Citation Nr: 22040101 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 19-35 194 DATE: July 13, 2022 ORDER A disability rating of 100 percent for the Veteran's acquired psychiatric disorder, including posttraumatic stress disorder (PTSD), is granted. FINDING OF FACT The Veteran's psychiatric disability is manifested by total occupational and social impairment with such symptoms as a gross impairment in thought processes or communication, grossly inappropriate behavior, and a persistent danger of the Veteran hurting himself. CONCLUSION OF LAW The criteria for a rating of 100 percent for the Veteran's acquired psychiatric disability, including PTSD, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1967 to December 1968 in the United States Army. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office. In August 2021, the Veteran and his spouse testified before the undersigned during a virtual hearing. A transcript of the hearing is included in the electronic claims file. The Board notes that the record contains May 2021 and July 2021 Privacy Act requests submitted by the Veteran's attorney. However, as the Veteran's attorney already has access to the Veteran's entire electronic claims file, including the requested records, via the Veterans Benefits Management System (VBMS), the Board finds the requests duplicative. As such, the Board considers the request for access to the identified documents fulfilled and no further action is required. 1. A disability rating of 100 percent for the Veteran's acquired psychiatric disorder, including PTSD, is granted. 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 Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disability specified is considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. Once a Veteran has been diagnosed with service-connected psychiatric disability, VA reviews his/her medical history to determine how significantly the disorder has disrupted social and occupational functioning. The level of disability is rated according to a General Rating Formula for Mental Disorders, codified at 38 C.F.R. § 4.130 ("General Rating Formula"), which provides for ratings of zero, 10, 30, 50, 70, or 100 percent. Pursuant to 38 C.F.R. § 4.130, DC 9411, 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 100 percent rating 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. When determining the appropriate disability evaluation to assign, the Board's primary consideration is the Veteran's symptoms, but it must also make findings as to how those symptoms impact the Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The ratings in the General Rating Formula are associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran's impairment must be "due to" those symptoms; a Veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Evidence is not in approximate balance or nearly equal, and therefore the benefit-of-the-doubt rule does not apply, when the evidence persuasively favors one side or the other. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). To briefly address the procedural background of the case, service connection for the Veteran's psychiatric disability was granted in a February 2011 rating decision, and a 30 percent rating was assigned. The Veteran filed a claim for a higher rating in April 2018. In the August 2018 rating decision on appeal, the 30 percent rating was continued. While the appeal was pending, in a September 2019 rating decision, the VA Regional Office granted a 70 percent rating, effective from the Veteran's April 17, 2018 date of claim. In a November 2020 rating decision, the VA Regional Office awarded a total disability rating based on individual unemployability (TDIU), effective January 14, 2020. A TDIU rating and a 100 percent schedular rating provide the same benefits, so exchanging one rating for the other would usually serve no purpose, other than to the extent that special monthly compensation pursuant to 38 U.S.C. § 1114(s) (SMC(s)) is implicated. As discussed further below, SMC(s) is not implicated here. As such, the Board will focus its analysis on the Veteran's entitlement to a higher rating from his date of claim (including the one-year look-back period) to his award of a total disability rating on January 14, 2020. Turning to the evidence, in June 2018, July 2018, August 2018, and October 2018 VA treatment records containing psychiatric screenings, the Veteran reported having irritable behavior, angry outbursts, and acting aggressively. In the July 2018 and October 2018 records, he further reported taking too many risks or doing things that could cause him harm. In a January 2019 VA treatment record, the Veteran endorsed passive suicidal ideation. The provider noted that he would be continually monitored for a change in his risk factors. In an April 2019 VA treatment record, a VA provider called the Veteran to apologize for recent provider turnover and his symptoms of withdrawal after discontinuance of his opiod medication. The provider noted the Veteran remained "VERY angry" (emphasis in original), and was still mad at the end of the call. In a separate April 2019 VA treatment record, the Veteran had a dispute with the nurse who called him regarding his medication. The nurse documented his statement to her that " 'this is why veterans are killing themselves.' " In an August 2019 VA treatment record, the provider noted the Veteran was combative and argumentative. He became "very angry" at the provider and VA in general when he was told he could not receive the medication he sought. On VA examination in August 2019, the Veteran reported feeling irritable toward his wife. He stated that he stayed at home and didn't want to be around people. He reported he was not employed and could not work. The examiner noted he had irritable behavior and angry outbursts (with little or no provocation), typically expressed as verbal or physical aggression. His psychiatric disability caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. His symptoms included a depressed mood, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work-like setting, and an inability to establish and maintain effective relationships. The examiner opined that the psychiatric disability caused occupational and social impairment with reduced reliability and productivity. In a September 2019 VA treatment record, the Veteran became angry at the VA pain management provider who called him when he was advised to not take additional medication. The provider noted that the Veteran was not willing to have a conversation and ended the call in anger. In a separate September 2019 VA treatment record, the Veteran reported to his mental health provider that he had difficulty with anger, which sometimes resulted in physical confrontations. In an October 2019 VA treatment record, the Veteran expressed great frustration with his health care, and told the provider that the female providers treating him hate men. He further reported that providers often quickly leave the room when he begins to discuss his frustrations and problems. In a January 2020 VA treatment record, the Veteran reported having ongoing difficulty in his interpersonal interactions with providers. At the August 2021 hearing, the Veteran testified that he had not left his house in a long time and did not socialize. He reported feeling lost. He had great difficulty interacting with other people, and had little tolerance for them. He testified that this irritability had cost him a lot throughout his life, including a couple of marriages. He reported having had a lot of scraps with other people, and ongoing disputes with his healthcare providers. He reiterated his belief that the examiners to whom he was assigned were retired old women who hate men. He testified that his symptomatology has been consistent since the filing of his claim. The Veteran's spouse testified that he has a very short fuse and cannot sleep well at night. She reported that he sounds like he is crying in his sleep and frequently has bad dreams. She testified that he would be unable to work in a typical work setting due to his difficulty with other people. Considering the evidence under the laws and regulations as set forth above, and resolving any reasonable doubt in favor of the Veteran, the Board finds that a 100 percent rating is warranted for the Veteran's psychiatric disability throughout the appeal period. The record indicates that throughout this time, the psychiatric disability caused both total occupational and social impairment. The August 2019 VA examiner opined that the Veteran's psychiatric disability caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. He has not worked throughout the appeal period and the record indicates that he has been unable to do so because of his difficulties with interpersonal interactions. The August 2019 VA examiner found that his psychiatric disability was manifested by difficulty in adapting to stressful circumstances, including work or a work-like setting. Total social impairment is shown by his multiple failed marriages, lack of friends, lack of social activities, and difficulties interacting with numerous medical providers. The August 2019 VA examiner determined that the disability caused an inability to establish and maintain effective relationships. The record also demonstrates several of the symptoms contemplated by a 100 percent rating. A gross impairment in thought processes or communication and grossly inappropriate behavior are demonstrated by the Veteran's angry confrontations and aggressive behavior, documented in VA treatment records dated throughout the appeal period. A persistent danger of the Veteran hurting himself is also indicated by the record, given the 2018 VA treatment records indicating that he takes too many risks or does things that could cause him harm. Further, suicidal ideation was documented in January 2019. To the extent the August 2019 VA examiner did not render a finding of total occupational and social impairment due to the psychiatric disability, any doubt is resolved in favor of the Veteran. The Veteran's disability picture as a whole, evidenced by his VA treatment records, symptomatology documented on VA examination, and the hearing testimony of he and his spouse, has most closely approximated that contemplated by a 100 percent rating throughout the appeal period. The evidence is at least in approximate balance in this regard. As a final matter, VA's duty to maximize a claimant's benefits requires additional consideration of whether his disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114(s), referred to here as "SMC(s)." SMC(s) is available to veterans who have a single disability rated as total, and a separate disability(ies) that amount to 60 percent. 38 U.S.C. § 1114(s). (Continued on the next page) Here, the Veteran is service-connected only for his psychiatric disability. As such, he does not have other disabilities that could combine to form an additional 60 percent rating required for an award of SMC(s). As such, an award of SMC(s) is not possible at any point in the appeal period. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.