Citation Nr: 21064859 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 11-00 716 DATE: October 21, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) and major depressive disorder is granted. From June 17, 2008 to September 30, 2008, entitlement to a temporary total rating for panic disorder is granted. From August 15, 2014, but no earlier, entitlement to a total disability rating due to individual unemployability (TDIU) is granted. From June 17, 2008 to September 30, 2008, and from August 15, 2014 to November 12, 2020, entitlement to special monthly compensation (SMC) at the housebound rate is granted. Entitlement to SMC based on the regular need for aid and attendance is granted. REMANDED Entitlement to a rating in excess of 70 percent for panic disorder, to include on an extraschedular basis, is remanded. FINDINGS OF FACT 1. The Veteran has a current diagnosis of PTSD, a VA psychologist has linked the Veteran's current PTSD symptoms to in-service military sexual trauma, and there is credible supporting evidence of the Veteran's reported stressor; moreover, the evidence shows that the Veteran has a current diagnosis of major depressive disorder that is proximately due to in-service military sexual trauma. 2. The Veteran received hospital treatment for panic disorder at a VA hospital from June 17, 2008 through September 29, 2008. 3. From August 15, 2014, but no earlier, the Veteran's panic disorder precluded her from securing and maintaining a substantially gainful occupation. 4. From June 17, 2008 to September 30, 2008, and from August 15, 2014 to November 12, 2020, the Veteran's panic disorder is rated as totally disabling and she is in receipt of service connection for disabilities rated at least 60 percent disabling separate and apart from panic disorder. 5. Due to service-connected disabilities, the Veteran is so helpless as to as to be in regular need of aid and attendance. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for PTSD and major depressive disorder are met. 38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(f). 2. From June 17, 2008 through September 30, 2008, the criteria for entitlement to a temporary total rating for panic disorder due to hospital treatment are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.29. 3. From August 15, 2014, the criteria for entitlement to a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. 4. From June 17, 2008 to September 30, 2008, and from August 15, 2014 to November 12, 2020, the criteria for entitlement to SMC at the housebound rate are met. 38 U.S.C. § 1114(s); 38 C.F.R. §§ 3.350, 3.352. 5. The criteria for SMC based on the regular need for aid and attendance are met. 38 U.S.C. §§ 1114(l), 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1980 to March 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In January 2016, the Veteran testified before a Veterans Law Judge (VLJ) who is no longer employed by the Board. In March 2016, the Board remanded this matter for additional development. In July 2021, the Veteran testified at a virtual hearing before the undersigned VLJ. The Veteran explicitly claimed entitlement to service connection for PTSD. See September 2008 VA Form 21-4138. The AOJ adjudicated this claim and continued the Veteran's 70 percent rating for panic disorder. See August 2009 Rating Decision. The Veteran's Notice of Disagreement (NOD) explicitly stated that she was disagreeing with the rating assigned in connection with her claim for PTSD. See September 2009 VA Form 21-4138. The November 2010 Statement of the Case (SOC) also notes that the issue on appeal was "claimed as PTSD," thus demonstrating that this issue was considered by the SOC. As the issue of entitlement to compensation for PTSD is encompassed by the Veteran's appeal, the Board has added this issue for appellate consideration. Moreover, as the evidence shows that her diagnosis of major depressive disorder is also related to her PTSD stressor, the Board has also added this issue. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Although the Veteran did not explicitly claim entitlement to a temporary total rating for panic disorder, this issue is raised by the record and is part of the increased rating claim on appeal. During the pendency of the appeal, the AOJ granted entitlement to a TDIU effective January 19, 2016. See April 2020 Rating Decision. However, this does not remove from appellate status the issue of entitlement to a TDIU prior to January 19, 2016. See Harper v. Wilkie, 30 Vet. App. 356 (2018). The issue of entitlement to SMC is raised by the record and is part of the increased rating claim on appeal. See Morgan v. Wilkie, 31 Vet. App. 162, 164 (the Board may need to consider schedular rating tools, including SMC, as part of an increased rating claim). 1. Entitlement to service connection for PTSD and major depressive disorder is granted. As noted above, the Veteran claimed entitlement to service connection for PTSD. Although she is already in receipt of service connection for panic disorder, this does not render moot the issue of service connection for PTSD. In this regard, even the rule against pyramiding of disabilities precludes assigning a separate rating for PTSD and panic disorder, there are other benefits of service connection (such as priority medical treatment). Thus, the Board has included this issue for appellate review. The Veteran asserts that she is entitled to service connection for PTSD related to a sexual assault in service. The Board agrees. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish entitlement to service connection, a veteran must show (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection for PTSD requires (1) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between a Veteran's present symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f). The regulations governing PTSD provide that where a claim is based on an in-service personal assault, evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. 38 C.F.R. § 3.304(f)(5). The United States Court of Appeals for the Federal Circuit (Federal Circuit) observed that 38 C.F.R. § 3.304(f)(5) specifically states that a medical opinion may be used to corroborate a personal-assault stressor, noting "medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated." See Menegassi v. Shinseki, 683 F.3d 1379, 1382 (Fed. Cir. 2011) (observing that the Court erred when it determined that a medical opinion based on a post-service examination of a Veteran cannot be used to establish the occurrence of a stressor); see also Patton v. West, 12 Vet. App. 272 (1999) (rejecting the requirement that "something more than medical nexus evidence is required for 'credible supporting evidence'" in personal assault cases). The Veteran has been diagnosed with multiple psychiatric disorders, including panic disorder, PTSD, and major depressive disorder. See, e.g., March 2018 VA Mental Disorders Examination Report (diagnosing panic disorder and major depressive disorder with trauma-related symptoms); October 28, 2020 VA Psychiatry Note (diagnosing depressive disorder, panic disorder, and PTSD due to military sexual trauma); December 2008 VA Examination Report (diagnosing panic disorder, major depression and PTSD); August 2008 Dr. I.S. Letter (PTSD and panic disorder). While not all examiners found that the Veteran met the full criteria for PTSD, the Board resolves this reasonable doubt in favor of the Veteran. Additionally, the Veteran's report of an in-service assault is corroborated by the PTSD diagnosis given by her VA mental health clinicians, as well as by her service records, which show that her waiver for enlisting without a high school diploma was initiated while she was in Germany. See, e.g., May 1989 Military Personnel Record. This is consistent with the report of the circumstances of the in-service assault. See, e.g., December 2008 VA Form 21-0781; April 2019 VA Form 21-0781a. Accordingly, there is credible supporting evidence that the in-service stressor occurred. Moreover, VA mental health professionals, including a VA psychiatrist, have related the Veteran's PTSD to an in-service sexual assault. See, e.g., October 28, 2020 VA Psychiatry Note; see also December 2008 VA Examination Report (noting in-service trauma). Thus, the criteria for service connection for PTSD are met. Finally, the Board observes that the Veteran's major depressive disorder has also etiologically related to the in-service assault. See, e.g., March 2018 VA Mental Disorders Examination Report (noting major depressive disorder with trauma related symptoms). Thus, as the evidence also shows that major depression is related to in-service trauma, service connection for major depression is also warranted. 2. From June 17, 2008 to September 30, 2008, entitlement to a temporary total rating for panic disorder is granted. The issue of entitlement to a temporary total rating for panic disorder is raised by the record and is part of the increased rating claim on appeal. The Veteran filed a claim for an increased rating for panic disorder on September 22, 2008. The period on appeal includes a one-year lookback period. A temporary total disability rating may be assigned where a service-connected disability requires hospital treatment at a VA hospital for a period in excess of 21 days or hospital observation at Department of Veterans Affairs expense for a service-connected disability for a period in excess of 21 days. However, an authorized absence in excess of 4 days during the first 21 days is considered a discharge for the purpose of this rule, as are multiple authorized absences of less than 4 days totalling more than 8 days during the first 21 days. See 38 C.F.R. § 4.29. The Veteran attended the VA psychosocial rehabilitation and recovery center (PRRC) at the Washington VA medical center from June 17, 2008 through September 29, 2008 for the treatment of major depression and panic disorder. See November 3, 2008 VA Mental Health Note. The record shows that the PRRC is an outpatient mental health program that the Veteran attended daily from 9:00 a.m. to 2:30 p.m. See August 2008 Dr. I.S. Letter. Here, the record shows that the PRRC is mental health hospital treatment at a VA hospital. Notably, 38 C.F.R. § 4.29 is not limited to inpatient hospitalization, and the Veteran's outpatient hospitalization precluded employment during the program. The Veteran's authorized absences over the weekends totaled less than four days at a time and less than eight days total in the first 21 days of the program. Accordingly, entitlement to a temporary total rating under 38 C.F.R. § 4.29 is warranted from June 17, 2008, the Veteran's first day in the PRRC, through September 30, 2008, the last day of the month in which she completed the program. 3. From August 15, 2014, but no earlier, entitlement to a TDIU is granted. The Veteran argues that she is entitled to a TDIU prior to January 19, 2016. The Board agrees. A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Throughout the period on appeal, the Veteran is in receipt of a 70 percent rating for panic disorder. The Veteran is also service-connected for additional disabilities; however, the Board will limit present consideration to this single disability, as this allows her additional benefits. The determination as to whether a veteran can secure or follow a substantially gainful occupation includes an economic component and a noneconomic component. The economic component means that a veteran must not receive income from employment outside of a protected environment that exceeds the poverty threshold for one person. The noneconomic component requires consideration of a veteran's ability to secure or follow substantially gainful employment, including factors such as the veteran's history of education, skill, and training, as well as his or her ability to perform the physical and mental activities required by the occupation in question. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Regarding the economic component of a TDIU, the Veteran last worked on August 14, 2014. See, e.g., SSA Determination; July 2021 Board Hearing Transcript. Thus, the economic criteria for a TDIU are met from August 15, 2014. Prior to August 15, 2014, the Veteran was in receipt of substantially gainful income from employment and the evidence does not otherwise show that this employment was marginal or protected. Thus, entitlement to a TDIU prior to August 15, 2014 must be denied. Regarding the noneconomic component of a TDIU, the Veteran has a college education and worked as a supply clerk at Johnson Controls from 2001 until August 2014. See September 2019 VA Form 21-8940. The evidence shows that the Veteran presented to the Emergency Room on August 18, 2014 with chest pain. A September 12, 2014 VA treatment note shows that the quit her job on August 14, 2014 due to stress. Subsequent treatment notes show her seeking work, or a part-time job, but indicate that she was unsuccessful. The March 2018 VA mental disorders examination report notes that the Veteran was working in supply until 2014 when she resigned, as she "was going through a lot mentally." The examiner noted occupational and social impairment with deficiencies in most areas, symptoms including difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, and panic attacks more than once a week. The Veteran stated that she stopped driving because she has panic attacks and she frequently isolates herself. Here, the competent and credible evidence of record shows that the Veteran quit her job because of her mental health symptoms. She subsequently attempted to secure and maintain substantially gainful employment, or part-time employment, but her mental health symptoms prevented her from doing so. While the evidence is not definitive as to whether the Veteran could secure a job, what is clear is that she left her prior job due to mental health symptoms and has not secured a new job. The Board resolves any reasonable doubt as to whether the Veteran's panic disorder alone precludes her from securing and maintaining substantially gainful employment, and finds that from August 15, 2014, her panic disorder alone has precluded her from securing and maintaining substantially gainful employment. Thus, entitlement to a TDIU is granted from that date. 4. From June 17, 2008 to September 30, 2008, and from August 15, 2014 to November 12, 2020, entitlement to SMC at the housebound rate is granted. The issue of entitlement to SMC is raised by the record and is part of the increased rating claim on appeal. The Veteran is currently in receipt of SMC at the housebound rate from November 12, 2020. One of the circumstances where SMC at the housebound rate is payable is where a veteran is service-connected for a single disability rated as total, as well as an additional disability or disabilities ratable at least 60 percent disabling. A TDIU awarded based on a single disability may qualify as a single disability rated as total for this purpose. Here, the Veteran is in receipt of a total rating for panic disorder from June 17, 2008 through September 30, 2008, as well as from August 15, 2014. Moreover, she is also in receipt of service connection for other disabilities rated at least 60 percent disabling during those periods. Accordingly, SMC at the housebound rate is warranted from June 17, 2008 through September 30, 2008 and prospectively from August 15, 2014 to November 12, 2020. 5. Entitlement to SMC based on the regular need for aid and attendance is granted. The issue of entitlement to SMC is explicitly raised by the record. See November 2020 VA Form 21-2680 (Examination for Housebound Status or Permanent Need for Regular Aid and Attendance). While the Veteran only identified the issue of Meniere's Disease on that form, she brought her caregiver to the Board hearing, which also raises the issue of SMC in connection with the claim on appeal. Moreover, while this issue is raised in connection with the appeal seeking an increased rating for panic disorder, the Board may discuss all the Veteran's service-connected disabilities when determining whether entitlement to this benefit is warranted. Cf. Payne v. Wilkie, 31 Vet. App. 373 (2019) (Board must address entitlement to a TDIU as part of an increased rating claim even if TDIU is due to multiple service-connected disabilities, including disabilities not on appeal). The following criteria are to be considered for determining whether a veteran is in need of regular aid and attendance: (1) the inability of the veteran 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 veteran 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 required care and assistance on a regular basis to protect the veteran from the hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352. It is not required that all of the disabling conditions enumerated be found to have existed before a favorable rating may be made. The particular personal functions which a veteran was 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 a veteran is so helpless as to need regular aid and attendance, not that there was a constant need. Determinations that a veteran is so helpless as to be in need of regular aid and attendance will not be based solely upon an opinion that the veteran's condition was such as would have required him or her to be in bed. They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352; Turco v. Brown, 9 Vet. App. 222 (1996). The Veteran is in receipt of service connection for, among other disabilities, panic disorder, PTSD, major depressive disorder, Meniere's disease with hearing loss, vertigo, and tinnitus, and degenerative disc disease of the lumbar spine with right lower extremity radiculopathy. The evidence shows that the Veteran's panic disorder precludes her from driving. Moreover, her Meniere's disease manifests with severe episodes of dizziness, during which the Veteran cannot walk, climb stairs, prepare her own meals, and sometimes requires assistance to use the bathroom facilities. See November 2020 VA Form 21-2680. She has had episodes of falling due to vertigo. See November 17, 2020 VA Otolaryngology Note. Here, the evidence shows that the Veteran's service-connected disabilities have regularly precluded her from attending to the wants of nature without assistance and preparing her own meals. Moreover, her episodes of falls shows that she regularly requires care and assistance to protect her from the hazards incident to her daily environment. While these episodes are "intermittent," SMC is warranted if an individual regularly requires care, and there is no requirement for constant impairment to that degree. Accordingly, the criteria for SMC due to the regular need for aid and attendance are met. To avoid prejudice to the Veteran, the Board will permit the AOJ to assign the effective date for this benefit in the first instance. REASONS FOR REMAND 6. Entitlement to a rating in excess of 70 percent for panic disorder, to include on an extraschedular basis, is remanded. At the July 2021 Board hearing, the Veteran and her caregiver competently and credibly testified that her psychiatric symptoms had worsened. See Board Hearing Transcript at 4, 12-13. Moreover, the Veteran's representative explicitly raised the issue of entitlement to a rating on an extraschedular basis. See July 2021 Board Hearing Transcript at 6. On remand, the Veteran should be afforded an updated examination to ascertain the current severity of her disability. Updated VA and private treatment records should also be secured. The matters are REMANDED for the following action: 1. Secure updated VA treatment records. 2. With any necessary assistance from the Veteran, secure outstanding relevant private treatment records. After completing #1 and #2, schedule the Veteran for an examination as to the current severity of her service-connected mental disorders. The claims file should be available to any be reviewed by the examiner. All findings should be reported in detail. The examiner should assess the severity of the Veteran's service-connected mental disorders. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.M. Badaczewski, 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.