Citation Nr: 1631623	
Decision Date: 08/09/16    Archive Date: 08/12/16

DOCKET NO.  14-35 133A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Evaluation of posttraumatic stress disorder, currently rated as 30 percent disabling effective September 28, 2010, until prior to April 16, 2012.

2.  Evaluation of posttraumatic stress disorder, currently rated as 30 percent disabling effective June 1, 2012, until prior to December 31, 2012.

3.  Evaluation of posttraumatic stress disorder, currently rated as 70 percent disabling effective February  1, 2013, until prior to March 4, 2013.

4.  Evaluation of posttraumatic stress disorder, currently rated as 70 percent disabling effective May 1, 2013, until prior to July 7, 2015.

5.  Evaluation of posttraumatic stress disorder, currently rated as 70 percent disabling effective September 1, 2015, until prior to December 9, 2015.

6.  Evaluation of posttraumatic stress disorder, currently rated as 70 percent disabling effective February 1, 2016.

7.  Entitlement to a total disability evaluation based on individual unemployability.

8.  Entitlement to special monthly compensation.

(The issues of whether new and material evidence has been received to reopen the claim of service connection for hypertension, entitlement to service connection for hypertension, and entitlement to service connection for a heart disorder are addressed in a separate decision under a different docket number).


REPRESENTATION

Appellant represented by:	Jeany Mark, Attorney


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

A. Rocktashel, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1972 to April 1983.  The Veteran received an Army Gold Recruiter Badge with a Third Sapphire Star as the result of his active service.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2010, May 2013, and February 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.

In February 2016, the Veteran testified before the undersigned at a Board hearing held via videoconference.  A transcript of that hearing is of record.

In March 2016, the Veteran's representative submitted additional argument and evidence accompanied by a waiver of the Veteran's right to have this evidence initially considered by the RO.  Accordingly, the Board may consider this evidence in the first instance.  See 38 C.F.R. § 20.1304 (2015).

In July 2014, the Veteran submitted a notice of disagreement as to the effective date of the award of service connection for posttraumatic stress disorder (PTSD).  In September 2015, VA sent a letter notifying the Veteran that the time limit to file a notice of disagreement as to the effective date expired on August 23, 2013.  As of the date of this decision, neither the Veteran nor his representative has filed an appeal as to the September 2015 administrative determination.  Accordingly, the issue of an earlier effective date for the award of service connection for PTSD is not on appeal. 

In a March 2016 correspondence, the Veteran's representative asserts that an examination should be scheduled to determine the Veteran's entitlement to special monthly compensation (SMC) based on the regular need for aid and attendance under 38 C.F.R. § 3.352(a).  As entitlement to SMC is an inferable issue anytime a veteran is asking for increased benefits, see Akles v. Derwinski, 1 Vet. App 118, 121 (1991), the issue of entitlement to SMC is before the Board.  Thus, the issue has been reflected on the title page.    

In June 23, 2016, correspondences, the Veteran reported having financial hardship and impending eviction and requested his case be expedited pursuant to regulations allowing for advancement on the docket.  The Board hereby grants the Veteran's motion to advance the case on the docket.  See 38 U.S.C.A. § 7107(a)(2) (West 2014); 38 C.F.R. § 20.900(c) (2015).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The issues of entitlement to special monthly compensation (SMC) and entitlement to a total disability rating due to individual unemployability (TDIU) are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

Beginning September 28, 2010, and for the entire appeal period, PTSD manifested as total occupational and social impairment.  


CONCLUSION OF LAW

The criteria for an evaluation of 100 percent for PTSD have been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.125, 4.126, 4.130, Diagnostic Code 9411 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015).  The VCAA applies to the instant claim.  Because the action taken herein below is favorable to the Veteran, further discussion of the VCAA is not necessary at this time.

The Veteran seeks a higher evaluation for his service-connected PTSD.  The Veteran's PTSD is evaluated as 30 percent disabling at periods during the appeal period, 100 percent disabling due to hospitalizations at other periods, and 70 percent disabling under still other periods.  PTSD is evaluated under Diagnostic Code 9411.  An evaluation of 100 percent requires total occupational and social impairment.

In this case, the record shows a long and extensive history of psychiatric treatment, including many hospitalizations.  In fact, a large majority of the claims file's extensive medical records are devoted to psychiatric treatment.  The hospitalizations have arisen from PTSD, suicidal ideation, and substance abuse.  On at least one occasion, he presented to an emergency department with homicidal ideation.  See July 2010 VA treatment record.

Although substance abuse is not a service-connected disorder, the November 2013 VA examination resulted in diagnoses of PTSD, Major Depression, and polysubstance dependence.  After opining that occupational and social impairment was present with deficiencies in most areas, the report stated that it was not possible to differentiate what portion of the occupational and social impairment was caused by each mental disorder because there was too much symptom overlap and multidirectional interaction.  The July 2012 VA examination report drew the same conclusion.  When it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability.  38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam).  Accordingly, the Board attributes the impairment due to substance abuse to the service-connected PTSD.

On discharge from his various hospitalizations, the Veteran generally has improved significantly.  Thus, there is a history of remission and recurrence of the symptoms of the disorder.  However, according to a November 2010 opinion from his VA treating psychiatrist of almost fifteen years, the Veteran had chronic difficulties in maintaining relationships and dealing with stressful situations with the end result being that stability in daily functioning was difficult to achieve.  The psychiatrist further opined that the only periods in which the Veteran has functioned well have been when he was enrolled in a long-term treatment program with intensive services.  In May 2014 correspondence, the treating psychiatrist opined that the Veteran cannot hold a job of any sort due to the severity of his PTSD symptoms.

Although the VA examinations have resulted in findings that the Veteran's level of occupational and social impairment is not total, the Board finds the treating psychiatrist's opinions are more probative, as they are based upon years of observation and examination of the Veteran.  In contrast, the VA examiners have interacted with and examined the Veteran only on two brief occasions.  The treating psychiatrist's opinions, together with the evidence of the frequent hospitalizations, shows a disability picture that more nearly approximates a 100 percent evaluation.


ORDER

A 100 percent evaluation of PTSD, effective September 28, 2010, is granted.


REMAND

As discussed in the Introduction above, and because of the outcome of the decision hereunder, entitlement to SMC on the basis of the need for aid and attendance is now an issue in the case.  A remand is necessary because the RO has not evaluated the claim of SMC in the first instance, nor performed any development in relation thereto.  

With respect to the claim for TDIU, the Board observes that TDIU may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  38 C.F.R. § 4.16(a).  

While the Veteran has been assigned a total schedular rating for his service connected PTSD, in Bradley v. Peake, 22 Vet. App. 280 (2008), the Court held that there could be a situation where a veteran has a schedular total rating for a particular service-connected disability, and could establish a TDIU rating for another service-connected disability in order to qualify for SMC under 38 U.S.C. § 1114(s)  (West 2014) by having an "additional" disability of 60 percent or more ("housebound" rate).  Thus, the Veteran could be afforded SMC at the housebound rate if, in addition to his PTSD, he has additional disabilities with a rating of 60 percent or more.  Accordingly, his claims for TDIU for disabilities other than PTSD and SMC are inextricably intertwined with his pending claims for service connection for hypertension and a heart disability.  Thus, the Board will defer adjudication of these issues pending resolution of the appeals of service connection for these disabilities.  

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  The AOJ should conduct any development as may be indicated with respect to the issue of entitlement to SMC as a consequence of the benefits awarded in this decision and adjudication of his pending appeals for service connection for hypertension and a heart disability.  .  

2.  Then, the record should again be reviewed.  If the benefit sought on appeal remains denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. 

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate 

action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs