Citation Nr: 24016231 Decision Date: 04/16/24 Archive Date: 04/16/24 DOCKET NO. 15-42 717 DATE: April 16, 2024 ORDER Entitlement to an initial rating higher than 70 percent for posttraumatic stress disorder (PTSD) is denied. For the entire initial rating period, entitlement to a total disability rating based on individual unemployability (TDIU) based on PTSD alone, is granted. For the entire initial rating period, entitlement to special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114 (s), is granted. FINDINGS OF FACT 1. The Veteran's PTSD does not result in total social impairment. 2. Resolving reasonable doubt in the Veteran's favor, his PTSD alone precludes substantially gainful employment. 3. The Veteran has a service-connected disability rated as total and additional service-connected disabilities ratable at 60 percent or more. CONCLUSIONS OF LAW 1. The criteria for an initial rating higher than 70 percent for PTSD are not met. 38?U.S.C. §§?1155, 5107; 38?C.F.R. §§?4.3, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for an award of TDIU based on PTSD alone are met. 38?U.S.C. §§?1155, 5107;?38?C.F.R. §§?3.340, 3.341, 4.16(a)(b). 3. The criteria for entitlement to a SMC under 38 U.S.C. § 1114 (s) are met. 38 U.S.C. § 1114 (s); 5107; 38 C.F.R. § 3.102, 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1965 to October 1969 in the United States Marine Corps. For his meritorious service, the Veteran was awarded (among other decorations) the Combat Action Ribbon and the Vietnam Service and Campaign Medals. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Board denied entitlement to an initial rating higher than 50 percent for PTSD and denied TDIU. See BVA Decision (July 2019). The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court), which granted a July 2020 Joint Motion for Partial Remand (JMPR), vacating and remanding the issues of entitlement to an initial rating higher than 50 percent for PTSD and TDIU. See CAVC Decision (July 2020). In February 2021, the Board remanded the issue for further development. In December 2022, the Board granted an initial 70 percent, but not higher, for PTSD prior to September 8, 2020, and denied a rating higher than 70 percent from September 8, 2020. The Board also granted entitlement to a TDIU prior to September 8, 2020 and from January 15, 2021 (TDIU was in effect for the other periods). The Veteran appealed the decision to the Court, which granted an August 2023 JMPR. Specifically, the JMPR found that the Board erred in not considering whether TDIU was warranted based on the Veteran's PTSD alone, which would warrant entitlement to SMC pursuant to 38 U.S.C. § 1114 (s). The JMPR further found that the Board erred in not discussing evidence that potentially warranted a 100 percent rating for PTSD. The case has now returned to the Board for further appellate review. PTSD - Rating Criteria The Veteran's service-connected PTSD is rated as 70 percent disabling for the entire initial rating period. Disability evaluations are determined by comparing a Veteran's present symptoms with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 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. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38C.F.R.§4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). PTSD is evaluated under the General Rating Formula for Mental Disorders found in 38 C.F.R. § 4.130. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent evaluation is warranted where the disorder is manifested by 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. A 100 percent disability evaluation is warranted where there is 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. Id. Evidence and Analysis The Veteran was afforded a VA examination in May 2014. The VA examiner noted that the Veteran had a diagnosis of PTSD that conformed to the Diagnostic and Statistical Manual, 5th Edition, and did not suffer from any additional mental disorders. The VA examiner concluded that the Veteran suffered from occupational and social impairment with reduced reliability and productivity. See VA PTSD Examination Report, May 30, 2014. The Veteran reported being married for 46 years and described his relationship with his wife as "good." He also endorsed having good relationships with his adult daughter and teenage grandson. Socially, he reported that he did not go out frequently as crowds agitated him. When he did go out, went to restaurants and movies with his wife, but noted that he seated himself strategically to be able to watch others and exit quickly if necessary. Despite reporting a positive relationship with his wife, the examination revealed that the Veteran experienced depression over the "trauma and pain" his wife experienced due to his PTSD symptoms, including decreased sexual drive, irritability, and lack of patience. The Veteran noted that he was retired but spent his time volunteering with marketing for a police officer suicide prevention hotline, a cause important to him due to the loss of three close police officer friends to suicide over his career. He also reported spending his free time working on cars with this grandson. Id. With respect to occupational history, the Veteran reported retiring in 2012, following a 37-year career with the police force. He retired at the age of 65, a forced age-based retirement. He reported that had no disciplinary or social issues at work, and that instead he enjoyed his job since he was able to focus on his work and not think about Vietnam. During his career, he rose to the rank of Deputy Chief, in charge of specialized units. Id. The Veteran first sought treatment the year after his retirement, in 2013. He denied interest in psychotropic medication and requested a referral for psychotherapy. Since that time, he has attended weekly group therapy with VA. Associated psychotherapy notes indicated that the Veteran's PTSD symptoms have been worse since he left his job. The Veteran reported that since he no longer had his job to focus on, he experienced an increase in feeling depressed, chronic sleep impairment, disturbances of motivation and mood, intrusive thoughts, flashbacks, nightmares, and difficulty establishing and maintaining effective work and social relationships. Id. The Veteran also received group and individual therapy at a VA medical center. In the medical report generated in April 2015 the VA psychologist reported that the Veteran was alert and oriented to person, place, and time. He had a neat appearance. The psychologist did not find any signs of a thought disorder, hallucinations, or delusions. The Veteran was noted as having good judgment, appropriate speech, and normal memory function. The Veteran consistently denied any suicidal or homicidal ideations. The Veteran's speech was relevant and coherent. Overall, the psychologist noted that the Veteran was appropriate, cooperative, and insightful. During the group and individual therapy sessions at the VA medical center, the Veteran stated that after retirement his PTSD symptoms had increased in severity because he no longer had to hide his symptoms from others. As such, he reported experiencing increased flashbacks, nightmares, and intrusive thoughts about Vietnam. The Veteran noted times in his history when he almost became violent however, he would always remove himself from the situation and did not report any physical altercations. The Veteran reported being emotionally numb. However, it appeared that the Veteran benefited from the group and individual therapy sessions, was attending the sessions regularly, and was learning how to experience both positive and negative emotions. The Board acknowledges the December 2017 lay statement from the Veteran's wife, in which she reported that the Veteran consistently had nightmares since returning from Vietnam and that since retirement the Veteran's nightmares had gotten worse. The Veteran's wife stated she never touched or shook her husband when he was asleep because she was "afraid his mind is back in Vietnam." The Veteran's sleep disturbances caused the Veteran's wife to have to sleep in another bedroom. Additionally, the Veteran's wife stated that the Veteran was bothered by loud sounds such as sirens and that his PTSD had taken a toll on their marriage over the years. In September 2020, the Veteran submitted a disability benefits questionnaire (DBQ) for his service-connected PTSD. The psychologist noted that the Veteran had marital discord due to his wife's non-acceptance of his mental health condition, his irritability, depressed mood, anhedonia, and social isolation. The psychologist opined that the Veteran's symptoms caused total occupational and social impairment. The Veteran had been married for more than 52 years and had a 46-year-old daughter and one grandson. He had a high school degree. He worked at trucking company from 1963 to 1973. Then, he worked as a police officer from 1973 to 2011. The Veteran worked at Vet Center since 2013 to present, had been in 2 long terms groups and individual therapy weekly to monthly. Other symptoms included depressed mood, anxiety, suspiciousness, panic attacks more than once a week, near-continuous panic or depression affecting the ability to function independently, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), difficulty adapting to stressful circumstances, including work or a work like setting, and impaired impulse control. The Veteran did not have suicidal ideation. In March 2021, the Veteran was afforded a VA examination for PTSD. Since June 2014, the Veteran had been receiving ongoing counseling and therapy (weekly group psychotherapy and individual psychotherapy sessions). The Veteran's symptoms remained far above threshold, were pervasive, and at times unmanageable, and more often than not overwhelming remaining a high-priority target for continued interventions. The degree of limitation in three functional areas related to employment (activities of daily living; social functioning; and concentration, persistence or pace): the Veteran received a rating of "moderate" in the first domain and "marked" in the remaining two domains due to his service-connected diagnosis of PTSD with panic attacks. The VA examiner concluded that the Veteran's PTSD caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran continued to live with his wife with periods of tension and feelings of disconnection. He had reduced interest and participation in social activities. The Veteran was unable to consistently and reliably complete a normal workday and workweek without significant periods of interruptions form psychologically based symptoms resulting in an inability to perform at a consistent pace without an unreasonable number and length of rest periods or unplanned absences, or without being granted an extended period of time to complete routine occupational tasks due to intrusive symptoms related to his service-connected diagnosis of PTSD with panic attacks. Other symptoms included anxiety, depressed mood, suspiciousness, mild memory loss, difficulty adapting to stressful circumstances, including work or a work like setting, etc. Upon behavioral observation, the VA examiner noted that there was no evidence of tangential though process, loose associations, or psychotic symptoms, including auditory/visual hallucinations, paranoid ideation or ideas of reference. The Veteran denied suicidal or homicidal ideations, including plan, intent, preparation behaviors, or attempts. In March 2021, the Veteran submitted a PTSD disability benefits questionnaire (DBQ). The psychologist concluded that the Veteran's PTSD caused total occupational and social impairment. In April 2021, the Veteran submitted a March 2021 PTSD diagnostic assessment conducted by a licensed psychologist, Dr. A.T. Dr. A.T. opined that the Veteran's PTSD caused total occupational and social impairment. The Veteran's symptoms included suicidal ideation, impaired impulse control, grossly inappropriate behavior, persistent danger of hurting self or others, etc. The psychologist concluded that the Veteran's PTSD caused total occupational and social impairment. The Veteran was married for 53 years and had a 46-year-old daughter. His marriage had become progressively strained due to his increased symptoms. He currently worked part-time for suicide prevention hotline. The Veteran retired from full-time work. He reported an incident where after being yelled at by a superior, he almost lost control and thought he was going to kill the man if he did not remove himself from the situation. The Veteran's symptoms included depressed mood, anxiety, suspiciousness, panic attacks that occurred weekly, chronic sleep impairment, difficulty in understanding complex commands, etc. The Veteran did not have suicidal ideation or gross impairment in thought processes or communication. The VA examiner opined that the Veteran was largely incapable of sustained effort in work or chores. The Veteran's anger, low frustration tolerance, poor sleep, and concentration problems would make reliability and interpersonal functioning difficult. He was able to work at the police officer's hotline because of survivor guilt but had been warned that it was unlikely good for his mental health. The Veteran's marriage was on the verge of separation. The Veteran stayed out of trouble by social isolation and only traveling to his sister's house or VA appointments. The psychologist checked boxes for PTSD symptoms of depressed mood; anxiety; suspiciousness; panic attacks more than once a week; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; mild memory loss; impairment of short and long term memory; memory loss for names of close relatives, own occupation, or own name; difficulty understanding complex commands; impaired judgment and abstract thinking; gross impairment in thought processes and communication; 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 worklike setting; suicidal ideation; obsessional rituals which interfere with routine activities; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; and neglect of personal appearance and hygiene. In June 2021, the Veteran was afforded a PTSD VA examination. The VA examiner opined that the Veteran's PTSD caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of routine inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Veteran continued to live with his wife of 53 years. The Veteran noted that his marriage was "going through a hard time" lately and his wife was in therapy to help her deal with his PTSD condition. They slept in separate bedrooms because he lashed out in his sleep. The Veteran and his wife argued; he had little patience with his wife. He had one daughter and a grandson; he was not close to them. They thought him to be angry all the time. The Veteran continued to work part-time as a peer support telephone operator for law enforcement officers and veterans. He noted that he made his own hours and set his own time but did not answer to anyone. He also was able to work from home. He had been doing this work since 2013. Prior to this, the Veteran worked in law enforcement for more than 37 years. He noted that he had "run-ins" with supervisors over the years, but he was never fired from work. The Veteran was currently attending group therapy for his PTSD. The Veteran's symptoms included anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances, including work or a work like setting. Upon behavioral observation, the VA examiner noted that the Veteran's mood was dysphoric, affect was congruent. There was no evidence of a thought disorder, hallucinations, or delusions. The Veteran's speech was of normal rate, tone, and volume. The Veteran denied experiencing suicidal or homicidal ideation. The Veteran reported that he was prone to irritability and anger over inconveniences. The Veteran and his wife do not get along well, and they sleep in separate bedrooms because of his restlessness. To cope, he has done mindfulness and breathing exercises. He had a daughter and grandson who always asked him why he was angry. He did not like to be around people. He worked 4 to 8 hours a day from home. He was "phone peer support" for law enforcement officers who were having a hard time. He was trying to help ward off suicide in law enforcement officers, especially those who were veterans. He had been doing this work since 2013. He took pride in giving back. Prior to this, he worked in law enforcement for 37.5 years. He had problems at work and a couple of incidents with his supervisors. On review of all the evidence, the Board finds that an initial rating higher than 70 percent is not warranted at any point during the pendency of the appeal.? In terms of occupational impairment, the Board recognizes that a TDIU is being granted herein based on the Veteran's PTSD symptoms affecting his employability. However, the criteria for TDIU are based on different standards than a 100 percent schedular rating for PTSD. Compare 38 C.F.R. § 4.16 with 38 C.F.R. § 4.130. Although the Veteran's PTSD may render him unable to secure and follow substantially gainful employment, it does not necessarily equate to a manifestation of total occupational and social impairment to the extent that a 100 percent schedular rating may be assigned under the General Rating Formula. In this regard, the Veteran is found capable of managing his own financial affairs and appeared fully oriented throughout the pendency of the appeal.? On mental status examinations, he has consistently presented as adequately dressed and groomed and as such there is no evidence of neglect in hygiene.? There is also no evidence of delusions or hallucinations at any time during the pendency of the appeal.? Moreover, although his PTSD causes some social impairment, such impairment is not considered "total." He has meaningful relationships his spouse, daughter, and grandson. While the Board acknowledges that the March 2021 psychologist checked boxes for symptoms associated with the 100 percent criteria such is not supported by any of the medical or lay evidence of record, to include the diagnostic assessment authored by the same psychologist. For example, while the boxes for persistent delusions and hallucinations and persistent danger of hurting self and others were checked, the assessment did not provide any examples or even mentioned such symptoms. In addition, prior and subsequent mental health treatment records and examination do not show that the Veteran experienced any delusions or hallucinations nor had any persistent danger of hurting self or others. On the contrary, such was always denied. Another example of inconsistency regarding the checked symptoms includes the psychologist's notation that the PTSD resulted in neglect of personal appearance and hygiene; however, throughout the initial rating period, the Veteran always appeared neatly groomed and appropriately dressed. In other words, some of the boxes checked by this psychologist are not supported by any of the evidence of record, to include this same psychologist's assessment. Overall, the Veteran's psychiatric symptoms do not equate in severity, frequency, or duration to total occupational and social impairment, nor have the symptoms demonstrated a level of severity in symptomatology to approximate or equate to that in the symptoms listed for a 100 percent rating. Rather, the identified psychiatric symptoms are properly contemplated by the currently assigned 70 percent disability rating.? Accordingly, the evidence is persuasively against finding that an initial 100 percent rating is warranted. Entitlement to a TDIU A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, where it is found that the disabled person is unable to secure or follow substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, providing at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16(a). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. The ultimate issue of whether TDIU should be awarded is not a medical issue, but rather is a determination for the VA adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Preliminary Matter The Board notes that the Veteran did not challenge the Board's grant of entitlement to a TDIU. Rather, the Veteran challenged the fact that the Board did not consider whether TDIU could have been granted based on PTSD alone, which would warrant him entitlement to SMC pursuant to 38 U.S.C. § 1114 (s). Accordingly, the dispositive issue before the Board is whether TDIU can be granted based on PTSD alone. Evidence and Analysis As noted above, a September 2020 PTSD DBQ noted that the Veteran's TDIU resulted in total occupational impairment. The March 2021 examiner found that the Veteran was unable to complete a normal workday and workweek consistently and reliably without significant periods of interruptions from psychologically based symptoms. This statement was made in response to the Board's February 2021 remand, which asked the examiner to determine the impact of the Veteran's PTSD on his ability to work. A March 2021 DBQ also marked the Veteran's occupational impairment as total and noted that he was largely incapable of maintaining effort in work or chores. Thereafter, the June 2021 VA examiner noted that for the Veteran to experience success at work, he would require isolation, flexible scheduling, plenty of breaks, and little management. Based on the foregoing, and resolving any reasonable doubt in the Veteran's favor, entitlement to a TDIU due to the service-connected PTSD alone is warranted. The United States Court of Appeals for Veterans Claims (Court) has held that VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C. § 1114. See Bradley, 22 Vet. App. at 294 (2008) (finding that "SMC benefits are to be accorded when a Veteran becomes eligible without need for a separate claim"). In light of the Board's decision herein, the Veteran is now in receipt of a 100 percent rating (TDIU solely based on the service-connected PTSD) for the entire initial rating period and his other service-connected disabilities are independently ratable at 60 percent or more. Accordingly, the criteria for SMC under 38 U.S.C. § 1114 (s) are met for the entire initial rating period. Colleen M. Glaser-Allen Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Yaffe, 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.