POSTTRAUMATIC STRESS DISORDER (PTSD)

Summary

The veteran, who served from October 1965 to September 1969, appeals the denial of a higher initial rating for his Posttraumatic Stress Disorder (PTSD) and the denial of TDIU. The Board granted a 70 percent rating for PTSD, finding that the veteran's symptoms caused deficiencies in most areas, including social and emotional isolation, withdrawal, lack of friendships, anxiety around crowds, intrusive thoughts, trouble concentrating, hypervigilance, and nightmares. The Board determined that while the veteran experienced passive suicidal ideation and occasional memory issues, these did not rise to the level of total occupational and social impairment required for a 100 percent rating. The Board also granted TDIU, finding that the veteran's PTSD symptoms resulted in him being capable of only marginal employment, and that he met the schedular requirements for TDIU from August 28, 2009, based on his service-connected PTSD. The Board remanded the issue of special monthly compensation (SMC) based on the need for aid and attendance, as the veteran's daughter provides caregiving assistance, and it was unclear if this need was solely due to PTSD or other conditions like vascular dementia.

Rationale

Symptoms caused deficiencies in most areas; Passive suicidal ideation does not cause total impairment; Olfactory hallucinations and whispers do not cause total impairment

Full Decision Text

Citation Nr: 23067562
Decision Date: 12/26/23	Archive Date: 12/26/23

DOCKET NO. 12-31 228A
DATE: December 26, 2023

ORDER

An initial 70 percent rating effective from August 28, 2009, for PTSD is granted.

A rating higher than 70 percent for PTSD is denied.

A TDIU effective from August 28, 2009, is granted.

REMANDED

The claim of entitlement to special monthly compensation (SMC) based on the need for aid and attendance is remanded.

FINDINGS OF FACT

1. The Veteran's PTSD has caused social and occupational impairment with deficiencies in most areas since the effective date of service connection.  It has not caused total social and occupational impairment.

2. His PTSD has precluded him from obtaining and maintaining substantial gainful employment for the entire period on appeal.

CONCLUSIONS OF LAW

1. The criteria are met for a 70 percent rating, but no higher, for PTSD effective August 28, 2009.  38?U.S.C. §§?1155, 5107; 38?C.F.R. §§?3.102, 3.159, 3.321, 3.400, 4.1, 4.3, 4.7, 4.130, DC 9411.

2. The criteria are met for a TDIU effective from August 28, 2009.  38?U.S.C. §§?1155, 5107; 38?C.F.R. §§?3.321, 3.340, 3.341, 3.400, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from October 1965 to September 1969.

This appeal is from a February 2010 rating decision.

In February 2018 and April 2023, the Veteran had personal hearings with the undersigned VLJ.

1. An initial 70 percent rating effective from August 28, 2009, for PTSD is granted.

2. A rating higher than 70 percent for PTSD is denied.

The Veteran has appealed for a higher initial rating for his PTSD.  

The Veteran's PTSD is currently rated 30 percent disabling from August 28, 2009, to August 17, 2010, then 50 percent disabling from August 18, 2010, to February 25, 2018, then 70 percent from February 26, 2018, to the present.  

The criteria for evaluating PTSD are found at 38?C.F.R. §?4.130, DC 9411. 

A 30 percent evaluation is warranted where there is occupation and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily with routine behavior, self-care, and conversation normal) due to such symptoms as: depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; mild memory loss (such as forgetting names, directions, recent events).

A 50 percent evaluation is warranted where there is 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; disturbances of motivation and mood; and, difficultly in establishing and maintaining effective work and social relationships.  Id. 

A 70 percent evaluation is warranted where 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 worklike setting); and inability to establish and maintain effective relationships.  Id. 

A 100 percent evaluation 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; and, memory loss for names of close relatives, own occupation, or own name.  Id. 

The symptoms listed above serve as examples
 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); and inability to establish and maintain effective relationships.  Id. 

A 100 percent evaluation 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; and, memory loss for names of close relatives, own occupation, or own name.  Id. 

The symptoms listed above serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and are not intended to constitute an exhaustive list. See Mauerhan v. Principi, 16?Vet. App.?436, 442-44 (2002). 

When evaluating a mental disorder, one 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. See 38?C.F.R. §?4.126 (a). Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. See 38?C.F.R. §?4.126(b). 

Turning to the evidence, the Board notes that the Veteran and his family argue that his symptoms have been essentially the same as they currently are since service connection was established.  After review of the record, the Board agrees, and finds that a 70 percent rating is warranted from the effective date of service connection, August 28, 2009.  His symptoms were causing deficiencies in most areas at the start of the appeal period, due to social and emotional isolation, withdrawal from mainstream life, lack of friendships, anxiety around crowds, isolative behaviors, lack of interest in activities, intrusive thoughts, trouble concentrating, hypervigilance, high startle response, confusion, sleep impairment, nightmares, and panic attacks.

The Board does not find that a 100 percent rating is warranted.  The Veteran does not have total impairment due to PTSD.  Although he prefers staying away from most people, he does have a close relationship with two of his daughters who help him with his activities of daily living.  He has not been shown to have gross impairment in thought processes or communication, to exhibit grossly inappropriate behavior, or to be disoriented to time or place.  

The Board acknowledges the record shows passive suicidal ideation, but does not find that this shows him to be a persistent danger to himself or others.  The record does not show violent behavior or outbursts or that the Veteran uses substances or is likely to take unnecessary risks.  He has not been assessed as a danger to himself.  The Board does not find that his passive suicidal ideation symptom causes total impairment, but that it does provide additional support his 70 percent rating.  

The Board acknowledges the record shows that he has olfactory hallucinations (smelling the "stench" of napalm and burned skin from his service in Vietnam) and that he hears whispers in his house since his wife died. He does not respond to the hallucinations and they have not been shown to interfere with his ability to function.  Further, he has denied having them since in and around 2012.  In April 2012, the Veteran's treating clinician noted that vaguely seeing or sensing the presence of his wife following her death were not likely hallucinatory but part of the grief process.  The Board does not find that these symptoms result in total impairment, and he has not argued as such.

The Board acknowledges that the February 2010 VA examination shows that PTSD causes "problem[s]" with activities of daily living, including "slight" problem with grooming, without additional discussion or clarification.  The record does not otherwise show the Veteran having an intermittent inability to perform activities of daily living or trouble maintaining personal hygiene.   

Finally, the Board acknowledges that the Veteran and his daughter reported at the hearing that he sometimes forgets their names.  They did not indicate how frequently this occurred, and it is not otherwise shown in the record.  Although this is a symptom that is listed as potentially causing a 100 percent rating, the Board does not find this this symptom, which is apparently intermittent, warrants a 100 percent in this case, without additional significantly severe symptoms.

In sum, the Board does not find that PTSD causes total social and occupational impairment at any time during the appeal period.  The Board does find it causes total occupational impairment, which supports a TDIU, as discussed below.  Finally, the
 of daily living or trouble maintaining personal hygiene.   

Finally, the Board acknowledges that the Veteran and his daughter reported at the hearing that he sometimes forgets their names.  They did not indicate how frequently this occurred, and it is not otherwise shown in the record.  Although this is a symptom that is listed as potentially causing a 100 percent rating, the Board does not find this this symptom, which is apparently intermittent, warrants a 100 percent in this case, without additional significantly severe symptoms.

In sum, the Board does not find that PTSD causes total social and occupational impairment at any time during the appeal period.  The Board does find it causes total occupational impairment, which supports a TDIU, as discussed below.  Finally, the Board finds that the record raises the issue of whether the Veteran is entitled to SMC based on the need for aid and attendance on account of his PTSD, which is remanded for additional development.

3. A TDIU effective from August 28, 2009, is granted.

When any impairment of mind or body sufficiently renders it impossible for the average person to follow a substantially gainful occupation, that impairment will be found to be causing total disability.  38?C.F.R. §?3.340.  If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age.  38?C.F.R. §?3.341.  In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability.  38?C.F.R. §?4.15.  

If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher.  The existence or degree of nonservice-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran's service-connected disabilities render her incapable of substantial gainful employment.  38?C.F.R. §?4.16(a).

Here, the record shows the Veteran completed one year of college.  He was a truck driver, last working full time in 1995.  The AOJ found that his PTSD symptoms resulted in him only being capable of performing marginal employment, and that TDIU was awarded effective February 26, 2018, based on meeting the schedular requirements, discussed above.  As of this decision, he meets the schedular requirements as of August 28, 2009, and the Board finds a TDIU is warranted from then.

Indeed, in November 2012, his treatment provider opined the Veteran's startle response, lack of control of his frustration response, restlessness, uneasiness, avoidance of many situations, and problems with maintaining attention and concentration would make it very difficult for him to hold onto a job for any length of time.  The March 2016 VA examiner opined that he would likely not be able to function consistently in a work setting.  Certainly, his sleep impairment, present for the entire period on appeal, would make it unsafe for him to work as a truck driver.  

Accordingly, the Board finds that his TDIU is warranted from August 28, 2009, and this appeal is granted.   

REASONS FOR REMAND

1. The claim of entitlement to SMC based on the need for aid and attendance is remanded.

During the Veteran's personal hearing, he reported that one of his daughters had moved in with him to help him with his day-to-day living.  His VA treatment records show that she provides caregiving assistance with meals and chores.  The Board finds that this evidence raises the issue as to whether his PTSD symptoms cause the need for aid and attendance.  The need for aid and attendance may be found when there is mental incapacity that requires him to have care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment.  38?C.F.R. §?3.352(a).  The record shows that he has been diagnosed with status post CVA and vascular dementia, and it is not clear whether it is possible to separate the symptoms of that from his PTSD or whether his PTSD causes incapacity
 to help him with his day-to-day living.  His VA treatment records show that she provides caregiving assistance with meals and chores.  The Board finds that this evidence raises the issue as to whether his PTSD symptoms cause the need for aid and attendance.  The need for aid and attendance may be found when there is mental incapacity that requires him to have care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment.  38?C.F.R. §?3.352(a).  The record shows that he has been diagnosed with status post CVA and vascular dementia, and it is not clear whether it is possible to separate the symptoms of that from his PTSD or whether his PTSD causes incapacity that would require the need.  The Board notes that it is only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance, and not that there is a constant need.  Id.

?

The matters are REMANDED for the following action:

After any indicated development, adjudicate the issue of SMC based on the need for aid and attendance.

 

 

Nathaniel J. Doan

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Gibson, Amanda

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.