Citation Nr: 18158002 Decision Date: 12/14/18 Archive Date: 12/13/18 DOCKET NO. 16-00 875 DATE: December 14, 2018 ORDER Effective from March 10, 2004, to October 21, 2009, an initial disability rating of 100 percent disability rating for cognitive disorder is granted. Effective from March 10, 2004, to October 21, 2009, special monthly compensation (SMC), based on the need for aid and attendance of another person, is granted.   FINDINGS OF FACT 1. Since March 10, 2004, the Veteran’s psychiatric disorder was manifested by total occupational and social impairment. 2. Since March 10, 2004, the Veteran’s mental incapacity required care and assistance by another person on a regular basis to protect him from the hazards or dangers incident to his daily environment. CONCLUSIONS OF LAW 1. Effective from March 10, 2004, to October 21, 2009, the criteria for the assignment of an initial 100 percent disability rating for cognitive disorder was met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9310. 2. Effective from March 10, 2004, to October 21, 2009, the criteria for SMC, based on the need for aid and attendance of another, were met. 38 U.S.C. §§ 1114, 1521, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.351, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from December 1962 to May 1963. The Veteran died in October 2010; the appellant is the Veteran’s surviving spouse. This matter originally came before the Board as an original action on the motion of the moving party to reverse or revise, on the basis of clear and unmistakable error CUE), a June 24, 2015 Board decision. In that decision, the Board denied a claim for an initial rating in excess of 10 percent for service-connected psychiatric disorder prior to October 21, 2009, as well as entitlement to SMC prior to October 21, 2009. In June 2016, the Board denied the appellant’s CUE motion in the June 2015 Board decision. The appellant appealed the denial to the United States Court of Appeals for Veterans Claims (Court) and, by a January 2017 Order, the Court vacated the Board’s decision and remanded the appeal to be adjudicated pursuant to a January 2017 Joint Motion for Remand (Joint Motion). Subsequently, the Board issued a second decision in June 2017. The Board found that the June 2015 Board decision had erred because, contrary to the Board’s finding, there was a claim pending at the time of the Veteran’s death because the grant of service connection had not been implemented by the RO, to include the assignment of ratings and the time limit to appeal the ratings had not tolled. Notwithstanding the error, the Board’s June 2017 decision went on to find that there was no CUE because it was not clear and unmistakable that the Veteran was entitled to a rating higher than 10 percent prior to October 21, 2009, or SMC. The appellant appealed the Board’s June 2017 decision to the Court, which issued an Order in May 2018 granting a May 2018 Joint Motion. In the Joint Motion, the parties agreed that the June 2017 Board decision should not have made a determination as to whether the outcome would have been manifestly different under the CUE standard. The Joint Motion explained that the June 2015 Board decision did not adjudicate appellant’s claim on the merits, so the only resolution in the case, once the parties agreed that the June 2015 Board decision contained CUE, was for the Board to adjudicate the appellant’s claim on the merits. The parties therefore agreed that the Board, upon remand, must adjudicate the appellant’s claims of entitlement to an increased rating for a psychiatric disorder and entitlement to SMC, both for the period prior to October 21, 2009, on the merits. In light of the terms of the Joint Motions, the Board has recharacterized the issues to reflect the original nature of the appeal instead of the previous CUE characterization. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. An initial disability rating in excess of 10 percent for cognitive disorder prior to October 21, 2009. As identified in the Joint Motions, the issue now before the Board requires adjudication of the claims of entitlement to an increased rating for a psychiatric disorder for the period prior to October 21, 2009, on the merits. On this basis, the appellant is seeking a higher initial rating for the Veteran’s psychiatric disorder, which is listed as “cognitive disorder.” It is also listed as “diagnosed as depressive disorder and psychotic disorder (claimed as chronic brain syndrome and anxiety reaction with mental deficiency).” The appeal period now before the Board begins on March 10, 2004, which is when service connection went into effect for this condition. See Fenderson v. West, 12 Vet. App. 119 (1999). The appeal period under review ends October 21, 2009, which is when a 100 percent disability rating went into effect since that is a grant of the full benefit sought. The disability was assigned a 10 percent rating throughout the appeal period prior to October 21, 2009. A. Applicable Law Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The schedular disability rating criteria are set forth in the General Rating Formula for Mental Disorders of 38 C.F.R. § 4.130. This includes DC 9310 for “unspecified neurocognitive disorder.” General Rating Formula for Mental Disorders: 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 100 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 a worklike setting); inability to establish and maintain effective relationships 70 Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships 50 Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events) 30 Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication 10 A mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication 0 A veteran may only qualify for a given disability rating under § 4.130 by demonstrating the presence of the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). In addition to requiring the presence of the enumerated symptoms, section 4.130 also requires that those symptoms have caused the specified level of occupational and social impairment. Id. at 117-18. However, the factors listed in the rating schedule are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating, so the determination should not be limited solely to whether a Veteran exhibited the symptoms listed in the rating scheme, but should also be based on all of a veteran’s symptoms affecting his level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The Board notes that, although global assessment of functioning (GAF) scores are recorded in the evidence, it has been held that GAF scores are not considered reliable evidence of severity. See Golden v. Shulkin, 29 Vet. App. 221 (2018). Thus, the Board will not consider the GAF scores. B. Discussion The RO granted the 100 percent disability rating from October 21, 2009, based on a VA examination conducted on that date. Looking to that examination, it is clear that the disability level described therein arose much earlier, at least throughout the appeal period. Specifically, the October 21, 2009 VA examiner found that the Veteran had been married since 1967 with three children. He did not socialize with others except for his wife, children, and grandchildren. He had not worked since 1967 and then had held no job for more than a week due to interpersonal issues with supervisors. He had been on Social Security Administration (SSA) disability benefits since 1970. The Veteran’s current symptoms, as reported by his wife and daughter at the examination, were having unpredictable verbal anger outbursts; having mood swings and periods of agitation; random discussion of distant memories; a need to be the center of attention at all times; worry/rumination about his health; poor appetite and weight loss; a refusal to be alone; insomnia, frequent fidgeting; avoidance of anyone outside the immediate family; and a constant need for others to agree with him. They stated that his social isolation, sleep, and appetite had worsened significantly in the recent past. They also reported that the Veteran intermittently spoke of command hallucinations, a belief that people on TV were talking to him, and an expression of a belief that others were out to get him. He was able to dress and feed himself, but needed reminders to bathe and groom when he could tolerate it. He could not cook, and he sometimes forgot to eat and drink. His daughter managed his affairs and medication. With regard to the mental status examination, the October 2009 VA examiner commented that the Veteran refused to speak during the bulk of the interview so could not be fully assessed. However, the examiner found that the Veteran knew the day to be his daughter’s birthday. He also knew where he was, but could not identify the date or day of week. The examiner noted that the Veteran reportedly forgot new material quickly. He dozed off during interview. He was appropriately dressed, but had less-than-impressive grooming. His mood improved when the interview was over, but otherwise he had a flat affect throughout the rest of the interview. His family said the Veteran had never expressed suicide ideation or homicide ideation, but had said that his family would be better without him. Ultimately, the VA examiner found that the impact of the Veteran’s cognitive and emotional impairments was so great that he would be unable to manage his own financial affairs. Otherwise, the VA examiner found a diagnosis very difficult to reach because the Veteran would not respond verbally. But based on claims file, interview, and observations, the examiner gave a diagnosis of cognitive disorder, NOS; depressive disorder, NOS; psychotic disorder, NOS; personality change due to traumatic brain injury; and mild mental retardation by history. The examiner found that the Veteran would be totally impaired from an occupational and social standpoint, would be unable to retain new information and profit from education opportunities, and had judgment thinking and mood all impaired. At this point, the Board observes that this October 2009 VA examination establishes a 100 percent disability level involving a total and occupational social disability. Not only does it show that the Veteran would be unable to work due to his inability to function without assistance from his family, but it also shows that his social disability was essentially total in that he depended only on one daughter for nearly all his needs with only minimal contact with other family members (and none outside the family). An effective date for an increased rating should not be assigned mechanically based on the date of an examination. Rather, all of the facts should be examined to determine the date that the disability first manifested. Accordingly, the effective date for an increased rating—as well as for an initial rating or for staged ratings—is predicated on when the increase in the level of disability can be ascertained. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015). Here, it is factually ascertainable that the Veteran’s disability level, as demonstrated in the October 2009 VA examination, had been the same since throughout the appeal period. To this extent, the October 2009 VA examination reflects his wife and daughter’s assertion that his symptoms had worsened “in the recent past.” This statement is ambiguous and provides no context. Thus, it is not clear if the “recent past” meant days, weeks, or years. There are essentially no relevant medical records between 2004 (the date of claim) and the October 2009 VA examination to fill in this missing information. In fact, the only relevant information is contradictory. For example, at VA in September 2007, it was noted that he denied depression, anxiety, nervousness, mood swings, or suicidal ideations; he had been on medication for 10 years or more; and denied difficulty with relationships or legal difficulties. Two months later, in November 2007, he complained of insomnia and depression with more anxiety due to worrying about a different medical condition. The doctor found no obvious signs of psychosis, depression or anxiety, and his judgment and insight were intact. Approximately five months later, in April 2008, however, the Veteran’s daughter informed his primary care doctor at VA that he had an “unknown mental illness” and asked if anything could be done for this due to continued agitation and inability to sleep. She stated that his “violent outbursts” had been calmed by the medication he had been taking “for a long time.” Notwithstanding the brevity of this information, and the absence of any other evidence during the appeal period, the Veteran’s disability must be evaluated in light of its whole recorded history. See Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009). To this extent, there is much earlier evidence indicating a disability picture consistent with that demonstrated at the October 2009 VA examination even if the evidence was not created during rating period. For example, he had inpatient treatment at VA in March 1994. At that time, he complained of problems sleeping for the past several years, but otherwise had difficulty pinpointing a specific problem. His speech was fluent and coherent, but somewhat tangential. There was no abnormality in his thinking, and he had no suicide ideation, homicide ideation, or delusions. He was also alert and fully oriented, but his insight and judgment were poor. The Veteran stated that he could not remember things. He was found competent. During that March 1994 admission, he also complained of having bad “nerves”; being depressed; having an inability to get along with others; and an inability to sleep at night. He reported that being alone and quiet would help his nerves a little. At an earlier VA admission, in August 1980, the Veteran similarly complained of depression, anxiety, tenseness, insomnia, poor impulse control, and excessive eating and drinking. He attributed an increase in nervousness to medication for a different medical condition, and expressed that he wanted to do nothing but be alone. He had blamed that medication for becoming violent recently and slapping his wife. He had been married for 15 years and had 3 children, but he had not worked for 12 years. He was vague and evasive in giving information regarding his alcohol habits, and he was sloppily dressed and slouched in his chair. At that time, he was in good contact with reality and was well oriented with no signs of psychosis. He had normal speech and affect, and his judgment and memory were intact. He was found competent and able to work subject to no heavy lifting. This evidence is not completely definitive in showing a 100 percent disability level. More telling is an earlier evaluation in March 1969 by a private (non-VA) doctor. At that time, the Veteran was very anxious, could not stand noise, got worse if he missed his medication, and did not like crowds. He slept well at night, and went fishing with his brother, but that was about the only person he could get along with. He had previously done pipe-line work, worked in pulp wood, and sawmill work, but the Veteran could not get a job because he felt no employer wanted to be responsible if he was hurt on the job. The examiner found him to not be in good contact with reality with difficulty in abstract thinking. Ultimately, the examiner found him incompetent to manage his financial affairs and incapable of sustained and responsible employment. The examiner explained that the Veteran’s impairment was permanent. He would continue to behave as a child with unpredictable disturbances in his behavior, and he may become quite destructive when under the influence of alcohol, drugs, or stress. The examiner found an apparent progressive loss of intellectual functioning where the deterioration of his illness could be assumed. This March 1969 examiner’s assessment of a progressive deterioration is consistent with the October 2009 VA examination. The intervening medical records provide little direct evidence of this. However, the Veteran’s wife and daughter testified at a Board hearing in March 2015. Their testimony confirms a worsening disability picture since the March 1969 examination. Specifically, they testified at the March 2015 Board haring that the medical records were sparse because of how bad his symptoms were—he just did not want treatment. They also indicated that his symptoms, as demonstrated at the October 2009 VA examination, had been constant or worse since at least 2004. They explained that you could tell him something or ask him something and he would just “go off” and start throwing things. He would see things that were not there. For the prior three or four years he had essentially stayed in a recliner in the living room–he ate and slept there. They would have to talk him into taking a bath and changing clothes. Also, they described paranoia and hallucinations. He would see people who were not there, such as cars in the yard, and he would feel that they were watching him. Eventually, he even started thinking that the chickens were against him and talking to him. So, they came home one day and the chickens were gone. This happened in approximately 1990. It became such that he would not stay inside the house when alone because he said people were in there, coming into the bedroom, and “doing things” in the house. His wife and daughter also described days where he did not even know what day it was or where he was at. By 2004, they could not leave him home by himself any longer. He had no friends. He could get along with family, but would abruptly ask visitors to leave when he felt he was ready to go to bed. Since around 2003 or 2004, he had come to depend entirely on his daughter, who was a Licensed Practical Nurse (LPN). She would would fix him breakfast while his wife was away at work. She would also help him wash his face, get dressed in the mornings, and sometimes have to clean up after him. For example, he did not know the difference between toilet paper and a wash cloth. She was also the only one who could get him to take his medicines—he did not want his wife around his medications because he did not trust her. Either his wife or daughter would buy everything he needed, including medication and all other needs. He could drive, but only a few hundred yards or less down a private drive. Ultimately, he depended nearly entirely on his daughter, who was the only person he trusted. The Board finds that this testimony from the Veteran’s wife and daughter is credible. It presents a disability picture entirely consistent with the earlier evidence, such as that from March 1969, August 1980, and March 1994, indicating a progressive disability. Their testimony also indicates a total occupational and social impairment since at least 2004 (but likely much earlier considering the prior evidence). As such, the 100 percent disability level is factually ascertainable throughout the appeal period, particularly when reasonable doubt is resolved in the appellant’s favor. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. In light of the foregoing, the Board finds that, since March 10, 2004, the Veteran’s service-connected psychiatric disorder was manifested by total occupational and social impairment. As such, an initial 100 percent rating is warranted from March 10, 2004, to October 21, 2009. This is a complete grant of the benefit sought. 2. SMC for the period prior to October 21, 2009. A. Applicable Law SMC based on the need for aid and attendance of another is payable when the veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to be in need of regular aid and attendance. See 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). As directed by 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 herself or to keep himself or herself 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 (not to include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); (3) the inability of the claimant to feed himself or herself 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. The performance of the necessary aid and attendance service by a relative of the beneficiary or other member of his or her household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352(c). B. Discussion In this case, the evidence shows that the Veteran was so helpless as to be in need of regular aid and attendance. As the March 2015 testimony from his wife and daughter demonstrate, he could not be left alone since approximately 2003 or 2004. He depended on them, especially his daughter, for all essential functions of daily life, including eating and taking medication. In short, his mental incapacity required care and assistance on a regular basis to protect him from the hazards or dangers incident to his daily environment. This is particularly so when reasonable doubt is resolved in the appellant’s favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. (Continued on the next page)   As such, the criteria for the award of SMC, based on the need for the aid and attendance of another person, are met. See 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). This is also effective from March 10, 2004, to October 21, 2009. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Bosely, Counsel