Citation Nr: 24017403 Decision Date: 04/23/24 Archive Date: 04/23/24 DOCKET NO. 11-14 728 DATE: April 23, 2024 ORDER Entitlement to a 100 percent rating from July 28, 2009 for posttraumatic stress disorder (PTSD) is granted. Entitlement to special monthly compensation from July 12, 2011 is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, the Veteran's PTSD more nearly approximated total occupational and social impairment since his July 2009 claim for an increased rating. 2. From July 12, 2011, the Veteran has had additional separate service-connected disabilities with a combined rating of 60 percent. CONCLUSIONS OF LAW 1. The criteria for a 100 percent rating from July 28, 2009 for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for special monthly compensation at the housebound rate from July 12, 2011 have been met. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1990 to July 1991, in the United States Army. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2010, the Veteran filed a notice of disagreement (NOD) with the rating decision. Following the issuance of a statement of the case (SOC) in March 2011, the Veteran filed a substantive appeal in May 2011. A supplemental statement of the case (SSOC) was issued in August 2013. The case first came before the Board in May 2016, at which time it was remanded for an updated VA examination. In July 2016, the Board vacated its May 2016 decision, noting that the Veteran had filed a motion for an additional 60 days in which to submit evidence and that the Board was granting that motion. In December 2016, the Board issued a decision remanding the claim for an updated VA examination. The matter returned to the Board in February 2018, at which time the Board granted a rating of 50 percent from June 4, 2013 for PTSD, denied a rating higher than 50 percent from June 4, 2013, and denied a rating higher than 30 percent prior to that date. The Veteran appealed the Board's denials to the United States Court of Appeals for Veterans Claims (Court). In December 2018, the Court approved the parties' Joint Motion for Partial Remand (JMPR), remanding the claim for further action consistent with the JMPR. In January 2020, the Board granted a rating of 70 percent from January 18, 2013, denied a rating higher than 70 percent from January 18, 2013, and denied a rating higher than 30 percent prior to that date. The Veteran appealed the Board's denials to the Court. In December 2020, the Court approved the parties' JMPR, remanding the claim for further action consistent with the JMPR. In April 2021, the Board remanded the matter for an updated VA examination. Following this development, an SSOC was issued in May 2021 and the matter returned to the Board in September 2021. In its September 2021 decision, the Board granted a rating of 100 percent from August 8, 2013, granted a rating of 70 percent prior to January 18, 2013, and denied a rating higher than 70 percent prior to August 8, 2013. The Veteran appealed the Board's denial to the Court. In September 2022, the Court approved the parties' JMPR, remanding the claim for further action consistent with the JMPR. In February 2023, the Board granted a rating of 100 percent from July 17, 2013 and denied a rating higher than 70 percent prior to that date. The Veteran appealed the Board's denial to the Court. In December 2023, the Court approved the parties' JMPR, remanding the claim for further action consistent with the JMPR. The case has now been returned to the Board for further appellate review. During the pendency of the Veteran's appeal, in March 2016 the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ) and a transcript of that hearing is of record. The Board notes that the VLJ who conducted the hearing is no longer with the Board. In a November 2019 letter the Veteran was notified of this and of his right to request another Board hearing, while also being notified that if he did not respond within 30 days from the date of the letter, the Board would assume that he did not want another hearing and proceed accordingly. The Veteran did not respond to the letter. The Board notes that following the issuance of the May 2021 SSOC, the Veteran filed a VA Form 9 in June 2021 and requested a Board hearing. In October 2022, the Veteran, through his authorized representative, withdrew this hearing request. 1. Entitlement to a rating higher than 70 percent prior to July 17, 2013 for posttraumatic stress disorder Service connection for PTSD was established in a May 2007 rating decision. An initial 30 percent evaluation was assigned effective July 29, 2004. On July 28, 2009, the Veteran filed a petition for an increased rating. In the February 2010 rating decision on appeal, the RO continued the 30 percent rating. In a February 2018 Board decision, the Board granted a 50 percent rating from June 4, 2013. In a January 2020 Board decision, the Board granted a 70 percent rating from January 18, 2013. In September 2021, the Board granted a 70 percent rating prior to January 18, 2013 and a 100 percent rating from August 8, 2013. In February 2023, the Board granted a rating of 100 percent from July 17, 2013 and denied a rating higher than 70 percent prior to July 17, 2013. The Veteran contends that a rating higher than 70 percent prior to July 17, 2013 is warranted. Disability ratings are intended to represent the average impairment of earning capacity resulting from disability and are determined by comparing the symptomatology to the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Pursuant to the General Rating Formula for Rating Mental Disorders (General Rating Formula), a 70 percent rating is warranted 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); and the inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A maximum 100 percent rating is warranted when 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 and place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the General Rating Formula are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of symptoms, or effects thereof, justifying a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational and social impairment. Id. at 443. After review of the record and resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's PTSD most nearly approximated the criteria associated with a 100 percent rating throughout the appeal period. In a July 2009 statement accompanying his request for an increased rating, the Veteran described his PTSD symptoms as "like a battle going on inside my head and I cannot shut it off." In his July 2010 NOD, the Veteran reported that he has trouble sleeping and nightmares, he "hate[s] to be around people," he has frequent panic attacks, trouble understanding commands, trouble with his memory, and doing simple tasks is very difficult for him. In a July 2011 statement, he reported insomnia, panic attacks, anxiety, depression, short-term memory loss, severe nightmares, night sweats, inability to remember commands, impaired judgment "doing the tasks I used to do," and uncontrolled mood swings. A VA PTSD examination was obtained in December 2009. The Veteran reported that his symptoms had worsened, that he now had more anxiety, was intolerant of crowds, was easily startled, was hypervigilant, had worse concentration, had interrupted sleep every night, and had weekly intrusive thoughts. The Veteran reported that he was working full-time and had been with the same company for five years. He reported having a few friends. The examiner noted no suicidal or homicidal ideation, no impairment of thought processes or communications, no delusions or hallucinations, adequate remote and recent memory, and adequate insight and judgment. A private treatment record from September 2009 reports that the Veteran's PTSD was getting worse, that the Veteran reported feeling more tense-"like I'm going to explode." A January 2010 record noted that the Veteran reported mood swings, difficulty sleeping (frequent awakenings), occasional panic attacks, and more tension-"like I'm in a box." A March 2010 record noted that the Veteran reported panic attacks and being angry more often. A December 2011 record noted that the Veteran reported frequent nervousness with periods of extreme nervousness causing vomiting. A January 2013 VA treatment record reports that the Veteran was seen in the Emergency Room for depression and insomnia. He reported suicidal thoughts with no plan. In a February 2013 VA treatment record, the Veteran reported daily vomiting (sometimes multiple times per day) that he attributed to his anxiety. At a March 2013 VA psychiatric evaluation, the Veteran reported that his medications were not working. He reported feeling anxious, depressed, hopeless, and helpless. He reported nightmares and flashbacks. He reported being socially isolated. He reported that his experiences in Iraq are on his mind "all the time." In a May 2013 VA treatment record, the Veteran reported symptoms of depression and anxiety. He reported staying home/staying away from people. He noted that he gets paranoid around others. He reported difficulty sleeping due to nightmares of being back in the war. Another May 2013 record noted that the Veteran called to request a change in his medication because he felt that it was not working and he felt like he wanted to hurt someone. A June 2013 record noted that the Veteran was "not doing well" and still having vivid nightmares. At a June 2013 VA PTSD examination, the Veteran reported that he currently had no friends and was not in a relationship. He reported that he avoids people and had lost interest in forming new relationships. He reported that his anxiety symptoms had caused him to have little interest in social activities. However, he reported normally having good relationships with his mother and one brother, who he keeps in touch with via telephone. The Veteran reported nightly sleep difficulties and that he experiences periods of up to 10 days when he essentially does not sleep. The Veteran reported that he feels angry much of the time and stays close to home in order to avoid potential conflicts. He reported having panic attacks several times a week. The Veteran reported being laid off in 2012 when the plant he worked at shut down. He noted that he had found working very stressful due to having to leave his house and interact with people. He reported that sometimes his stress at work was so severe that it would cause him to vomit. He reported having had concentration and memory problems at work. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, flattened affect, circumstantial/circumlocutory/or stereotyped speech, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and suicidal ideation. The Veteran reported that he has thoughts that he would be better off dead and occasional thoughts of suicide. He reported an incident within the last year when he had taken "a lot" of a sleep medication but that he was unsure if he had intended to harm himself or if he was just very desperate for sleep. In April 2016 the Veteran underwent a retrospective evaluation with a private psychologist, Dr. F.B. Following the evaluation, Dr. B. opined that, since his deployment in 1991, the Veteran has had total occupational impairment due to anxiety, panic attacks, memory impairment, and inattention. Dr. B. reported long-term symptoms of memory loss for names of close relatives/own occupation/or own name, deficiencies in family relations, deficiencies in work, depression affecting the ability to function independently/appropriately/effectively, neglect of personal appearance and hygiene, intermittent inability to perform activities of daily living, deficiencies in mood, difficulty in adapting to stressful circumstances, disorientation to time or place, inability to establish and maintain effective relationships, deficiencies in judgment, suicidal ideation, and persistent danger of hurting himself. Accordingly, upon resolving all doubt in the Veteran's favor, the Board finds that the Veteran's disability picture more nearly approximated total occupational and social impairment since his July 2009 claim for an increased rating, warranting a 100 percent rating under Diagnostic Code 9411. See 38 C.F.R. § 4.7. This is the maximum rating available and represents a full grant of the benefit sought on appeal. 2. Entitlement to special monthly compensation prior to July 17, 2013 In a September 2021 rating decision, special monthly compensation (SMC) based on housebound criteria was granted, effective August 8, 2013. In a February 2023 rating decision, an effective date of July 17, 2013 for SMC was granted. The Veteran contends that an earlier effective date is warranted. SMC is payable at the housebound rate when a veteran has a single service-connected disability rated as 100 percent disabling and has a separate service-connected disability or disabilities independently ratable at 60 percent. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). The Board's grant herein of a 100 percent rating for PTSD from July 2009 satisfies the requirement of a single service-connected disability rated as 100 percent disabling. Since July 12, 2011, the Veteran has also had additional separate disabilities ratable at 60 percent or more (fibromyalgia, irritable bowel syndrome, and a left hip disability). Thus, SMC based on statutory housebound status is warranted as of July 12, 2011. See 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). Danette Mincey Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Jesteadt, 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.