Citation Nr: 1819680 Decision Date: 04/02/18 Archive Date: 04/12/18 DOCKET NO. 09-44 174 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to special monthly compensation based on the need for aid and attendance of another person or on account of housebound status. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant's spouse and her sister ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel INTRODUCTION The Veteran served on active duty from October 1963 to October 1966. He served in the Republic of Vietnam. Among his awards and decorations, the Veteran has earned a Purple Heart. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2008 and February 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The December 2008 rating decision granted entitlement to service connection for PTSD and assigned a rating of 50 percent, but no more, effective September 11, 2008. The February 2015 rating decision denied entitlement to special monthly compensation based on the need for aid and attendance of another person or on account of housebound status. The Veteran's spouse testified on his behalf at a May 2017 hearing before the undersigned Veterans Law Judge. A transcript of this hearing was prepared and associated with the claims file. In July 2017, the Board remanded this case for additional development, and the case has been returned for further appellate review. In the January 2018 Informal Hearing Presentation, the Veteran's accredited representative asserted that the evidence of record indicates that the Veteran's cerebrovascular accident was in part caused by his uncontrolled diabetes mellitus and is therefore inextricably intertwined with his aid and attendance/housebound claim. At the Board hearing, the Veteran's spouse provided testimony suggesting the Veteran's diabetes may have worsened. The Veteran, his spouse, and his representative should be contacted and informed that if the Veteran seeks to make such a claim, that effective March 24, 2015, a claimant for VA benefits must file a claim on the application form prescribed by the Secretary to be considered. See Standard Claims and Appeals Forms final action at 79 Fed.Reg. 57,660 (Sept. 25, 2014). FINDINGS OF FACT 1. The Veteran's PTSD has manifested in occupational and social impairment with reduced reliability and productivity but not in occupational and social impairment with deficiencies in most areas. 2. During the appeals period, the Veteran has been service connected for (a) PTSD at 50 percent disabling: (b) diabetes mellitus, type II, at 20 percent disabling; (c) post-operative shell fragment wound, left thigh, with secondary infection, at 10 percent disabling; (d) scar, anterior thigh, at 10 percent disabling; and (e) diabetic nephropathy at 0 percent disabling. These disabilities combine to produce a disability rating of 70 percent. 3. The impairment caused by the Veteran's service-connected disabilities does not require the care or assistance of another on a regular basis or render the Veteran housebound. CONCLUSIONS OF LAW 1. The criteria for the assignment of a disability rating in excess of 50 percent for service-connected PTSD are not met. 38 U.S.C. §§ 1155, 5107, 7104 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for special monthly compensation based on the need for the regular aid and attendance of another person or by reason of being housebound have not been met. 38 U.S.C. §§ 1114, 5107 (2012); 38 C.F.R. §§ 3.102, 3.350, 3.352 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duty to notify was satisfied by a letter that was sent to the Veteran in August 2015. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). All relevant, obtainable evidence has been associated with the claims file to fulfill VA's duty to assist. 38 U.S.C. § 5103A. I. Higher Initial Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2017). The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. 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. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. In Fenderson, the Court also discussed the concept of the 'staging' of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127. PTSD is evaluated under VA's General Rating Formula for Mental Disorders. A 0 percent (noncompensable) rating is assigned when 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. Id. A 10 percent rating is assigned when there is 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. Id. A 30 percent rating is warranted when there is 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, and mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent evaluation is warranted when there is 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; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted when there is 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 work like setting); and the inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted if there is 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. Id. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held "that a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). In particular, the Federal Circuit has expressly rejected interpreting 38 C.F.R. § 4.130 in such a manner that would render specific symptomatology a secondary consideration at the 70 percent level. Id. The Veteran underwent examination in connection with this claim in November 2008. This examination report notes that the Veteran had suffered a stroke in May 2008. The Veteran was wheelchair-bound and had a limited ability to speak because of his stroke. On mental status examination, the Veteran was dressed appropriately with good hygiene and grooming. He was alert and responded to questions that were asked of him, although the accuracy of some responses was questionable. His speech was slurred and difficult to understand. Often, his wife had to clarify. Because of his speech, it was difficult to gauge his thoughts. He denied suicidal or homicidal problems. His mood and affect were difficult to determine because of his health condition. It did not appear as if he was responding to any internal stimuli, such as hallucinations, and he did not describe any paranoia or delusions. Insight regarding PTSD was limited. Judgment was difficult to determine. In summary, the examiner noted that the evaluation was unique given the Veteran's difficulties with speech as result of his recent stroke. The examiner noted that the information from the examination came from the Veteran and his wife, with his wife providing the majority of the information. The examiner noted that the Veteran has re-experiencing symptoms in the form of flashbacks and disturbing dreams. His wife described detachment and isolation from others, as well as avoidance of items that remind him of his experiences. The Veteran came across overall as having restricted affect and detachment in interpersonal relationships. Increased arousal was shown in his irritability. Little was said regarding sleep difficulties, but the Veteran does have some problems returning to sleep after dreams. Functional impairment seemed to be in his detachment from others, including family members. It did not appear that the Veteran suffered from significant work-related problems due to PTSD. Overall, the severity of the symptoms of the Veteran's PTSD was in the moderate range. At the May 2017 Board hearing, the Veteran's wife testified that the Veteran becomes very disoriented, and that he will sometimes go back in time and then return to the present in verbal communication. She noted that he is unable to focus very well, has pain, has vision that is somewhat impaired, and is unable to describe things. With respect to mental status, the Veteran's wife testified that the Veteran is sometimes unable to speak clearly. She also testified that the Veteran experiences depression, as he has been housebound in one room 100 percent of the time. He experiences anxiety. He has hopelessness on a daily basis. He is not capable of working because of his mental status, as he cannot focus. He has memory loss and forgets places, times, and days. She testified that the Veteran has become disoriented due to his PTSD. Her sister, who was a witness at the hearing, described the Veteran's mood swings, including irritability and sadness, due to his isolation. She also noted that the Veteran cannot focus his eyes, and she and the Veteran's spouse were uncertain if vision problems were due to diabetes or were mental. The November 2017 VA PTSD examination report notes that the Veteran's level of occupational and social impairment with regard to his mental disorder was "Occupational and social impairment with reduced reliability and productivity." The examiner noted that the Veteran has been taking medication since the 2008 VA examination, which he gets from his primary care physician. He noted that the Veteran has not met with any psychiatrist, nor has he been in therapy. It was noted that the Veteran has been bedridden and has limited speaking capacity since the last VA examination. The Veteran's wife reported that his memory is gone, and he is very disoriented. He gets angry because he cannot move and gets very upset. He is able to have conversations, but they sometimes do not make sense to his wife. Sometimes he will talk about something that happened in the past as if it were the present, or things that he does not understand. He has a nurse come check on him from the Phoenix VA Medical Center (VAMC). The Veteran's wife reported that the Veteran's three children and some friends do come visit, but they do not have too much conversation because he does not know how to put his words together to have a conversation. Conversations are short because he cannot quite communicate very well verbally. The Veteran and his wife have been married for 47 years, and there have been no interim separations since the 2008 VA examination. There have been no problems in the marriage, although his wife has stated that it is a challenge caring for the Veteran given his physical health difficulties. The Veteran and his wife have three children, all of whom live in the area. They visit routinely and watch football with the Veteran. He also has friends that may come by and visit. His day consists of lying in bed and watching television. He is dependent on others for all activities of daily living and has been so since his stroke. He has not worked in any capacity since 2007. It was noted that there have been no psychiatric hospitalizations and he has not been in any therapy since the last examination, but he has routinely taken medication. There have been no suicide attempts, as the Veteran is unable to move on his own. The examiner noted that the Veteran manifested the following of the enumerated rating criteria: depressed mood; anxiety; chronic sleep impairment; impairment of short- and long-term memory, for example, retention of only highly-learned material, while forgetting to complete tasks; flattened affect; and disturbances of motivation and mood. The examiner noted that the Veteran does not have any symptoms attributable to PTSD that were not among the enumerated criteria. The examiner noted that the Veteran was in bed and accompanied by two men who maneuvered him. He laid in bed and said very little. He would provide one word responses, sometimes a brief sentence. His participation was minimal. The examiner, who had also performed the examination in November 2008, noted that little has apparently changed for the Veteran in terms of general functioning since the 2008 examination. He has suffered a stroke, which has limited his physical and cognitive capacities over the last nine years. The Veteran's wife was able to nod at PTSD symptoms the Veteran reported as having when the examiner asked of those, but he could not elaborate due to limited speech. His wife was able to provide some details, such as his sleep inconsistencies, difficulty concentrating, and anxiety that she has witnessed. Nonetheless, the examiner opined that the Veteran continues to have PTSD symptoms and continues to struggle and having impairments from his 2008 stroke, as he is dependent on others for all activities of daily living. The examiner saw little having changed since the 2008 examination. Based on the above, the Board finds that entitlement to a rating in excess of 50 percent for service-connected PTSD is not warranted. The November 2008 VA examination report itself does not reflect the 70 percent criteria of suicidal ideation; obsessional rituals that interfere with routine activities; impaired impulse control; spatial disorientation; neglect of personal appearance and hygiene; and difficulty in adapting to stressful circumstances due to PTSD. While the Veteran's speech was difficult to understand, this impairment was attributable to slurring that resulted from his stroke rather than from PTSD. As indicated above, the May 2017 Board hearing transcript reflects that the Veteran's spouse and her sister noted having witnessed the 70 and 100 percent rating criteria of disorientation to space, time, and place; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; and speech intermittently illogical, obscure, or irrelevant. The Board notes, however, that the November 2017 VA examiner found that none of these symptoms were attributable to the Veteran's PTSD. As noted above, the November 2017 VA examiner determined that the Veteran's PTSD manifested in depressed mood; anxiety; chronic sleep impairment; impairment of short- and long-term memory, for example, retention of only highly-learned material, while forgetting to complete tasks; flattened affect; and disturbances of motivation and mood. He found that there were no other symptoms that were attributable to the Veteran's PTSD. None of these symptoms appears in the rating criteria for a rating in excess of 50 percent. The examiner determined that the Veteran's PTSD has changed little since the November 2008 VA examination. Finally, the above evidence does not reflect that the Veteran is unable to establish and maintain relationships. The Veteran's relationship has been described as good by his wife, even though she experiences significant difficulties in caring for him due to his stroke. The record reflects that the Veteran's three children and multiple friends come visit him. While his conversations are limited due to his difficulty in communicating, these difficulties have been attributed to his stroke. They have not been attributable to the Veteran's PTSD. In the absence of the enumerated 70 percent rating criteria, or other symptoms of similar severity, frequency, and duration, the Board need not consider whether the Veteran's PTSD symptoms create deficiencies in most areas. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the claim is not in equipoise. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, entitlement to an increased rating for the Veteran's service-connected PTSD is not established. II. Aid and Attendance or Housebound Benefits The Veteran seeks entitlement to special monthly compensation based on the need for the regular aid and attendance of another person or on the basis of being housebound. Compensation at the aid and attendance rate is payable when a 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. 38 U.S.C. § 1114(l). Determinations as to the need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to such conditions as: inability of the claimant to dress or undress himself/herself or to keep himself/herself 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 of the claimant to feed himself/herself through 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 the claimant from the hazards or dangers inherent in his/her daily environment. 'Bedridden' will be a proper basis for the determination, and is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. It is not required that all of the disabling conditions enumerated above be found to exist before a favorable rating may be made. The particular personal functions which the claimant is unable to perform should be considered in connection with his or her condition as a whole. It is only necessary that the evidence establish that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. 38 C.F.R. § 3.352(a). Special monthly compensation is also payable where a veteran has a single service-connected disability rated as 100 percent, without resort to individual unemployability, and, in addition: (1) has a service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability, and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the veteran is substantially confined as a result of his or her service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). The Board does not dispute that the Veteran requires the aid and attendance of another person. Nor does it dispute that he is housebound. However, the Board finds that the impairments that have led to this status are not service-connected. The Veteran in this case is service connected for (1) PTSD at 50 percent disabling: (2) diabetes mellitus, type II, at 20 percent disabling; (3) post-operative shell fragment wound, left thigh, with secondary infection, at 10 percent disabling; (4) scar, anterior thigh, at 10 percent disabling; and (5) diabetic nephropathy at 0 percent disabling. These disabilities combine to produce a disability rating of 70 percent. On May 19, 2008, the Veteran suffered a debilitating stroke that has left him incapacitated. (See September 8, 2008, letter from Veteran's spouse.) At the May 2017 Board hearing, the Veteran's spouse testified that the Veteran is disoriented to places, times, and locations. She testified that his memory is gone. She testified that he becomes upset and angry because he cannot move. A nurse is provided by the Phoenix VAMC to check on him because he is in too much pain to be moved from the house. The Veteran's wife testified that, due to the Veteran's PTSD, he is unable to make any rational decisions, such as preparing meals or cooking for himself. She noted that he is bedridden and cannot take care of himself. He cannot hold things in his hands. She is "responsible for his medications, for his hygiene, for just about everything that a normal person would do on their own." She reported that she has to measure his diabetes medication because he cannot measure the dose himself. She has to prepare a special diabetic diet and nutritional shakes to keep his body from breaking down. Her sister noted that the Veteran's left leg has "completely protracted" due to the shell fragment wound that he suffered in service and for which he is service connected. The Veteran's spouse noted that the Veteran's left thigh wound and scar have caused some issues that made walking difficult, and noted that he would sometimes have to leave his construction job because he could not handle the pain. A VA registered nurse has completed two "Examination for Housebound Status or Permanent Need for Regular Aid and Attendance" forms, which are dated in October 2014 and June 2015. These describe extensive impairment that leaves the Veteran bed bound and dependent on others for all activities of daily living. They note that the Veteran's wife provides 24/7 care, or otherwise he would be in a nursing home. He is unable to feed himself due to hemiparesis and extensive contractures. His wife dispenses all of his medications. He is unable to grip and is incontinent of bowel and bladder. Since his stroke, sitting has been quite painful for him. The nurse attributed these restrictions to the Veteran's massive stroke with extensive contractures. A November 2017 VA aid and attendance or housebound examination report describes a level of impairment that is consistent with what was identified by the VA nurse. The examiner found that the Veteran "requires total care and has essentially no daily activities other than being fed and cleaned and groomed." The examiner noted that both of the Veteran's legs and his left arm are nonfunctioning, and that the right arm is able to move but the right hand is unable to grasp objects. In addition to impairments that have already been noted elsewhere, the examiner observed that the Veteran appears to be blind in his left eye. The examiner diagnosed the Veteran as being status post stroke with severe functional compromise. The examiner determined that the Veteran is in need of aid and attendance, but that his impairment is unrelated to service-connected disabilities. The examiner specifically determined that the Veteran is unable to dress or undress himself and keep himself ordinarily clean and presentable. He is unable to feed himself through loss of coordination of upper extremities or through extreme weakness, and is unable to attend to the wants of nature. He has incapacity, physical or mental, that requires care of assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. He has a disability that requires that he remain in bed. He is substantially confined to his dwelling and the immediate premises, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his lifetime. Again, however, the examiner has determined that these impairments are unrelated to service-connected disabilities. The Board understands the contentions that have been made by the Veteran's spouse. However, no doctor or other person with medical training has found that the Veteran's PTSD combines with his other service-connected disabilities to render him in need of aid and attendance or housebound. While the Veteran's spouse and her sister have expressed the belief that the Veteran's left leg contracture is related to his service-connected thigh injury, both the VA examiner and the Veteran's medical records indicate that the Veteran's left leg contracture is due to his stroke rather than due to his service-connected thigh injury and scar. (See July 31, 2017, VA medical record.) The Board notes that the Aid and Attendance and Housebound Status forms that were filled out by the VA nurse also conclude that the Veteran's impairments are related to his stroke and its residuals. The Board deeply sympathizes with the Veteran, his spouse, and their family, and it does recognize the particularly difficult circumstances that they have faced. The Board also commends the Veteran for his valorous service to his country and recognizes his sacrifice. The Board, however, is bound by the law and is without authority to grant benefits on an equitable basis, regardless of meritorious service. See 38 U.S.C. §§ 511, 7104 (2012); see also Kelly v. Derwinski, 3 Vet. App. 171, 172 (1992) (VA cannot "extend . . . benefits out of sympathy for a particular veteran" and further noting that a law that is plain is binding, and leaves nothing for interpretation.) The Board further observes that "no equities, no matter how compelling, can create a right to payment of the United States Treasury which has not been provided for by Congress." Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992), citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990). The Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the claim is not in equipoise. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the claim must be denied. ORDER Entitlement to an initial evaluation in excess of 50 percent for PTSD is denied. Entitlement to special monthly compensation based on the need for aid and attendance of another person or on account of housebound status is denied. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs