Citation Nr: 1750126 Decision Date: 11/03/17 Archive Date: 11/13/17 DOCKET NO. 10-18 973A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial rating greater than 10 percent for posttraumatic stress disorder (PTSD) prior to February 1, 1995. 2. Whether clear and unmistakable error exists in a May 1995 rating decision, as to the assigned effective date of February 1, 1995 for an increased PTSD disability rating to 100 percent. 3. Entitlement to a special monthly compensation (SMC) based on need for aid and attendance. (The issues of entitlement to an initial rating in excess of 10 percent prior to September 26, 2013 and in excess of 30 percent thereafter for right upper extremity peripheral neuropathy; entitlement to an initial rating in excess of 10 percent prior to September 26, 2013 and in excess of 20 percent thereafter for left lower extremity peripheral neuropathy; and entitlement to an initial rating in excess of 10 percent prior to September 26, 2013 and in excess of 20 percent thereafter for right lower extremity peripheral neuropathy will be addressed in a separate decision.) REPRESENTATION Veteran represented by: Kenneth M. Carpenter, Attorney-at-Law ATTORNEY FOR THE BOARD S. Kim, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1969 to September 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 1995, December 2007 and October 2010 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio and New York, New York, respectively. Jurisdiction is currently with the RO in Cleveland, Ohio. At its core, the Veteran seeks a total rating (100 percent) for all times since he filed his service-connection claim for PTSD on November 16, 1993. The Board is granting this claim in full below. Pertinently however, the procedural history of the case must be summarized to clarify how the Board is reaching this determination. VA received the Veteran's service-connection claim for PTSD on November 16, 1993. The RO awarded service connection for PTSD in a January 1995 rating decision, assigning an initial 10 percent rating, effective November 16, 1993. In that decision, the RO also awarded two temporary total ratings based on the provisions of 38 C.F.R. § 4.29. Crucially, the Veteran filed a Notice of Disagreement (NOD) as to this initial rating that was received by VA in February 1995. Indeed, the Veteran mailed VA a copy of its January 1995 letter [which notified the Veteran of his service-connection award] and specifically annotated on that letter the following message: "I disagree with only 10% and feel I should be rated much higher." It does not appear the RO acknowledged this NOD. In a May 1995 rating decision, upon receipt of evidence discussing the severity of the Veteran's PTSD, the RO (1) extended a temporary total rating already in effect from October 6, 1994 to January 31, 1995; and (2) awarded a 100 percent rating for PTSD from February 1, 1995 to the present day. Although the May 1995 rating decision stated this was a full grant of the benefit sought, it did not actually award the highest possible rating at the earliest possible date. Indeed, as noted above, the Veteran had specifically disagreed with the initial 10 percent rating assigned as of November 16, 1993 just three months prior to this decision. Insofar as the rating decision did not award a 100 percent rating as of the date of claim, it did not constitute a full grant of benefits sought. See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). Although the Veteran requested reconsideration of the February 1, 1995 effective date in July 1995, the RO sent the Veteran a letter later that month indicating an earlier effective date for the 100 percent rating was unavailable. In 2007, the Veteran requested revision of the May 1995 rating decision, alleging that the RO made a clear and unmistakable error (CUE) in failing to award an effective date of November 16, 1993 for the increase to a 100 percent rating for PTSD. The RO denied this claim in the above referenced December 2007 rating decision. The Veteran disagreed and perfected this appeal. In light of the fact that the Veteran filed a timely NOD with the initial rating (10 percent) assigned by the RO for PTSD in the January 1995 rating decision, and that the May 1995 rating decision awarded an increased rating to 100 percent effective February 1, 1995, but did not grant the full benefit sought in full, the Veteran's initial rating claim remains pending, notwithstanding any allegations of CUE in the May 1995 rating decision. As discussed below, the Board believes that the evidence of record demonstrates that an initial 100 percent rating is warranted for the Veteran's PTSD, effective November 16, 1993. As such, the benefit sought on appeal is granted in full, and the Veteran's CUE claim is rendered moot. The Board adds that it does not need to remand the Veteran's pending initial rating claim to the Agency of Original Jurisdiction (AOJ) at this time so that it may issue the Veteran a Statement of the Case on the matter. Indeed, the RO's April 2010 SOC (which adjudicated entitlement to an effective date prior to February 1, 1995 for the award of the 100 percent PTSD rating, to include on the basis of CUE in the May 1995 rating decision) specifically addressed whether the 100 percent rating may be awarded as of November 16, 1993. The analysis in the SOC focused not only on the elements of CUE, but also on pertinent pre-February 1995 medical evidence, noting that "we are unable to grant an earlier effective date as the medical evidence of record did not warrant a higher evaluation prior to February 1, 1995." [Emphasis added by the Board.] Thus, in its adjudication of the effective date claim to include on the basis of CUE, the RO in effect adjudicated the Veteran's initial rating claim. The Veteran filed a timely substantive appeal, and the Board has recharacterized the issue to reflect its jurisdiction over the initial rating claim above. The RO denied the Veteran's SMC claim based on a need for aid and attendance claim in the above-referenced October 2010 rating decision. The Veteran disagreed, and perfected a timely appeal. With respect to representation, in June 2014, the Veteran executed a VA Form 21-22a (Appointment of Individual as Claimant's Representative) limiting the representation of his private attorney to the issues of entitlement to an earlier effective date for the assignment of a schedular 100 percent rating for PTSD and entitlement to an SMC based on need for aid and attendance. Accordingly, this disposition is limited to those issues, and the remaining issues on appeal will be addressed in a separate decision (as noted parenthetically above). Additional evidence, namely vocational rehabilitation program records, was added to the record after the issuance of a May 2017 Supplemental Statement of the Case. While no waiver of initial agency of original jurisdiction (AOJ) review is of record, the Veteran is not prejudiced with regard to the earlier effective date claim, as this issue is being granted herein, and the evidence contained within the file is not pertinent to the Veteran's initial rating claim. With regard to the SMC claim, that issue being remanded, and the AOJ will have an opportunity to review the additional evidence on remand. The issue of entitlement to an SMC based on need for aid and attendance is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT The evidence favors a finding that the Veteran's PTSD symptoms showed inability to obtain or retain employment since the time he filed the original service connection claim for PTSD. CONCLUSIONS OF LAW 1. The criteria for a 100 percent initial rating for PTSD are met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.132, Diagnostic Code 9411 (1993). 2. The motion for revision or reversal of the May 1995 rating decision on the basis of CUE is dismissed as moot. 38 U.S.C.A. § 5109A (West 2014); 38 C.F.R. § 3.105 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id. at 126. As discussed in the Introduction above, the Veteran claims he is entitled to a 100 percent initial rating for his PTSD, effective the date of his service-connection claim, November 16, 1993. Currently, his PTSD is rated 10 percent disabling from November 16, 1993 to June 11, 1994; 100 percent disabling from June 12, 1994 to July 31, 1994 (under 38 C.F.R. § 4.29); 10 percent disabling from August 1, 1994 to October 5, 1994; 100 percent disabling from October 5, 1994 to January 31, 1995 (under 38 C.F.R. § 4.29) and 100 percent disabling from February 1, 1995 to the present day. The Board will not disturb either period where a temporary total rating has been assigned. The key question is whether a 100 percent initial schedular rating may be assigned for all times prior to, and in between these temporary total ratings. The Board notes that the rating criteria for psychiatric disabilities were revised, effective November 7, 1996. Prior to November 7, 1996, 38 C.F.R. § 4.132, Diagnostic Code 9411 provided for a 100 percent rating when 1) the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community; 2) when there are totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic and explosions of aggressive energy resulting in profound retreat from mature behavior; or 3) when the veteran is demonstrably unable to obtain or retain employment. The Court of Appeals for Veterans Claims (the Court) has held that the Secretary's interpretation that the three criteria set forth above are each independent bases for granting 100 percent. Johnson v. Brown, 7 Vet. App. 95 (1994). As noted by the Veteran's attorney in a February 2007 brief, a January 14, 1994 Psychosocial Assessment confirmed that the Veteran had no income and was homeless. A January 25, 1994 Progress Note indicated that the Veteran was unemployed and that his PTSD symptomatology had caused an inability to adjust since discharge from the military, had resulted in multiple career moves and relocations, and had significantly contributed to the break-up of his family. He was hospitalized on two separate occasions in 1994 for several months due to the severity of his PTSD. In a December 10, 1994 letter, Dr. R.W., a VA psychologist, wrote that he had been treating the Veteran for his PTSD symptoms in a specialized inpatient program at a VA medical center since October 1994 and that the psychologist was "in an excellent position to comment on [the Veteran's] mental status, his diagnosis . . . and his ability engage in work related activities on a sustained basis." The VA psychologist then opined the Veteran "was involved in a number of traumatic experiences" in Vietnam and as "a direct result of these experiences, [the Veteran] was never able to fully regain any functional capacity when he returned home." [Emphasis in the original]. Dr. R.W. added that the Veteran will be unable to assume any "normal" functional work capacity. In a February 1995 letter, Dr. J.D.B., an assistant professor of psychiatry at a medical university, opined that the Veteran was "totally and permanently disabled due to PTSD" and suggested that such had continued since service given that he "had over 20 jobs since Vietnam" as well was "problems with absenteeism from work which eventually led to his dismissal at different jobs." He had gone through a job retraining program, but he was "unable to perform due to symptoms of PTSD." The Board recognizes that the Veteran has had a history of drug abuse problems that complicate the assessment of his overall disability picture. Pertinently however, Dr. R.W. indicated in his December 10, 1994 assessment that the Veteran would depend on drugs and alcohol to cope with his anxiety. Based on the evidence described above-which specifically attributes the Veteran's inability to obtain or retain employment to his PTSD during the specific time period under review-the Board finds that entitlement to an initial 100 percent rating for his PTSD is warranted under the former diagnostic criteria, effective November 16, 1993. The benefit sought on appeal is granted. The Veteran's March 2007 CUE motion challenging the February 1, 1995 effective date assigned for a 100 percent rating in a May 1995 rating decision is rendered moot, and is therefore dismissed. ORDER An initial 100 percent rating for PTSD is granted, effective November 16, 1993, subject to controlling regulations governing the payment of monetary awards. The motion to revise or reverse a May 1995 rating decision on the basis of CUE is dismissed as moot. REMAND SMC benefits based on need for regular aid and attendance are payable upon being permanently bedridden or so helpless as to be in need of regular aid and attendance due to service-connected disabilities. The criteria for determining that a veteran is so helpless as to be in need of regular aid and attendance and/or permanently bedridden are set forth in more detail in 38 C.F.R. § 3.352(a). 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b). The Veteran contends that his service-connected disabilities, including diabetes and PTSD, require the need for regular aid and attendance of another person. See August 2009 Claim; April and August 2013 statements. The clinical evidence of record suggests that the Veteran is physically constrained and requires assistance and care from others. The Board finds that a new VA examination to obtain additional medical opinion evidence is necessary to ascertain whether he is in regular need of aid and attendance solely due to service-connected disabilities. In this regard, August 2009 and March 21, 2013 VA examinations for housebound status or permanent need for regular aid and attendance (via Form 21-2680) note that the Veteran's nonservice-connected morbid obesity and arthritis restricted his daily activities. In a March 22, 2013 VA examination (via Form 21-2680), a VA treating physician found that the Veteran's service-connected diabetes mellitus as well as an array of nonservice-connected disabilities, including "severe chronic lung disease," sleep apnea, osteoarthritis of the back and knees, and morbid obesity, restricted the Veteran's activities. In January 2013 and October 2014 Home Health Certification forms submitted by the Veteran, the Veteran was shown to be receiving home health care since October 2012, with principal diagnosis listed as nonservice-connected "acute respiratory failure" and pertinent diagnoses listed as diabetes, PTSD, hypertension, and hypoxemia. Further, in a September 2013 VA examination report, the VA examiner found that the Veteran's service-connected diabetes and peripheral neuropathy disabilities alone did not render the Veteran in need of regular aid and attendance as he was "capable of administering his insulin" and his neurological conditions were only "moderate in severity." However, in the opinion, the VA examiner failed to consider service-connected PTSD and the Veteran's contention that he "has memory issues due to his PTSD which causes him to need medication management and help with his hygiene and eating." See April 2013 statement. Also of record is a February 2015 letter from Dr. T.J.B., a private psychologist, who stated that the Veteran's nonservice-connected obesity, found to be one of the conditions restricting his abilities in the referenced examination reports, "may have developed in part due to stress related eating" and was "likely . . . a side effect of the medications he was prescribed for . . . PTSD, depression, and diabetes," which should be addressed in the addendum opinion. Given the time that will pass during the processing of this remand, outstanding VA and private treatment records should be associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran an opportunity to identify any outstanding private or VA treatment records referable to his claim. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. 2. After completing the above development and all outstanding records have been associated with the claims file, arrange for the Veteran to undergo a VA Aid and Attendance examination, by an appropriate physician. All indicated tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report). In particular, considering the nature and level of impairment solely due to service-connected disabilities, the physician should render specific findings as to whether the Veteran is able to dress or undress himself, or to keep himself ordinarily clean and presentable; whether he is unable to attend to the wants of nature; and whether he suffers from mental incapacity which requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. The examiner's attention is specifically directed to the following evidence: 1) the February 2015 letter from Dr. T.J.B, who stated that the Veteran's non-service-connected obesity, found to be one of the conditions restricting his abilities in the referenced examination reports, "may have developed in part due to stress related eating" and was "likely . . . a side effect of the medications he was prescribed for . . . PTSD, depression, and diabetes; and 2) Veteran's April 2013 contention that he "has memory issues due to his PTSD which causes him to need medication management and help with his hygiene and eating." In providing the requested information, the examiner must consider and discuss all pertinent medical and lay evidence, to include the above-referenced clinical records and the Veteran's statements regarding his need for aid and attendance due to service-connected disabilities including PTSD and diabetes. All opinions expressed must be accompanied by supporting rationale. 3. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his attorney should be issued a Supplemental Statement of the Case. The Veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ V. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs