Citation Nr: 22008073
Decision Date: 02/11/22	Archive Date: 02/11/22

DOCKET NO. 19-20 990
DATE: February 11, 2022

ORDER

Entitlement to an initial rating in excess of 70 percent for an acquired psychiatric disorder, diagnosed as posttraumatic stress disorder (PTSD) with unspecified depressive disorder, is denied.

Entitlement to special monthly compensation (SMC) based on aid and attendance/housebound is granted.

FINDINGS OF FACT

1. During the period on appeal, the evidence shows occupational and social impairment, with deficiencies in most areas; total impairment is not shown.

2. The Veterans' service-connected disabilities render in him in need of regular aid and attendance.

CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 70 percent for an acquired psychiatric disorder have not 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 special monthly compensation based on aid and attendance/housebound have been met. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served in the Army, on active duty from May 1966 to February 1968, and from October 1991 to September 1992, to include service in Vietnam. He has additional unconfirmed service in the Army Reserve. 

This claim comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated November 2017 and April 2018, issued by a Department of Veterans Affairs (VA) Regional Office (RO). 

The Veteran withdrew his request for a Board hearing in December 2021 and has not requested that it be rescheduled. Therefore, the hearing request is considered withdrawn. 38 C.F.R. § 20.704(e). Instead of this hearing, the Veteran submitted a "Testimony Letter" dated December 2021. He has, through his representative, waived consideration of this new evidence by the RO, and the Board will review it in the first instance. 

1. Entitlement to a rating in excess of 70 percent for an acquired psychiatric disorder

The Veteran was granted service connection for an acquired psychiatric disorder in an April 2018 rating decision that assigned a 70 percent rating effective January 8, 2018. He asserts that the severity of his psychiatric disorder warrants a rating in excess of 70 percent. 

Under the applicable criteria, a 70 percent 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 ideations; 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 the veteran's personal appearance and hygiene; difficulty in adapting to stressful circumstances (including in work or work like settings); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, DC 9400. 

A 100 percent rating is warranted when the evidence shows 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; and/or memory loss for names of close relatives, own occupation, or own name. Id.

Based on the evidence of record, the Board determines that a 70 percent rating more than adequately addresses the Veteran's psychiatric symptoms. Indeed, the record indicates that the Veteran's symptoms do not rise to the level of total occupational and social impairment.

The Veteran underwent a VA examination in April 2018 to determine the severity of his acquired psychiatric disorder. Here, the examiner diagnosed him with post-traumatic stress disorder (PTSD) and unspecified depressive disorder. Overall, the examiner opined that his psychiatric symptoms rose to the level of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment thinking and/or mood. The Veteran reported current mental health treatment, and is prescribed amitriptyline, Klonopin, clonazepam, tramadol and Neurontin for his symptoms. His symptoms included depressed mood, anxiety, suspiciousness, near-continuous panic or depression, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work relationships, difficulty adapting to stressful circumstances, suicidal ideation and intermittent inability to perform activities of daily living. 

While the Veteran reported the above symptoms to his VA examiner, he presented as casually dressed, with adequate hygiene, cooperative and interactive with the interviewer. Further, he maintained fair eye contact, clear and coherent thoughts, with fair judgment and insight. While he reported morbid ideation, he denied any current suicidal or homicidal ideation, plans or intent. Despite significant psychiatric symptoms, the examiner opined that his condition did not rise to the level of total occupational and social impairment. 

Throughout the remaining period on appeal, the Veteran appeared alert and oriented, with a logical thought process. Speech was normal, fluent and logical in rhythm; no impediments were noted. Memory and attention appeared intact. For example, according to a January 2019 report, hygiene appeared adequate, and he was appropriately well groomed and dressed casually. He maintained appropriate eye contact while denying any suicidal or homicidal ideation and intent. 

While the Veteran suffered from anxiety, feeling overwhelmed, depression and sleep symptoms during the period on appeal, the evidence does not show any of the indicia of total impairment. In December 2018, he reported "doing well" to his psychiatrist. In January 2019, he stated that his depression and anxiety were mostly due to his chronic pain and limited coping capacity. Further, he endorsed sleep issues and was prescribed melatonin. Despite his anxious behavior and mood, he appeared well groomed, with fluent and logical speech. In a March 2019 VA treatment note, he was observed as alert and oriented. 

Based on the symptoms clinically observed, the Veteran has experienced some of the relevant symptoms that might support a rating in excess of 70 percent. For example, the Veteran has suffered episodes of near-continuous panic or depression and chronic sleep disturbances. However, these symptoms do not reach the degree required to demonstrate total occupational and social impairment. The criteria for a rating higher than 70 percent, depict a level of impairment, when viewed as a whole, that is more severe than symptoms displayed by the Veteran. Indeed, many objective symptoms mentioned in the rating criteria, such as gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting self or others; disorientation to time or place, have not been demonstrated. Thus, the evidence is persuasively in favor of a 70 percent rating. 

Next, although the general rating formula provides specific examples of symptoms that may result from various acquired psychiatric disorders, the Board emphasizes that its analysis should not be limited to only these symptoms but should also consider any other relevant criteria outside of the rating code in order to determine the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436, 444 (2002). As such, the Board has also considered the extent to which there are other indications of total occupational and social impairment, such as short-term memory loss, and some social and occupational inadaptability.

In this regard, it is clear that the Veteran's disorder impacts his social and occupational functioning. Nevertheless, the evidence does not indicate that a rating in excess of 70 percent is warranted. Specifically, the Veteran reports avoiding others and does "nothing" to socialize or have fun. Further, he rarely leaves his home or travels long distances due to his pain. Despite these issues, he told his VA examiner that he has been married to his wife for more than 50 years, has a "good" relationship with his father, and "okay" relationships with his children. He reported retiring from his job as a mechanic in 2000, due to various physical disabilities. As a result, he gave his business to his son. Social impairment is evident during this period; however his disorder has not caused total social or occupational impairment. 

In arriving at this conclusion, the Board has also considered the Veteran's statements that his psychiatric disorder is worse than the rating he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his service-connected disabilities according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). 

In this case, the Veteran is not competent to state that his symptoms merit a higher rating for his psychiatric disorder. The competent evidence concerning the nature and extent of the Veteran's disability have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings, as provided in the examination reports, directly address the criteria under which this disability is evaluated.

Accordingly, the Board determines that the Veteran's psychiatric symptoms most nearly approximate the symptoms listed for a 70 percent rating. Specifically, his psychiatric disability was primarily manifested by disturbances of motivation and mood, and sleep disturbances. As the frequency, duration and severity of the Veteran's psychiatric symptoms demonstrate occupational and social impairment with reduced reliability and productivity for the period on appeal, no higher than a 70 percent evaluation is warranted for the Veteran's acquired psychiatric disorders. 38 C.F.R. §4.130, Diagnostic Code 9400.

2. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance

The Veteran seeks SMC for aid and attendance. 

Special monthly compensation can be awarded when a Veteran is in need of 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 a 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 be in need of 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.

The Board initially notes that the Veteran does not meet the criteria for special monthly compensation at the housebound rate, based on one service-connected disability rated as 100 percent disabling and a separate disability rated at 60 percent or higher. In addition, the evidence of record does not demonstrate that the Veteran is unable to engage in activities outside of his home. Indeed, the record shows that the Veteran is able to attend VA treatment appointments.

Additionally, the Board notes that the evidence of record does not show that the Veteran's service-connected disabilities have caused the anatomical loss or loss of use of both feet or one hand and one foot, and he is not blind in both eyes. Consequently, the Veteran can only establish entitlement to SMC under 38 U.S.C § 1114 (l) by showing his service-connected disabilities cause him to be permanently bedridden or so helpless as to be in need of regular aid and attendance under the criteria of 38 C.F.R. § 3.352 (a) set forth above.

In this regard, the medical evidence demonstrates that the Veteran requires regular aid and attendance due to his service-connected disabilities. In a September 2017 VA treatment note, his physician wrote that he needs assistance with dressing, bathing, transferring from bed to chair, managing his financial affairs and traveling to VA facilities. The physician noted that he could not live alone due to his service-connected chronic pain. In a February 2018 letter, his VA primary care physician opined that he could not care for himself, his personal needs and daily skills due to his back pain and chronic conditions. A private treatment note from July 2020 indicates he has impaired ability to: ambulate, change body position, look after himself, wash himself, dress himself and use the restroom due to his chronic pain.

In light of the above, the Board concludes that a finding of need for aid and attendance should be granted. The evidence clearly supports a finding that the Veteran's service-connected disabilities resulted in his need for regular assistance with activities such as toileting, bathing, dressing, cooking, and ambulating. These are precisely the type of factors anticipated by 38 C.F.R. § 3.352 (a), in determining if the Veteran requires regular aid and attendance. As such, the claim is granted. 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. 

 

 

B.T. KNOPE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. McDonald