Citation Nr: 21020846 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 20-21 214 DATE: April 8, 2021 ORDER Entitlement to service connection for stroke, to include secondary to other specified trauma related disorder with persistent depressive disorder (trauma disorder) is denied. Entitlement to special monthly compensation (SMC) based on aid and attendance and/or housebound is denied. Entitlement to total disability due to individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s stroke is not secondary to service-connected other specified trauma related disorder and is not otherwise related to an in-service injury or disease. 2. While the Veteran needs regular aid and attendance from another person, this is not due to his service-connected other specified trauma related disorder with persistent depressive disorder as required for SMC. 3. The Veteran’s service-connected other specified trauma related disorder with persistent depressive disorder does not render him unemployable. CONCLUSIONS OF LAW 1. The criteria for service connection for stroke due to service or other specified trauma related disorder with persistent depressive disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for SMC based on the need for aid and attendance for the Veteran are not met. 38 U.S.C. § 1114; 38 C.F.R. § 3.350. 3. The criteria for entitlement to TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from March 1962 to January 1964. In July 2020, the Board remanded the case for further development, which is completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for stroke, to include secondary to other specified trauma related disorder with persistent depressive disorder The Veteran contends he is entitled to service connection for stroke secondary to his service-connected other specified trauma related disorder (trauma disorder). Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The Veteran suffered a stroke in June 2016, which left him with significant left hemiplegia and mild cognitive impairment; thus, the Veteran has a current disability. However, the preponderance of the evidence is against finding that the Veteran’s stroke is proximately due to or the result of or aggravated beyond its natural progression by service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). The Veteran attended a VA examination in November 2018. The medical history reports that he had a stroke in June 2016 and since his initial hospital stay, he has resided in several rehabilitative and care facilities. The medical records established that the stroke was due to acute thrombosis of the right middle cerebral artery, which despite treatment failed to resolve the effects of the stroke leaving the Veteran with significant residuals. Based on review of the records and examination, the examiner opined that it is less likely than not that the Veteran’s stroke was proximately due to or the result of his service-connected trauma disorder. The examiner noted that the medical records reported that the stroke was due to cerebral thrombosis and he had risk factors of diabetes and hypertension. Additionally, his VA neurologic providers contemplated whether his history of atrial fibrillation was also a contributing factor. As such, the examiner concluded the Veteran’s risk factors of diabetes, hypertension, and history of atrial fibrillation, which are well established causes of stroke and all conditions the Veteran suffered from, attributed to his stroke and that there is no known medical mechanism by which PTSD can cause cerebral thrombosis. In July 2020 an addendum opinion was obtained. The examiner opined it is not at least as likely as not the Veteran’s stroke began in or is otherwise related to service noting that the stroke occurred decades after service and the service treatment records are silent as to any injury or disease which would increase the risk for a later stroke noting that the Veteran’s blood pressure was normal at the time of separation. Additionally, it is not at least as likely as not that the stroke was caused by his trauma disorder as there is no know medical mechanism by which a mental health condition can cause thrombosis, which is a closure of a blood vessel. The examiner explained that the mechanism of this blockage is either due to gradual accumulation of atherosclerosis (plaque in the blood vessels) and/or due to embolic phenomenon (traveling blood clot). In the Veteran’s case, he had several risk factors for both atherosclerosis and embolic phenomenon as he has diabetes, hypertension and a history of atrial fibrillation. The examiner noted that these risk factors were discussed by his caregivers at the time of the stroke. Thus, the mental health disorder does not cause either atherosclerosis or embolic phenomenon and there is not known medical mechanism for his trauma disorder to have caused his stroke. Additionally, the evidence does not establish that his service-connected condition aggravated his stroke and/or residuals from the stroke. The Veteran’s stroke occurred in a significant artery, which is known to correlate with significant stroke residuals. The residuals the Veteran experiences were apparent immediately at the time of the stroke and remained, not worsened, since. The examiner explained that there is no known medical mechanism by which a mental health condition could even affect the brain’s circulation. As such, the Veteran’s stroke residuals are accounted for by the June 2016 cerebral thrombosis with no evidence of any worsening or aggravating effect. The Board gives significant probative weight to the medical opinions of the VA examiner. This opinion was conducted by a health care professional, who reviewed the record and conducted a physical examination. This opinion is well supported by adequate rationale with a reasoned explanation that explains the pathology of the Veteran’s conditions and discusses the specific facts relevant to the case at hand with supporting data. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Moreover, the opinion is consistent with the medical records that reveal a history of hypertension, aortic stenosis, diabetes, atrial fibrillation hypothyroidism and hypercholesterolemia. The Veteran may believe his stroke is proximately due to or aggravated beyond its natural progression by his service-connected trauma disorder; however, he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body, pathology and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case as the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). The Board also finds that service connection on a direct basis is not warranted as the preponderance of the evidence is against finding that the Veteran’s stroke began during active service, or is otherwise related to an in-service injury, event, or disease. The service treatment records are silent as to any complaints, treatments or diagnoses related to stroke or any risk factors for stroke. Neither the Veteran nor his representative provided any statements or arguments specific to a claim of entitlement for service connection for stroke on a direct basis. Furthermore, the VA examiner found no evidence of any injury or disease in-service which would increase the risk for a later stroke, noting the Veteran had normal blood pressure at the time of separation. Therefore, there is no evidence of an in-service injury, event or disease pertaining to stroke and the claim is denied. 2. Entitlement to special monthly compensation based on aid and attendance and/or housebound The Veteran filed a claim received October 2018 alleging entitlement to aid and attendance. For the period on appeal the Veteran is service connected for other specified trauma related disorder with persistent depressive disorder at 70 percent. SMC is payable at the (l) rate if a Veteran, as the result of service-connected disability, is permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b); 3.351(b), 3.352(a). Under 38 U.S.C. § 3.352 (a), the following is accorded consideration in determining the need for regular aid and attendance: inability of claimant to dress or undress, or to keep ordinarily clean and presentable; inability to attend to the wants of nature; 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, frequent need of adjustment of any prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid. “Bedridden” will be a proper basis for the determination. For the purpose of this paragraph, “bedridden” will be that condition which, through its essential character, actually requires that the claimant remain in bed. It is not required that all of these disabling conditions be found to exist before a favorable rating may be made. The particular personal functions which a veteran is 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 the veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that a veteran is so helpless as to be in need of regular aid and attendance are based on the actual requirement of personal assistance from others. 38 U.S.C. § 3.352 (a). For the following reasons the Board finds that SMC based on aid and attendance is not warranted. The Veteran attended an examination for housebound and/or need for regular and attendance in October 2018. The clinician reported that the Veteran requires nursing home care and assistance for most activities of daily living as he is unable to ambulate and has no strength on the left side due to his diagnoses of cardiovascular disease and left sided hemiparesis. In November 2018 the Veteran attended a VA examination and arrived via medical transport due to the need for a gurney. The VA examiner reported that since the Veteran’s 2016 stroke he is permanently bedridden, requires a Hoyer lift for transfers, is completely dependent on caregivers and resides in a nursing home. The Veteran is unable to self-feed, dress, bath, groom, toilet or ambulate without assistance. The examiner concluded that the Veteran is chronically bedbound due to his 2016 stroke which left him paralyzed on his left side and completely dependent on assistance for all activities of daily living. The Veteran also underwent a VA examination for other specified trauma related disorder in November 2018. He reported mild to moderate symptoms consisting of sleep disruption, hypervigilance and exaggerated startle response. The examiner concluded that the Veteran has an occupational and social impairment with reduced reliability and productivity that is 75 percent due to his non service-connected neurocognitive disorder. The Veteran was generally able to answer questions appropriately, was correctly oriented with logical and goal directed thoughts but demonstrated a moderate impairment of memory and attention. The examiner reported that the short- and long-term memory loss, difficulty understanding complex commands and suicidal ideation are related to his non service-connected cognitive and adjustment disorder. Additionally, he is unable to perform activities of daily living due to his physical limitations related to the stroke. Review of the medical record reveals that in March 2015, prior to the stroke, the Veteran was independent with bathing, dressing, toileting, transferring, continence and feeding. In October 2015 he reported living with his wife and being more active compared to prior years. The records after the June 2016 stroke reveal that the Veteran was placed in a rehabilitative center due to the sequelae of the stroke and his wife’s inability to care for him without assistance. The evidence indicates that the Veteran remains at a long-term care facility and is bed-bound. The Board finds the medical evidence to include the findings of the clinician and VA examiners to be highly persuasive as they all conclude that the Veteran requires nursing home care and is bedridden as a result of his stroke. These findings are consistent with the medical records revealing that prior to June 2016 the Veteran was active and independent in his activities of daily living and thereafter he has been dependent on caregivers. Furthermore, the November 2018 VA examiner found that when only considering the service-connected trauma disorder, the Veteran is able to engage in appropriate social interactions, understand and remember job instructions and sustain attention needed to complete job tasks. These abilities reveal that the trauma disorder does not leave the Veteran so helpless as to be in need of regular aid and attendance requiring personal assistance from others. 38 U.S.C. § 3.352 (a). As such, the preponderance of the evidence establishes that the Veteran requires aid and attendance and is bedridden due to his non service-connected residuals of stroke and not due to his service-connected trauma disorder. Therefore, the criteria for a grant of SMC based on the need for aid and attendance due to service-connected disability is not met, and the claim is denied. See 8 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 3. TDIU The Veteran filed a claim received in January 2016 requesting a TDIU. For the reasons following reasons, the Board finds that TDIU is not warranted. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, 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. Id. In this case, the Veteran has one service-connected condition of other specified trauma related disorder with persistent depressive disorder at 70 percent for the period on appeal. Thus, meeting the schedular requirements for a TDIU. 38 C.F.R. § 4.16(a). The phrase “unable to secure and follow a substantially gainful occupation” contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran’s ability to secure and follow such employment. Id. Attention should be given to the veteran’s history, education, skills, and training; whether the veteran has the physical ability (both exertional and non-exertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran’s particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The evidence of record reveals that the Veteran has a long work history as a plumber. In October 2003 he reported that he retired in March 2003 from plumbing but at a VA examination in September 2014 he disclosed last working in August 2007 due to an assault with injuries that impacted his ability to stand or walk. However, according to the request for employment information received January 2016, he was self-employed from 1982 to 1998 as a plumber with a date last worked of 1998 due to retirement and VA disability. The Veteran reported losing approximately six months of time during the 12 months preceding his last date of employment due to disability. In the application for TDIU he reported being self-employed from January 1981 to February 2003 the date he became too disabled to work. He reported an educational background of two years of college and training as a plumbing apprentice, journeyman. In October 2018 the Veteran submitted another application alleging employment from January 1980 to September 1999 the date he became too disabled to work and reported an educational background of four years of college. The information provided by Veteran as to his education and employment history contain several inconsistencies. The Board must assess not only competency of any lay statements, but also their credibility. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In weighing credibility, VA may consider internal inconsistency, facial plausibility, and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The record establishes a pattern of inconsistent reporting, which calls into question the Veteran’s overall credibility and the reliability of the statements offered in support of his claim for benefits. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (the Board can consider bias in lay evidence and conflicting statements of the veteran in weighting credibility); Caluza v, 7 Vet. App. at 511. The Veteran has alleged becoming too disabled to work in 1998, September 1999 and February 2003 and also reported that he stopped working in 2005 due to his prison sentence. Therefore, the Board finds that the Veteran’s statements are not credible and affords them little weight. As such, it is unclear as to whether the Veteran’s employment terminated for health reasons or due to his incarceration from approximately 2005 until 2015. Regardless, the record does not reveal that Veteran obtained employment since release his release from prison; therefore, the Board finds the Veteran remained unemployed for the period at issue. Additionally, the Veteran also provided inconsistent statements regarding his educational background, but the evidence establishes at least a high school education and on the job training in the field of plumbing. The evidence of record includes Social Security Administration (SSA) records. While SSA records are not controlling for VA determinations, they may be pertinent to VA claims. Collier v. Derwinski, 1 Vet. App. 412 (1991); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). In this case the Veteran filed for disability benefits in October 1993, several years prior to the appeal period, for physical conditions related to his back, shoulder and hiatal hernia and was found not disabled. The Board notes that the psychiatric review technique (PRT), found anxiety related disorders that were not severe and only resulted in a slight degree of limitation in restriction of activities of daily living, difficulties in maintaining social functioning, and deficiencies of concentration, persistence or pace. However, as these assessments occurred prior to the period at issue minimal weight is given to the SSA findings. The Veteran attended a VA examination for his mental health condition in July 2015, just prior to his claim for TDIU. The examiner concluded that the Veteran had an occupational and social impairment with deficiencies in most areas. He reported that the Veteran would benefit from the following accommodations: no contact with the public, limited contact with co-workers and supervisors, low stress environment, tasks that do not require decision-making; flexible productivity expectations and the ability to take breaks as needed. In November 2018 the Veteran underwent another VA examination for his service-connected trauma disorder and reported mild to moderate symptoms. The examiner concluded that he has an occupational and social impairment with reduced reliability and productivity; however, 75 percent of the impairment is due to his neurocognitive disorder which is related to his stroke and not his service-connected condition. Occupationally, the Veteran reported employment as a plumber until 2005 when he was sentenced to prison for 10 years and no employment since. The examiner reported that the Veteran has short- and long-term memory loss, difficulty understanding complex commands and suicidal ideation related to his non service-connected cognitive and adjustment disorder. He is also unable to perform activities of daily living due to physical limitations from his non service-connected stroke. The examiner noted that for his service-connected trauma disorder, the Veteran did not describe much occupational impairment and opined that he would have periodic difficulty with motivation on the job related to depression, and mild periodic difficulty with irritability towards others related to his trauma disorder. Thus, based solely on his service-connected condition the examiner concluded that the Veteran is able to understand and remember job instructions, sustain attention needed for job task completion and engage in appropriate social interaction. Review of the medical records reveal that in August 2015 the Veteran was described as alert, oriented, cooperative and able to obey commands but anxious. His case manager noted that he was progressing appropriately in his group and participating in the mentorship program. In December he had intact insight but diminished judgment with tangential thought patterns. The Veteran’s medical records from June 2016 reflect his continued difficulties related to his stroke and subsequent residuals. The Board notes that the Veteran has significant non-service-connected conditions that render him bedridden; thus, precluding the ability to secure and follow a substantially gainful occupation. However, in determining whether a TDIU is warranted, neither his non-service-connected disabilities nor advancing age may be considered. See Van Hoose, 4 Vet. App. 361. Therefore, the question before the Board is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of the service-connected trauma disorder. For the purposes of this case, the Board will consider the mental acts required for basic work activities, which include understanding, carrying out, remembering simple instruction, and responding appropriately to supervisors and coworkers. The July 2015 VA examiner found functional impairments due to the service-connected trauma disorder that includes no contact with the public, limited contact with co-workers and supervisors, low stress environment, tasks that do not require decision-making; flexible productivity expectations and the ability to take breaks as needed. Conversely, the November 2018 concluded that the Veteran would have periodic difficulty with motivation and irritability towards others but is able to understand and remember job instructions, able to sustain attention needed for job task completion and able to engage in appropriate social interaction. The Board finds the November 2018 examiner’s assessment to be more persuasive for the following reasons. The July 2015 examiner listed numerous symptoms such as, neglect of personal appearance and hygiene, impaired impulse control, illogical, obscure or irrelevant speech and difficulty understanding complex commands; however, in the behavioral observations the examiner described the Veteran as dressed in clean, appropriate clothes with good hygiene, a cooperative attitude, normal speech, clear and logical thought processes, and good insight with normal judgment. The behavioral observations are more consistent with treatment records from 2015 to early 2016, which frequently described the Veteran as alert, oriented, and cooperative. Additionally, the evidence reveals that he is capable of at least some social interaction and maintaining relationships as he remained married to his spouse for many years and achieved some progress in his group and mentorship program. As such, the Board gives greater probative weight to the findings of the November 2018 examiner. According to the Dictionary of Occupational Titles description for plumber there is a specific vocational preparation of seven, which requires two to four years of training, to include on the job. Based on the Veteran’s occupational and educational background he has the requisite training for skilled work in the plumbing industry as well as unskilled work, as he has at least completed high school. Additionally, as reported by the November 2018 VA examiner, the Veteran is able to understand, carrying out, and remember simple instruction, maintain attention to complete a task and engage in social interaction, which are required basic mental work tasks. The Veteran’s ability to engage in social interaction is also reflected in his strong and supportive relationship with his spouse of many years. Therefore, when considering the Veteran’s limitations due solely to his service-connected trauma disorder in conjunction with his educational and employment background, the Board finds the Veteran is capable of securing and following substantially gainful employment. Accordingly, a TDIU is not warranted and the claim is denied. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Prinsen, Samantha 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.