria. The entire claims file should be made available to, and reviewed by, the examiner. Any indicated studies should be performed. L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Yacoub, 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.