Citation Nr: 22017409 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 15-34 330 DATE: March 25, 2022 ORDER Beginning November 29, 2011, the claim for entitlement to a rating of 100 percent for service-connected PTSD with TBI and depressive disorder (previously TBI with depressive disorder not otherwise specified (NOS)) is granted. Entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114(s) is denied. FINDINGS OF FACT 1. Beginning November 29, 2011, the service-connected PTSD with TBI and depressive disorder (previously TBI with depressive disorder NOS) is manifested by total occupational and social impairment throughout the period on appeal. 2. The Veteran is assigned TDIU effective April 2, 2010 based on service-connected disabilities that are associated with the service-connected TBI including PTSD, depressive disorder, migraine headaches, and degenerative joint disease with cervical spine strain. CONCLUSIONS OF LAW 1. Beginning November 29, 2011, the criteria for a 100 percent rating, and no greater, for PTSD with TBI and depressive disorder (previously TBI with depressive disorder NOS) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.14, 4.126, 4.130, Code 9411; see also Code 8045. 2. The criteria for entitlement to SMC under 38 U.S.C. § 1114(s) have not been met. 38 U.S.C. §§ 1114(s), 1155, 5107; 38 C.F.R. § 3.102, 3.321(b), 3.350, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Marine Corps on active duty from April 1993 to May 2001. This claim arises from a Department of Veterans Affairs (VA) Regional Office (RO) decision in January 2013. This claim was previously before the Board. In September 2018, the Board denied entitlement to a rating in excess of 40 percent for TBI with depressive disorder NOS and PTSD, and entitlement to a total disability rating due to individual unemployability (TDIU). The Veteran appealed these denials to the U.S. Court of Appeals for Veterans' Claims which, in December 2019 ordered the September 2018 Board decision vacated and remanded the Veteran's claims for development consistent with a joint motion for remand. In an August 2020 decision, the Board granted entitlement to TDIU and remanded the claim for a rating greater than 40 percent for TBI with depressive disorder NOS and PTSD for additional VA examination. The agency of original jurisdiction (AOJ) implemented the grant of TDIU in an August 2020 rating decision, effective April 2, 2010. The VA examinations ordered for the increased ratings claims for TBI and PTSD were conducted in September, October and December 2021. In a December 2021 rating decision, in pertinent part, the AOJ granted a 70 percent evaluation for PTSD with TBI and depressive disorder effective September 25, 2021 but maintained the 40 percent assigned TBI with depressive disorder NOS and PTSD which was in effect prior to September 25, 2021. In October 2020, the Veteran's attorney withdrew his representation, indicating he had informed the Veteran. In April 2021, the AOJ contacted the Veteran to advise him of the withdrawal and to notify the Veteran he could choose another representative. The Veteran has not selected another representative. The Board is satisfied that he is aware he can do so, and has elected not to do. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established, as here, and an increase in disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, VA may consider whether different disability ratings may be assigned at different times over the period on appeal, known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). The present 70 percent rating assigned for PTSD with TBI and depressive disorder is assigned under 8045-9411 for TBI rated as PTSD. Prior to September 25, 2021, the service-connected PTSD with TBI and depressive disorder was assigned a 40 percent rating for TBI evaluated under Code 8045 for TBI with depressive disorder NOS and PTSD. Under the General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130, a 50 percent rating is assigned for 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned 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 affected 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); and inability to establish and maintain effective relationships. A 100 percent rating is assigned 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 evaluating psychiatric disorders, the Board is mindful that the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve only as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi,16 Vet. App. 436 (2002); see also Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013). When rating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126. The Veteran and his attorney have argued a higher rating is warranted for his PTSD with TBI and depressive disorder based in his psychiatric symptoms or, in the alternative, for his TBI with depressive disorder NOS. As will be explained below, the Board finds the medical and lay evidence supports a 100 percent rating under Code 9411. As such, the Board will discuss the appeal period as a single time period, rather than staged before and after September 25, 2021. At the outset, it is noted that the Veteran is service-connected for PTSD based on this personal assault, and that it is during this assault he sustained the TBI for which he is service connected. In both TBI and PTSD examinations during the appeal period, the Veteran has been found to exhibit psychiatric and neurological symptoms that overlap but could be distinguished from one another. The most recent rating decisions have however acknowledged that both psychiatric and neurological symptoms are service-connected as associated with the TBI. Descriptions of the service-connected TBI have been changed to reflect the presence of symptoms of PTSD and depressive disorder (NOS) as associated with the TBI from the initial grant of service connection in 2001. See August 2020 and December 2021 Codesheets. VA examinations conducted in 2011, 2012, and 2015 show the Veteran reported depression, anxiety, panic attacks, flashbacks of being beaten to death, distressing dreams, and being unable to recall some of the specifics of the personal assault during which he sustained the TBI. In 2012, also reported hearing vague noises but was uncertain whether this could be from his stereo, television, or voices through his apartment walls. In addition, he reported he confronting people who make him angry. The examiners identified symptoms of depressed mood, anxiety, panic attacks weekly or less, chronic sleep impairment and mild memory loss, poor concentration, difficulty making decisions, slowed thinking, fatigue, irritability, and poor frustration tolerance. All examiner described the Veteran as appropriate dressed and adequately groomed. None observed any auditory or visual hallucinations or delusions. The 2012 examiner noted the Veteran was anxious but smiling when he began the examination, become more somber as it progressed, and was tearful while describing a panic attack. The 2015 examiner noted he jiggled his leg at times. See 2011 Examination for TBI; 2012 and 2015 VA Examinations for PTSD. The 2021 VA examination shows depressed mood, anxiety, suspiciousness, near-continuous panic and depression, chronic sleep impairment, memory loss and impairment of short and log term memory, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, and intermittent ability to perform activities of daily living. See 2021 VA Examination for PTSD. Notwithstanding, review of the totality of the record shows that the Veteran has presented lay evidence attesting to his witnesses' identification of symptoms demonstrative of greater social and occupational impairment, manifested as early as in 2010 as follows: In a 2017 statement SC, a long-time friend, attested she had known the Veteran prior to his military service, when they were children. She observed he used to be very presentable and really care what he looked like, but this changed over the years and he no longer seems to care. She observed the Veteran to struggle with depression, forget the names of friends and family members, forget conversations, and to have poor communication skills. She described the Veteran to say things that do not make sense, take a long time to process his thoughts, and to have difficulty figuring out what he is trying to say. She stated he got very overwhelmed in stressful situations and does not appear to be able to process the issue. Rather, he avoids the issue and isolates from others. She observed he preferred to be alone most of the time and does not have many friends. She attested she fears he may harm himself one day, because he is so stressed and alone. In a 2017 statement AC, his mother, attested the Veteran had changed completely since his active service, and indicated his depression had changed his life in many ways. She stated the biggest changes is how quickly and easily the Veteran gets angry and upset. She described him as unable to process and to act inappropriately when stressed. She further stated the Veteran had experienced memory loss, isolated from others, and hear and talk to people who are not there. She stated she has to remind him to bathe and change his clothes, and to eat before taking his medications. She described him as isolated from just about everyone, and to hear and talk to people she could not see. In a 2014 statement from LH, the Veteran's sister-in-law who had known the Veteran for 29 years, attested the Veteran is socially withdrawn; has lost interest in pleasurable activities; and shows signs of depression, anger, and memory problems. She described him to have angry outbursts inappropriate to the matter at hand, describing his reaction to his mother's constructive advice as screaming, jumping up and down, and banging at the table. As a result, she said many family members watch what they do and say around the Veteran to avoid confrontation, and he avoids family gatherings because he thinks everyone is against him and talks about him. In a 2014 statement from DR, a former co-worker who had known the Veteran for 5 years, attested the Veteran lost his job because he lashed out in anger at the manager. DR also observed the Veteran to have different personalities depending on mood, and to lash out at people for no apparent reason. In a 2010 statement from TC, his sister, attested the Veteran is in constant pain and stressed out. She observed him to have panic attacks and to be physically and mentally affected by his disability. In sum, these symptoms corroborate the Veteran's assertions. His witnesses, when considered alongside VA examinations and the 2017 private DBQ, establish the Veteran's inability to process and communication clearly when under stress; poor frustration tolerance and grossly inappropriate behavior; persistent delusions and hallucinations; severe, persistent, near-continuous depression and anxiety; intermittent inability to perform activities of daily living including maintenance of minimal personal hygiene; chronic sleep impairment with nightmares and flashbacks of being beaten to death; and avoidance and isolation productive of an inability to establish and maintain effective relationships or to engage successfully in an occupational environment generally from November 29, 2011. 38 C.F.R. § 4.130. Accordingly, the Board finds the Veteran's service-connected PTSD with TBI and depressive disorder warrants a 100 percent rating effective November 29, 2011. As the Board has granted a 100 percent rating for the service-connected PTSD with TBI and depressive disorder under Code 9411, it is not necessary to consider whether a higher evaluation can be granted under Code 8045, which contemplates TBI. See 38 C.F.R. § 4.124A, Code 8045. SMC SMC benefits by reason of being housebound are payable if the Veteran has a single permanent disability rated 100 percent disabling and has additional service-connected disability or disabilities independently ratable at 60 percent or more. See 38 U.S.C. §§ 1114 (s), 1134; 38 C.F.R. § 3.350(i). The disabilities independently ratable at 60 percent or more must be separate and distinct from the 100 percent service-connected disability and involve different anatomical segments or bodily systems. See 38 C.F.R. § 3.350(i)(1). In August 2010, TDIU was assigned effective April 2, 2010 based on service-connected TBI with depressive disorder NOS and PTSD rated as 40 percent disabling; migraine headaches evaluated as 30 percent disabling; left knee patellofemoral syndrome, evaluated as 10 percent disabling; lumbar spine strain with retrolisthesis of L5 on S1, evaluated as 10 percent disabling; degenerative joint disease with cervical spine strain, evaluated as 10 percent disabling; bilateral pes planus, evaluated as 10 percent disabling; tinnitus, evaluated as 10 percent disabling; and left lower eyelid scar post chalazion excision, evaluated as noncompensable with a combined rating of 80 percent since 2008. However, the 100 percent rating granted for service-connected PTSD with TBI and depressive disorder by this decision, effective November 29, 2011 is not based on an entirely separate and distinct disability than that of the TDIU. Rather, the PTSD with TBI and depressive disorder are associated with the assault during active service that caused the Veterans TBI, as are many of the disabilities for which he was and remains service connected at the time TDIU was made effective, including TBI with depressive disorder NOS, headaches, and cervical spine disorder. Therefore, and because the TDIU is based on the same and similar disabilities for which the Veteran is also awarded a 100 percent rating for PTSD with TBI and depressive disorder, the Veteran does not meet the criteria for SMC under 38 U.S.C. § 1134. (Continued on the next page) Accordingly, entitlement to SMC based on housebound status on a schedular basis is not warranted in this case. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bakke, Lila J. 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.