Citation Nr: 23039490 Decision Date: 07/18/23 Archive Date: 07/18/23 DOCKET NO. 20-04 244 DATE: July 18, 2023 ORDER A disability rating of 100 percent for the service-connected posttraumatic stress disorder (PTSD) for the period on appeal prior to December 12, 2019, is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, for the period on appeal prior to December 12, 2019, is dismissed as moot. Entitlement to special monthly compensation (SMC) under 38 U.S.C. 1114, subsection (l) based on need for regular aid and attendance of another person, for the period on appeal from July 16, 2018 to December 11, 2019, is granted. Entitlement to a higher level of special monthly compensation (SMC) under 38 U.S.C. 1114, subsection (p), for the period on appeal from February 4, 2019 to December 11, 2019, is granted. Basic eligibility for Dependents' Educational Assistance (DEA), prior to December 12, 2019, is granted. FINDINGS OF FACT 1. For the period on appeal prior to December 12, 2019, the Veteran's service-connected PTSD is manifested by psychiatric symptomatology more nearly approximating total occupational and social impairment. 2. As the Veteran has been granted a 100 percent rating for his service-connected PTSD throughout the entire appeal period, the issue of entitlement to TDIU due to service-connected PTSD prior to December 12, 2019, is moot as it would not provide the Veteran with any additional benefits. 3. For the period on appeal from July 16, 2018 to December 11, 2019, pursuant to the instant Board decision, the Veteran has a service-connected disability rated as total for which he requires care or assistance on a regular basis in performing routine activities of daily activities. 4. For the period on appeal from February 4, 2019 to December 11, 2019, pursuant to the instant Board decision, the Veteran is in receipt of SMC under any section in 38 U.S.C. § 1114 (l) and has additional service-connected disabilities independently rated at 50 percent. 5. Pursuant to the instant Board decision, basic eligibility Chapter 35 DEA benefits have been satisfied for the period on appeal prior to December 12, 2019. CONCLUSIONS OF LAW 1. The criteria for the assignment of a 100 percent?disability rating for the service-connected PTSD, prior to December 12, 2019, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.344, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411. 2. The claim for a TDIU due to service-connected PTSD, prior to December 12, 2019, is dismissed as moot. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.101. 3. For the period on appeal from July 16, 2018 to December 11, 2019, the criteria for an award of SMC based on need for regular aid and attendance of another person are met. 38 U.S.C. §§ 1114 (l), 5107; 38 U.S.C. §§ 3.102, 3.350(b), 3.352(a). 4. For the period on appeal from February 4, 2019 to December 11, 2019, the criteria for a higher level of SMC under 38 U.S.C. § 1114 (p) have been met. 38 U.S.C. §§ 1114 (p), 7105(d)(5); 38 C.F.R. §§ 3.350 (b), 3.352(a). 5. For the period on appeal prior to December 12, 2019, the criteria for the award of basic eligibility for Chapter 35 DEA benefits have been met. 38 U.S.C. §§ 3500, 5107, 5110; 38 C.F.R. §§ 3.400, 3.807. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1967 to December 1970. This case is before the Board of Veterans' Appeals (Board) on appeal from a November 2018 Department of Veterans Affairs (VA) Regional Office (RO) rating decision.? In that rating decision, the RO, inter alia, granted an increased disability rating of 50 percent for the Veteran's service-connected PTSD, effective from July 16, 2018. The Veteran's notice of disagreement was received in January 2019.? The RO issued a statement of the case in December 2019.? The Veteran's VA Form 9, substantive appeal to the Board, was received in January 2020. During the pendency of the appeal, the RO issued a rating decision in February 2020 granting an increased disability rating for the service-connected PTSD to 100 percent, effective from December 12, 2019. In November 2022, the Board denied the claim for an increased disability rating in excess of 50 percent for the service-connected PTSD but granted TDIU effective from December 12, 2019.? The Veteran appealed to the Court of Appeals for Veterans Claims (Court).? In a March 2023 Order, the Court partially vacated the Board's November 2022 decision, specifically the denial of an increased rating, and remanded the matter pursuant to a March 2023 Joint Motion for Partial Remand (JMPR). The Court directed the Board to address the favorable findings in the December 2019 Private PTSD examination in which the private examiner found the Veteran's psychiatric symptoms dated back to July 16, 2018, in evaluating whether the Veteran is entitled to a disability rating in excess of 50 percent for the service-connected PTSD prior to December 12, 2019 in addition to the inextricably intertwined TDIU claim prior to December 12, 2019. 1. Entitlement to a disability rating in excess of 50 percent, for the period on appeal prior to December 12, 2019, for the service-connected PTSD. The Veteran asserts the severity of his service-connected PTSD warrants a disability rating of at least 70 percent effective July 16, 2018, the date he filed his increased rating claim. See May 2023 Appellate Brief. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life and employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Where there is a question as to which of two disability ratings 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). As noted above, the RO granted a 50 percent disability rating for the period on appeal prior to December 12, 2019 and a 100 percent disability rating thereafter, under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. See 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. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). Under Diagnostic Code 9411, which is governed by a General Rating Formula for Mental Disorders, a 50 percent rating is assigned for PTSD manifested by 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; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 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 work-like setting); inability to establish and maintain effective relationships. Id. 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; 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. Id. Symptoms listed in VA's general rating formula for mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Further, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission," and must also "assign an evaluation 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). The Veteran's PTSD did more nearly approximate the level of impairment required for a disability rating of 100 percent due to such symptoms as: persistent delusions or hallucinations; and intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene). A December 2018 VA psychiatry note shows the Veteran's active problems to include diagnoses for bipolar disorder, psychotic disorder, and panic disorder. Notably, throughout the period on appeal, no medical professional has ever attempted to distinguish the Veteran's symptoms, therefore it is reasonable to infer that such distinction would be nearly impossible without resorting to speculation. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Accordingly, the Board must consider all of the Veteran's psychiatric symptoms in assigning a disability rating for the PTSD. The December 2019 private PTSD examination noted many symptoms to include persistent delusions and hallucinations; neglect of personal appearance; intermittent inability to perform [activities of daily living] (personal hygiene). The examiner stated, [The Veteran's] symptom complex relates back to his original claim date of [July 16, 2018]. [The Veteran] reports auditory and visual hallucinations consisting of hearing his name being called and seeing shadow figures when nothing is present. VA treatment records are consistent with the December 2019 private PTSD examination. Additionally, although the Veteran has been prescribed medication to minimize his symptoms, he does not like to take the medication because it makes him feel emotionally disconnected. See February 2016 VA Mental Health Medication Management Note. Without the medication, the Veteran experiences active hallucinations. Id; see also October 2019 VA Primary Care Note. In this regard, a November 2019 statement from the Veteran's friend shows the Veteran continues to hear voices but ignores them. VA treatment records, the December 2019 private PTSD examination, and the lay evidence show that the Veteran's PTSD was manifested by symptoms associated with a 100 percent rating to include persistent delusions or hallucinations, and intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene). The Veteran also had symptoms that are not listed with a specific rating, such as forgetting to turn off the stove, forgetting what he is doing, locking himself out of his car, conversations with his dogs, social isolation, and impairment in thought processes. See September 2018 VA PTSD examination; September 2018 psychiatry evaluation; November 2019 Buddy/Wife Statements. These symptoms more nearly approximate total social and occupational impairment because the Veteran does not like taking the medication to manage the psychotic features of his bipolar disorder which is why he continues to have both visual and auditory hallucinations. In essence, the Veteran could easily be institutionalized in a psychiatric ward as a person hearing voices, lost in the outside world, unable to care for himself but for the dedication and care of his wife, who manages his mental health from the safety and security of their home. As the most probative evidence of record shows total occupational and social impairment, the maximum 100 percent rating is warranted for the period on appeal prior to December 12, 2019. Thus, the appeal is granted. 2. Entitlement to a TDIU due to service-connected PTSD prior to December 12, 2019. As noted above, the Veteran has been granted 100 percent for his service-connected PTSD prior to December 12, 2019, and there is no dispute that his unemployability is due to, at least in part, his service-connected PTSD for which he is now receiving 100 percent for the entire appeal period. Because the Veteran's unemployability is either solely due to the PTSD, or partially due to the PTSD, it cannot be solely due to a single service-connected disability other than PTSD, which is now rated as 100 percent disabling. Therefore, the TDIU issue is now moot. In this regard, the Veteran has never asserted, and the record has not otherwise shown that he is incapable of employment due to anything but his service-connected PTSD, which is now rated at 100 percent rendering the issue of TDIU as moot. The Court has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Thus, if VA has found a veteran to be totally disabled as a result of a particular service-connected disability pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that veteran totally disabled on any other basis. See Locklear v. Shinseki, 24 Vet. App. 311, 318, footnote 2 (2011), Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period); 38 C.F.R. § 4.16 (a) (TDIU "may be assigned, where the schedular ratings is less than total..."). As the Board granted entitlement to a 100 percent disability rating for the Veteran's service-connected PTSD for the entire period on appeal, the claim for TDIU based solely due to his service-connected PTSD is moot and no further discussion is deemed necessary. Ancillary Issues The issues of entitlement to special monthly compensation, and entitlement to basic eligibility for Chapter 35 benefits (DEA), prior to December 12, 2019, are part and parcel of the issue of entitlement to an initial higher rating for the appellant's service-connected disabilities. See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991) (observing that entitlement to special monthly compensation is an "inferred issue" in the context of an increased rating claim that must be considered when the record indicates that it may be available, even if the claimant does not place eligibility for this ancillary benefit at issue); see also Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). 3. Entitlement to the assignment of SMC under 38 U.S.C. 1114, subsection (l) based on need for regular aid and attendance of another person, for the period on appeal from July 16, 2018 to December 11, 2019. 4. Entitlement to the assignment of SMC under 38 U.S.C. § 1114 (p) for the period on appeal from February 4, 2019 to December 11, 2019. VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establish entitlement to special monthly compensation under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). As noted above, in the appropriate circumstances VA is obligated to consider whether a claimant's disabilities establish entitlement to special monthly compensation under 38 U.S.C. § 1114. Specifically, special monthly compensation may be warranted if the Veteran has a service-connected disability rated as total, to include a finding of entitlement to TDIU based solely on that disability, and has additional service-connected disability or disabilities independently ratable at 60 percent or more. 38 U.S.C. § 1114 (s); Bradley, 22 Vet. App. at 289-90 (analyzing 38 U.S.C. § 1114 (s)). In this case, pursuant to the RO's assignment of the 100 percent rating for PTSD, effective from December 12, 2019, the RO also assigned a special monthly compensation under 38 U.S.C. § 1114 (l) based on a finding that the Veteran was in need of aid and attendance of another person in performing routine activities of daily activities for the period from December 12, 2019; and, for the same time period, he was assigned SMC under 38 U.S.C. § 1114(p) and 38 C.F.R. 3.350(f)(3) at the rate intermediate between subsection (l) and subsection (m) on account of entitlement to the rate intermediate between subsection (l) and subsection (m) from December 12, 2019, the date on which he had a single service-connected disability rated at 100 percent (PTSD) and additional disabilities independently ratable at 50 percent or more. See November 2022 Rating Decision. Incidentally, the amount of compensation provided under 38 U.S.C. § 1114(p) is a greater dollar amount than what is provided under the housebound rate at 38 U.S.C. § 1114(s). In this decision, the Board has assigned a 100 percent rating for the service-connected PTSD for the entire period on appeal prior to December 12, 2019; i.e. from June 16, 2018, (the date of claim) until December 12, 2019. As a result of this Board decision's grant of a 100 percent rating for PTSD from June 16, 2018 onward, the Board must consider whether SMC is warranted for the period from June 16, 2018 through December 11, 2019. From June 16, 2018 through February 3, 2019, the Veteran's sole service-connected disability is PTSD, rated at 100 percent disabling. As the RO determined that the Veteran was in need of aid and attendance based on helplessness effective from December 12, 2019, based on the same disability that is now rated at 100 percent from June 16, 2018, the criteria are also met for SMC pursuant 38 U.S.C. § 1114(l) based on the need for aid and attendance. There is no basis to assign a higher level of SMC during this period. As noted above, prior to February 4, 2019, the Veteran's sole service-connected disability was PTSD, now rated at 100 percent disabling based on the above decision. Therefore, if the Veteran was determined to be unemployable prior to February 4, 2019, it would necessarily have to be solely due to his PTSD (for which a 100 percent rating is now assigned). Accordingly, the TDIU issue is moot, and prior to February 4, 2019, the Veteran did not have additional disabilities independently ratable at 50 percent or higher (which, in addition to the need for aid and attendance) would be necessary to also meet the criteria for SMC pursuant to 38 U.S.C. § 1114(p). Likewise, the Veteran did not have additional disabilities independently rated at least 60 percent (which would be necessary to meet the criteria for the housebound rate under 38 U.S.C. § 1114(s)). Notably, effective from February 4, 2019, the Veteran's service-connected disabilities, in addition to the PTSD, included service connection for sleep apnea rated at 50 percent disabling, migraines rated at 50 percent disabling, left face laceration scar rated at 30 percent disabling, tinnitus rated at 10 percent disabling and painful scar on left side of face rated at 30 percent disabling. These disabilities were found to be independently ratable at 50 percent or more, at the time the Veteran's PTSD rating was increased to 100 percent, from December 12, 2019 onward. Accordingly, the Veteran met the criteria for SMC at the "p" rate from December 12, 2019 onward, as explained above. Accordingly, as the Veteran's PTSD is now rated at 100 percent from February 4, 2019 through December 11, 2019, the Veteran now meets the criteria for the higher rating of SMC, at the (p) rate during this time period. The Veteran has established SMC at the (l) rate based on the need for aid and attendance from June 16, 2018; and, as of February 4, 2019 he also now has additional disabilities independently rated at 50 percent or higher. Accordingly, effective from February 4, 2019, the Veteran meets the criteria for the assignment of SMC pursuant to 38 U.S.C. § 1114(l), and, 38 U.S.C. § 1114(p) and 38 C.F.R. 3.350(f)(3) at the rate intermediate between subsection (l) and subsection (m) on account of entitlement to the rate intermediate between subsection (l) and subsection (m) on account of the need for aid and attendance as a result of PTSD, plus additional service-connected disabilities independently ratable at least 50 percent or more. See November 2022 Rating Decision. Accordingly, for the period on appeal from June 16, 2018 through February 3, 2019, SMC under 38 U.S.C. § 1114(l) is granted; and, for the period from February 4, 2019 through December 11, 2019, SMC under 38 U.S.C. § 1114(l) and 38 U.S.C. § 1114(p) are granted. 5. Entitlement to basic eligibility for DEA benefits prior to December 12, 2019. Basic eligibility for DEA exists if a veteran has a permanent, total service-connected disability. 38 U.S.C. §§ 3500, 3501. A total disability may be assigned where the veteran's service-connected disabilities are rated 100 percent disabling under the rating schedule, or if the veteran is unemployable due to service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341. Permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 3.340 (b). With the above criteria in mind, pursuant to the current decision granting an increased disability rating of 100 percent for the Veteran's service-connected PTSD prior to December 12, 2019, rending the TDIU moot, entitlement to DEA benefits, for the entire period on appeal, is warranted. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Ardalan, Associate 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.