Citation Nr: 21023428 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 07-09 811 DATE: April 20, 2021 ORDER An initial 70 precent rating for posttraumatic stress disorder (PTSD) is granted for the period prior to May 5, 2011. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted for the period prior to May 5, 2011. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is granted. FINDINGS OF FACT 1. Prior to May 5, 2011, the severity, frequency, and duration of the Veteran’s symptoms more closely approximated occupational and social impairment with deficiencies in most areas. 2. The Veteran’s service-connected disabilities precluded substantially gainful employment prior to May 5, 2011. 3. Resolving all doubt in Veteran’s favor, his service-connected disabilities render him in need of the regular aid and attendance of another person. CONCLUSIONS OF LAW 1. Prior to May 5, 2011, the criteria for a 70 percent disability rating for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to TDIU were met prior to May 5, 2011. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16 3. The criteria for entitlement to SMC based on the need aid and attendance have been satisfied. 38 U.S.C. § 1114 (l); 38 C.F.R. §§ 3.350, 3.351, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1967 to February 1969. A Board hearing was held in May 2011. A transcript is of record. In August 2020, the Veteran was notified that the Veterans Law Judge (VLJ) who conducted the hearing is no longer available and was offered the opportunity for a new Board hearing. The Veteran declined an additional hearing. This appeal has a long procedural history including several Board decisions and remands of the appeal from the Court of Appeals for Veterans Claims (Court). Most pertinent to the current decision, in a May 2018 decision, the Board denied entitlement to an initial disability rating in excess of 50 percent prior to May 5, 2011 for service-connected PTSD, entitlement to TDIU prior to May 5, 2011, and entitlement to SMC for aid and attendance. The Veteran appealed that decision to the Court. In a June 2019 Joint Motion for Remand (JMR), the Court vacated and remanded the appeal. In April 2020, the Board again remanded the appeal for additional development. 1. Increased Rating for PTSD prior to May 5, 2011 The Veteran asserts the severity of his PTSD entitles him to a rating greater than 50 percent for the period prior to May 5, 2011. After a careful review of the evidence, the Board concludes the Veteran is entitled to an initial 70 percent rating for the period prior to May 5, 2011. However, his symptoms did not cause the level of impairment required for a 100 percent disability rating. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A 50 percent rating is assigned when 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned 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; or memory loss for names of close relatives, own occupation or own name. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely based on social impairment. 38 C.F.R. § 4.126. The use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). A GAF (Global Assessment of Functioning) score is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994). This is more commonly referred to as DSM-IV. A GAF of 21 to 30 is defined as behavior considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriate, suicidal preoccupation) or an inability to function in almost all areas (e.g., stays in bed all day, no job, home or friends). A GAF of 31 to 40 is indicative of some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or any major impairment in several areas, such as work or school, family relations, judgment, thinking or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). A GAF of 41 to 50 is indicative of serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF of 51 to 60 is defined as moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). A GAF of 61 to 70 is indicative of mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. A GAF of 71 to 80 indicates that if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). The Board notes that an examiner’s classification of the level of psychiatric impairment by a GAF score is to be considered but is not determinative of the percentage rating to be assigned. VAOPGCPREC 10-95. The Board notes VA implemented DSM-5, effective August 4, 2014. The Secretary of VA has determined that DSM-5 applies to claims certified to the Board on and after August 4, 2014. 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). The AOJ initially certified the Veteran’s appeal to the Board prior to that date; thus, DSM-IV is the governing directive. During a January 2005 VA examination, the Veteran reported he had been married three times, was going through a divorce at the time, and was estranged from his adult son. The Veteran stayed at home most of the time and socialized very little, indicating he only had one good friend and did not socialize with anyone else. He stayed away from people and felt he did not fit in with others. He endorsed poor sleep, exaggerated startle response, and flashbacks. The examiner described the Veteran as having impaired social, occupation, and marital functioning, noting the Veteran had few supports and was estranged from his family. Despite the described impairments, the examiner assigned a GAF score of 55, indicating only moderate symptoms and indicated a good prognosis. In a February 2006 private treatment record, Dr. L.S. stated the Veteran suffered from depression, crying spells, and nightmares. His affect was blunted, he had memory problems, his speech was tearful, his mood was depressed, and his associations were tight. The Veteran’s insight and judgment were blunted, and he had problems with concentration. Dr. L.S. assigned a GAF score of 40, indicating a major impairment in several areas, such as work or school, family relations, judgment, thinking or mood. Similarly, in September 2008, Dr. D.Y., who evaluated the Veteran as part of a Vocational Rehabilitation and Employment (VRE) assessment, opined diagnostic testing suggested cognitive dysfunction and assigned a GAF score of 35, again indicating a major impairment in several areas. In a January 2009 VRE independent living screen, the Veteran had impaired reasoning and judgment, impaired short- and long-term verbal memory, impaired friendships, and impaired relationships with authority figures. He had no friendships, no hobbies, was socially isolated, and had an impaired capacity for positive, intimate, and loving relationships. The Veteran received psychiatric and psychological treatment from VA providers from 2004 until 2007. While the Veteran did report limited social contact and difficulty getting along with others, the treatment records are otherwise unremarkable and do not indicate the level of impairment suggestive of a 70 percent disability rating. See, e.g., April 2004 VA Treatment Records; May 2004 VA Treatment Records. However, the record otherwise demonstrates the symptoms described in VA treatment records do not reflect the full extent of the Veteran’s symptomatology. For example, the December 2011 VA examiner, who determined the Veteran had a total occupational and social impairment, stated that while the Veteran had received treatment since 2005, he had little benefit from the treatment and his symptoms had worsened since the 2005 VA examination. And during the May 2011 Board hearing, the Veteran testified that when he was receiving treatment, he did not disclose all his symptoms and just wanted to leave the appointments. See May 2011 Hearing Tr. at 33. His testimony is supported by the variations between the VA treatment records and the evaluations by Dr. L.S. in February 2006, and the VRE evaluations in September 2008 and January 2009. The Veteran provided a private medical evaluation from Dr. J.S. in December 2015. Dr. J.S. provided a retrospective evaluation of the Veteran’s symptoms for the period on appeal based on the record and an interview with the Veteran. The examiner noted the Veteran first sought treatment in 2004, presenting with depression, marked anxiety, and anger, which, according to Dr. J.S., have continued to be a part of the Veteran’s clinical psychiatric picture. Dr. J.S. found that while the January 2005 VA examiner noted the Veteran’s departure from his job in 2003, the Veteran’s work records was poor, marked by reprimands, conflicts with coworkers, and an almost constant abuse of alcohol to distract from the symptoms of his PTSD. Dr. J.S. also noted that although the January 2005 VA examiner found the Veteran’s affect to be restricted and depressed, documented significant flashbacks, memory problems, lack of social interaction, poor sleep, exaggerated startle response, irritability, recent job loss, and drinking issues, the examiner assigned a GAF score of 55. Dr. J.S. opined the proper GAF score, given the documented symptoms, should have been 50, which would indicate serious social and occupational impairment. Dr. J.S. asserted that despite continued care and group therapy from 2004 to 2007, the Veteran’s condition continued to worsen, which, the Board notes, is consistent with the opinion of the December 2011 VA examiner. It was Dr. J.S.’s opinion that the January 2005 VA examiner underestimated the severity of the Veteran’s PTSD symptoms at the time and the record from 2004 to 2011 documented serious and severe deficits in major life areas due to the Veteran’s symptoms, including an inability to maintain effective relationships, a lack of socialization, nightmares, concentration problems, irritability, severe depression, and an impaired ability to perceive reality in a normal manner such as flashbacks and distortions of thinking related to his severely impaired trust issues. Overall, the Board finds the record demonstrates the Veteran’s PTSD was manifested by symptoms associated with a 70 percent rating, including difficulty adapting to stressful circumstances and an inability to establish and maintain effective relationships. The Board is persuaded by the opinion of Dr. J.S., especially when it is considered alongside the other evaluations conducted during the appeal period that show a severe impairment. Therefore, despite some indications of more mild symptomatology, overall, the Board finds the severity, frequency, and duration of the Veteran’s symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. Although, as discussed below, the Veteran’s symptoms meet the requirements for TDIU, equivalent to total occupational impairment, the Veteran has not experienced total social impairment, as he maintained a relationship with his sister and nephew, albeit with difficulty. In sum, the Board concludes that based on the symptomatology described in the evidence of record a disability rating of 70 percent, but no higher, is warranted for the period prior to May 5, 2011. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). This rating contemplates the severity, frequency, and duration of the Veteran’s symptoms and is based on all the evidence of record. See 38 C.F.R. § 4.126(a). 2. TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation due to service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16.  A finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” 38 C.F.R. §§ 3.340(a)(1), 4.15.   Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a).   “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). “Marginal employment shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16(a) (2017).  The United States Court of Appeals for Veterans Claims (Court), in Ray v. Wilkie, 31 Vet. App. 58 (2019), interpreted the phrase “unable to secure and follow a substantially gainful occupation” under 38 C.F.R. § 4.16 (b). The Court defined the term to have two components: one economic and one noneconomic. The economic component means 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. The non-economic component, which is pertinent in this case, includes consideration of: The Veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue.   As of this decision, the Veteran has met the schedular criteria for the entire appeal period. See 38 C.F.R. § 4.16(a). But the Board must still consider whether his service-connected disabilities have precluded him from securing and following substantially gainful employment for that period. See 38 C.F.R. §§ 3.341, 4.16(a); see also Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In a March 2007 statement, the Veteran’s former employer reported the Veteran had last worked in October 2003, when he went on long-term disability. During the May 2011 Board hearing, the Veteran testified that after leaving active service he worked as a mail clerk for a gas company for 20 years, went on disability in 2003, and then formally retired in 2008. May 2011 Hearing Tr. at 27, 29. He asserted that he could no longer work because it is hard for him to get along with other people and he was only able to stay in his last job for so long because he worked in a worked in a room by himself for the most part and could do as little or as much as he wanted. Id. at 31. He further stated that even while he was employed, he drank on the job. Id. In February 2008, a VRE evaluator determined the Veteran’s service-connected disabilities contributed in substantial part to vocational impairment and the Veteran had not overcome the impairment to employment, concluding the Veteran had a serious employment handicap attributed to his PTSD. During the September 2008 VRE psychiatric consultation, Dr. D.Y. opined that based on the effects of multiple medical problems and psychological functioning, Dr. D.Y. did not believe it was reasonably feasible for the Veteran to achieve a vocational objective and could not function effectively in a job training or occupational environment. In his December 2015 retrospective opinion, Dr. J.S. noted the Veteran had last worked in 2003 and his work record, while long, was marked by dysfunction, reprimands, and verbal conflict. The Veteran reported he drank heavily throughout his employment, sometimes beginning at 6 a.m. and continuing until starting work. He reported he was verbally difficult with others at work and received many bad reviews. The examiner opined the continuous nature of employment appears much more favorable than it actually was and concluded it was at least as likely as not that the Veteran’s PTSD symptoms – such as marked deficits in interpersonal functioning, sustained task focused concentration, and attention – rendered him unable to secure or follow substantially gainful employment since 2004. Dr. J.S. explained the Veteran is quite reclusive, avoidant of others and would have much difficulty functioning in a normal work environment where getting along with coworkers was required. And due to his anger, irritability, and avoidance, the inevitable on-the-job conflicts would be high disruptive of any reasonable work goals. Having considered the Veteran’s history, education, skill, and training along with the evidence of record, the Board finds that the Veteran was rendered unable to obtain and maintain a substantially gainful occupation due to the limitations resulting from his service-connected disabilities for the period prior to May 5, 2011. 3. SMC Based on the Need for Aid and Attendance The Veteran asserts entitlement to SMC based on the need for regular aid and attendance of another person due to his service-connected disabilities. SMC is payable to a veteran who, as a result of service-connected disabilities, is so helpless as to need or require the regular aid and attendance of another person. 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b)(3). A veteran will be considered in need of regular aid and attendance if he or she is: (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 five degrees or less; (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). Factual need for aid and attendance is based on the following criteria: the inability of the veteran to dress or undress himself or herself, or to keep himself or 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 adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); the inability of a veteran to feed himself or herself through the loss of coordination of upper extremities or through extreme weakness; the inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect a veteran from the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352 (a). It is not required that all the disabling conditions enumerated in the provisions of 38 C.F.R. § 3.352 (a) be found to exist to establish eligibility for aid and attendance and that such eligibility required at least one of the enumerated factors be present. The particular personal function which a veteran was unable to perform should be considered in connection with his or her condition as a whole and that it was only necessary that the evidence establish that a veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Turco v. Brown, 9 Vet. App. 222 (1996). The Board finds October 2008 and January 2009 VRE evaluations, an August 2011 statement from the Veteran’s sister, and the findings of the December 2011 VA examiner informative. As far back as the October 2008 and January 2009 VRE evaluations of the Veteran’s ability to live independently, the Veteran needed help to eat, dress, bathe, use the toilet, clean his home, do laundry, and getting into and out of his home. In the August 2011 statement, the Veteran’s sister, L.J.P, reported the Veteran had been under her care for the last 27 years. She stated that he needed assistance with cooking, laundry, cleaning, and personal hygiene, and had poor eating and sleeping habits. The December 2011 VA examiner noted the Veteran’s nephew and sister helped him, but things were more difficult for him living alone and he was having trouble doing so. The examiner reported the Veteran’s symptoms included impairment of short- and long-term memory, impaired judgment, persistent delusions, neglect of personal appearance, and an intermittent inability to perform activities of daily living. A November 2014 private examiner stated that the Veteran was able to feed himself but was not able to prepare his own meals, needed assistance bathing due to pain, and only left his home to go to his sister’s home two to three times a week. In an October 2015 statement, the Veteran asserted he could not move around easily due to his back pain, his sister and niece did all his laundry because he could not due to back pain. He stated he required assistance getting in and out of bathtub, had difficulty dressing, and difficulty getting into and out of bed. When family members were present, they helped him accomplish these tasks. The Veteran’s sister and niece prepared all his meals, and he stated that if they could not, he only at fast food. Due to his memory issues, the Veteran stated he failed to complete tasks such as cleaning, which was also done by sister and niece. The Veteran provided an additional statement in January 2019 that largely echoed the October 2015 statement. In a January 2019 statement, the Veteran’s nephew, K.P., corroborated the Veteran’s statements, reported he helped the Veteran with chores around the house, showering, washing dishes, and putting on socks and shoes. (Continued on the next page)   Thus, after consideration of all the evidence of record, and resolving reasonable doubt in the Veteran’s favor, the Board finds that when considered together, evidence of records establishes the factual need for aid and attendance due to the Veteran’s service-connected disabilities. The Veteran has been more or less dependent on his sister, nephew, and niece for many years and an award of SMC based on the need for aid and attendance of another person is warranted. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Mine, 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.