Citation Nr: 19123725 Decision Date: 03/29/19 Archive Date: 03/29/19 DOCKET NO. 17-25 687 DATE: March 29, 2019 ORDER Entitlement to a disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) prior to November 30, 2000 for the purpose of accrued benefits is denied. Entitlement to service connection for cause of death is remanded. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 is dismissed. FINDINGS OF FACT 1. Prior to November 30, 2000, the Veteran’s PTSD was manifested by symptoms which most closely approximate occupational and social impairment with deficiencies in most areas. 2. Prior to November 30, 2000, the evidence shows that the symptoms of the Veteran’s service-connected PTSD did not result in a total occupational and social impairment. 3. PTSD at least as likely as not contributed to the development of dementia, a contributory cause of death. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) prior to November 30, 2000, for the purpose of accrued benefits have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.3, 4.130, Diagnostic Code 9411 (2018). 2. The criteria for service connection for the cause of the Veteran’s death are met. 38 U.S.C. §§ 1110, 1310, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2018). 3. No further question or controversy remains for consideration with regard to entitlement under 38 U.S.C. § 1318. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.104 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service with the Army from June 1941 to September 1945. He died in June 2008. The appellant is his surviving spouse. This case comes before the Board of Veteran’s Appeals (Board) on appeal from a November 2000 and May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Accrued Benefits Accrued benefits are periodic monetary benefits, other than insurance and servicemen’s indemnity, to which an individual was entitled at death under existing ratings or decisions and under laws administered by VA, or those based on evidence in the file at date of death and due and unpaid, that shall, upon the death of such individual, be paid to the surviving spouse or other appropriate party. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. While an accrued benefits claim is separate from a Veteran’s claim filed prior to death, the accrued benefits claim is derivative of the Veteran's claim; thus, an appellant takes the Veteran’s claim as it stood on the date of death, but within the limits established by law. Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed. Cir. 1996). For a surviving spouse to be entitled to accrued benefits, the Veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision. Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). “[A] pending claim” is defined as “an application, formal or informal, which has not been finally adjudicated.” 38 C.F.R. § 3.160 (c). At the time of the Veteran’s death, there was an outstanding claim for increased rating for PTSD prior to November 30, 2000. When this matter was previously before the Board in August 2014, a December 1999 decision which granted the 70 percent rating, effective June 9, 1999, was determined to be on appeal. The RO did award a 100 percent evaluation for PTSD in a February 2001 decision, but as the November 30, 2000 effective date did not cover the entirety of the appeal period, the earlier stage remained on appeal. Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The current regulations establish a general rating formula for mental disorders. 38 C.F.R. § 4.130. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411, is not restricted to the symptoms provided in the DC. Instead, VA must consider all symptoms of a Veteran’s condition that affect the level of the Veteran’s occupational and social impairment, including, if applicable, those identified in the Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV). Id. The Veteran was rated 70 percent disabled due to PTSD under 38 C.F.R. § 4.130, DC 9411 due to occupational and social impairment, with deficiencies in most areas. The only remaining higher schedular rating available, a 100 percent rating, is warranted when 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 relative, own occupation or own name. In treating and evaluating mental disorders under the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, 4th edition (DSM-IV), mental health professionals assign a Global Assessment of Functioning (GAF) score. The GAF scale is a scale of psychological, social, and occupational functioning on a hypothetical continuum of mental health and illness. Assessments on the GAF scale are not to include impairment in functioning due to physical or environmental limitations. During the pendency of the Veteran’s appeal, clinicians had assigned the Veteran GAF scores ranging from 45 to 50. GAF scores of 41 to 50 are for serious symptoms (e.g., suicidal ideation, severe obsessional rituals) or serious impairment in social or occupational functioning (e.g., no friends, unable to keep a job). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. A November 1999 VA treatment note documented that the Veteran complained that his anxiety was worse. He indicated that he had trouble sleeping. In September 1999, the Veteran was afforded a VA examination. The Veteran reported that he was married twice. He indicated that his first wife divorced him due to his irritability and difficulty getting along. He worked multiple jobs in the past. He indicated the he was unable to sustain jobs for longer than 4 to 6-month period due to his inability to interact with those around him. He reported that he lived with his second wife at that present time. The Veteran was appropriately dressed and groomed. He was pleasant and cooperative during the examination. His affect was constricted and mood congruent. He cried when they talked about the loss of his son and his depressive symptoms. He expressed several depressive symptoms which included decreased concentration, decreased appetite, decreased interest, decreased energy and tearful crying episodes. His speech was regular rate, volume, relevant, coherent, and goal directed. He was alert and oriented to person, place, and time. There were no gross cognitive deficits. His insight and judgement were fair. There was no loosening of associations, no flight of ideas, no ideas of reference, no auditory, visual, or tactile hallucinations. There was no suicidal or homicidal ideations, intent, or plan. His global assessment of function evaluation was at 50. In July 2000, the Veteran was afforded another VA examination. The examiner noted that the Veteran continued to suffer from multiple symptoms of PTSD. The Veteran reported that his symptoms had not improved over the past year. He indicated that it was a little more incapacitated than previously. He reported that his symptoms caused some difficulties with social function since he was often irritable and had a difficult time getting along with others. He reported that he continued to have chronic medical problems. He indicated that he had decreased sleep, nightmares, irritability, flashbacks, increased startle response, difficulty being around crowds, and isolation from others. The Veteran denied any signs and symptoms of depressive disorder, an anxiety disorder and any signs and symptoms of psychosis and/or mania. He denied suicidal and homicidal ideations. He denied suicidal and homicidal ideations. He had a GAF score of 45. The above represents all of the relevant evidence of record at the time of the Veteran’s death; consideration is limited to such in accrued benefits claims. 38 C.F.R. § 3.1000. Upon review of the record, the Board finds that prior to November 30, 2000, the assigned 70 percent rating was appropriate based on the Veteran’s symptoms. His most prominent symptoms were decreased concentration, decreased appetite, decreased interest, decreased energy and tearful crying episodes. Additionally, although the evidence showed the Veteran’s symptoms caused some difficulties with social function since he was often irritable and had a difficult time getting along with others. The Veteran was able to maintain a relationship with his second wife. The Veteran had consistently reported symptoms of anxiety, depression, irritability, difficulty being around crowds, and isolation from others. This degree of impairment equates most directly with the criteria for a 70 percent disability rating, and indeed the Veteran exhibited many of the symptom’s characteristic of a 70 percent rating. The evidence of record does not indicate that his PTSD more closely approximated the criteria for a 100 percent rating. The evidence fails to show that the Veteran’s PTSD symptoms resulted in a total occupational and social impairment. The evidence reflects that the Veteran throughout was appropriately groomed and coherent during evaluations. The psychiatric examinations fail to show any impairments in his thought processes, concentration, judgment, persistent delusions or hallucinations, or his communication. During all evaluations the Veteran was alert and oriented to time, place, person, and situation. The record does not reflect the Veteran displayed any inappropriate behavior or was a danger to himself or others. In addition, the Veteran has not reported having memory loss for the names of close relatives or his own name. The Veteran could remember where he worked, lived, and past events that caused him trouble. The Veteran could perform daily activities with minimal interference from his psychiatric symptoms. Accordingly, the Board finds that the 70 percent rating assigned to the Veteran for his PTSD was appropriate and that a 100 percent total rating for accrued benefits purposes is not warranted, for the period prior to November 30, 2000. Cause of Death To establish service connection for cause of death, the evidence must show that a disability incurred or aggravated in service either caused or contributed substantially or materially to cause death. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. For a service-connected disability to constitute a contributory cause, it is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The Veteran’s death certificate indicates that death was due to atherosclerotic cardiovascular disease, with contributing conditions of cardiomyopathy, dementia, coronary artery disease and chronic kidney disease, none of which were service-connected. However, at the time of his death, the Veteran was service-connected for PTSD, rated 100 percent disabling. The Appellant, supported by an opinion from Dr. RB, the Veteran’s treating psychiatrist, argued that PTSD had contributed to the development of dementia. In August 2014, the Board remanded the matter for further development of that question. A September 2017 VA examiner noted that a 2010 study did support Dr. RB’s position. A more recent 2017 study, however, found no such link. Further, the examiner found no evidence of record that PTSD negatively impacted the Veteran’s dementia or other conditions at the end of his life, and therefore concluded that PTSD did not materially contribute to death. The Board finds the evidence to be in equipoise. Dementia did contribute to death; the Veteran’s confusion and memory loss robbed him of understanding of his illnesses and his ability to participate in his own care. Further, at worst, there are studies on both sides of the question of whether PTSD contributed to the development of dementia, with no basis to distinguish between them; doubt is resolved in favor of the Veteran. Finally, the idea that there was no impact form PTSD on the Veteran’s final illness ignores the Appellant’s repeated accounts of his struggles—and hers—in his closing days. In sum, service-connected PTSD, through dementia, substantially and materially contributed to the death of the Veteran. 38 U.S.C. § 1318 In relevant part, 38 U.S.C. § 1318 provides that DIC benefits may be paid to a Veteran’s surviving spouse as if the Veteran’s death is service-connected if at the time of death, the Veteran was receiving compensation for service-connected disability that was continuously rated as totally disabling for the 10 years immediately preceding death 38 U.S.C. § 1318; 38 C.F.R. § 3.22(a). As the Board has now granted service connection for the cause of the Veteran’s death, the claim under 38 U.S.C. § 1318 is rendered moot. The greater benefit sought has already been awarded, there is no question or controversy for the Board to decide, and dismissal is appropriate. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Baxter, Associate Counsel