Citation Nr: 18155601 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 11-25 849 DATE: December 4, 2018 REMANDED 1. Entitlement to increases in the (30 percent prior to August 2, 2012, and 70 percent from that date) ratings for posttraumatic stress disorder (PTSD) is remanded. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to February 19, 2015 is remanded. 3. Entitlement to special monthly compensation (SMC) based on the need for the regular aid and attendance of another person or by reason of being housebound is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty in the Army from June 1987 to June 1991, August 1993 to August 1996, April 1998 to June 1999, and April 2007 to January 2010, with additional service in the National Guard. This case is before the Board of Veterans’ Appeals (Board) on appeal from a Department of Veterans Affairs (VA) November 2010 rating decision, which granted service connection for PTSD, rated 30 percent, effective in January 2010. In November 2012, a videoconference hearing was held before the undersigned. In April 2014, the Board remanded the case to the RO for further development of the PTSD claim. A September 2014 rating decision granted a 70 percent rating for the PTSD, effective August 2, 2012. A November 2015 rating decision granted a TDIU rating (an issue expressly raised during the pendency of, and based on, the PTSD claim), effective February 19, 2015. In July 2016, the Board remanded the case to the RO for further development of the PTSD and TDIU (prior to February 19, 2015) claims. An August 2017 Board decision dismissed the PTSD and TDIU claims based on 38 C.F.R. § 3.158(a), for failure of the Veteran to respond to the VA’s request for critical evidence to decide the claims. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (CAVC). In a June 2018 Order, the CAVC granted a May 2018 Joint Motion for Remand of the parties, thereby vacating the Board’s decision and remanding the matters to the Board for action consistent with the terms of the Joint Motion. As to the SMC claim, the Veteran’s attorney argued in an October 2018 statement that the Veteran was entitled to SMC based on the need for the regular aid and attendance of another person. As it is part and parcel of the claim for higher ratings for PTSD, the SMC issue has been added to the claims on appeal. 1. Entitlement to increases in the (30 percent prior to August 2, 2012, and 70 percent from that date) ratings for PTSD is remanded. The August 2017 Board decision did not adjudicate the merits of the increased rating claim. As noted by the parties to the May 2018 Joint Motion, the Board did not address a July 2016 VA examination, which was arranged after the Board remanded the case in July 2016 for an examination, and did not comment upon the February 2017 arguments of the Veteran’s then-representative that the examination report was inadequate. The Board agrees that the Veteran should undergo another examination because the July 2016 examination was not fully compliant with the Board’s previous remand directives, see Stegall v. West, 11 Vet. App. 268 (1998), but the Board’s reasons for remanding differ from the representative’s arguments in February 2017. For example, contrary to the representative’s assertions, it appears the examination was by a psychologist, although the report did not specifically notate the examiner’s area of expertise; the examiner had access to pertinent psychiatric rating criteria (she summarized the Veteran’s level of impairment given the criteria for rating psychiatric disability, and noted the presence/absence of specifically listed symptoms in the criteria for ratings above 30 percent); and the examiner did opine as to the impact of the symptoms attributed to PTSD on the Veteran’s occupational and social functioning (the examiner stated that there was occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, i.e., the criteria for a 30 percent rating under Code 9411). The July 2016 VA examination is deficient because the examiner did not provide an opinion adequate to decide the claim. The examiner was asked to furnish a retrospective opinion regarding the severity of the Veteran’s PTSD since January 2010, reconciling the conflicting evidence in the record (see the July 2016 Board remand for a description of the conflicting evidence). The examiner was specifically asked to attribute symptoms to either PTSD or to TBI, citing to the record to support any division of symptoms. The examiner was also asked to comment on/reconcile discrepancies between his psychiatric disability picture presented by the records and correspondence from his VA treating psychiatrist on the one hand, and the evidence of his participation in VA’s vocational rehabilitation program and work as a nurse on the other hand. The examiner did not satisfy these opinion requests. For this reason, and because VA treatment records in 2017 suggest improvement in the Veteran’s mental health condition (he was found to no longer meet the criteria for a diagnosis of PTSD, and ceased taking psychotropic medications), a new examination is necessary. 2. Entitlement to TDIU prior to February 19, 2015 is remanded. A November 2015 rating decision granted TDIU effective February 19, 2015 (when the Veteran’s “second claim” for TDIU was received). In its July 2016 remand, the Board sought a retrospective medical opinion that would be pertinent to the Veteran’s TDIU claim from January 2010. The ensuing July 2016 VA examination report, however, is incomplete in that regard and another medical opinion addressing whether the Veteran was medically capable of employment before February 19, 2015 is needed. It is acknowledged that the Veteran’s attorney in October 2018 submitted additional evidence to include a private vocational assessment report dated in October 2018 by a vocational rehabilitation consultant who felt the Veteran was unemployable due to his service-connected disabilities since his military discharge (the attorney waived initial RO review of such evidence), but that consultant did not show he has the medical expertise to reconcile the conflicting reports regarding the Veteran’s psychiatric condition. 3. Entitlement to SMC based on the need for the regular aid and attendance of another person or by reason of being housebound is remanded. In an October 2018 statement, the Veteran’s attorney asserted that the evidence of record indicates that due to his service-connected PTSD and TBI residuals, the Veteran has been assigned a designated family caregiver (his wife), who keeps track of his medications and medical appointments, supervises him in public, and reminds him to bathe and dress appropriately. It was noted that his wife also assisted him with dressing and other routine tasks around the house. The attorney argued that SMC was warranted because “the Veteran’s disabilities have worsened to such an extent that he requires the regular aid and attendance of another person.” Such claims appear to conflict with certain VA medical records. For example, in September 2016, the Veteran’s application for VA caregiver program assistance benefits was denied because it was determined he did not require a daily caregiver to live safely and receive care in a non-institutional home environment. February 2017 and June 2017, VA outpatient treatment records appear to show that most of the Veteran’s psychiatric symptoms were well-controlled and that he did not meet the full criteria for PTSD (anxiety disorder was the working diagnosis); in September 2017, the diagnosis by his treating psychiatrist was bipolar spectrum disorder NOS and the Veteran had self-discontinued all psychotropic medication. In light of the inadequate VA psychiatric examination in July 2016, the attorney’s contentions that are not consistent with findings in the medical records, and the fact that the Veteran has not been afforded a VA examination to ascertain any aid and attendance needs (necessary to decide the claim), an examination is necessary. The matters are REMANDED for the following: 1. Secure for the record updated (since October 1, 2018) copies of all records of VA evaluation and treatment of the Veteran for PTSD, which are not already associated with the claims file. 2. Secure for the record any additional VA vocational rehabilitation records that were generated since November 2016. 3. Arrange for the Veteran to be examined by a psychiatrist or psychologist who has not previously treated or examined the Veteran to determine the current severity of his service-connected PTSD (or any disorder, formerly diagnosed as PTSD) and to provide a retrospective opinion regarding the severity of the PTSD since January 2010, reconciling the conflicting evidence in the record. The examination should be conducted using DSM-5 criteria. (a). The examiner should be furnished a copy of the criteria for rating PTSD and should note the presence or absence of each symptom listed in the criteria for ratings above 30 percent prior to April 2, 2012, and above 70 percent from that date (and if a symptom is found present, its severity and frequency), as well as any additional symptoms found that are not listed in the rating criteria. (b). To the extent possible, the examiner should clearly distinguish between the symptoms (and related impairment) associated with the Veteran’s service-connected TBI and those associated with PTSD. Because VA regulations prohibit compensating Veterans for the same symptoms under multiple disabilities, if a symptom (with associated impairment) is attributable to both PTSD and TBI, the examiner should indicate whether the diagnosis of PTSD or the diagnosis of TBI more appropriately reflects the disability picture presented by the symptom/impairment (for compensation purposes). The examiner should cite to the record (as deemed appropriate) in support of any division of symptoms. (c). The examiner should also specifically opine regarding the expected impact of the Veteran’s PTSD symptoms (and those symptoms attributable to both PTSD and TBI that are more appropriately attributed, for compensation, to PTSD) on occupational and social functioning and identify whether, when, and to what extent the symptoms and functional impairment have worsened during the period on appeal beginning in January 2010 (if such is the case). The examiner should comment on/reconcile any discrepancies between the psychiatric disability picture presented by the records and correspondence from the Veteran’s VA treating psychiatrist, on the one hand (such as in August 2013 when the psychiatrist indicated the Veteran was medically unable to work; in January 2015 when he endorsed the Veteran’s wife for designation (and compensation) as his caregiver [VA denied caregiver program assistance benefits in September 2016]; and in November 2015 when he noted the Veteran’s participation in vocational rehabilitation was “therapeutic”); and evidence of his participation in a vocational rehabilitation program from 2014 to 2016 and his employment (as a VA telehealth specialist from June 2012 to February 2013 and as a licensed practical nurse for two different private providers, one during 2013 and the other from January 2014 to May 2014). The examiner must include rationale for all opinions. 4. Arrange a VA aid and attendance/housebound examination of the Veteran to clarify his disability picture flowing from his service-connected disabilities. The Veteran’s claims file (to include the records obtained pursuant to the request above) must be reviewed by the examiner. All indicated studies should be performed. If deemed necessary, the Veteran should be afforded any specialty examination to assess the nature and severity of a particular service-connected disability (other than a psychiatric examination). The examiner should respond to the following: (a). Does the Veteran at least as likely as not (50 percent or greater probability) require the regular aid and attendance of another individual. The criteria in the applicable regulations should be used, including whether due to service-connected disability the Veteran is blind or so nearly blind as to have corrected visual acuity of 5/200 or less in both eyes, or concentric contraction of the visual field to 5 degrees or less; is unable to dress or undress himself, or to keep himself ordinarily clean and presentable; is in frequent need of adjustment of a special prosthetic or orthopedic appliances which by reason of the particular disabilities cannot be done without aid; is unable to feed himself through loss of coordination of upper extremities or through extreme weakness; is unable to attend to the wants of nature; or has incapacity, physical or mental, which requires care or assistance on a regular basis to protect him from hazards or dangers in the daily environment. (b). Is the Veteran at least as likely as not (50 percent or greater probability) permanently housebound due his service-connected disabilities (i.e., substantially confined to his dwelling and the immediate premises due to the service connected disabilities). In providing the opinions requested in (a) and (b), above, the examiner should fully describe all functional impairment due to the service-connected disabilities, including PTSD, postoperative residuals of a right shoulder blast injury), lumbar spine intervertebral disc syndrome with degenerative arthritis, degenerative meniscus of the right knee, residual stiffness in the right ring and little fingers status post proximal interphalangeal joint dislocation, tinnitus, traumatic brain injury, and left ear hearing loss. All opinions should include complete rationale. George R. Senyk Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Debbie Breitbeil, Counsel