Citation Nr: 21075846 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 18-24 202 DATE: December 21, 2021 ORDER Entitlement to a disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) for accrued benefits purposes is denied. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance or housebound status for accrued benefits purposes is denied. FINDINGS OF FACT 1. At the time of his death, the Veteran had pending claims for entitlement to a disability rating in excess of 70 percent for PTSD and for entitlement to SMC based on the need for aid and attendance or housebound status; his surviving spouse timely filed a claim for accrued benefits. 2. Throughout the appellate period, the Veteran's service-connected PTSD most closely approximated occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood but did not result in total social and occupational impairment. 3. The Veteran's service-connected PTSD did not render him so helpless as to require regular aid and attendance from others, nor did he have a service-connected disability rated at 100 percent. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 70 percent for PTSD for accrued benefits purposes have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to SMC based on the need for aid and attendance or housebound status for accrued benefits purposes have not been met. 38 U.S.C. §§ 1114, 5107, 5121; 38 C.F.R. §§ 3.350, 3.351, 3.352, 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Philippine Commonwealth Army, including recognized guerilla service, from December 1941 to May 1942, and from November 1942 to May 1943. He died in July 2019. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2017 rating decision of the Department of Veterans Affairs (VA) regional office (RO). The Veteran timely appealed. In March 2019, the Board remanded the matters on appeal for additional evidentiary development. Accrued Benefits Accrued benefits are periodic monetary benefits to which a payee was entitled at his or her death under existing ratings or decisions, or those based on evidence in the file at the date of death and due and unpaid. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. For a claimant to prevail on an accrued benefits claim, the record must show that (i) the appellant has standing to file a claim for accrued benefits, (ii) the Veteran had a claim pending at the time of death, (iii) the Veteran would have prevailed on the claim if he had not died; and (iv) the claim for accrued benefits was filed within one year of the Veteran's death. 38 U.S.C. §§ 5101 (a), 5121; 38 C.F.R. § 3.1000; Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998). The Veteran died in July 2019. At the time of his death, the claims listed on the title page of this decision were pending. The appellant filed an Application for Dependency, Indemnity, and Compensation (DIC), Death Pension, and Accrued Benefits in August 2019. As the appellant has standing to file a claim for accrued benefits, the Veteran had claims pending at the time of his death, and the claim for accrued benefits was filed within one year of the Veteran's death, the only issue is whether the Veteran would have prevailed on the claims had he not died. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1000. The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. The Federal Circuit has held that the Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to each claim. 1. Entitlement to a disability rating in excess of 70 percent for PTSD for accrued benefits purposes is denied. The Veteran sought a disability rating in excess of 70 percent for his service-connected PTSD. Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). PTSD is evaluated under the General Rating Formula for Mental Disorders (General Rating Formula). See 38 C.F.R. § 4.130, DC 9411. Pursuant to the General Rating Formula, a 70 percent disability rating is warranted 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 100 percent disability rating is warranted 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. The symptoms listed in the General Rating Formula are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). If the evidence demonstrates that the claimant's psychiatric disorder produces symptoms and resulting occupational and social impairment equivalent to that set forth in the criteria for a given rating, then that rating will be assigned. Mauerhan, 16 Vet. App. at 443. Evidence In March 2018, the Veteran underwent a VA examination. There, the Veteran arrived appropriately dressed. He could not hear and was uncommunicative. He walked with a cane and had an unsteady, faltering gait at 94 years old. He had poor memory but seemed to know where he was and was oriented to person, place, and time. The Veteran's wife (the appellant) was interviewed regarding the Veteran's history and symptomatology due to his hearing disability. Concerning the Veteran's social history, she indicated that they lived in the U.S. from 1997 to 2014 and since 2014 they lived in Dagupan, Pangasinan, Philippines. From his ex-wife, he had seven children; one son died. Of the six children remaining, none visited him. Regarding the Veteran's occupational history, the appellant indicated that he retired as an Administrative Office of the Department of Environment and Natural Resources where he worked from 1979-1989. Before that, he worked with the Bureau of Forest Development since the 1960s. Concerning the current symptoms of his disability, the appellant reported that twice a week the Veteran had flashbacks surrounding "several Japanese soldiers around." Also, about twice a week, he experienced nightmares, waking up with a startle and strangling her. She described him as irritable, suspicious, and hypervigilant, persistently insisting that they close all windows and lock all doors. The examiner performed a clinical evaluation and noted that the Veteran exhibited a depressed mood, anxiety, suspiciousness, near continuous panic or depression affecting the ability to function independently, appropriately, and effectively, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, and the inability to establish and maintain effective relationships. He deemed the Veteran competent to handle his financial affairs. The examiner ultimately determined that the Veteran continued to meet the DSM-5 criteria for PTSD and that this disability resulted in occupational and social impairment with reduced reliability and productivity. In October 2021, a VA examiner reviewed the evidence of record and provided a retrospective opinion concerning the Veteran's level of psychiatric disability. She noted that the Veteran retired following significant employment with the Department of Environment and Natural Resources. The examiner observed that the Veteran's record supported a significant history of PTSD with sleep impairments, nightmares (strangling his wife during dreams), flashbacks, distressing memories, avoidance, irritation/low frustration tolerance, suspiciousness, cognitive changes (i.e., one record supported cognitive decline due to age), hypervigilance, and lingering fear and anxiety. The examiner found that the Veteran exhibited depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, and the inability to establish and maintain effective relationships. The examiner determined that the Veteran's symptoms met the DSM-5 criteria for PTSD and that this disability resulted in occupational and social impairment with reduced reliability and productivity. Analysis Based on the foregoing, the Board finds that there is insufficient evidence that the Veteran's PTSD symptoms were of the severity, frequency, and duration to cause the level of total occupational and social impairment associated with a higher, 100 percent disability rating. Regarding gross impairment in thought processes or communication, the Board notes that the Veteran's memory loss and cognitive changes have been attributed to his age, not to his acquired psychiatric disability, and other challenges with communication have been attributed to his severe hearing loss disability. There is no evidence that his thought processes have been aberrant in any way. The record does not contain evidence of persistent delusions or hallucinations. VA examiners have noted the Veteran's experiences with flashbacks but have at no point characterized these flashbacks as delusions or hallucinations. There is no evidence that the VA medical providers and examiners were not competent or credible, and the reports were based on accurate facts and objective examinations. Therefore, the Board finds that the examinations are given significant probative weight as to the frequency and severity of the Veteran's symptoms, including whether he exhibited persistent delusions or hallucinations. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). No evidence of psychosis or grossly inappropriate behavior has been documented by any mental health provider during the appeal period. Regarding whether the Veteran was in persistent danger of hurting himself or others, the Board acknowledges the appellant's descriptions of the Veteran strangling her during intense nightmares. However, it finds that this behavior is contemplated by the current 70 percent evaluation as it is indicative of impaired impulse control (such as unprovoked irritability with periods of violence). Further, the record is silent for suicidal or homicidal ideation or plan, and at no time during the appeal period was the Veteran assessed as a danger to himself or others by medical providers. Additionally, there is not evidence that the Veteran's PTSD resulted in the intermittent inability to perform activities of daily living, including the maintenance of minimal personal hygiene. He was appropriately dressed and groomed at the March 2018 VA examination. The Board also notes that even were the Veteran to have displayed some level of neglect of personal appearance and hygiene, this is also contemplated by the current 70 percent disability rating. At no time was the Veteran been disoriented to time or place. Further, while he described memory and concentration difficulties, these difficulties have been attributed to age-related cognitive decline, not to his service-connected PTSD. Ultimately, the preponderance of the evidence weighs against a finding that the Veteran's disability was characterized by total social and occupational impairment. While the Veteran experienced some degree of social isolation due to his PTSD, throughout the appeal period, he maintained a close relationship with his wife of several decades. Additionally, while examiners found that the Veteran's PTSD resulted in difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances, including work or a worklike setting, demonstrating some level of occupational impairment, the Veteran was able to maintain two long term positions prior to retirement, a fact that weighs against total occupational impairment. These facts preponderate against a finding that the Veteran's disability causes total social and occupational impairment as is necessary for a higher, 100 percent disability rating. In summary, a higher, 100 percent disability rating for the Veteran's service-connected PTSD for accrued benefits purposes is denied. 2. Entitlement to SMC based on the need for aid and attendance or housebound status for accrued benefits purposes is denied. The Veteran sought entitlement to SMC based on the need for aid and attendance or housebound status. Legal Criteria Special monthly compensation can be awarded when a Veteran needs aid and attendance or when the Veteran has a single service-connected disability rated at 100 percent and is permanently housebound by reason of service-connected disability or disabilities. 38 C.F.R. § 3.350 (b)(3), (i). The requirement of being permanently housebound is met when the veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 C.F.R. § 3.350 (i). In this case the Veteran does not have a single service-connected disability rated at 100 percent and cannot be awarded SMC on the basis of housebound status. Id. The need for aid and attendance means helplessness or being so nearly helpless as to require the regular aid and attendance of another person. A person will be considered in need of regular aid and attendance if he: (1) 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; or (2) is a patient in a nursing home because of mental or physical incapacity; or (3) establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). 38 C.F.R. § 3.351(c). It is not required that all of the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found to exist before a favorable rating may be made. The particular personal functions which the veteran was unable to perform should be considered in connection with his former condition as a whole. It is only necessary that the evidence establish that the veteran was so helpless as to need regular aid and attendance, not that there was a constant need for aid and attendance. 38 C.F.R. § 3.352 (a); see Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in § 3.352(a) must be present to grant special monthly compensation based on the need for aid and attendance). The following will be accorded consideration in determining the need for regular aid and attendance: inability of claimant to dress or undress himself, or to keep himself 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 adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, 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). It is not required that all of the disabling conditions noted above be found to exist before a favorable rating may be made. The particular personal functions which the veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that the veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that the veteran is so helpless, as to need regular aid and attendance will not be based solely upon an opinion that the claimant's condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others. Id. Aid and attendance can also be awarded if a veteran is bedridden, which means a condition which, through its essential character, actually requires that the claimant remain in bed. The fact that 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. Id. Evidence Prior to his death, the Veteran was service-connected for one disability, PTSD, rated as 70 percent disabling. At a May 2012 VA examination, a VA examiner provided a clinical evaluation of the Veteran before determining that he was able to independently do all activities of daily living except bathe (he had a tub seat and his wife assisted him). His age-related memory loss impacted him in that he asked questions repeatedly throughout the day. Concerning his service-connected PTSD, the Veteran reportedly had nightmares during which he choked his wife. The Veteran's PTSD was not observed to have any direct impact on his activities of daily living. In October 2021, a VA examiner reviewed the evidence of record and provided a retrospective opinion concerning whether the Veteran was housebound due to his service-connected PTSD or whether it rendered him helpless or nearly so helpless as to require to the regular aid and attendance of another person to perform activities of daily living. The examiner found that the Veteran's PTSD resulted in nightmares, flashbacks, and social difficulties/social anxiety, but that he did not appear to have limitations at home with regard to self-care related to his PTSD. Analysis The VA examinations and medical evidence of record are negative for any indication that his service-connected PTSD, by itself, resulted in the Veteran requiring the regular aid and attendance of another person. The evidence does not support a finding that his PTSD resulted in the inability of the Veteran to feed himself, dress or undress himself without assistance, keep himself clean and presentable, an inability to attend to the wants of nature without assistance, or that it prevented him from leaving his home. In summary, the claim of entitlement to SMC on account of the need for aid and attendance of another person, or housebound status for accrued benefits purposes is denied. C. Casey Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Bush 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.