Citation Nr: 22019933 Decision Date: 04/03/22 Archive Date: 04/03/22 DOCKET NO. 16-42 977 DATE: April 3, 2022 ORDER An initial rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) prior to December 20, 2021, is granted. A rating higher than 70 percent for PTSD, from December 20, 2021, is denied. A total disability rating based on individual unemployability (TDIU) prior to August 21, 2015, is denied. Special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114 (s) from August 21, 2015, is granted. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's PTSD symptoms and overall impairment more nearly approximated occupational and social impairment with deficiencies in most areas, but they have not more nearly approximated total social and occupational impairment. 2. August 21, 2015, is, the day following the Veteran's last day of full-time employment; prior to August 21, 2015, the Veteran was able maintain or obtain substantially gainful employment. 3. From August 21, 2015, the Veteran's service-connected PTSD alone would support the assignment of a TDIU, and his other service-connected disabilities are ratable at 60 percent or more. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 70 percent, but no higher, for PTSD, prior to December 20, 2021, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for a rating higher than 70 percent for PTSD, from December 20, 2021, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.130, DC 9411. 3. The criteria for a TDIU, prior to August 21, 2015, have not been met. 38 U.S.C. § 1155, 5107, 5110; 38 C.F.R. §§ 4.1-4.7, 4.16. 4. The criteria for SMC at the housebound rate, from August 21, 2015, have been met. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 2004 to February 2006, January 2007 to May 2008, and June 2009 to November 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In June 2021, the Veteran presented testimony before the undersigned Veterans Law Judge. In September 2021, the Board remanded the appeal for additional development. Specifically, the Board remanded the issue of an initial higher rating for PTSD to obtain updated VA treatment records and to schedule the Veteran for a VA examination to determine the current severity of his PTSD. Also, the Board remanded the issue of a TDIU, as it was inextricably intertwined with the initial rating claim for PTSD. Following the September 2021 remand, updated VA treatment records were associated with the record and in December 2021 the Veteran was afforded a VA examination that evaluated the current severity of his PTSD. See CAPRI (VA treatment records (September 2020 to August 2021). The December 2021 VA PTSD examination report contained sufficient details to adequately decide the appeal. For these reasons, the agency of original jurisdiction (AOJ) complied with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). During the pendency of the appeal, the Decision Review Officer (DRO) increased the rating for PTSD to a 50 percent, effective November 10, 2009, and a 70 percent, effective December 20, 2021. See rating decisions (July 2016; January 2022). The Veteran has not expressed satisfaction with the initial higher ratings for PTSD; this issue, thus, remain in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Also, during the pendency of the appeal for an initial higher rating for PTSD, the Veteran filed a formal TDIU indicating that he was unable to secure or obtain gainful employment due to his service-connected disabilities, to include his PTSD. See Veteran's Application for Increased Compensation Based on Unemployability (VA Form 21-8940) (August 2016). In January 2022, the AOJ awarded a TDIU effective August 15, 2015, the last day of substantially gainful employment. See TDIU application (August 2016). Although the Veteran was awarded a TDIU, his TDIU claim was raised as part and parcel of his initial higher rating claim for PTSD, which was received by VA on June 21, 2010. Harper v. Wilkie, 30 Vet. App. 356, 361-62 (2018) (confirming that when the issue of entitlement to a TDIU is raised as part and parcel of a rating claim, it should be treated separately from a formal claim for TDIU in all aspects of the appeal). Therefore, a TDIU, prior to August 15, 2015, is currently on appeal. The issue of an initial higher rating for PTSD also raises the issue of 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 v. Brown, 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"). Higher Initial Ratings Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. An initial rating higher than 50 percent for PTSD, prior to December 20, 2021. 2. A rating higher than 70 percent for PTSD, from December 20, 2021. The Veteran's PTSD is rated as 50 percent disabling prior to December 20, 2021, and 70 percent disabling thereafter pursuant to 38 C.F.R. § 4.130, DC 9411. All acquired psychiatric disorders, with the exception of eating disorders, are evaluated under the General Rating Formula for Mental Disorders. A 50 percent rating is assigned when there is 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 establishing effective work and social relationships. 38 C.F.R. § § 4.130, DC 9411. A 70 percent rating is assigned when there is 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 work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned when there is evidence of 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 and place; memory loss for names of close relatives, own occupation or name. Id. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign a rating 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). When evaluating the level of disability from a mental disorder, VA will also 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 (b). Under the General Rating Formula, the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. On the other hand, if the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004); Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The appeal period for the initial rating claim for PTSD begins on November 10, 2009, the day after the Veteran separated from service. See rating decision (June 2011) (where the RO indicated that the Veteran submitted a service connection claim for PTSD in June 2010, which was within one year of his separation from service). For the following reasons, an initial rating of 70 percent for PTSD, prior to December 20, 2021, is warranted. The evidence shows that the Veteran's PTSD symptoms and overall impairment more nearly approximated occupational and social impairment with deficiencies in most areas, at least in part, to suicidal ideation. For example, the evidence indicates that as early in the appeal period as June 2012, the Veteran reported homicidal ideation. See Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017) (stating the language of 38 C.F.R. § 4.130 "indicates that the presence of 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 in most areas."). For the remaining part of the appeal period, the Veteran denied suicidal ideation, indicating that it was against his religion. See VA examination report (December 2021). Moreover, throughout the appeal period, the Veteran reported psychiatric symptoms including moderate to severe anxiety, social isolation, social withdraw, homicidal ideation, stressed relationship with his wife, frequent arguments with others, unable to obtain employment due to his PTSD symptoms, daily irritability, panic attacks, difficulty in establishing and maintaining effective work and social relationships, and difficulty concentrating. See Veteran's statement (February 2012); VA treatment report (June 2012); VA examination reports (December 2010; July 2012; July 2013; December 2016); Board hearing transcript (June 2021). Also, during the appeal period, he indicated that he either rarely gets together with friends or denied friends. See VA examination reports (December 2010; July 2012). Moreover, the evidence shows that during a December 2010 VA examination, the Veteran reported that his marital and/or family relationships were poor, as he was argumentative and irritable. In a February 2012 statement, the Veteran reported that he was unemployed and that he had an "extreme difficulty in adapting to stressful circumstances including a work stetting." He indicated that he had difficulty concentrating, had extreme difficulty in adapting to stressful circumstances, and that he unable to maintain effective relationships. Accordingly, the Board finds prior to December 20, 2021, the severity, frequency, and duration of the Veteran's PTSD symptoms more nearly approximate occupational and social impairment with deficiencies in most areas. Throughout the appeal period, an initial rating higher than 70 percent for PTSD is not warranted. The Veteran's PTSD symptoms and overall impairment have not more nearly approximated the criteria for the next higher rating of 100 percent, as the evidence indicates that the Veteran's PTSD symptoms did not result in total occupational and social impairment. As to total occupational impairment, the Veteran was employed with the Army National Guard until August 15, 2015. Prior to August 15, 2015, the Veteran experienced some occupational impairment, as he reported that he was unable to obtain employment due to his PTSD symptoms, as he was hypervigilant, had panic attacks, argued with others, had difficulty working with others, and that he was unable to concentrate. See VA examination reports (December 2010; March 2016; December 2016). Moreover, in a February 2012 statement, the Veteran reported that he had extreme difficulty in adapting to stressful circumstances, including in a work stetting. A December 2010 VA examiner found that the Veteran would be unlikely to maintain employment due to his PTSD symptoms, namely due to his inability to concentrate, his paranoia, and hypervigilance. The Board finds that the severity and frequency of the Veteran's psychiatric symptoms resulted in significant occupational impairment. To this extent, the Board finds that prior to August 15, 2015, the Veteran had some occupational impairment, but not total occupational impairment, as he was able to maintain gainful employment despite his PTSD symptoms. However, since August 15, 2015, the Board finds that the Veteran's PTSD resulted in total occupational impairment, as he was unable to maintain his employment due to the severity of his PTSD symptoms. Notably, even if finding that the Veteran had total occupational impairment throughout the entire appeal period, the evidence does not establish that the Veteran's PTSD resulted in total social impairment. For instance, the evidence shows that the Veteran was married, had a good relationship with his children, and that he got along with his other family members, Specifically, the evidence indicates that although the Veteran reported that his relationship with his wife was "stressed" and that he had frequent arguments with his spouse, he has been married to his wife since his 2006. See VA examination report (February 2012). Also, during the appeal period, although the Veteran indicated that his relationship with his spouse was poor at December 2010 VA examination, at the July 2012 VA examination, he stated that he had a "good" relationship with his spouse. Also, he stated that he had two children and that he had a good relationship with his children. See VA examination reports (July 2012; December 2016). The Veteran reported that he got along with his siblings and parents. See VA examination report (December 2010). As to activities outside the home, the Veteran reported that he attended church. See VA examination report (July 2012). During the December 2016 VA examination, the Veteran indicated that he engaged in church activities. To reach a finding of total social impairment, the evidence would need to show that the Veteran did not have close relationships, such as those he shares with his wife, children, or parents or the ability to interact socially, as he has attended church throughout the period on appeal. Therefore, the evidence shows that the Veteran's PTSD has not resulted in total social impairment during the appeal period. In addition, the above evidence reflects that the Veteran did not have delusions or hallucinations, there was no grossly inappropriate behavior, or that he was unable to perform activities of daily living. He did not have memory loss for names of close relatives, own occupation or name. He was not found to be a persistent danger of hurting others. As such, the Veteran's PTSD symptoms did not more nearly approximate the criteria for a 100 percent rating for PTSD. Accordingly, an initial 70 percent rating, but not higher, for PTSD, prior to December 20, 2021, is warranted. TDIU Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities; provided that, if there is only one such disability, this disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For purposes of one 60 percent disability or one 40 percent disability in combination, disabilities of a common etiology or from a single accident are considered to be one disability. Id. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Id. Factors such as employment history, as well as educational and vocational attainments, are for consideration. Id. For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The word "substantially" suggests an intent to impart flexibility into a determination of overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). In 2019, the U.S. Court of Appeals for Veterans Claims (CAVC) held that substantially gainful employment, in the TDIU context, contains economic and noneconomic components; the economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person, while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58 (2019). The CAVC also provided guidance as to the meaning of a veteran's ability to secure and follow such employment, noting that attention must be given to: the veteran's occupational history, education, skill and training; whether the veteran has the physical ability to perform occupational activities; and whether the veteran has the mental ability to perform occupational activities. As indicated above, in January 2022, the AOJ awarded a TDIU effective August 15, 2015, the last day of substantially gainful employment. See TDIU application (August 2016). The issue of a TDIU arises from the Veteran's initial rating claim for his PTSD, which was received on June 21, 2010. Therefore, the Board must address the issue of entitlement to a TDIU prior to August 15, 2015. To this extent, in the Veteran's August 2016 Application for Increased Compensation Based on Unemployability, he reported that his disability began to impact his ability to engage in full-time employment in August 2015. The Veteran further stated that August 21, 2015, was his last day of full-time employment. He indicated that his income was $80,000.00. The Veteran has not asserted, and the evidence does not show, that he was unable to obtain substantially gainful employment prior to August 21, 2015. Accordingly, August 21, 2015, that is, the day following his last day of full-time employment, marks the earliest possible effective date for a TDIU. Moreover, in the face of affirmative, uncontroverted evidence that the Veteran was engaged in full-time employment prior to August 21, 2015, entitlement to a TDIU prior to August 21, 2015, is not warranted. SMC SMC is payable where the Veteran has a single service-connected disability rated as 100 percent and (1) has 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, or (2) is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the Veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of TDIU predicated on a single disability may form the basis for an award of SMC. Bradley v. Peake, 22 Vet. App. 280 (2008) (holding that there could be a situation where a veteran has a schedular total rating for a particular service-connected disability, and could establish a TDIU rating for another service-connected disability in order to qualify for SMC under 38 U.S.C. § 1114 (s) by having an additional" disability of 60 percent or more). Additionally, where TDIU is based on one service-connected disability and there are service-connected disabilities that constitute the required additional disability under Section 1114(s), SMC may be awarded. Buie v. Shinseki, 24 Vet. App. 242, 250 (2010). The Board finds that the Veteran's TDIU award may be based solely as due to his PTSD. To this extent, in the January 2022 rating decision, the AOJ awarded a TDIU, effective August 15, 2015, due to all his service-connected disabilities, primarily his right shoulder and PTSD disabilities. As shown above, the Board, herein, found that the Veteran's PTSD resulted in total occupational impairment, since August 15, 2015, due to the severity of his symptoms. In sum, the Board finds that the Veteran's award of a TDIU may be predicated solely on his service-connected PTSD. Although the Veteran's PTSD is not rated as 100 percent, for SMC purposes the TDIU satisfies the requirement of a "service-connected disability rated as total." See Buie, 24 Vet. App. at 251; Bradley, 22 Vet. App. at 293. (Continued on the next page) Effective August 15, 2015, the Veteran's service-connected disabilities, excluding his PTSD, include asthma (rated as 30 percent disabling); irritable bowel syndrome (rated as 30 percent disabling); cervical spine disability (rated as 20 percent disabling); left knee instability (rated as 20 percent disabling); temporomandibular joint dysjunction (rated as 20 percent disabling); right shoulder disability (rated as 20 percent disabling); low back disability (rated as 10 percent disabling); right knee disability (rated as 10 percent disabling); limitation of flexion of the left knee (rated as 10 percent disabling); limitation of flexion of the right knee (rated as 10 percent disabling); tinnitus (rated as 10 percent disabling); chronic sinusitis (rated as 10 percent disabling); and rhinitis (rated as noncompensable). As such, the Veteran's service-connected disabilities, from August 15, 2015, satisfy the requirement for 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. Thus, the Veteran has a single service-connected disability rated as 100 percent based on his TDIU predicated on his service-connected PTSD and has additional service-connected disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. Therefore, the criteria for SMC at the housebound rate are met from August 15, 2015. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Castillo, 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.