Citation Nr: 21042756 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 17-02 210 DATE: July 13, 2021 ORDER Entitlement to an initial rating in excess of 70 percent for Posttraumatic Stress Disorder (PTSD) is denied. Entitlement to special monthly compensation based on housebound status or the need for regular aid and attendance is denied. REMANDED Entitlement total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Throughout the course of the appeal, the most probative evidence does not reflect that the Veteran's PTSD symptoms resulted in total occupational and social impairment. 2. The most probative evidence reflects that the Veteran is not bedridden as a result of his psychiatric disability. 3. The most probative evidence does not reflect that the Veteran's psychiatric disability renders him in need of regular aid and attendance. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to special monthly compensation based on housebound status or the need for regular aid and attendance have not been met. 8 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1969 to October 1972 and from October 1972 to November 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision by the Department of Veterans Affairs (VA). In January 2019, the case came before the Board. The Board denied entitlement to an earlier effective date for the award of service connection for PTSD. In addition, the Board remanded the Veteran's PTSD for an additional VA examination. Lastly, the Board found that the issues of entitlement to special monthly compensation and TDIU were raised by the record, and they were remanded for development and readjudication of the Veteran's intertwined appeal for an increased evaluation. The Board's prior remand directives and the subsequent actions of the Agency of Original Jurisdiction (AOJ) will be discussed below. The Veteran's appealed issues have been returned to the Board for further appellate considerations. Increased Rating 1. Entitlement to a rating in excess of 70 percent for PTSD The Veteran contends that his psychiatric disability warrants an increased initial rating. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degrees of disability specified by the schedule are considered adequate to compensate veterans for considerable loss of working time from exacerbation or an illness proportionate to the severity of the several grades of disability. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in this decision is, therefore, undertaken with consideration of the possibility that different ratings may be warranted for different time periods. In considering the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's disability was awarded a 70 percent rating according to Diagnostic Code 9411. Under Diagnostic Code 9411, the General Rating Formula for Mental Disorders is used for PTSD. A 70 percent rating is assigned 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 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; memory loss for names of close relatives, own occupation, or own name. See 38 C.F.R. § 4.130, Diagnostic Code 9411. The use of the term 'such as' in the general rating formula for mental disorders 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 symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase 'such symptoms as,' followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms that are particular to each veteran and disorder, and the effect of those symptoms on his or her social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the 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." It was 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." When evaluating a mental disorder, the Board 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. 38 C.F.R. § 4.126 (a). 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. Id. As to a current diagnosis, the Board notes that the Veteran's condition has been diagnosed as PTSD. The Board notes that the September 2019 VA examiner opined that the previously established diagnosis of "acquired psychiatric disorder, variously diagnosed as anxiety disorder not otherwise specified, generalized anxiety disorder and depressive disorder not otherwise specified to include post-traumatic stress disorder" has been updated to the currently diagnosed PTSD. The new diagnosis is a correction of the previous diagnosis. As such, all of the Veteran's psychiatric symptoms will be attributed to his service-connected disability without the need to differentiate between which diagnoses are/were productive of which symptoms. Mittleider v. West, 11 Vet. App. 181, 182 (1998). The Board notes that the Veteran attended a private psychological examination in April 2013. The Veteran reported depression, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, and mild memory loss. The Veteran reported difficulty in understanding complex commands, impaired judgement, disturbances of motivation and mood, and difficulty in establishing effective work and social relationships. The Veteran reported difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, and intermittent inability to perform activities of daily living including maintenance of minimal personal hygiene. Following the examination, the examiner opined that the Veteran exhibited occupational and social impairment with deficiencies in most areas. In September 2014, the Veteran attended a VA examination. The Veteran reported anxiety and chronic sleep impairment. Following the examination, the examiner opined that the Veteran exhibited occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. In December 2016, the Veteran attended a VA examination. The Veteran reported anxiety, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood. The Veteran also reported difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances, including work or a worklike setting. Following the examination, the examiner opined that the Veteran exhibited occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. In September 2019, the Veteran attended a VA examination. The examiner indicated that the Veteran denied any psychological hospitalizations, suicide attempts, or individual or group therapy since his last evaluation. The examiner also stated that the Veteran convincingly denied any current thoughts of harming or killing himself or others. The examiner indicated that the Veteran was oriented to person, place, situation, and time. The examiner indicated that the Veteran's concentration and attention were good. The examiner indicated that his judgment and insight were good. The examiner indicated that the Veteran's affect was slightly agitated. The Veteran described his mood as "stressed." The Veteran reported depressed mood, anxiety, suspiciousness, and chronic sleep impairment. The Veteran also reported disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Board has also reviewed the Veteran's VA treatment records. After a review of these records, the Board finds that these records are silent for a medical opinion that found that the Veteran's psychiatric disability has resulted in total occupational and social impairment. In sum, the Board finds that the Veteran's disability has remained consistent and a rating of 100 percent is not warranted. After a review of the record, the Board finds that the medical evidence of record does not show evidence of gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name. The Board acknowledges that the Veteran reported an inability to maintain minimal personal hygiene at his April 2013 private examination. However, the Board finds that this report does not demonstrate that the Veteran's disability warrants a 100 percent rating because the Veteran's VA treatment records throughout the course of the appeal consistently show that the Veteran was able to maintain his personal hygiene. Moreover, the Board notes that none of the VA examiners who personally observed the Veteran opined that the Veteran was unable to perform activities of daily living. Furthermore, the Board finds that this report was not a permanent symptom related to the Veteran's disability and this report alone does not support a finding that the Veteran's disability resulted in total occupational and social impairment. Lastly, the Board notes that no medical professional who has evaluated the Veteran has found that his symptoms were so severe as to constitute total occupational and social impairment. For the above stated reasons, the preponderance of the evidence is against entitlement to a 100 percent rating, and the claim must be denied. 2. Entitlement to special monthly compensation based on housebound status or the need for regular aid and attendance The Veteran contends that he should be awarded special monthly compensation based on housebound status and the need for regular aid and attendance. A. SMC based on housebound status SMC is payable at the housebound rate where the Veteran has a single service-connected disability rated as 100 percent and, in addition: (1) has a service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability, and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). The requirement of "permanently housebound" status will be considered to have been met when the Veteran is substantially confined to his house (or ward or clinical areas, if institutionalized) or immediate premises due to disability or disabilities which it is reasonably certain will remain throughout his lifetime. See 38 U.S.C. § 1502 (c); 38 C.F.R. § 3.351 (d)(2). For the purpose of meeting the first criterion, a rating of 100 percent may be based on any of the following grants of total disability: on a schedular basis, on an extraschedular basis, or on the basis of a temporary total rating pursuant to 38 C.F.R. §§ 4.28 (pre-stabilization rating), 4.29 (temporary total hospital rating) or, 4.30 (temporary total convalescence rating). Additionally, a total disability rating based on individual unemployability (TDIU) may meet the criterion, but only if assigned for a single disability. See Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2011). While the separate disabilities rated as 60 percent disabling must involve separate and distinct anatomical segments or body systems, the fact that the total disability and the independent 60 percent disabilities result from a common etiological agent will not preclude entitlement. As an initial matter, the Board notes that the Veteran is only service connected for PTSD which is rated as 70 percent disabling. Turning to the medical evidence at hand, the Board notes that the Veteran submitted a private examination report for special monthly compensation in November 2018. The doctor indicated that the Veteran is able to feed himself, but he does not know how to cook. The doctor indicated that the Veteran does need assistance with bathing. The doctor stated that the Veteran is currently taking his own shower using a shower chair, but he needs help with bathing. The doctor indicated that the Veteran is not legally blind. The doctor indicated that the Veteran does not require nursing home care. The doctor indicated that the Veteran does not require medication management. The doctor indicated that the Veteran does not have the ability to manage his financial affairs but did not provide any explanation for that finding. The doctor indicated that the Veteran had good personal hygiene and mild difficulty transferring to and from his motorized scooter. The doctor indicated that the Veteran self-reported some memory challenges. Lastly, the doctor indicated that the Veteran leaves his home for doctor's appointments. In September 2019, the VA psychiatric examiner addressed the Veteran's contentions pertaining to SMC. The Board notes that the examiner found that the "Veteran's PTSD does not appear to be resulting in any impairment related to his ability to effectively carry out his activities of daily living. During today's evaluation he did not indicate his PTSD symptoms leave him housebound or otherwise substantially confined to his dwelling and the immediate premises or renders him incapable of tending to the demands of daily life (e.g., inability to dress or groom himself, frequent need of adjustment of special prosthetics or appliances, inability to feed himself, inability to attend to the wants of nature, or incapacity otherwise requiring care or assistance on a regular basis to protect him from the hazards or dangers incident to his daily environment)." The examiner also found that the Veteran's available records or presentation suggest his PTSD would result in significant impairment in these areas. The Board has also reviewed the Veteran's VA treatment records. After a review of the Veteran's records, the Board notes that the Veteran's records showed that the Veteran was alert and oriented to self, place, and time. The Board also notes that the Veteran's record show that the Veteran was not in acute distress and his hygiene was appropriate. Lastly, the Board finds that the Veteran's VA treatment records are silent for a medical opinion that has found that the Veteran's psychiatric disability has confined him to his home or that he requires aid and attendance. In sum, the Board finds that the Veteran does not meet the criteria for SMC based on housebound status. The Board notes that the Veteran currently has a claim pending for TDIU; however, the Veteran does not meet the statutory requirement for housebound status because he only has one service-connected disability and he does not have any additional disabilities that would meet the requirement of an additional disability of 60 percent. Moreover, the medical evidence of record does not show that the Veteran's psychiatric disability has resulted in him becoming permanently housebound. Therefore, based on the foregoing, the preponderance of the evidence is against finding that the criteria for SMC based on being housebound are met, and the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine does not apply. B. SMC based on aid and attendance SMC at the aid and attendance rate is payable when a veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or 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, 3.351, and 3.352. Determinations as to the need for aid and attendance must be based on the actual requirement of personal assistance from others. A veteran is considered to be in need of regular aid and attendance if the veteran is blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; or, is a patient in a nursing home because of mental or physical incapacity. 38 C.F.R. § 3.351(c). Also, consideration is given to such factors as: 1) inability of the veteran to dress or undress him or herself, or to keep himself ordinarily clean and presentable; 2) frequent need of adjustment of any special prosthetic or orthopedic appliances which, by reason of the particular disability, cannot be done without aid; 3) inability of the veteran to feed him or herself through loss of coordination of the upper extremities, or through extreme weakness; 4) inability to attend to the wants of nature; or, 5) incapacity, physical or mental, which requires care or assistance on a regular basis to protect the veteran from the hazards or dangers inherent in his daily environment. "Bedridden" will be a proper basis for the determination, and is defined as that condition which, through its essential character, actually requires that the veteran remain in bed. The regulation does not require that all of the disabling conditions enumerated above be found to exist in order for a favorable rating to be made. The particular personal functions which the 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. 38 C.F.R. § 3.352(a). As an initial matter, the Board notes that the Veteran is only service connected for PTSD which is rated as 70 percent disabling. Turning to the medical evidence at hand, the Board notes that the Veteran submitted a private examination report for special monthly compensation in November 2018. The doctor indicated that the Veteran is able to feed himself, but he does not know how to cook. The doctor indicated that the Veteran does need assistance with bathing. The doctor stated that the Veteran is currently taking his own shower using a shower chair, but he needs help with bathing. The doctor indicated that the Veteran is not legally blind. The doctor indicated that the Veteran does not require nursing home care. The doctor indicated that the Veteran does not require medication management. The doctor indicated that the Veteran does not have the ability to manage his financial affairs but did not provide any explanation for that finding. The doctor indicated that the Veteran had good personal hygiene and mild difficulty transferring to and from his motorized scooter. The doctor indicated that the Veteran self-reported some memory challenges. Lastly, the doctor indicated that the Veteran leaves his home for doctor's appointments. In September 2019, the VA psychiatric examiner addressed the Veteran's contentions pertaining to SMC. The Board notes that the examiner found that the "Veteran's PTSD does not appear to be resulting in any impairment related to his ability to effectively carry out his activities of daily living. During today's evaluation he did not indicate his PTSD symptoms leave him housebound or otherwise substantially confined to his dwelling and the immediate premises or renders him incapable of tending to the demands of daily life (e.g., inability to dress or groom himself, frequent need of adjustment of special prosthetics or appliances, inability to feed himself, inability to attend to the wants of nature, or incapacity otherwise requiring care or assistance on a regular basis to protect him from the hazards or dangers incident to his daily environment)." The examiner also found that the Veteran's available records or presentation suggest his PTSD would result in significant impairment in these areas. The Board has also reviewed the Veteran's VA treatment records. After a review of the Veteran's records, the Board notes that the Veteran's records showed that the Veteran was alert and oriented to self, place, and time. The Board also notes that the Veteran's record show that the Veteran was not in acute distress and his hygiene was appropriate. Lastly, the Board finds that the Veteran's VA treatment records are silent for a medical opinion that has found that the Veteran's psychiatric disability has confined him to his home or that he requires aid and attendance. In sum, the Board finds that the Veteran does not meet the criteria for SMC based on aid and attendance. Specifically, the Board notes that the evidence of record does not demonstrate that the Veteran is permanently bedridden, and he has not asserted that he is. Moreover, the Board notes that the Veteran is not blind or nearly blind, and he is not a patient in a nursing home. Furthermore, the medical examiners of record and the Veteran's VA treatment records indicate that the Veteran is not unable to dress himself, bath himself, or feed himself. Lastly, the evidence of record does not demonstrate that the Veteran is unable to attend to the wants of nature or protect himself from the hazards or dangers of his daily life. Therefore, based on the foregoing, the preponderance of the evidence is against finding that the criteria for SMC based on aid and attendance are met, and the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine does not apply. REASONS FOR REMAND 1. Entitlement total disability rating based on individual unemployability is remanded. The Board finds that a remand is necessary in order for the Veteran to submit an application for increased compensation based on unemployability (VA Form 21-8940). In this case, there is limited information of record regarding the Veteran's educational background and work history to decide the TDIU claim. Moreover, the evidence of record shows evidence of employment and there is insufficient evidence to substantiate that the Veteran has not been substantially gainfully employed during the course of the appeal. Thus, for the above stated reasons, the Board finds a remand is necessary in order to properly evaluate the Veteran's claim. The matters are REMANDED for the following action: 1. The AOJ must provide the Veteran and his private attorney with adequate notice of the criteria necessary to establish a claim for TDIU under 38 C.F.R. § 4.16 (a). 2. The AOJ must provide the Veteran and his representative the appropriate application form (VA Form 21-8940) for a claim for TDIU. The Veteran should be instructed on how to properly complete and submit the form. *The Veteran is encouraged to work with his representative and cooperate with the AOJ's attempts to gather information and evidence critical in the readjudication of his appealed issue. 3. Thereafter, the AOJ must undertake any development necessary in order to develop and readjudicate the Veteran's TDIU appeal under the controlling VA laws. This may include, but is not limited to, collecting and verifying information concerning his complete educational and occupational history, and scheduling him for additional VA examination(s) necessary for adjudicating the issue. Thereafter, the AOJ must readjudicate the Veteran's appealed issue under the controlling VA laws in light of the totality of evidence of record. If any benefit sought is not granted to the fullest extent, the AOJ must provide the Veteran and his representative with a copy of the readjudication and afford them an appropriate period to respond. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Rescan, 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.