Citation Nr: 1703690 Decision Date: 02/07/17 Archive Date: 02/15/17 DOCKET NO. 09-33 754 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance or on account of being housebound. REPRESENTATION Appellant represented by: Loreain Tolle, Agent WITNESSES AT HEARING ON APPEAL Veteran and Appellant ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty from January 1965 to January 1969. He died in February 2013. His surviving spouse has been substituted in this appeal by the Regional Office (RO) and she was notified in a May 2013 notice letter. See 38 C.F.R. § 3.1010 (2016). This case comes before the Board of Veterans' Appeals (Board) on appeal from April 2009, and July 2009 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In April 2011, the Veteran and his wife testified at a hearing before the undersigned Veterans Law Judge at the RO. They both also testified at the RO before a Decision Review Officer (DRO) in May 2010. Transcripts of both hearings are of record. In January 2012 and January 2013, the Board remanded the case for further action by the originating agency. The case has now returned to the Board for further appellate action. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issue of entitlement to SMC based on the need for regular aid and attendance or on account of being housebound is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The competent medical evidence, and competent and credible lay evidence, demonstrates that during the entire period on appeal, the Veteran's PTSD resulted in total occupational and social impairment. CONCLUSION OF LAW The criteria for a 100 percent evaluation for PTSD have been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When an appeal arises from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's PTSD disability is evaluated pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. When evaluating a mental disorder, consideration shall be given to the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The evaluation will be based on all the evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of examination. It is the responsibility of the rating specialist to interpret reports of examinations in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. Under the provisions of Diagnostic Code 9411 a rating of 70 percent is assignable for 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 work like setting); inability to establish and maintain effective relationships. A rating of 100 percent is assignable for 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. When determining the appropriate disability evaluation to assign, the Board's primary consideration is a Veteran's symptoms, but it must also make findings as to how those symptoms impact a Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score, which is defined by DSM-IV as a number between zero and 100 percent, that represents the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health illness. Higher scores correspond to better functioning of the individual. The GAF score and the interpretations of the score are important considerations in rating a psychiatric disability. See, e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, the GAF scores assigned in a case, like an examiner's assessment of the severity of a condition, are not dispositive of the rating issue; rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126 (a). GAF scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994). Private evaluations, dated in January 2009, August 2009, and May 2010, indicated that the Veteran went through several surgical procedures during the prior year that caused his PTSD symptoms to deteriorate. He spent several weeks in a VA hospital and developed a feeling of hopelessness over his condition. The provider stated that the Veteran "should be rated at 100% for [PTSD] with house bound total and permanent." The provider noted that the Veteran had a depressed mood, was anxious over his physical condition, had a blunt affect, agitated motor behavior, verbose speech, normal thought processes, normal perception, poor memory, poor judgment, and poor insight. He was not a threat to himself or others. He was noted to be very dependent on his wife for daily routines and guidance when it came to taking his medication. She had to be alert for him in noting his actions. He stayed at home 95 percent of the time. He went to individual counseling sessions and group therapy. He spent time at his doctor's offices. The provider stated that the Veteran was house bound. In August 2009 the provider added that the Veterans social functioning continued to suffer due to his not being able to join in conversations where he could be heard adequately due to his speech down to a whisper related to a problem with his esophagus. The Veteran's depression was medicated, but the symptoms were noted to be secondary to his PTSD. In May 2010 the provider added that the Veteran continued to have total social impairment that affected his family life, judgement, and thinking. In January 2009, August 2009, and May 2010 the Veteran was diagnosed with chronic PTSD severe with unemployability total and permanent. In January 2009 and August 2009 he was assigned a GAF score of 38 and in May 2010 he was assigned a GAF score of 37. In February 2009 a VA psychiatrist reported that the Veteran's PTSD had been worsening since several psychosocial stressors especially the complication of the esophageal cancer have contributed to the worsening of the clinical picture. The Veteran was afforded a VA medical examination in April 2009. The Veteran was noted to have a worsening of his PTSD symptoms while undergoing medical procedures. Since the surgery he had suffered from sleep disturbance, extreme social withdrawal, increased irritability, and anger. He had severe avoidance and complete loss of prior interests. He was pushing friends away. He rarely left his home. He was withdrawn from friends and family. His wife accompanied him to the examination and reported that he exploded over minor issues. He had grabbed his granddaughter because she was irritating him. He had poor concentration and this impaired his reading. He was hypervigilant. He sold his car because he no longer felt comfortable driving and this increased his social isolation. The examiner reported the private evaluation results. It was noted that the Veteran continued individual therapy but he has withdrawn from group therapy and only attended once every three weeks. The Veteran retired in 2000 after 32 years putting up billboards. Thereafter he attempted to drive a school bus. His PTSD symptoms interfered with his ability to do the job. He was irritable and anxious with the teenagers who were on his bus. He had problems with concentration and forgetfulness and at times would forget to pick up children at their stop. He retired from that job after several years. The examiner noted that the Veteran was "clearly unable to work at this time due to his sleep disturbance, anger and irritability, poor concentration, and extreme withdrawal." He was married to his wife for 31 years. He was close with his wife, daughter, and grandchildren. He was pushing his friends away. He no longer went to a yearly reunion. The examiner found that the Veteran was extremely socially isolated at the time and was very dependent on his wife for any social contact. There was no impairment of thought processes or communication. He denied hallucinations and there was no evidence of a thought disorder. His wife forced him to shower every one to two days or else he would not bother. She also forced him to shave and brush his teeth. He had difficulty maintaining his home and providing for himself. He could not concentrate well enough to pay bills or handle finances. The examiner noted that the Veteran was dependent on his wife for companionship and for encouragement to engage in any activities. He was socially withdrawn and isolated with the exception of his wife, daughter, and granddaughter. The examiner stated that the Veteran's symptoms were worsening particularly in the areas of anger and irritability, social withdrawal, loss of interest, poor concentration, sleep disturbance, hypervigilance, and general withdrawal and isolation from people. The examiner assigned a GAF of 35 reflecting a severe level of symptoms and major impairment in all areas including mood, social relationship, work ability, and thinking. The Veteran's PTSD was more likely than not increasing in severity as a result of the stress of his physical illnesses combined with his physical limitations and prior severe PTSD. The Veteran had a major depressive disorder which was more likely than not in reaction to his physical illness, and in combination the Veteran's more severe PTSD and major depressive disorder are more likely than not contributing to a greater level of disability in the Veteran that was likely to be permanent and total. Based on the Veteran and the Veteran's wife's comments about his physical limitations and the severity of his psychiatric illness, the Veteran appeared to be housebound. He left his house very, very infrequently and then only with the complete aid of his wife. In May 2010 a VA psychiatrist reported that the Veteran had severe, chronic PTSD with ongoing symptoms. The Veteran was afforded a VA examination in June 2010. It was noted that he spent most of the day watching television. He went to a PTSD group. Because of the PTSD and the effects of his esophageal cancer surgery, the Veteran did not like to go out very much but could go out if he chose. It was noted that earlier in the year he and his wife took a four-day bus trip. PTSD examination was performed and a diagnosis of PTSD found to be appropriate as was major depressive disorder secondary to his cancer. The Veteran indicates that his primary reason for not wanting to leave the house is because of his lack of motivation related to his major depression and his cancer and also most importantly the fact that it is difficult for him to communicate because he cannot talk and he finds it hard to breathe when he is being active. The Veteran s PTSD was not cited as interfering with public activity with the exception of his being anxious and hypervigilant in crowded situations and unfamiliar situations. The Veteran reported that he had recurrent and intrusive distressing recollections of traumatic events every day and that he might continue to think about these events for up to days at a time. He also had recurrent distressing dreams of the event about two or three times per week. He remembered them when he awakens and finds them to be very intense and severe and his wife also indicated that he tosses and turns throughout the night seeming as if he is dreaming and having vivid dreams. Again the Veteran reported that the severity and intensity is such that he dreams in full color. The Veteran also experienced both psychological and physiological distress at exposure to traumatic memories. Psychologically the Veteran stated that he felt worthless and nervous. Physiologically the Veteran stated that his hands shake "constantly." Both he and his wife denied that there was a physical medical explanation behind his shaking hands. The Veteran stated that he avoided talking about Vietnam to other people unless they were fellow Veterans "who understand it." He also avoided activities and places that arouse recollections of the trauma such as crowded situations. He had some difficulty recalling all aspects of the trauma noting that some pieces of his memory were missing. He stated he had a markedly diminished interest in significant activities and had lost interest in things like woodworking. He had a significant sense of feeling detached or estranged from other people and states that he keeps to himself except in the case of the Veterans with whom he attended group meetings. The Veteran stated that he had difficulty staying asleep stating that he woke up several times throughout the night at least two or three times per week. He had significant irritability and outbursts of anger noting that he becomes very angry and protective when he feels that his family is being threatened. He had had multiple verbal arguments with other people. The Veteran also stated that he has hypervigilance especially in crowded situations and therefore avoided them and he did have a startle response to certain smells which included smoky situations such as people smoking a cigar. The examiner summarized that the Veteran had experienced a significant increase in PTSD symptoms since his surgery in 2008. The examiner noted that the Veteran had been retired since 2000 and had worked for 32 years in outdoor advertising putting up billboards. The Veteran stated that a major benefit of the job was that he could work alone because the Veteran's symptoms would not allow him to work with other people. After retiring from that job due to sale of the company he tried to drive a school bus for several years but had to quit due to memory problems and difficulty concentrating. He would become easily confused and had forgotten to pick up several children. The examiner noted that it appeared from prior report that the Veteran's PTSD interfered with employment in that the Veteran was unable to work with other people and his later difficulty concentrating also had some impact on his ability to drive a school bus The Veteran and his wife agreed that the Veteran's PTSD has significantly impacted his social functioning. At that time they had been married for 39 years and had a 32-year-old daughter and a three-year-old grandchild. The Veteran stated that he got along with all of his family members. However, he stated that his family and the Veterans in his group were the only people with whom he was close. Otherwise he preferred to stay to himself and stated he had pulled away from other people once he was diagnosed with cancer. He spent most of his time alone or with his wife and spent his day watching television. He used to enjoy playing with his dog but found that he had lost interest in doing that since it had been more difficult for him to talk and be active due to his cancer and tracheotomy. It appeared that the Veteran's symptoms and impairments both of PTSD and major depression interfered with his social relationships and social functioning. The Veteran had become additionally reclusive since his surgery in 2008 and therefore had experienced significant and increased impairment due to the symptoms of PTSD and major depression. His thought process was mostly intact although he became tangential at some points during interview. However he was easily redirected. He denied suicidal or homicidal ideation or auditory or visual hallucinations. His memory and judgment were intact for the purposes of this interview. Although the examiner first noted that the Veteran was neatly groomed at the examination, the examiner continued to state that the Veteran's hygiene was fairly poor. The Veteran stated that he does not worry about showering or shaving unless he knew he was going out and those days were few and far between. The examiner noted that the Veteran met the criteria for PTSD and MDD due to cancer, and assigned a GAF score of 40. At the hearing before the undersigned in April 2011 the Veteran's representative noted that the Veteran had one job putting up billboards mostly by himself. He did not handle a job well of driving a school bus. The Veteran's spouse reported that the Veteran no longer drove and that she took him to all of his meetings and doctors because the Veteran gets confused. She noted that she quit her job to take care of him. The Veteran noted that he enjoyed going to groups. But he did not go as much because he cannot be heard. In the January 2013 remand, the Board noted that the Veteran had been diagnosed with major depressive disorder due to cancer treatment, but the record did not adequately differentiate between the symptoms associated with the service-connected PTSD and nonservice-connected depressive disorder. It was contemplated that an examination conducted on remand would provide that information. Unfortunately, the Veteran died in February 2013, before the examination could be conducted. The RO did not attempt to obtain a medical opinion after the Veteran's death; thus, the Board is reviewing the evidence of record that predated his death. VA treatment records during the period on appeal reveal that the Veteran was accompanied by his wife to treatment appointments. He had discrete episodes of intense anxiety. The Veteran was not suicidal or homicidal and did not have hallucinations. The Veteran was noted to love spending time with his granddaughter. He tried to get out and do more things but found it physically hard at times. He had irritability and anxiety but noted that it was under control. Mental status examinations revealed lessening arm and hand tremors. He denied hallucinations, delusions and homicidal ideation. Cognition was grossly intact and thought process was linear and logical. On occasion he noted passive suicidal ideation. In February 2013 VA treatment records reveals that the Veteran would use Xanax to treat a persistent "acute panic attack." He was oriented to setting and circumstances. He was noted to have severe PTSD and anxiety. The Veteran was recommended Haldol. In another note in February 2013 the Veteran was noted to have done well on Xanax. Mood was pretty good, cognition was intact to setting and circumstances. The Veteran was behaviorally stable with good suppression of PTSD symptomatology on Xanax. Affording the Veteran the benefit of the doubt, the Board finds that entitlement to an evaluation of 100 percent for PTSD is warranted for the entire period on appeal. During the entire period on appeal the Veteran had problems with memory, did not leave home without being accompanied by his spouse, avoided social interaction with the exception of his close family and group meetings, poor hygiene, significant irritability, outbursts of anger, and required the assistance of his wife with managing his medication and the finances. A private provider noted that the Veteran had chronic, severe PTSD with unemployability. He was assigned GAF scores of 37, 38, and 40, which are reflective of some impairment in reality testing or communications or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. Although the Veteran had major depressive disorder, his symptoms were secondary to his PTSD. A VA examiner in April 2009 noted that the Veteran could not work due to his sleep disturbance, anger and irritability, poor concentration, and extreme withdrawal. VA treatment records in February 2013 noted panic attacks and the need for Xanax to control the attacks. The records also revealed tremor of the arm and hand due to his anxiety. As Veteran's PTSD symptoms were of such severity as to render him totally occupationally impaired and, in essence, totally socially impaired, the Board grants entitlement to a 100 percent evaluation for the period on appeal. ORDER An evaluation of 100 percent is granted for PTSD, subject to regulations governing payment of monetary awards. REMAND The Veteran sought SMC based on the need for aid and attendance or on housebound status. SMC is payable to a Veteran for anatomical loss or loss of use of both feet, one hand and one foot, blindness in both eyes with visual acuity of 5/200 or less, or being permanently bedridden or so helpless as a result of service-connected disability that he or she is in need of the regular aid and attendance of another person. 38 U.S.C.A. § 1114 (l); 38 C.F.R. § 3.350 (b). To establish entitlement to SMC based on housebound status under 38 U.S.C.A. § 1114 (s), the evidence must show that a Veteran has a single service-connected disability evaluated as 100 percent disabling and an additional service-connected disability, or disabilities, evaluated as 60 percent or more disabling that is separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or, the Veteran has a single service-connected disability evaluated as 100 percent disabling and due solely to service-connected disability or disabilities, the Veteran is permanently and substantially confined to his or her immediate premises. 38 C.F.R. § 3.350 (i). Upon examination in June 2010 the Veteran was found to not be in need of aid and attendance and to no be housebound. The examiner noted that the Veteran was able to identify and respond appropriately to dangers or hazards in his daily environment. He was independent with toileting, bathing, dressing, and shaving. His wife prepared the meals and cleaned the home. She also dispensed his medications because he often would forget to take them. Veteran got up in the morning went to the bathroom and may not get dressed if he had no reason to go out that day. He spent most of the day watching television. He went to a PTSD twice a week. The examiner noted that at that time, the Veteran's spouse worked 3 hours a day and that the Veteran was alone during that period. As noted above, the examiner noted that because of the PTSD and the effects of his esophageal cancer surgery he did not like to go out very much but could go out if he choose. The examiner noted that earlier in the year he and his wife took a four-day bus trip. At a hearing before a DRO in May 2010 the Veteran's spouse reported that she worked part time, 3 hours a day close to home. She left work in May, before his surgery and returned in December. At the hearing before the undersigned in April 2011 the Veteran was noted to not leave the house without the aid of his wife. The Veteran's wife reported that she used to work but quit her job because she did not feel comfortable leaving him for any length of time. Thereafter, in a statement dated in January 2013 a VA provider noted that the Veteran has tried to be as independent as possible during all of the surgery and multiple chemotherapy treatment that followed. She stated that the Veteran was mostly homebound. He came out for his medical appointments but nothing else. He no longer drove. He had poor concentration. He was fatigued most of the time. He spent his day sitting in a chair. He had little strength to do anything else. He got depressed and relied on his wife for his care. She had taken over managing the household including his medications, meals, fluids, and chores. While the January 2013 statement indicates that the Veteran relied upon his wife for care and, along with the evidence above regarding PTSD, was homebound, it is unclear at what point the Veteran's condition became this severe. It is further, unclear whether the Veteran's PTSD alone causes the Veteran to require aid and attendance or render him home bound. As such, the Board finds that a retrospective medical opinion is necessary to determine when the Veteran first required the care of his wife and whether the Veteran is in need of aid and attendance or is housebound solely due to his service connected PTSD. Chotta v. Peake, 22 Vet. App. 80 (2008). 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. Forward the claims folder to an appropriate examiner to obtain a retrospective opinion as to impairment caused to the Veteran's ability to dress or undress, or to keep herself ordinarily clean and presentable and protect himself from the hazards or dangers incident to his daily environment due solely to the Veteran's service-connected PTSD, for the period prior from February 2009 to February 2013. The examiner should comment upon when the impairment arose. The examiner must also offer a retrospective opinion as to impairment caused to the Veteran's ability to leave his immediate premises due solely to PTSD, for the period from February 2009 to February 2013. The examiner should comment upon when the impairment arose. The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 2. Upon completion of the above, readjudicate the claim. If the benefit sought on appeal remains denied, issue the Appellant and her representative a supplemental statement of the case and provide an opportunity to respond. The appellant 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). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs