Citation Nr: 24017704 Decision Date: 04/24/24 Archive Date: 04/24/24 DOCKET NO. 15-24 237 DATE: April 24, 2024 ORDER From December 21, 2011, a 100-percent evaluation for posttraumatic stress disorder (PTSD) is granted. From December 21, 2011, a special monthly compensation (SMC) pursuant to 38 U.S.C. §1114 (s), is granted. FINDINGS OF FACT 1. From December 21, 2011, the severity, frequency, and duration of the Veteran's psychiatric symptoms more closely approximate total occupational and social impairment. 2. Pursuant to the Board's decision herein, the Veteran now meets the schedular requirements for an SMC as of December 21, 2011. CONCLUSIONS OF LAW 1. From December 21, 2011, the criteria for entitlement to a disability rating of 100 percent for service-connected PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.126, 4.130 Diagnostic Code (DC) 9411. 2. The criteria for the assignment of an effective date of December 21, 2011, for the grant of an SMC pursuant to 38 U.S.C. § 1114 (s) have been met. 38 U.S.C. § 1114 (s), 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.350 (i). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1967 to June 1969, including service within the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran testified at a videoconference hearing before a Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. Most recently, the Veteran's appeal was previously before the Board in November 2022 when it was denied. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). The Court then issued an order in October 2023, approving a Joint Motion for Remand (Joint Motion) directing the Board to provide better reasons and bases for its conclusions. The parties moved the Court to vacate the part of the November 2022 Board decision denying an evaluation in excess of 70 percent for PTSD prior to September 19, 2019, and to an effective date earlier than September 19, 2019, for the award of an SMC pursuant to 38 U.S.C. § 1114 (s) and remand for readjudication. These claims are now once again before the Board. Prior to the Board's November 2022 decision and the October 2023 Joint Motion, the Veteran's appeal was also previously before the Board in April 2019, at which time it was remanded for additional development. Upon completion of the directed development, the claim was returned to the Board and subsequently denied in a February 2021 decision. The Veteran appealed that decision to the Court. The Court issued an order in January 2022, approving a Joint Motion directing the Board to provide better reasons and bases for its conclusions. Increased Ratings Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A claim will be denied if the evidence persuasively weighs against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). 1. From December 21, 2011, a 100-percent evaluation for PTSD is granted. 2. From December 21, 2011, an SMC pursuant to 38 U.S.C. §1114 (s), is granted. The Veteran was granted service connection for PTSD in a July 2013 rating action, at which time it was evaluated as 30-percent disabling, effective from December 21, 2011. Since that time, higher evaluations have been awarded, and currently, the Veteran is in receipt of a 70-percent evaluation from December 21, 2011, to September 18, 2019, and a 100-percent evaluation from September 19, 2019, forward. See November 2022 Codesheet. Thus, in this case, the Board will focus on whether a 100-percent evaluation is warranted prior to September 19, 2019. The Veteran's PTSD is evaluated under Diagnostic Code 9411. Like most mental health disorders, PTSD is evaluated under the General Rating Formula for Mental Disorders (General Rating Formula), which assigns ratings based on particular symptoms and the resulting functional impairment. See 38 C.F.R. § 4.130, DC 9411. Under the General Rating Formula, a 70-percent disability rating requires: 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 disability rating requires: 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. The symptoms associated with each evaluation under the General Rating Formula do not constitute an exhaustive list but rather 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, 442 (2002). Thus, the evidence considered in determining the appropriate evaluation of a psychiatric disorder is not restricted to the symptoms set forth in the General Rating Formula. See id. Rather, VA must consider all symptoms of a claimant's condition affecting their occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (4th ed. 1994) (DSM-IV) or the Fifth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-V). If the evidence demonstrates the claimant's psychiatric disorder produces symptoms and resulting occupational and social impairment equivalent to that set forth in the criteria for a given rating in the General Rating Formula, then the appropriate, equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. In this regard, 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. 38 C.F.R. § 4.126; Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Accordingly, there are two elements that must be met to assign a particular rating under the General Rating Formula: (1) symptoms equivalent in severity, frequency, and duration to the symptoms corresponding to a given rating and (2) a level of occupational and social impairment corresponding to that rating that results from those symptoms. See Vazquez-Claudio, 713 F.3d at 118. While VA considers the level of social impairment, it shall not assign an evaluation based solely on social impairment. 38 C.F.R. § 4.126. Since the only higher evaluation available is 100 percent prior to September 19, 2019, the Board will largely focus on the evidence that underscores the severity, frequency, and duration of the Veteran's psychiatric symptoms that more closely approximate total occupational and social impairment. The Board finds the evidence, particularly the lay evidence, reflects the Veteran has experienced total occupational and social impairment from December 21, 2011, forward. Thus, for the entire appeal period, the Veteran's PTSD symptoms have resulted in impairment that more nearly approximates total occupational and social impairment. Regarding this, a November 2011 Vet Center intake assessment indicates the Veteran had 12 jobs in the past seven years. In a November 2012 letter, the Veteran reported he had no friends in a place he lived for 35 years and that "making friends is a waste of time." In a November 2012 letter, the Veteran's spouse writes although the Veteran had a history of employment, the nature of his employment was self-isolating as the Veteran worked in the wilderness of Alaska. The Veteran's spouse also notes he was fired from his 20-year career with the state of Alaska for accusations of "'unfounded attacks impugning the integrity and competence of department staff, threatening behavior, and refusal to follow directions of management.'" She further notes, for years, the Veteran's PTSD resulted in "rages[and] intimidation" and "explosive aggressive behaviors." The Veteran reports, in a March 2015 statement, that he "frequently dealt with things by punching walls or throwing or smashing things when [he got] angry." In a November 2018 statement, the Veteran reports he has "very little patience." As an example, the Veteran recalls while completing a wood working project, he became frustrated and smashed it into pieces. Further, in July 2020, VA received a statement from the Veteran's daughter. She recounts her difficult childhood due to her father's rage and violence. She states her father's PTSD did not elevate to the level it is now but has always been at its level as this is how she has always known her father to be. The Veteran's spouse and daughter are competent to report symptoms they witnessed of the Veteran's psychiatric disorder, including behavioral changes. The Board finds the Veteran and his spouse's and daughter's statements in this case to be credible. See Jandreau v. Nicholson, 492 F.3d 1372 (2007). The Board acknowledges prior to September 19, 2019, the VA psychiatric examiners did not find the Veteran's PTSD consisted of total occupational and social impairment; however, the lay evidence indicates the Veteran's PTSD symptoms have resulted in impairment that more nearly approximates total occupational and social impairment. Regarding this, although the Veteran has an employment history, he worked in an environment where he was able to isolate himself, which indicates total occupational impairment. A November 2011 Vet Center intake assessment indicates the Veteran had 12 jobs in the past seven years. Further, the Veteran's spouse and daughter recall symptoms or episodes of anger, rage, and violence, which have resulted in total social impairment. The Board also finds probative the Veteran's daughter's observation that her father's psychiatric symptoms have always been the same. Finally, pursuant to the Board's decision herein, the Veteran is now in receipt of a 100-percent disability rating for his PTSD as of December 21, 2011. Further, since December 21, 2011, the Veteran has additional service-connected disabilities totaling over 60 percent. See November 2022 Codesheet. As such, an SMC at the housebound rate under 38 U.S.C. § 1114 (s) is warranted, effective December 21, 2011. 38 C.F.R. § 3.350 (i). Accordingly, for the foregoing reasons, the evidence is evenly balanced as to whether the impairment caused by the Veteran's PTSD reflects total occupational and social impairment as of December 21, 2011. Thus, entitlement to a 100-percent rating is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. Thomas English Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Buck Denton 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.