Citation Nr: 19141986 Decision Date: 05/31/19 Archive Date: 05/31/19 DOCKET NO. 15-44 487 DATE: May 31, 2019 ORDER Entitlement to a 100 percent disability rating for posttraumatic stress disorder (PTSD) and fronto-temporal lobe disorder with neurocognitive disorder related to temporal lobe syndrome is granted. Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU) is granted. REMANDED Entitlement to special monthly compensation based on the need for aid and attendance is remanded. FINDINGS OF FACT 1. During the rating period on appeal, the most probative evidence is at least in equipoise as to whether the Veteran’s PTSD with neurocognitive disorder related to temporal lobe syndrome manifested functional impairment equivalent to total occupational and social impairment. 2. The most probative evidence is at least in equipoise as to whether the Veteran is unable to secure and follow a substantially gainful occupation due solely to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 100 percent disability rating for PTSD and fronto-temporal lobe disorder with neurocognitive disorder related to temporal lobe syndrome have been met. 38 U.S.C. §§ 1155, 5107 (b); 38 C.F.R. §§ 4.1, 4.7, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (b); 38 C.F.R. §§ 3.340, 3.41, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1979 to November 2000. He was awarded the Bronze Star, the Meritorious Service Medal, the Southwest Asia Service Medal with Three Bronze Service Stars, among other decorations. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA). During the pendency of this appeal, the Veteran was granted special monthly compensation under 38 U.S.C. § 1114 (k) due to the loss of a creative organ effective November 1, 2018. See Rating Decision – Narrative, May 2019. However, the question as to entitlement to special monthly compensation based on aid and attendance remains at issue on appeal, and will be addressed in the Remand section of this decision. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board notes that the Veteran was granted service connection for a fronto-temporal lobe disorder effective November 1, 2018. See Rating Decision – Narrative, January 2019. Thereafter, the Regional Office (RO) determined that the condition was a progression of service-connected PTSD, and included it under the 70 percent rating for PTSD. See Rating Decision – Narrative, May 2019. As such a determination does not reduce the Veteran’s level of compensation or affect his combined rating for compensation purposes, the Board will not address the propriety of the RO’s determination in this decision. See 38 C.F.R. §§ 3.105 (e); see also 38 C.F.R. §§ 4.14, 4.126 (c) (“Neurocognitive disorders shall be evaluated under the general rating formula for mental disorders…”). Legal Criteria – Rating Disabilities Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002). Further, a disability rating may require re-evaluation in accordance with changes in a veteran’s condition. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). Legal Criteria – Mental Disorders Ratings for mental disorders are assigned based on the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. The rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, and shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126 (a). Under the General Rating Formula, a 10 percent rating is assigned for 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. A 30 percent rating is assigned for 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 symptoms such as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned for 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. A 70 percent rating is assigned for 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); inability to establish and maintain effective relationships. A maximum 100 percent rating is assigned for 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. Increased Rating – PTSD The Veteran underwent a VA psychiatric examination in March 2014. The examiner diagnosed PTSD, and found occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational task (although generally functioning satisfactorily with normal routine behavior, self-care, and conversation). He documented symptoms including depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, impairment of short and long-term memory, disturbances of motivation and mood, suicidal ideation, and impaired impulse control such as unprovoked irritability with periods of violence. In June 2014, a VA psychiatrist, Dr. V.L., noted that the Veteran complained of increased anxiety, irritability, restlessness with hypervigilance, flashbacks, and nightmares. The Veteran reported periodic auditory hallucinations not consistently responsive to medication, and problems with memory, concentration, retention, and recall. Dr. V.L. stated that the Veteran had been unable to work for the past seven years, in part, due to memory problems and difficulty with social interaction. He opined that the Veteran exhibited total occupational and social impairment. VA medical records evince that the Veteran sought treatment for his PTSD during the period on appeal. In March 2015, the Veteran reported stress related to caring for his disabled daughter, and that he attends church on a weekly basis, and values the friends he made through the church. The clinician noted that the Veteran appeared to have some paranoid thoughts associated with anger outbursts. The Veteran underwent another VA examination in March 2015. He reported that he spends his time watching television, and had given up his friends and could not trust anyone. Mental status evaluation revealed: no inappropriate behavior; good eye contact; normal rate, rhythm and tone of speech; euthymic mood; congruent affect; normal thought processes; no delusions or obsessive thinking; and no suicidal or homicidal thoughts. The examiner diagnosed a mild neurocognitive disorder due to Alzheimer’s, and indicated that it was not possible to separate the symptoms between such condition and PTSD. The examiner found that the Veteran’s mental health condition did not rise to the level of total occupational and social impairment. In December 2015, Dr. V.L. stated that the Veteran was unable to work part time or full time because of severe PTSD symptoms. The Veteran reported nightmares, depression, anxiety, fatigue, difficulty concentrating, memory problems, and decreased interest/pleasure in activities. In March 2016, the Veteran reported having problems with his memory, anxiety, and increased irritability. In September 2016, the Veteran stated that he felt frustrated about his memory problems and unpredictable behavior, and struggled to have a decent conversation due to cursing even when not provoked. In December 2016, the Veteran reported feeling irritable and impulsive, with depression and anxiety. He reported difficulty concentrating and making decisions, and having problems with motivation. In March 2017, the Veteran reported feeling irritable and bothered by his lingering lapses of concentration, poor memory, and lingering insomnia, flashbacks, and nightmares. In December 2017, the Veteran reported hearing voices on occasion that challenge him and try to scare him, and having had visual hallucinations while in his barn. He stated that he was quick to anger, irritable, and hypervigilant. He reported ongoing struggles with poor memory and forgetfulness. In March 2018, a VA psychiatrist observed that the Veteran denied nightmares, auditory or visual hallucinations. The Veteran’s wife, who accompanied him to the appointment, stated that he easily gets angry and becomes emotional. The psychiatrist documented euthymic mood, memory problems, and no psychomotor retardation or agitation. In September 2018, the Veteran reported staying busy with yard work, and going to church on Sundays. The Veteran’s wife told the clinician that he still makes inappropriate comments, with occasional verbal outbursts. The Veteran reported ongoing forgetfulness, hearing vague noises, and expressed paranoia about being watched when cars park in the street near his home. Mental status evaluation revealed: calm motor activity; orientation to person, place, situation and date; speech normal rate and volume; euthymic mood; restricted affect; forgetful recent memory at times; no auditory or visual hallucinations; and fair judgment and insight. The Veteran presented for an additional VA examination in February 2019. He reported that he maintains contact with his daughters, intermittent contact with his son, and lives with his wife and daughter. Mental status evaluation revealed orientation to person, place, and time; good eye contact; normal speech rhythm, rate, and volume; anxious and irritable mood; flattened affect, no current suicidal or homicidal ideation; linear, logical, and goal directed thought process; difficulty in understanding complex commands, intact insight and reasoning; poor judgment; and no evidence of perceptual disturbances, paranoia, or delusional thinking. The examiner documented symptoms of anxiety, suspiciousness, panic attacks occurring weekly or less often, chronic sleep impairment, impairment of short and long-term memory, memory loss for names of close relatives, own occupation, or own name, flattened affect, difficulty in understanding complex commands, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including in a work or worklike setting, inability to establish and maintain effective relationships, obsessional rituals which interfere with routine activities, impaired impulse control, persistent delusions or hallucinations, intermittent inability to perform activities of daily living including maintenance of minimal personal hygiene. After careful review, the Board finds that the most probative evidence is at least in equipoise as to whether a 100 percent rating based on total occupational and social impairment is warranted. 38 C.F.R. § 4.130, DC 9411. In this regard, the Board has considered the frequency, severity, and duration of the Veteran’s psychiatric symptoms, including persistent hallucinations, memory loss for names of close relatives, own occupation or own name, and intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene) as reflected by the VA examinations and treatment records, and determined that the overall symptomatic severity more closely approximates total occupational and social impairment such that a higher rating is appropriate. The law is clear. 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. 38 C.F.R. § 4.7. The Board finds that the most probative evidence reaches the level of equipoise as to whether the Veteran’s service-connected PTSD and fronto-temporal lobe syndrome resulted in total occupational and social impairment during the period on appeal; thus, a 100 percent rating is granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (“[T]he ‘benefit of the doubt’ standard is similar to the rule deeply embedded in sandlot baseball folklore that ‘the tie goes to the runner’.... [I]f... the play is close, i.e., ‘there is an approximate balance of positive and negative evidence,’ the veteran prevails by operation of [statute].”). Entitlement to TDIU Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to secure or follow a substantially gainful occupation. A total disability rating for compensation purposes may be assigned based on individual unemployability when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. In adjudicating the issue of entitlement to a TDIU, the Board may not consider any nonservice-connected disabilities or advancing age. However, the Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. Prior to this decision, the Veteran’s service-connected disabilities included PTSD and fronto-temporal lobe disorder rated as 70 percent disabling; sleep apnea secondary to fronto-temporal lobe disorder rated as 50 percent disabling; voiding dysfunction, due to fronto-temporal lobe disorder rated as 40 percent disabling; balance impairment with impaired gait associated with PTSD and frontotemporal lobe disorder rated as 30 percent disabling; swallowing and chewing difficulties due to fronto-temporal lobe disorder rated as 30 percent disabling; low back degenerative arthritis rated as 20 percent disabling; right upper extremity muscle weakness due to fronto-temporal lobe disorder rated as 20 percent disabling; left upper extremity muscle weakness due to fronto-temporal lobe disorder rated as 20 percent disabling; right knee degenerative joint disease rated as 10 percent disabling; right ankle degenerative joint disease rated as 10 percent disabling; left ankle degenerative joint disease rated as 10 percent disabling; tinnitus rated as 10 percent disabling; hepatitis C rated as 10 percent disabling; gastroesophageal reflux disorder rated as 10 percent disabling; speech impairment due to fronto-temporal lobe disorder rated as 10 percent disabling; left lower extremity muscle weakness due to fronto-temporal lobe disorder rated as 10 percent disabling; right lower extremity muscle weakness due to fronto-temporal lobe disorder; and receives non-compensable ratings for left knee degenerative joint disease, left shoulder degenerative joint disease, bilateral pterygium, bilateral hearing loss, hemorrhoids, and erectile dysfunction. His combined rating is 100 percent from November 1, 2018. Thus, the Veteran meets the schedular criteria for a TDIU. Nevertheless, the question for the Board is whether he is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. At a VA examination in November 2018, Dr. R.D. stated that the Veteran’s fronto-temporal lobe disorder will not get significantly better and will more likely than not continue to worsen. He stated that the Veteran would be unlikely to hold down any type of work on a prolonged basis because his anger and rage issues due to the frontal lobe disorder would make working with the public extremely difficult, if not dangerous. Also, the Veteran’s gait would make any job with repetitive or prolonged walking difficult, if not dangerous, and that his worsening memory would make any type of work difficult. The record reflects that the Veteran worked as a security guard, and owned a construction business after military service, but has not worked since 2007. See VA examination, March 2015. Educationally, he reported having a high school diploma and three years of college. Id. Again, the law is clear. Pursuant to the “benefit-of-the-doubt” rule, where there is “an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter,” the Veteran shall prevail upon the issue. 38 U.S.C. § 5107 (b). Given the Veteran’s educational background and occupational history, and the impact that each of his service-connected disabilities have on his ability to work, notably his PTSD and fronto-temporal lobe disorder, the evidence is at least in equipoise as to whether the Veteran is precluded from securing and following substantially gainful employment due to service-connected disabilities alone. See Gilbert, 1 Vet. App. at 55. REASONS FOR REMAND The Board notes that the Veteran has not been afforded a VA examination specifically addressing the question of whether the Veteran’s service-connected disabilities require a permanent need for regular aid and attendance. See 38 U.S.C. §§ 1114 (l)-(t), 5103A (d). Accordingly, a remand is necessary to obtain a VA examination to address the question of permanent need for regular aid and attendance due to his service-connected disabilities. The Board is cognizant that the Veteran has submitted evidence in support of his claim for special monthly compensation based on the need for aid and attendance. See VA 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, August 2013, June 2014, and February 2019. However, there is ambiguity within such evidence that requires further clarification. For example, in June 2014, Dr. V.L. did not explain his findings that the Veteran is unable to prepare his own meals and needs assistance in bathing and tending to other hygiene needs. He also opined that the Veteran was limited in his ability to button his clothes. However, in February 2019, Dr. S.W. opined that the Veteran did not require assistance in bathing or attending to personal hygiene needs (although his wife reminds him to perform such functions) and stated that the Veteran’s grip and fine motor functions were intact, including the ability to button his clothes. Accordingly, clarification of the medical evidence is needed. 38 C.F.R. § 3.326 (a). These matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine if he meets the requirement for aid and attendance due solely to his service-connected disorders. All pertinent evidence of record must be made available to the examiner for review. Any indicated studies should be performed. The examiner must address whether it is at least as likely as not that, due only to his service-connected disabilities, the Veteran is unable to dress or undress himself; is unable to keep himself ordinarily clean and presentable; requires frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; is unable to feed himself through loss of coordination of the upper extremities or through extreme weakness; is unable to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect a claimant from the hazards or dangers incident to his daily environment. A complete rationale for all opinions should be provided. The examiner is asked to discuss the medical evidence of record, including that contained in the VA Form 21-2680’s received August 2013, June 2014, and February 2019, when rendering his/her report. 2. Thereafter, readjudicate the claim at issue on appeal. If the benefit sought remains denied, furnish the Veteran and his representative with a Supplemental Statement of the Case. Allow an appropriate period for response before returning the appeal to the Board for review. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Reed, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.