Citation Nr: 18149825 Decision Date: 11/14/18 Archive Date: 11/13/18 DOCKET NO. 16-57 001 DATE: November 14, 2018 ORDER The portion of the June 2018 Board decision that dismissed the Veteran’s claim for entitlement to a rating in excess of 70 percent for service-connected posttraumatic stress disorder (PTSD) is vacated. A rating in excess of 70 percent for PTSD prior to May 17, 2016 is denied. A 100 percent rating for PTSD from May 17, 2016 and thereafter is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) due solely to PTSD is granted. Special monthly compensation (SMC) based on the need for aid and attendance of another person is granted. REMANDED Service connection for sleep apnea is remanded. FINDINGS OF FACT 1. For the period prior to May 17, 2016, the Veteran’s PTSD manifested itself by symptoms productive of occupational and social impairment with deficiencies in most areas; symptoms productive of total occupational and social impairment was not shown. 2. For the period from May 17, 2016 and thereafter, the Veteran’s PTSD was manifested by total occupational and social impairment. 3. The Veteran’s service-connected PTSD is solely of such nature and severity as to preclude him from securing or maintaining substantially gainful employment. 4. Competent evidence shows the Veteran needs assistance to dress and keep himself ordinarily clean and presentable, and protect him from the hazards or dangers incident to his daily environment, due to his PTSD. CONCLUSIONS OF LAW 1. Prior to May 17, 2016, the criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107(b), 5110; 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code (DC) 9411. 2. From May 17, 2016 and thereafter, the criteria for a rating of 100 percent for PTSD have been met. 38 U.S.C. §§ 1155, 5107(b), 5110; 38 C.F.R. §§ 3.102, 4.130, DC 9411. 3. The schedular requirements for TDIU based solely on PTSD are met, and a TDIU rating based solely on PTSD is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. 4. The criteria for SMC based on the need for regular aid and attendance of another person have been met. 38 U.S.C. §§ 1114(l), 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.350(b), 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from October 1988 to April 1992. Upon review, the portion of the June 2018 Board decision that dismissed the Veteran’s claim for entitlement to a rating in excess of 70 percent for PTSD was in error. VA received an April 2018 letter requesting to withdraw several of the Veteran’s claims, not including his claim for an increased rating for PTSD. The June 2018 Board decision dismissed the Veteran’s claim for an increased rating for PTSD, citing to the April 2018 communication received from the Veteran. No other communication was received from the Veteran requesting to withdraw the claim. The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board’s own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. Accordingly, the portion of the June 2018 Board decision that dismissed the Veteran’s claim for an increased rating for PTSD is vacated, and the issue is back before the Board for adjudication. See 38 U.S.C. § 7104; 38 C.F.R. § 20.904. Regarding the claims of entitlement to a TDIU based solely on PTSD and entitlement to SMC based on the need for aid and attendance, the claims are part and parcel with the Veteran’s increased rating claim for PTSD. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Akles v. Derwinski, 1 Vet. App. 118 (1991). Therefore, although the RO has not issued a statement of the case (SOC) in response to the Veteran’s February 2018 notice of disagreement (NOD) for these issues, the Board has jurisdiction to adjudicate the claims herein. Increased Rating 1. Entitlement to a rating in excess of 70 percent for service-connected PTSD The Veteran’s is assigned a 70 percent rating for PTSD for the entire period on appeal. 38 C.F.R. § 4.130, DC 9411. To warrant a 100 percent rating, the evidence must show the Veteran’s PTSD resulted in 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. For the period prior to May 17, 2016 For the period prior to May 17, 2016, the Board finds total occupational and social impairment was not shown. The Board finds the preponderance of the evidence does not show total occupational and social impairment during this time period. The Board gives great probative weight to the lay statements of the Veteran, his wife, and his father-in-law, regarding the frequency, severity, and duration of the Veteran’s PTSD symptoms during this time period. These individuals are competent to report observable symptoms and the Board finds these statements credible. See Layno v. Brown, 6 Vet. App. 465 (1994). The Board gives great probative weight to the February 2014 and May 2016 VA examiner opinions that the Veteran’s PTSD produced occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. This opinion is consistent with the frequency and severity of symptoms reported in lay statements, treatment visit observations, and the Veteran maintaining employment during this time. The Board gives limited probative weight to the March 2015 private examiner’s opinion that those PTSD symptoms meet the criteria for 100 percent rating. The Board finds the opinion that the Veteran’s PTSD produced total occupational and social impairment is inconsistent with the Veteran’s reported functioning during this time period. During this time period, treatment visits and lay statements show the Veteran experienced PTSD symptoms, to include anxiety attacks, isolation, nightmares, sleep impairment, depression, poor motivation, irritability, anger, easily startled, mild memory loss, low motivation, hypervigilance, low energy, and poor concentration. Despite the strain of these PTSD symptoms, the Veteran maintained relationships with his family. The Veteran reported some difficulty at work during this period, but was able to maintain attendance, relationships, and performance sufficient to sustain employment. The March 2015 opinion noted the Veteran had difficulty staying oriented to time and place, performing activities of daily living, and forgetting the names of family members and coworkers, but the Veteran’s ability to maintain employment during this time reflects he had some ability to perform activities of daily living and function independently. VA treatment notes during this time period consistently observed the Veteran had good hygiene, regular speech, linear and goal-directed thought processes, and good insight and judgment. The Veteran reported occasional suicidal thoughts, but denied intent or plan. In addition, when looking to the 100 percent rating criteria, the record does not support a manifestation of gross impairment in thought processes or communication, delusions or hallucinations, grossly inappropriate behavior, or persistent danger of hurting self or others. The Board recognizes the list of symptoms under the rating criteria are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. 38 C.F.R. § 4.21; Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). Here, the Board finds the severity, frequency, and duration of the symptoms reported by the Veteran during this time period most closely represent the criteria for a 70 percent rating. Accordingly, a rating in excess of 70 percent for PTSD prior to May 17, 2016 is not warranted. For the period from May 17, 2016 and thereafter For the period from May 17, 2016 and thereafter, the Board finds the Veteran’s PTSD produced total occupational and social impairment. In the months leading up to May 17, 2016, treatment records reflect an increase in the frequency and severity of the Veteran’s PTSD symptoms, eventually leading to the Veteran being let go from his job and not being able to return to work. After being let go, the Veteran’s wife and son observed the Veteran put a knife to his neck. See May 2016 VA treatment record. During this time period, treatment notes reflect an increased number of instances of hopelessness and suicidal ideation. The Veteran participated in numerous VA individual and group therapy sessions to help alleviate the increase in his PTSD symptoms. A February 2018 statement from the Veteran’s wife reported without her constant care, the Veteran would not maintain his personal hygiene, have clean clothing, prepare meals for himself, follow his medication regiment, attend his medical appointments, or be able to care for himself in any sustainable way. A June 2018 Social Security Administration (SSA) decision found the Veteran was disabled and unable to work due to his PTSD as of May 2016. The Board gives great probative weight to the Veteran’s and his wife’s observations of his PTSD symptoms in treatment records and lay statements. They are competent to report psychiatric symptoms and the Board finds these statements credible. See Layno v. Brown, 6 Vet. App. 465 (1994). These lay statements are consistent with the Veteran having a decline in his family relationships and being unable to maintain employment. The Board gives great probative weight to the June 2018 SSA decision finding the Veteran unable to work due to his PTSD as of May 2016. The SSA decision discussed the Veteran’s lay statements, treatment visit observations, and work history. Accordingly, a rating of 100 percent for the Veteran’s PTSD from May 17, 2016 and thereafter is warranted. 2. Entitlement to TDIU based solely on PTSD A September 2017 rating decision awarded entitlement to TDIU, effective May 17, 2016, based on both his service-connected PTSD and right knee disability. The Veteran contends he applied for TDIU based solely on PTSD and the RO should have awarded TDIU based solely on PTSD. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more. 38 C.F.R. § 4.16(a). The Board finds the preponderance of the evidence supports the Veteran’s PTSD alone renders him unemployable. First, the Veteran is 100 percent service-connected for PTSD, so he meets the schedular requirements of TDIU. Second, the Board finds the Veteran’s PTSD alone precludes him from obtaining or maintaining any gainful employment. The Board gives great probative weight to the June 2018 SSA decision that the Veteran is unable to work due to his PTSD with anxiety and depression. The decision discussed and considered the Veteran’s lay statements, treatment visit observations, and the Veteran’s work history. This finding is consistent with the Veteran’s application for TDIU listing PTSD as the sole reason for his inability to work. See April 2017 application. This finding is consistent with the Veteran being 100 percent service-connected for PTSD during this time period. Accordingly, entitlement to TDIU based solely on PTSD is warranted. 3. Entitlement to SMC based on the need for aid and attendance The Veteran contends he is entitlement to SMC(l) based on the need for aid attendance due to his service-connected PTSD. See April 2018 NOD. SMC based on the need for aid and attendance of another is payable when a veteran, due to service-connected disability, is so helpless as to be in need of regular aid and attendance. See 38 U.S.C. § 1114(l); see also 38 C.F.R. § 3.350(b). Pursuant to 38 C.F.R. § 3.352(a), the following criteria are to be considered for determining whether a claimant is in need of the regular aid and attendance of another person: (1) the inability of the claimant to dress himself or to keep himself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliance which, by reason of the particular disability, cannot be done without aid; (3) the inability of the claimant to feed himself through the loss of coordination of the upper extremities or through extreme weakness; (4) the inability to attend to the wants of nature; or, (5) a physical or mental incapacity that requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his or her daily environment. A veteran need show only one of the enumerated factors identified in 38 C.F.R. § 3.352(a) to establish entitlement to aid and attendance. Turco v. Brown, 9 Vet. App. 222, 224 (1996). Moreover, it is only necessary that the evidence establish that the veteran is so helpless as to need regular aid and attendance, not that there be a constant need. See id. The performance of the necessary aid and attendance service by a relative of the claimant or other member of his or her household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352(c). The Board finds that SMC based on the need for aid and attendance is warranted because competent evidence shows the Veteran needs assistance to dress and keep himself ordinarily clean and presentable, and protect him from the hazards or dangers incident to his daily environment. A February 2018 statement from the Veteran’s wife reported without her constant care, the Veteran would not maintain his personal hygiene, have clean clothing, prepare meals for himself, follow his medication regiment, attend his medical appointments, or be able to care for himself in any sustainable way. She stated that he needs near constant reminders to attend to his personal hygiene. She said without her reminders, he would go days without bathing or changing his clothes. She reported if she does not lay his clothes out, he remains in his underwear or dirty clothes. She reported choosing his own clothes exacerbates his anxiety and already low motivation. She reported if she does not manage his medication routine and doctor’s appointments, he forgets to take his medication, takes too much medication, forgets his appointments, or cancels the appointments because he does not want to leave the house. She reported because he does not like to leave the house or be in public places, he relies on her to purchase his food, clothing, and personal products. She reported his PTSD symptoms are exacerbated when she leaves him alone at the house. She reported she prepares all his meals because otherwise he does not eat. The Board gives great probative weight to the Veteran’s wife’s lay statement regarding the Veteran’s behavior if she does not provide regular aid and attendance. Her statement was consistent with treatment notes and lay statements regarding the severity and frequency of the Veteran’s PTSD symptoms, to include depression, low motivation, anxiety, hypervigilance, poor sleep, poor concentration, and mild memory problems. Resolving reasonable doubt in the Veteran’s favor, the Board finds SMC based on the need for regular aid and attendance is warranted. REASONS FOR REMAND Service connection for sleep apnea is remanded. The Board finds the September 2018 VA examination opinion lacked sufficient rationale and discussion of the medical articles submitted by the Veteran discussing the relationship between PTSD and sleep apnea. VA will request an addendum opinion to sufficiently address this evidence. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician, to exclude the September 2018 VA examiner, regarding whether the Veteran’s sleep apnea is at least as likely as not (a 50 percent or greater probability) (a) proximately due to or (b) aggravated beyond its natural progression by his service-connected PTSD. The examiner must discuss the articles submitted by the Veteran, including “Study finds high risk of sleep apnea in young Veteran’s with PTSD,” “Obstructive Sleep Apnea and PTSD among OEF/OIF/OND Veterans,” “CHEST: Apnea Elevated in Vets with PTSD,” and “OSA Syndrome and PTSD.” (Continued on the next page)   The examiner must provide a detailed rationale for any opinion expressed. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Winkler, Associate Counsel