Citation Nr: 21065319 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 15-16 060 DATE: October 25, 2021 ORDER Entitlement to special monthly pension based on the need for regular aid and attendance from August 1, 2014 is denied. The appeal to reopen service connection for PTSD is granted. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. From August 1, 2014, the Veteran was not in need of is not in need of regular aid and attendance of another person. 2. New and material evidence has been received to reopen service connection for PTSD. 3. The Veteran does not have a diagnosis of PTSD related to service. 4. The weight of the evidence shows that currently diagnosed depression is not related to service. CONCLUSIONS OF LAW 1. From August 1, 2014, the criteria for special monthly pension based on the need for regular aid and attendance have not been met. 38 U.S.C. §§ 1502 (b), 1503; 38 C.F.R. §§ 3.23, 3.351, 3.352, 3.271, 3.272. 2. The evidence received after the August 2008 decision is new and material to reopen service connection for PTSD. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156 (a), 3.303, 20.1105. 3. The criteria for service connection for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C. §§ 1110, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1972 to January 1978. The Veteran testified at a June 2021 virtual Board hearing. A copy of the transcript is of record. 1. Entitlement to special monthly pension based on the need for regular aid and attendance from August 1, 2014 Special monthly pension is payable to individuals who are permanently bedridden or helpless or so nearly helpless as to be in need of the regular aid and attendance of another person under the criteria set forth in 38 C.F.R. § 3.352(a). 38 U.S.C. §§ 1502(b), 1521; 38 C.F.R. § 3.351 (a), (b). To establish a need for regular aid and attendance, a veteran must (1) be blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; (2) be a patient in a nursing home because of mental or physical incapacity; or (3) show a factual need for aid and attendance. 38 U.S.C. § 1502(b); 38 C.F.R. §§ 3.351(c). The following factors will be accorded consideration in determining the need for regular aid and attendance: inability of a claimant to dress or undress herself, or to keep 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 (this will not include the adjustments of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of a claimant to feed herself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, either physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352 (a). A finding that the claimant is "bedridden" will provide a proper basis for the determination. Bedridden will be that condition which, through its essential character, requires that the Veteran remain in bed. The fact that a claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. It is not required that all of the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made. Id. A veteran that does not meet the requirements for increased pension based on need for aid and attendance, will nonetheless be awarded a higher rate of death pension if they are permanently housebound by reason of disability. The "permanently housebound" requirement is met when the surviving spouse is substantially confined to his or her home (ward or clinical areas, if institutionalized) or immediate premises by reason of disability or disabilities which it is reasonably certain will remain throughout the surviving spouse's lifetime. See 38 C.F.R. § 3.351(f). The evidence of record does not show that the Veteran is permanently housebound, nor does he contend such. The Veteran was awarded special monthly pension based on the need for regular aid and attendance effective October 31, 2013, pursuant to a March 2014 rating decision. The evidence at that time showed that he was receiving VA nursing care. A January 2014 letter from VA patient services shows that he was discharged from nursing care in January 2014. Special monthly pension was terminated effective August 1, 2014 pursuant to the August 2014 decision on appeal. The Board finds that general due process concerns have been satisfied in connection with the termination of special monthly pension benefits. See 38 C.F.R. §§ 3.103 (b)(3)(i), 3.105(h). Prior to reducing or terminating benefits, VA is required to comply with VA regulations concerning due process. Specifically, VA must create a proposal for the reduction or termination that sets forth all material facts and reasons, notify the beneficiary at his or her latest address of record of the contemplated action, and furnish detailed reasons thereof. The beneficiary must be given 60 days for the presentation of additional evidence to show that payments should be continued at the present level. See 38 C.F.R. §§ 3.103, 3.105. The Board finds that April 2014 and May 2014 proposals to discontinue entitlement to special monthly pension based on the need of regular aid and attendance adequately set forth all of the material facts and reasons for the termination because the Veteran no longer required regular aid and attendance. See 38 C.F.R. §§ 3.103(b)(3)(i), 3.105. The Veteran was given 60 days to respond and did not submit evidence showing that he continued to need regular aid and attendance of another person. See 38 C.F.R. §§ 3.103(b)(3)(i), 3.105(h). For these reasons, the Board finds that the procedural and appellate due process rights for the termination of special monthly pension have been met. The Veteran does not contend that he is currently in need of regular aid and attendance of another person. Instead, during June 2021 hearing testimony, he asserted that he is disabled and cannot work. The Board notes, however, that the Veteran's award of pension based on total disability is still in effect. A July 2015 VA Examination for Housebound Status or Permanent Need for Regular Aid and Attendance shows that the Veteran is not bedridden, is not currently hospitalized, and is able to travel beyond his current domicile. The Veteran was able to perform all self-care functions. He was able to get up, walk up and down stairs, and walk without the assistance of another person for greater than one-half, but less than one mile. The evidence does not show that the Veteran is blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less and he is not a patient in a nursing home. The evidence does not show a factual need for aid and attendance. The evidence does not establish an inability of the Veteran to dress or undress, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances; inability to feed himself; inability to attend to the wants of nature; or incapacity which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. See 38 C.F.R. § 3.352 (a). For these reasons, the Board finds that from August 1, 2014, special monthly pension based on the need of regular aid and attendance of another person is not warranted. 2. New and material evidence has been received to reopen service connection for PTSD The Board is required to determine whether new and material evidence has been received before it can reopen a claim and readjudicate service connection or other issues on the merits. See Barnett v. Brown, 83 F.3d 1380, 1383-1384 (Fed. Cir. 1996). In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The RO previously denied service connection for PTSD in January 2004 and August 2008 rating decisions, respectively, because the Veteran did not have a verified in-service stressor, and because he did not submit new and material evidence to reopen his claim. The Veteran did not appeal the January 2004 or August 2008 decisions or submit relevant evidence within one year of notice of the denials. Therefore, the January 2004 and August 2008 decisions became final. The Veteran reopened his appeal in March 2012. In July 2013, the RO again denied service connection for PTSD. The Veteran, however, identified additional VA treatment records relevant to his claim in April 2014, submitted along with a request to reconsider the claim within one year of the July 2013 denial. Therefore, the July 2013 denial was not final. The Board finds that the last final denial of service connection for PTSD was in August 2008. Evidence received since the August 2008 rating decision includes Board hearing testimony, VA treatment records, and a March 2018 VA examination and opinion addressing service connection for an acquired psychiatric disorder. The Board finds that new evidence triggered VA's duty to assist the Veteran in obtaining a VA examination, and new and material evidence has been received to reopen the claim for service connection. See 38 C.F.R. § 3.156. As the RO has reopened and reviewed the claim on the merits in a statement of the case, the Board finds no prejudice to the Veteran in adjudicating the claims on the merits. See Hickson v. Shinseki, 23 Vet. App. 394 (2010). 3. Entitlement to service connection for posttraumatic stress disorder (PTSD) Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38C.F.R. §3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). In adjudicating a claim for service connection for PTSD, the Board is required to evaluate evidence based on places, types, and circumstances of service, as shown by the veteran's military records and all pertinent medical and lay evidence. Hayes v. Brown, 5 Vet. App. 60, 66 (1993); see also 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.304 (f). The evidence necessary to establish the occurrence of an in-service stressor for PTSD will vary depending on whether or not the veteran "engaged in combat with the enemy." Id. Here, in lay statements and hearing testimony, the Veteran has described stressors alleging that on two occasions, his parachute failed to deploy in service requiring the use of a reserve parachute. He believed that his parachute was tampered with by soldiers due to his race. As the alleged stressor is not related to combat, the veteran's lay testimony by itself is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain service records or other evidence to corroborate the veteran's testimony or statements. See Moreau v. Brown, 9 Vet. App. 389, 394 (1996). The question of whether a veteran was exposed to a stressor in service is a factual one, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts. Wood v. Derwinski, 1 Vet. App. 190 (1991), aff'd on reconsideration, 1 Vet. App. 406 (1991). Hence, whether a stressor was of sufficient gravity to cause or support a diagnosis of PTSD is a question of fact for medical professionals and whether the evidence establishes the occurrence of stressors is a question of fact for adjudicators. The weight of the evidence shows that the Veteran does not have a diagnosis of PTSD. A March 2018 VA examiner found that the Veteran's did not currently meet the diagnostic criteria for a diagnosis of PTSD during the examination. The examination shows that the Veteran's reported stressor met DSM-V Criterion A in that he was exposed to actual or threated death or serious injury; however, the Veteran did not meet any other criteria required for a PTSD diagnosis, to include Criterion B, C, D, E, F, and F. Additionally, in the examiner's medical opinion, she stated that the Veteran reported no symptoms directly related to the parachute incident the Veteran reported in service. Given the Veteran's complicated psychiatric history and his presentation during examination, objective psychiatric testing measures were administered and helped to confirm his present diagnosis. While VA treatment records show an old diagnosis of PTSD in 2003, the August 2003 and December 2003 VA evaluations that provided this initial diagnosis of PTSD did not address whether PTSD was directly related to the Veteran's in-service stressor, nor did they address whether the Veteran met the full criteria for a diagnosis of PTSD. Moreover, while the March 2018 VA examiner acknowledged that the Veteran may have had a diagnosis of PTSD in the past, he did not have a diagnosis currently. The Board finds that the March 2018 VA examination for PTSD, which was based on a examination of the Veteran and a review of the entire claims file, provides the most probative evidence as to the Veteran's current diagnosis. VA treatment records dated since the Veteran's 2012 claim show that the he is currently in receipt of treatment for and has been consistently diagnosed with depression and polysubstance dependence. For these reasons, the Board finds that the weight of the evidence shows that the Veteran has current diagnosis of major depressive disorder and does not establish a current diagnosis of PTSD. VA psychiatric treatment records identify a diagnosis of depression or major depressive disorder. The Board will, therefore, address whether the Veteran's depression is related to service. Service treatment records do not identify any psychiatric complaints in service or at separation. The Veteran was separated from service after a period of being away without leave (AWOL). Approximately five years post-service, in December 1982, the Veteran was seen for a VA psychiatric examination. At that time, he reported that he had gotten involved with drugs in service, that he went AWOL for 78 days, and had received a special court martial. The examiner stated that the Veteran exhibited some paranoid thinking and some evidence of a personality disorder. There was a possibility that he was schizophrenic. However, based on the information available, the Veteran was diagnosed with borderline personality disorder. He was seen at VA in June 1985 for possible schizophrenia. He was not seen for psychiatric treatment again until approximately 2003 when he was diagnosed with polysubstance dependence and PTSD. Since then, he has been seen for polysubstance dependence, major depressive disorder, substance induced major depression, and substance induced psychotic disorder, as well as borderline personality traits. The Board notes that personality disorders are considered congenital or developmental defects and, therefore, generally are not diseases or injuries for the purposes of service connection. 38 C.F.R. §§ 3.303 (c), 4.9; see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). However, if a disease or injury is superimposed over the congenital or developmental defect during service, service connection may be warranted for the resultant disability. VAOPGCPREC 82-90. While the Veteran has also been diagnosed with alcohol dependence and substance dependence, service connection is not possible for primary drug or alcohol abuse. Service connection may only be granted if such abuse is secondary to a service-connected disability. See 38 U.S.C. § 105; Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001); 38 C.F.R. §§ 3.1 (m), 3.301(d). Thus, the question for the Board is whether current depression is related to service. The Board finds that the preponderance of the evidence weighs against finding that the Veteran's major depressive disorder or depression began during service or is otherwise related to an in-service injury, event, or disease. VA treatment records show the Veteran was not diagnosed with a psychiatric disorder until five years after separation from service, and depression was not indicated at that time, nor were symptoms of depression identified. While the Veteran is competent to report having experienced psychiatric symptoms as well as substance abuse problems in service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of an acquired psychiatric disability. The issue is medically complex given the Veteran's history of personality disorder, substance abuse, and substance-induced psychotic disorder and depression, in addition to his acquired psychiatric disorder of depression. Thus, the Board finds that a nexus opinion in this case requires specialized knowledge as well as interpretation of psychiatric or psychological evaluation of the Veteran and interpretation of relevant testing measures. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). During the March 2018 examination, the examiner noted that while the Veteran had depression, the etiology of depression was unclear because of the Veteran's extensive history of polysubstance abuse. During the examination, with regard to his in-service symptoms, he reported that he became cocky and aggressive with his experiences in the air. He was concerned about Klansmen in his unit. He also reported going AWOL prior to discharge, and the examiner indicated that it appeared that his period of AWOL was related to problems with drugs and alcohol in service. He continued to have problems with drugs and alcohol post-service. The Veteran was confusing and tangential during the interview, but objective testing measures confirmed current depression, anxiety, and cognitive impairment. The Veteran was diagnosed with depression. The VA examiner ultimately opined that the Veteran's current psychiatric diagnosis is not at least as likely as not related to an in-service injury, event, or disease. The rationale was while the Veteran had a diagnosis which meets the DSM-V criteria, there was no evidence to show that it was related to service. The examiner reasoned that the mental health issues in service described in the VA examination report were not consistent with the Veteran's current mental health symptoms, and there was no evidence that the symptoms were consistent or the same since service. Therefore, there was no nexus between the Veteran's current diagnosis and service. The Board finds that the March 2018 VA examiner's opinion is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The record does not otherwise include any medical opinion evidence which relates diagnosed depression to service. For the reasons discussed above, the Board finds that the Veteran does not have a diagnosis of PTSD and currently diagnosed depression is not etiologically related to service. Accordingly, service connection for an acquired psychiatric disorder is not warranted. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christine C. Kung 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.