Citation Nr: 21073247
Decision Date: 12/08/21	Archive Date: 12/08/21

DOCKET NO. 19-22 409A
DATE: December 8, 2021

ORDER

Entitlement to an initial rating of 100 percent for service-connected posttraumatic stress disorder (PTSD) from June 19, 2018, is granted.

Entitlement to a total disability rating due to individual unemployability (TDIU) is dismissed as moot. 

REMANDED

Entitlement to service connection for high blood pressure, to include as secondary to service-connected PTSD, is remanded.

Entitlement to service connection for alopecia, to include as secondary to service-connected PTSD, is remanded.

Entitlement to special monthly compensation (SMC) based on housebound status is remanded.

Entitlement to SMC based on aid and attendance is remanded.

FINDINGS OF FACT

1. The duration, severity, and frequency of the Veteran's PTSD symptoms more closely approximated total occupational and social impairment throughout the appeal period.

2. Given the Veteran's 100 percent award for PTSD, there remains no case or controversy with respect to the issue of entitlement to a TDIU.

CONCLUSIONS OF LAW

1. The criteria for an initial disability rating of 100 percent for PTSD are met throughout the appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411.

2. The appeal for entitlement to a TDIU is dismissed as moot. 38 U.S.C. § 7105. 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from February 1965 to January 1968, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) from a January 2019 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). 

The January 2019 rating decision granted service connection for PTSD and assigned a rating of 30 percent effective June 19, 2018. The Veteran appealed the 30 percent rating in a May 2019 Notice of Disagreement (NOD). In April 2020, the Board denied entitlement to a rating in excess of 30 percent for PTSD. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2021 Order, the Court granted a Joint Motion for Remand (JMR) submitted by the Veteran and the Secretary of VA (Parties), vacated the April 2020 Board denial, and remanded the matter to the Board for compliance with the JMR instructions. The Parties agreed that remand was warranted because the Board erred by failing "to support its decision with an adequate statement of reasons or bases." JMR at 1. Specifically, the Parties agreed that the Board erred by relying on a December 2018 VA examination in denying a rating in excess of 30 percent while failing to address the Veteran's August 2019 statement that his PTSD symptoms had worsened since the VA examination. Id. The Parties agreed that vacatur and remand were warranted for the Board to discuss the Veteran's statements of worsening PTSD symptoms and to consider whether a new medical examination is necessary. Id. at 2.

The Board notes that the Veteran is represented in this matter by Michael Y. Lu, Esq., in accordance with 38 C.F.R. § 14.630, which allows an unaccredited attorney one time to represent a claimant before the Board. See May 2021 VA Form 21-22a and Third-Party Correspondence.  

1. Entitlement to an initial rating of 100 percent for service-connected PTSD from June 19, 2018, is granted.

The Veteran asserts that his PTSD symptoms warrant a rating in excess of 30 percent. See September 2021 Third-Party Correspondence; September 2021 VA Form 21-4138, Statement in Support of Claim; August 2019 VA Form 9 and attached lay statement; May 2019 NOD; May 2019 Lay Statement. The Board agrees.

The Veteran additionally asserts that he is entitled to an updated VA examination to address the current severity of his PTSD symptoms since his symptoms have worsened since the last VA examination in December 2018. See September 2021 Third-Party Correspondence. Because the Board finds that the record contains sufficient evidence to support a rating of 100 percent for PTSD in the form of a September 2021 private psychological evaluation, remand to obtain an updated VA examination is unnecessary as doing so would only serve to develop potentially negative evidence. See Andrews v. McDonough, 34 Vet. App. 216 (2021) (explaining that remand should not be undertaken if further development might only lead to a denial and the evidence of record is sufficient to grant the claim); 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination."). 

The Veteran is in receipt of a 30 percent rating for PTSD from June 19, 2018.

As this appeal concerns an initial rating, the period on appeal is from the date of the initial claim, June 19, 2018. See June 2018 VA Form 21-526b; January 2019 rating decision; May 2019 NOD.

The criteria for rating the Veteran's PTSD are found in the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, DC 9411.

Under DC 9411, a 50 percent rating is warranted where PTSD is manifested by occupational and social impairment with reduced reliability and productivity, due to symptoms such 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; difficulty in establishing and maintaining effective work and social relationships. 

A 70 percent rating is assigned where PTSD produces 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 inability to establish and maintain effective relationships. 

A 100 percent rating 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.

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). Nevertheless, all ratings in the general rating formula are associated with objectively observable symptomatology, and in Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013), the United States Court of Appeals for the Federal Circuit (Federal Circuit) stated 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." The Federal Circuit further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Id. Thus, "[a]lthough the veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran's level of impairment in 'most areas.'" Id. at 118. As such, the Board will consider both the Veteran's specific symptomatology as well as the occupational and social impairment described in the general rating formula to determine whether an increased evaluation is warranted.

Furthermore, while the diagnostic criteria set forth multiple symptoms indicative of the 70 percent level, the Court held in Bankhead v. Shulkin that "the language of the regulation indicates that the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas." 29 Vet. App. 10, 20 (2017).

The Board finds that the evidence of record supports granting an evaluation of 100 percent throughout the entire appeal period for service-connected PTSD. In this regard, the Veteran's PTSD symptoms more closely approximate the 100 percent level of total occupational and social impairment.

The September 2021 PTSD Disability Benefits Questionnaire (DBQ) endorses occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The DBQ and examination report indicate the Veteran's PTSD is productive of symptoms more closely aligned with total social impairment, such as feelings of detachment or estrangement from others; persistent inability to experience positive emotions; irritable behavior and angry outbursts typically expressed as verbal or physical aggression toward people or objects; hypervigilance; and exaggerated startle response. The examination report notes additional behaviors in line with total social impairment such as arguing with his wife three times a week, irritability, yelling, throwing objects, punching walls, preferring to isolate at home, avoiding crowds, and being emotionally distant. Notably, the examiner highlighted that the "Veteran's impairment in social relationships is significant" and that while he feels close to his family, he also feels "detached from them and avoids them." The Veteran used to enjoy being around people and being active, but "now he does not go anywhere" and he prefers to isolate. He feels detached and estranged from other people, even his wife, and finds himself unable to emotionally connect with other people.

The September 2021 examination report and DBQ offer additional details about the Veteran's PTSD symptoms that speak to the 100 percent criteria of gross impairment in thought processes, persistent delusions, and disorientation to time or place. Specifically, the examination report explains that the Veteran has daily intrusive memories of the traumatic events that are difficult to control and make it difficult to concentrate. The Veteran has nightmares every night. The Veteran has intense flashbacks of the traumatic events and sometimes he thinks he is reliving the events. He has a fear of heights caused by the traumatic events. When thoughts of the traumatic events are triggered, the Veteran experiences chills, accelerated heart rate, sweating, and a falling sensation. To avoid cues that trigger memories of the traumatic events, the Veteran avoids elevators, certain television stations, movie theaters, wearing Vietnam or military paraphernalia, and speaking about his service. The Veteran experiences negative beliefs such as expecting something bad or dangerous to occur, not being able to trust himself or others, and needing to be on guard. The Veteran's mood is never better than "pretty good" and is mostly bad. At least two to three times per week he is confused upon waking up as to where he is and whether he is back in service. The Veteran has also exhibited ritualistic, obsessive, and hypervigilant behaviors such as investigating noises in the middle of the night, doublechecking locks, excessively worrying about potential problems, never feeling safe despite taking more than adequate precautions, always being on alert, scanning for threats, and hyperawareness of exit points. The Veteran can be "very jumpy." The Veteran suffers from impaired concentration and a short attention span. He used to love to read, but no longer has the concentration to do this. He has difficulty falling asleep every night and wakes up early. There is some evidence of intermittent inability to perform activities of daily living, as the Veteran requires the assistance of his wife and described it as a "fulltime job."  

Significantly, the examination report notes PTSD symptoms that more closely approximate persistent danger of hurting self or others consistent with a 100 percent rating. In this regard, the examiner observed that the Veteran thinks about suicide anywhere from four times per week to daily. Notably, the examiner specified that the Veteran has near daily suicidal ideation with a plan and that he "thinks frequently about how he would end his life" and the method he would use. The Veteran reported having persistent suicidal ideation since at least 2017. The examination report further describes that the Veteran experiences thoughts of homicidal ideation toward one individual involved in the traumatic events. With regard to suicidal ideation, the fact that the Veteran expressed a plan and contemplated methods and "how he would end his life" more closely approximates the 100 percent criteria of danger of self-harm as it rises above the 70 percent criteria of ideation, which does not necessarily involve a plan. See Bankhead, 29 Vet. App. at 19-20 (distinguishing the terms ideation, passive, active, plan, and intent).

The examination report and DBQ indicate the Veteran's PTSD symptoms have persisted since service. The Veteran's wife has affirmed that some symptoms have worsened since his retirement in 2017. The Veteran's lay statements also support a finding that the severity of the Veteran's PTSD symptoms have persisted throughout the appeal period. See September 2021 VA Form 21-4138, Statement in Support of Claim; August 2019 VA Form 9 and attached correspondence; May 2019 lay statement.

The Board finds the September 2021 examination and DBQ competent and credible. In this regard, the examination and DBQ were completed by a licensed clinical psychologist who has over 14-years of experience working at the VA and Department of Defense with trauma survivors, and 6 of those years were focused specifically on PTSD veterans. The psychologist reviewed the claims file, conducted a 2-hour initial clinical diagnostic evaluation with the Veteran, a 1-hour clinical interview with the Veteran, a 30-minute clinical interview with the Veteran's wife to obtain collateral information, and a 30-minute clinical interview with the Veteran to assess for risk. In sum, the psychologist sat down with the Veteran and his wife on 4 separate occasions for a total of 4 hours of clinical interview time. The psychologist also documented her findings in detail with specific examples and quotations for support. For these reasons, the September 2021 examination and DBQ are highly probative and in favor of granting an increased rating.

Furthermore, the Board finds that the December 2018 C&P psychological examination is inadequate and non-probative. The probative value of the September 2021 private examination and DBQ outweigh any minimal value of the December 2018 examination as the former contains far more detail, information, time spent, and attention to the Veteran's reports. Furthermore, the December 2018 examination did not fully address the Veteran's reports of his PTSD symptoms and how his PTSD affects his daily functioning.

Although the evidence of record does not meet all the criteria at the 100 percent level, the Board resolves reasonable doubt to find that the evidence more closely approximates the level of severity associated with the 100 percent level than with the 70 percent level. See 38 C.F.R. § 4.7. In this regard, the evidence more closely aligns with gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); and disorientation to time or place. The evidence discussed above are productive of impairment more closely aligned with total occupational and social impairment than criteria of the 70 percent level. 

As noted earlier, it is unnecessary to remand for a new examination as the September 2021 private examination and DBQ adequately address the current nature and severity of the Veteran's PTSD symptoms and related functional impairment. See Andrews, 34 Vet. App. 216; 38 C.F.R. § 3.304(c). Furthermore, the Board and the September 2021 examiner considered and discussed the Veteran's August 2019 statements about worsening symptoms as instructed by the JMR and found that such statements, in addition to the private examination, support an increased rating of 100 percent throughout the appeal period. Accordingly, the September 2021 private examination, September 2021 DBQ, and the lay statements of record support granting an increased initial rating to 100 percent for PTSD from June 19, 2018.

2. Entitlement to a TDIU is dismissed as moot.

When unemployability is raised during an appeal for an increased rating, a claim for entitlement to a TDIU is considered to be "part and parcel" of the underlying claim. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In this regard, the Veteran's August 2019 correspondence stated that his PTSD symptoms are so severe that "opportunities to consider rejoining the work world or volunteering even part time is not an option for me." Thus, the issue of entitlement to a TDIU is raised by the record and will be inferred despite the absence of a filed claim for TDIU. See Rice, 22 Vet. App. at 453-54.

A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the Veteran is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.

After this decision, the Veteran is in receipt of a 100 percent rating for PTSD from June 2018; a 20 percent rating for diabetes from July 2004; a 10 percent rating for status post fracture distal mid shaft left humerus and left olecranon from March 1990; a 10 percent rating for status post fracture right clavicle from March 1990; and noncompensable ratings for status post pubic rami fracture bilateral and three-centimeter scar left side of chin. See January 2019 Codesheet. After this decision, the Veteran's combined evaluation is total. Accordingly, the Veteran does not meet the schedular criteria for a TDIU as his combined evaluation is total. See 38 U.S.C. § 4.16(a). 

A grant of a 100 percent disability rating does not always render the issue of a TDIU moot, however, as VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. See Bradley, 22 Vet. App. 280. 

Here, the Veteran is in receipt of a 100 percent rating for his PTSD. His other service-connected disabilities are diabetes, status post fracture distal mid shaft left humerus and left olecranon, status post fracture right clavicle, status post pubic rami fracture bilateral, and three-centimeter scar left side of chin, which combine to a 40 percent rating. The record does not establish, and the Veteran did not previously assert, that these other disabilities, alone, supported a TDIU. Instead, he has always reported PTSD as part of his total disability picture. See August 2019 correspondence. Furthermore, the issue of entitlement to a TDIU was inferred as part and parcel of the appeal for an increased rating for PTSD. As a result, the issue of entitlement to a TDIU is moot and must be dismissed. 38 U.S.C. § 7105.

REASONS FOR REMAND

3. Entitlement to service connection for high blood pressure, to include as secondary to service-connected PTSD, is remanded.

4. Entitlement to service connection for alopecia, to include as secondary to service-connected PTSD, is remanded.

5. Entitlement to SMC based on housebound status is remanded.

6. Entitlement to SMC based on aid and attendance is remanded.

On the September 2021 DBQ, the psychologist indicated that it is more likely than not that the Veteran's high blood pressure and alopecia are "affected by his PTSD symptoms." As such, the issue of entitlement to service connection for these conditions, to include as a result of service-connected PTSD, is raised by the record and requires further development on remand. See Morgan v. Wilkie, 31 Vet. App. 162 (2019). 

The Board also finds that statements made by the Veteran about being unable to leave his home due to PTSD and his need for regular care from his wife raise the issue of entitlement to SMC based on housebound status and aid and attendance. Thus, these issues are raised by the record as well and require further development on remand. See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991). 

At the present time the Veteran does not meet the criteria for statutory housebound. Although he has a service-connected disability rated as 100 percent disabling (PTSD), he does not have an additional service-connected disability or disabilities independently ratable at 60 percent or more. 38 U.S.C. § 1114(s)(1); Bradley v. Peake, 22 Vet. App. 280, 286 (2008). In this regard, the combined evaluation of the Veteran's other service-connected disabilities is 40 percent. See 38 C.F.R. §§ 4.25-.26; January 2019 Codesheet.

The matters are REMANDED for the following action:

1. Obtain any outstanding VA treatment records

2. With any necessary assistance from the Veteran, obtain any outstanding pertinent private treatment records.

3. Develop the issue of entitlement to SMC based on housebound status. Request that the Veteran complete and return a VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, and take appropriate action.

4. Develop the issue of entitlement to SMC based on aid and attendance. Request that the Veteran complete and return a VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, and take appropriate action.

5. Obtain an examination from an appropriate clinician addressing the nature and etiology of the Veteran's high blood pressure. The entire claims file must be made available to and reviewed by the examiner, to include treatment records obtained pursuant to (1.) and (2.) above. All necessary diagnostic tests and studies must be carried out.

The examiner must elicit from the Veteran a detailed history of his high blood pressure, to include date of onset and functional impact.

After examining the Veteran and reviewing the claims file, the examiner is asked to address the following:

(a.) Identify whether the Veteran has had hypertension or high blood pressure or residuals of the same since June 19, 2018.

(b.) Whether the Veteran has high blood pressure that at least as likely as not (an approximate balance of evidence) had its onset in active service; manifested to a compensable degree within a presumptive period; or is otherwise related to active service, to include as a result of presumed exposure to herbicide agents during service in the Republic of Vietnam.

Basing a negative opinion on the fact that high blood pressure is not among the disabilities listed in VA regulations as presumptively caused by herbicide agents will render the opinion inadequate. The examiner must address herbicide agent exposure as a possible etiology as well as active service in general.

The examiner must also address the 2018 National Academies of Sciences (NAS) Update, which elevated hypertension from the "limited or suggestive evidence" category to the "sufficient evidence of an association" category. See Veterans and Agent Orange: Update 11 (2018), available at https://www.nap.edu/read/25137/chapter/1, pages 465, 560, 565 (last accessed October 6, 2021). According to NAS, the "sufficient evidence of an association" category indicates that there is enough epidemiologic evidence "to conclude that there is a positive association" between hypertension and herbicide exposure. Id. at 565. The Board takes judicial notice of the 2018 NAS Update finding that there is sufficient epidemiologic evidence "to conclude that there is a positive association" between hypertension and herbicide exposure. See Monzingo v. Shinseki, 26 Vet. App. 97, 103 (2012) (allowing for taking of judicial notice of facts of universal notoriety that are not subject to reasonable dispute); Smith (Brady) v. Derwinski, 1 Vet. App. 235, 238 (1991) (citing Fed. R. Evid. 201(b)).

Please also discuss the May 1998 private orthopedic consultation report indicating a past history of hypertension. 

(c.) Whether the Veteran has high blood pressure that at least as likely as not (an approximate balance of evidence) is proximately due to his service-connected PTSD.

(d.) Whether the Veteran has high blood pressure that at least as likely as not (an approximate balance of evidence) has been aggravated (worsened) by his service-connected PTSD.

In addressing (c.) and (d.), please consider and discuss the September 2021 psychological DBQ which opines that it is more likely than not that the Veteran's high blood pressure is "affected by his PTSD symptoms."

6. Obtain an examination from an appropriate clinician addressing the nature and etiology of the Veteran's alopecia. The entire claims file must be made available to and reviewed by the examiner, to include treatment records obtained pursuant to (1.) and (2.) above. All necessary diagnostic tests and studies must be carried out.

The examiner must elicit from the Veteran a detailed history of his alopecia, to include date of onset and functional impact.

After examining the Veteran and reviewing the claims file, the examiner is asked to address the following:

(a.) Identify whether the Veteran has had alopecia or residuals of the same since June 19, 2018.

(b.) Whether the Veteran has alopecia that at least as likely as not (an approximate balance of evidence) had its onset in active service, or is otherwise related to active service, to include as a result of presumed exposure to herbicide agents during service in the Republic of Vietnam.

Basing a negative opinion on the fact that alopecia is not among the disabilities listed in VA regulations as presumptively caused by herbicide agents will render the opinion inadequate.

The examiner must address herbicide agent exposure as a possible etiology as well as active service in general.

(c.) Whether the Veteran has alopecia that at least as likely as not (an approximate balance of evidence) is proximately due to his service-connected PTSD.

(d.) Whether the Veteran has alopecia that at least as likely as not (an approximate balance of evidence) has been aggravated (worsened) by his service-connected PTSD.

In addressing (c.) and (d.), please consider and discuss the September 2021 psychological DBQ which opines that it is more likely than not that the Veteran's alopecia is "affected by his PTSD symptoms."

Please provide a robust rationale for all opinions. If unable to opine without resorting to speculation, the examiner must provide a basis for reaching this conclusion.

 

 

Marissa Caylor

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	D. deBruyn, 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.