Citation Nr: 18143925 Decision Date: 10/23/18 Archive Date: 10/22/18 DOCKET NO. 18-26 099 DATE: October 23, 2018 ORDER An initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. Special monthly compensation (SMC) based on the need for aid and attendance of another person is denied. FINDINGS OF FACT 1. The Veteran’s PTSD is manifested by no more than occupational and social impairment with deficiencies in most areas; the evidence of record does not reflect that the Veteran has total occupational and social impairment. 2. The Veteran is not shown to have the anatomical loss or loss of use of both feet, or of one hand and one foot, or to be blind in both eyes, with 5/200 visual acuity or less, or to be permanently bedridden as a result of service-connected disability, or to otherwise be so helpless as to be in need of regular aid and attendance as a result of service-connected disability. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 70 percent for PTSD have not been met. 38 U.S.C § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9411. 2. The criteria for an award of SMC based on the need for aid and attendance are not met. 38 U.S.C. §§ 1114(l), 5107; 38 C.F.R. §§ 3.102, 3.350, 3.351, 3.352, 4.3. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1942 to October 1945. The matter of entitlement to a higher initial rating for PTSD is before the Board of Veterans’ Appeals (Board) on appeal from a July 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The issues were previously remanded by the Board in May 2018. In the May 2018 Board remand, the Board found that the Veteran’s record supported an inferred claim for entitlement to SMC based on aid and attendance and SMC based on housebound status. A rating decision of July 2018 granted SMC based on housebound status from April 27, 2017; as such, that issue is no longer before the Board. A rating decision of September 2018 denied SMC based on aid and attendance. As such, that issue is before the Board. 1. Entitlement to an initial rating in excess of 70 percent for PTSD The Veteran contends that his PTSD is worse than was indicated at his July 2017 VA examination. The May 2018 Board decision granted an initial rating of 70 percent and remanded for additional evidence to support the Veteran’s contention of more severe symptomatology. Following the May 2018 Board remand, the Veteran has not submitted any additional lay or medical evidence specifically relating to his PTSD. He has submitted a VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance. Moving to the necessary analysis, disability ratings are determined by comparing a Veteran’s symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Of note, the competence, credibility, and probative (relative) weight of evidence, including lay evidence must be assessed. See generally 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the unique and readily identifiable features of a medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds that an initial rating in excess of 70 percent for the Veteran’s PTSD is not warranted. The regulations establish a general rating formula for mental disorders. 38 C.F.R. § 4.130. Under the General Rating Formula, a 100 percent rating is warranted 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. 38 C.F.R. § 4.130, DC 9411. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). On the other hand, if the evidence shows that the veteran has symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. The Federal Circuit has embraced the Court’s interpretation of the criteria for rating psychiatric disabilities as set out in Mauerhan. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Board notes that it has reviewed all the evidence in the Veteran’s claims file, with an emphasis on the evidence relevant to the appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. In June 2017, the Veteran submitted a lay statement and reported that he experienced anxiety, nightmares, crying spells, isolationist tendencies, severe panic attacks, severe mood swings, and suicidal ideation. At the July 2017 VA examination, the Veteran reported flashbacks, frequent panic attacks, and occasional neglect of personal appearance and hygiene. He indicated that he was depressed a lot and had occasional crying spells. He denied suicidal ideations. The VA examiner documented symptoms of depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty making and maintaining relationships. The examiner noted the Veteran’s appearance was casual and appropriate and he was alert and oriented in all spheres. He was cooperative and friendly. His thought process was unremarkable and his speech was within normal limits. He did not report any perceptual abnormalities. His affect was appropriate and mood was depressed. His insight and judgment were adequate. The Veteran also reported that he isolates himself socially and has no close friends, even though he has maintained a good relationship with his children and grandchildren. He also had been married for 73 years until his spouse’s death several months prior to the examination. On the May 2018 VA Form 9, Substantive Appeal, the Veteran’s son reported that the Veteran had total social and occupational impairment due to his PTSD symptoms. That the Veteran can no longer live alone as he experiences severe panic attacks multiple times a week, some of which have resulted in attacks on the Veteran’s son, medical staff, or threats to other assisted living patients. Further, that they have moved the Veteran to a mental health ward and may be removed from the facility as he has become a danger to the staff and others. Additionally, the Veteran’s son argued that the Veteran is no longer able to independently accomplish necessary tasks of daily living. Finally, the Veteran’s son asserts that the Veteran has severe memory loss, cannot manage his own financial affairs, has severe bouts of depression during which he isolates himself and cannot maintain his own personal hygiene. In June 2018, the Veteran submitted a VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, which indicated that as a result of the Veteran’s hearing loss, anxiety, PTSD, and vision problems require him to need assistance with all activities of daily living, specifically including meal prep and medication management, specifically for confusion, depression, anxiety, hearing loss, and poor vision. Further, that the Veteran cannot manage his own financial affairs due to confusion and delusions, that he has memory loss, hallucinations, and that he is suffering from episodes of exacerbations of symptoms. To warrant a 100 percent disability rating, the Veteran’s PTSD symptoms must reflect total social and occupational impairment due to symptoms such as gross impairment in thought processes, persistent hallucinations or delusions, intermittent inability to perform activities of daily living, grossly inappropriate behavior; persistent danger of hurting self or others; disorientation to time or place; memory loss for names of close relatives, own occupation or own name. Although the Veteran has been shown to be totally occupationally impaired due to his service-connected PTSD, the frequency, duration, and severity of his symptoms do not more nearly approximate total social impairment. The evidence of record does not reflect that the Veteran suffers from gross impairment in thought processes, persistent delusions or hallucinations, or grossly inappropriate behaviors. Although the evidence reflects episodes of the Veteran being a danger to himself or others during panic attacks, the frequency, duration, and severity of these episodes has not been shown to more nearly approximate him being a persistent danger to himself or others or to have grossly inappropriate behavior. The July 2017 VA examination and VA Form 21-2680 does not indicate that the Veteran is a danger to himself or others. The record further reflects that he maintains close relationships with his three children. The Board notes that the Veteran’s son has submitted lay statements that his father’s condition causes total social and occupational impairment, that the Veteran has attacked people in the process of panic attacks, that he has hallucinations and delusions, and requires assistance with all daily activities. Consideration has been given to the Veteran’s son’s assertions that the Veteran’s PTSD symptoms are worse than was reflected in the Veteran’s June 2017 VA examination. However, the Veteran’s lay statements and the symptomatology noted in the VA examination are more probative. See Jandreau, 492 F.3d at 1377; Kahana, 24 Vet. App. at 435. The Board acknowledges that the Veteran’s son is competent to report observable symptoms, and does not dispute that the Veteran requires assistance with daily activities, medication management, and has memory difficulties; however, a medical professional has not suggested that such symptoms are due to the Veteran’s PTSD. The Veteran’s son is not shown to possess the requisite medical training, expertise, or credentials needed to render a competent opinion as to the nature of symptomatology. Nothing in the record demonstrates that he received any special training or acquired any medical expertise in evaluating these disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, the lay evidence has little weight of probative value regarding whether the observable symptoms are due to the Veteran’s PTSD. As such, a preponderance of the evidence is against a finding that the frequency, severity, and duration of the Veteran’s symptoms result in total occupational and social impairment. As such, the Board concludes that a higher 100 percent rating for PTSD is not warranted, and the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. 49. 2. Entitlement to SMC for aid and attendance As noted above, the issue of entitlement to SMC based on aid and attendance of another person was inferred in the record and remanded for additional development in the May 2018 Board decision. SMC for aid and attendance was denied in a September 2018 rating decision. SMC at the aid and attendance rate is payable when a veteran, due to service-connected disability, has the anatomical loss or loss of use of both feet, or of one hand and one foot, or is blind in both eyes, with 5/200 visual acuity or less, or is permanently bedridden or has such significant disabilities as to be in need of regular aid and attendance. 38 C.F.R. § 1114(i); 38 C.F.R. § 3.350(b), 3.352(a). The following criteria will be considered in determining the need for regular aid and attendance: inability of a claimant to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; inability to feed himself through the loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. 38 C.F.R. §§ 3.350(b)(3) and (4), 3.352(a). It is only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance due to service-connected disability, not that there be a constant need. See 38 C.F.R. § 3.352(a); Prejean v. West, 13 Vet. App. 444 (2000). Determinations that a veteran is so helpless, as to be in need of regular aid and attendance, will not be based solely upon an opinion that the veteran’s condition is such as would require him to be in bed. Such determinations will be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352(a). As noted in the prior Board remand, the Veteran’s record does not contain much medical evidence and upon remand, the only additional documentation submitted included a completed VA Form 21-8940, Application for Increased Compensation Based on Unemployability, and VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance. VA Form 21-2680, completed by Dr. C.P., reflects that the Veteran has disabilities of hearing loss, PTSD, benign prostatic hyperplasia, urinary retention, and generalized anxiety disorder. The physician noted that the Veteran is unable to make good decisions due to confusion, requires assistance with all activities of daily living, has poor vision, requires assistance with meal preparation and medication management, specifically management of medications for confusion, depression, anxiety, poor vision, and poor hearing. Dr. C.P. noted that the Veteran’s upper extremities were limited in terms of fine motor movement due to poor vision and generalized weakness. She indicated that he had lower extremity weakness and decreased range of motion and muscle weakness. He also had decreased range of motion of the spine, trunk, and neck. She also indicated that the Veteran had significant memory loss and confusion, occasional hallucinations and delusions, required a walker due to frequent falls, had a permanent catheter and bowel incontinence, and complained of PTSD symptom exacerbations. In the Veteran’s May 2018 VA Form 9, the Veteran’s son reported that the Veteran must now live in an assisted living facility and that he regularly has severe panic attacks. Further, that the Veteran’s service-connected psychiatric disorder renders him unable to protect himself from his daily environment or independently accomplish necessary activities of daily living. The Veteran is service connected for PTSD, bilateral hearing loss, and tinnitus. While it is apparent that the Veteran requires assistance with meal preparation and medication management, there is no indication that the Veteran’s service-connected PTSD, hearing loss, or tinnitus are the sole cause of this. Notably, Dr. C.P. noted the Veteran had lower and upper extremity weakness and poor vision, none of which are service connected. Also, while the Veteran no doubt requires assistance with activities of daily living due to confusion and limited mobility, the competent medical evidence of record does not reflect that the Veteran, as applicable in this case, is unable to dress or undress himself, keep himself ordinarily clean and presentable, is unable to feed himself due to loss of coordination of the upper extremities, or incapacity, physical or mental, which requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment as a result of his service-connected disabilities. The Board acknowledges that the Veteran, and his son, are competent to report on those aspects of the Veteran’s life which are capable of lay observation. See Layno v. Brown, 6 Vet. App. 465 (1994). Specifically, that the Veteran is a danger to oneself or others while he is suffering from a panic attack related to his service-connected PTSD. However, the June 2018 VA Form 21-2680 does not reflect that the Veteran is a danger to himself or others or that he requires assistance to avoid the hazards of daily living. The Board acknowledges that the Veteran’s son is competent to report observable symptoms, and does not dispute that the Veteran requires assistance with daily activities, medication management, and has memory difficulties; however, the Board finds the June 2018 VA Form 21-2680, completed by a physician, to have more weight of probative value than the Veteran’s son’s report of the Veteran’s condition. See Jandreau, 492 F.3d at 1377; Kahana, 24 Vet. App. at 435. The Board finds that the Veteran’s service-connected disabilities are not to a level of severity that would require regular assistance with activities of daily living. Thus, the preponderance of the evidence is against finding that the criteria for SMC based on a need for regular aid and attendance of another person are met, and the claim must be denied. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD LM Stallings, Associate Counsel