Citation Nr: 22016809 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 18-32 690 DATE: March 23, 2022 ORDER Entitlement to an initial rating of 70 percent, but no higher, for service-connected posttraumatic stress disorder (PTSD) with persistent depressive disorder is granted. Entitlement to an effective date of June 24, 2013, for the award of a total disability rating for individual unemployability (TDIU) is granted. Entitlement to an effective date of November 6, 2015 for an award of special monthly compensation (SMC) under 38 U.S.C. § 1114(s) is granted. REMANDED Entitlement to service connection for diabetes mellitus, to include as secondary to service-connected PTSD, is remanded. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected PTSD, is remanded. Entitlement to service connection for fibromyalgia, to include as secondary to service-connected PTSD and bowel incontinence, is remanded. Entitlement to SMC based on aid and attendance and/or housebound is remanded. FINDINGS OF FACT 1. Throughout the appeal, the severity, frequency, and duration of the Veteran's PTSD symptoms were productive of occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking and mood, but was not manifested by total social and occupational impairment. 2. From June 24, 2013, the preponderance of the evidence shows that the Veteran's service-connected PTSD precluded her from being able to secure or follow substantially gainful employment. 3. From November 6, 2015, the Veteran had a total rating for service-connected PTSD (based upon entitlement to TDIU due solely to PTSD) and additional separate and distinct service-connected disabilities ratable at 60 percent or more. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating of 70 percent, but no higher, for service-connected PTSD with persistent depressive disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.119, Diagnostic Code (DC) 9411. 2. The criteria for entitlement to an effective date of June 24, 2013, for the award of a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16. 3. The criteria for entitlement to an effective date of November 6, 2015, for the award of SMC under 38 U.S.C. § 1114(s) 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 served on active duty in the United States Marine Corps from January 1976 to February 1977. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in April 2021. A transcript of the hearing is associated with the claims file. 1. Entitlement to an initial rating of 70 percent, but no higher, for service-connected PTSD with persistent depressive disorder. 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. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. The Veteran's service-connected PTSD with persistent depressive disorder has been rated at 50 percent disabling pursuant to 38 C.F.R. § 4.130, DC 9411, effective June 24, 2013, and is currently rated at 70 percent disabling from August 7, 2017. Under the General Schedule of Ratings for Mental Disorders, a 50 percent rating requires 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 effective work and social relationships. Id. A 70 percent rating is warranted for 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. A rating of 100 percent is warranted 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 maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013) the Federal Circuit Court 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. It was further noted that § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas. The "such symptoms as" language means "for example," and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Turning to the evidence, the Veteran was afforded a VA examination in June 2014. She was diagnosed with PTSD and persistent depressive disorder. The examiner was unable to differentiate what portion of the occupational and social impairment is caused by each mental disorder. The examiner reasoned the following: The symptoms of Post-Traumatic Stress Disorder and Persistent Depressive Disorder (Dysthymia) are interactive. The complexity of these symptoms make it difficult to tease out which specific symptoms have contributed to the Veteran's occupational and social impairment. The VA psychologist summarized her PTSD with persistent depressive disorder as causing occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. During the evaluation, the Veteran reported the sexual assault that occurred during service in October 1976 by her supervisor. After her assault, she stated that she became more withdrawn and isolative after she was raped in the military. She described staying to herself and avoiding participation in social activities, stating "I completely shut down and stopped going around people." The examiner noted that she became more guarded and increasingly anxious when talking about the military sexual trauma. Regarding familial relationships, she stated that she has been separated from her husband for approximately 10 years. She reported that she has a good relationship with her daughters and siblings. The Veteran exhibited the following symptoms: depressed mood, suspiciousness, chronic sleep impairment, disturbance of mood and motivation, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships due to her psychiatric disability. According to the examiner's behavioral observations, she was casually dressed. Her affect was constricted, mood was anxious, she was alert, and thought process was logical, as she was responsive to the questions that were asked. She denied any homicidal or suicidal ideations. There was no evidence of a thought disorder or psychosis. During her examination, the Veteran was administered the Minnesota Multiphasic Personality Inventory, Second Edition (MMPI-II). Regarding validity scores, the examiner stated her score results suggest that she has poor tolerance for stress and pressure. She may "present as defensive and demonstrate some difficulties with acknowledging and reporting psychological distress." Regarding clinical scales, the examiner stated that her score results suggest that the Veteran suffers from significant anxiety, depression, chronic weakness, lack of energy and sleep disturbance. The examiner added the following: "There are also times that the Veteran may feel isolated and misunderstood. She avoids dealing with people and new situations." Regarding supplementary scales, the examiner stated that her score results suggest that she "suffers from a significant symptomatology of PTSD." During the Veteran's January 2016, February 2016, May 2016, June 2016, and September 2016 mental health visits, her mental status evaluation was cooperative, she maintained good eye contact, oriented in all spheres, and her judgment was intact. She denied any auditory/visual hallucinations, delusional thoughts, and suicidal/homicidal ideations. In a March 2017 telephone encounter note, the Veteran's daughter reported that the Veteran "attempted suicide a few weeks ago. Took some Benadryl and could not be woken. She took her WK and had dose decreased." The treating clinician noted that she was "not sure if the overdose was intentional or accidental." However, in an April 2017 VA mental health note, she denied suicidal and homicidal ideations. The Veteran was afforded a VA examination in August 2017. The Veteran was diagnosed with PTSD. The VA psychologist summarized the Veteran's PTSD as causing occupational and social impairment with deficiencies in most areas, such as work school, and family relations, judgment, thinking and/or mood. During the evaluation, the Veteran reported having a nervous breakdown 15 years ago. She stated that she was feeling paranoid and suspicious, like "someone was attacking me" and was hospitalized. She remained separated from her husband but maintains a good relationship with her daughters and siblings. She reported hypervigilance in public, avoidance of crowds and men, low energy, anxiety, and severe social impairment. The Veteran exhibited the following symptoms: depressed mood, anxiety, suspiciousness, chronic sleep impairment, panic attacks more than once a week and weekly or less, mild memory loss, disturbances of mood and motivation, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, and inability to establish and maintain effective relationships, and suicidal ideation. According to the examiner's behavioral observations, she was alert, oriented, and her speech was not pressed. She denied any current suicidal or homicidal ideation and there was no evidence of auditory/verbal hallucinations. She reported that she was not presently depressed. The Veteran was afforded a VA examination in November 2018. The Veteran was diagnosed with PTSD and major depressive disorder. The examiner was unable to differentiate what portion of the occupational and social impairment is caused by each mental disorder, reasoning the following: "the diagnoses are independent of each and result from separate etiologies. However, the symptoms that compromise each disorder are similar and overlap significantly." The VA psychologist summarized the Veteran's PTSD and major depressive disorder as causing occupational and social impairment with deficiencies in most areas, such as work school, and family relations, judgment, thinking and/or mood. During the evaluation, the Veteran reported that she was seeking therapy, but it was discontinued due to "a reported provider issue." She has not seen any other therapist and has not participated in group therapy or peer support groups. The Veteran exhibited the following symptoms: depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, disturbances of mood and motivation, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, and inability to establish and maintain effective relationships. According to the examiner's behavioral observations, the Veteran was casually dressed and appropriate for weather. While "blunted," she was able to answer all questions posed to her. No disordered thinking was observed. She denied any current suicidal or homicidal ideation. Her cognitive assessment suggested "difficulties with attention, memory, language, and abstraction." During her examination, the Veteran completed the SPECTRA, which is a self-report measure of psychopathology. The examiner concluded the following: Veteran is endorsing difficulties with post traumatic stressors. Veteran reported that she has problems nearly every day with feeling down; depressed; hopeless; trouble falling asleep or staying asleep; feeling tired or having little energy; feeling bad about herself, or that she is a failure or have let herself down; and problems moving or speaking slowly. Veteran has also experienced little interest/pleasure in enjoying activities, poor appetite, and trouble concentrating. She denied any SI/HI. The examiner also cited the August 2017's examination, which stated that "research reflected a high co-morbidity rate of depression and PTSD." Additionally, the examiner stated that the Veteran continues to meet the criteria for major depressive disorder. During the Veteran's April 2021 hearing, the Veteran testified as to her symptoms associated with PTSD and persistent depressive disorder. She discussed an incident of a reported suicide in 1979 or 1980. She reported symptoms of irritability, anger, grumpiness, depression, difficulty taking care of herself, and panic attacks "every once in a while." She added that her psychiatric condition impacted her relationship with her husband, as they have been separated for years. Additional pertinent evidence includes VA treatment records that evaluated the Veteran's mental status at the time of her visits. According to treatment records during the appeal period, the Veteran was assessed by a medical professional. In general, despite changes to her mood, the assessments had similar findings in that the Veteran was cooperative, maintained normal eye contact, intact judgment, and oriented. She denied suicidal and homicidal ideations. Upon review of the lay and medical evidence of record, throughout the period on appeal, the Veteran demonstrates symptoms that are contemplated by the 50 and 70 percent ratings criteria. However, the symptoms enumerated under the schedule for rating mental disorders are not intended to constitute an exhaustive list, but rather are intended to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular disability rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Overall, the Veteran's PTSD with persistent depressive disorder is manifested by symptoms of anxiety, chronic sleep impairment, dysthymia, anger, panic attacks, social isolation, irritability, mild memory loss, flattened affect, and difficulty adapting to stressful circumstances, which more nearly approximates occupational and social impairment with deficiencies in most areas such as work, family relations, thinking, and mood. However, the Board finds that a rating in excess of 100 percent is not warranted at any time during the appeal. There is insufficient medical and lay evidence to demonstrate that the Veteran's symptoms of PTSD and persistent depressive disorder are of the severity to cause the level of total occupational and social impairment. The evidence of record shows that, at worst, the Veteran's PTSD and persistent depressive disorder resulted in occupational and social impairment with deficiencies in most areas, which is contemplated by the 70 percent rating criteria. Despite marital issues, the Veteran maintains a relationship with her daughter and siblings. While the Veteran endorsed symptoms of suicidal thoughts in the past, they do not reach the frequency, severity, and duration as noted under the 100 percent rating criteria. Regarding the March 2017 report of attempted suicide, it was unsure if the Veteran's alleged overdose of Benadryl was intentional or accidental. Further, in an April 2017 mental health note, the Veteran denied any homicidal or suicidal ideations. Treating clinicians prior to, and after the March 2017 clinic record, have determined that she has not been flagged as high risk for suicide. See e.g., April 2017 VA Treatment Record. There has been no objective medical evidence of delusions or hallucinations, or behavior that have been grossly inappropriate, as VA treatment records and VA examination reflect that she was alert, oriented, and her judgment was intact. Throughout her visits, she was well groomed, logical in her thought process. She denied psychosis, homicidal, and suicidal ideations. Additionally, while the Veteran suffers from mild memory loss, the medical or lay evidence does not show that her memory is impaired to the severity that she forgets names of close relatives, prior occupation, or her own name. The only evidence supportive of a 100 percent disability rating is the Veteran's own statements. While she is competent to report her symptoms and the Board finds that her lay statements are credible, she is not competent to determine the severity of her psychiatric disability, as it is medically complex and outside the scope of a lay person. Jandreau, 492 F.3d at 1372. Throughout the period on appeal, the Veteran's overall symptomatology resulted in occupational and social impairment with deficiencies in most areas. These opinions were based upon review of the record, an interview with the Veteran, and mental status examination, in conjunction with the Veteran's mental health clinic records. The Board places significant probative weight on the assessments of the VA examiners who have specialized training to evaluate how the frequency, duration, and severity of psychiatric symptoms impact occupational and social functioning. The Board finds that the 70 percent disability rating more nearly approximates the current severity of the Veteran's service-connected PTSD and a 100 percent disability rating is not warranted. In that regard, the benefit of the doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to an effective date of June 24, 2013 for the award of a TDIU. Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4, prescribes a 100 percent evaluation. 38 C.F.R. § 3.340 (a)(2). The law also provides that a total disability rating based on individual unemployability due to service-connected disability may be assigned where the veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). According to the Veteran's August 2014 TDIU application, the Veteran reported that she last worked full- time became too disabled to work in June 2008. The Veteran has met the schedular criteria for consideration for TDIU under 38 C.F.R. § 4.16(a) since June 24, 2013, as she has been granted a 70 percent rating for her service-connected psychiatric disorder from that date. She is also service-connected for bowel incontinence, rated as 60 percent disabling since November 6, 2015. Although the Veteran is currently entitled to TDIU based upon the date of claim, the Veteran's TDIU was raised during her PTSD initial rating claim. See Rice v. Shinseki, 22 Vet. App. 447. When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to TDIU will be considered to have been raised by the record as "part and parcel" of the underlying claim. Id. at 453-54. See also Harper v. Wilkie, 30 Vet. App. 356, 361 (2018); Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) ("Once a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability... VA must consider TDIU."). Accordingly, the initial rating claim encompasses the claim for TDIU, and the appellate period dates back to June 24, 2013, which is effective date of her award for service connection for PTSD. As such, entitlement to a TDIU is granted for the entire period on appeal. 3. Entitlement to an effective date of November 6, 2015 for the award of SMC pursuant to 38 U.S.C. § 1114(s). Pursuant to 38 U.S.C. § 1114(s), when a veteran has a service-connected disability rated as total and has additional service-connected disability independently ratable at 60 percent or more, she is entitled to SMC. As indicated above, from June 24, 2013, the Veteran has been awarded TDIU based solely upon her service-connected PTSD. The record further demonstrates that she has additional separate and distinct service-connected disabilities (bowel incontinence), rated at least 60 percent disabling effective November 6, 2015. Therefore, the Veteran meets the statutory criteria for SMC pursuant to 38 U.S.C. § 1114(s) from November 6, 2015, and is entitled to SMC from that date. REASONS FOR REMAND 1. Entitlement to service connection for diabetes mellitus, to include as secondary to service-connected PTSD is remanded. 2. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected PTSD is remanded. 3. Entitlement to service connection for fibromyalgia, to include as secondary to service-connected PTSD and bowel incontinence is remanded. 4. Entitlement to SMC based on the need for aid and attendance is remanded. According to the Veteran's June 2014 PTSD examination, the examiner noted that the Veteran's fibromyalgia, diabetes, and sleep apnea are relevant to her psychiatric diagnoses. The June 2014 examination raises the theory of entitlement to service connection on a secondary basis. Additionally, the Veteran asserts that her fibromyalgia is secondary to her service-connected bowel incontinence. See April 2021 Hearing Transcript. To date, the Veteran has not been afforded VA examinations for her service connection claims. Therefore, the matters are remanded to obtain a medical opinion that adequately addresses these theories. As noted above, the Board has awarded SMC pursuant to 38 U.S.C. § 1114(s) effective November 6, 2015. She has claimed entitlement to SMC based on aid and attendance prior to November 6, 2015. This issue is inextricably intertwined with the service connection claims being remanded for further development. As such, the SMC issue is deferred. The matters are REMANDED for the following action: 1. Obtain any outstanding private treatment records and VA treatment records and associate them with the claims folder. 2. Schedule the Veteran for appropriate VA examinations for her fibromyalgia, diabetes, and obstructive sleep apnea disabilities. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. The examiner should opine as to the following: a) Whether there is a nearly equal chance or greater that the Veteran's fibromyalgia is (1) etiologically related to service, (2) caused by service-connected PTSD and bowel incontinence, and/or (3) aggravated by the service-connected PTSD and bowel incontinence (e.g., a worsening of symptoms beyond those expected by the baseline level of disability, even if temporary). b) Whether there is a nearly equal chance or greater that the Veteran's diabetes mellitus is (1) etiologically related to service, (2) caused by service-connected PTSD, and/or (3) aggravated by the service-connected PTSD. c) Whether there is a nearly equal chance or greater that the Veteran's obstructive sleep apnea is (1) etiologically related to service, (2) caused by service-connected PTSD, and/or (3) aggravated by the service-connected PTSD. A complete rationale for all medical opinions is required. The examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. 3. Thereafter, after conducting any other development deemed necessary, readjudicate the Veteran's claims. If any benefits sought on appeal remain denied, provide the Veteran and her representative with a supplemental statement of the case, and allow an appropriate time for response. Then, return the case to the Board. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Adeleke, T. 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.