Citation Nr: 0810681	
Decision Date: 04/01/08    Archive Date: 04/14/08

DOCKET NO.  05-21 517	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, 
Nebraska


THE ISSUES

1.  Entitlement to an increased rating for post-traumatic 
stress disorder (PTSD), currently rated as 70 percent 
disabling.

2.  Entitlement to special monthly compensation based on the 
need for aid and attendance.

3.  Entitlement to a total rating based upon individual 
unemployability (TDIU) due to service-connected disabilities.


REPRESENTATION

Appellant represented by:	John S. Berry, Attorney at Law


ATTORNEY FOR THE BOARD

John Kitlas, Counsel


INTRODUCTION

The veteran served on active duty from February 1951 to 
November 1952.

This matter is before the Board of Veterans' Appeals (Board) 
on appeal from rating decisions promulgated in July 2004 and 
June 2006 by the Department of Veterans Affairs (VA) Regional 
Office (RO) in Lincoln, Nebraska.  By the July 2004 rating 
decision the RO, in pertinent part, denied the veteran's TDIU 
claim.  Thereafter, by the June 2006 rating decision, the RO 
denied the PTSD and special monthly compensation claims.

The Board notes that the veteran's daughter has been 
appointed as his guardian/conservator.  Consequently, in the 
adjudication that follows any reference to the veteran's 
contentions, unless specifically noted otherwise, will 
include those made by the veteran himself, as well as those 
made on his behalf by his daughter and attorney.


FINDINGS OF FACT

1.  All reasonable development and notification necessary for 
the equitable disposition of the instant case has been 
completed.

2.  The veteran's service-connected PTSD is not manifested by 
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.

3.  In addition to his PTSD, the veteran is service-connected 
for bilateral hearing loss, evaluated as noncompensable (zero 
percent disabling); and tinnitus, evaluated as 10 percent 
disabling.  The combined rating is 70 percent.

4.  The veteran's service-connected disabilities have not 
resulted in the inability to dress and undress himself or to 
keep himself ordinarily clean and presentable; frequent need 
of adjustment of any special prosthetic or orthopedic 
appliance; inability of the claimant to feed himself through 
loss of coordination of the upper extremities or through 
extreme weakness; inability to tend to the wants of nature; 
or incapacity, physical or mental, which requires care and 
assistance on a regular basis to protect the veteran from the 
hazards or dangers incident to his daily environment.

5.  The veteran has not been rendered unable to obtain and/or 
maintain substantially gainful employment due solely to his 
service-connected disabilities.


CONCLUSIONS OF LAW

1.  The criteria for a rating in excess of 70 percent for 
PTSD are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 
(West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.130, 
Diagnostic Code 9411 (2007).

2.  The criteria for special monthly compensation based on 
the need for aid and attendance are not met.  38 U.S.C.A. 
§§ 1114, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 
3.350 (2007).

3.  The criteria for the assignment of a TDIU are not met.  
38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. 
§§ 3.159, 3.340, 4.16 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board notes at the outset that, in accord with the 
Veterans Claims Assistance Act of 2000 (VCAA), VA has an 
obligation to notify claimants what information or evidence 
is needed in order to substantiate a claim, as well as a duty 
to assist claimants by making reasonable efforts to get the 
evidence needed.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 
5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); see also 
Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  

The United States Court of Appeals for Veterans Claims 
(Court) has held that adequate notice, as required by 
38 U.S.C. § 5103(a), must be provided to a claimant before 
the initial unfavorable agency of original jurisdiction (AOJ) 
decision on a claim for VA benefits.  Pelegrini v. Principi, 
18 Vet. App. 112, 120 (2004).  In this case, the Board 
observes the veteran was sent pre-adjudication notice 
regarding his TDIU claim by a letter dated in January 2004.  
He was also sent additional correspondence on that issue by a 
letter dated in August 2005.  In regard to the PTSD and 
special monthly compensation claims, he was sent pre-
adjudication notice by letters dated in January and March 
2006.  Moreover, he was sent further notification as to the 
special monthly compensation claim by a December 2006 letter.

In pertinent part, the January 2004 and August 2005 letters 
summarized the criteria for establishment of a TDIU, while 
the December 2006 letter summarized the legal criteria for 
special monthly compensation based on the need for aid and 
attendance.  Further, taken together, the aforementioned VCAA 
letters informed the veteran of the evidence necessary to 
substantiate his current appellate claims, what information 
and evidence he must submit, what information and evidence 
will be obtained by VA, and indicated the need for the 
veteran to advise VA of or to submit any evidence in his 
possession that was relevant to the case.  As such, this 
correspondence fully complied with the notice requirements of 
38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), as well as the 
holding in Quartuccio, supra.  Moreover, the March 2006 
letter apprised the veteran of the specific information 
regarding disability rating(s) and effective date(s) outlined 
by the Court's holding in Dingess/Hartman v. Nicholson, 19 
Vet. App. 473 (2006).
 
The Board observes that the Court recently issued a decision 
in the case of Vazquez-Flores v. Peake, No. 05-0355 (U.S. 
Vet. App. January 30, 2008), regarding the information that 
must be provided to a claimant in the context of an increased 
rating claim.  Specifically, the Court held that section § 
5103(a) requires: (1) at a minimum, that the Secretary notify 
the claimant that, to substantiate a claim, the claimant must 
provide, or ask the Secretary to obtain, medical or lay 
evidence demonstrating a worsening or increase in severity of 
the disability and the effect that worsening has on the 
claimant's employment and daily life; (2) if the Diagnostic 
Code under which the claimant is rated contains criteria 
necessary for entitlement to a higher disability rating that 
would not be satisfied by the claimant demonstrating a 
noticeable worsening or increase in severity of the 
disability and the effect that worsening has on the 
claimant's employment and daily life (such as a specific 
measurement or test result), the Secretary must provide at 
least general notice of that requirement to the claimant; and 
(3) the claimant must be notified that, should an increase in 
disability be found, a disability rating will be determined 
by applying relevant Diagnostic Codes, which typically 
provide for a range in severity of a particular disability 
from noncompensable to as much as 100 percent (depending on 
the disability involved), based on the nature of the symptoms 
of the condition for which disability compensation is being 
sought, their severity and duration, and their impact upon 
employment and daily life.  As with proper notice for an 
initial disability rating and consistent with the statutory 
and regulatory history, the notice must also provide examples 
of the types of medical and lay evidence that the claimant 
may submit (or ask the Secretary to obtain) that are relevant 
to establishing entitlement to increased compensation-e.g., 
competent lay statements describing symptoms, medical and 
hospitalization records, medical statements, employer 
statements, job application rejections, and any other 
evidence showing an increase in the disability or exceptional 
circumstances relating to the disability.  Vazquez-Flores, 
slip op. at 5-6. 

In regard to the aforementioned criteria, the Board notes 
that the January 2006 letter satisfies element (1), while the 
March 2006 letter satisfies element (3).  Although none of 
the aforementioned notification letters contained the 
specific criteria of the relevant Diagnostic Code (i.e., 
element (2)), this information was included in the July 2006 
Statement of the Case.  The Board also notes that the veteran 
has actively participated in the processing of his case, and 
the statements submitted in support of his claim have 
indicated familiarity with the requirements for the benefits 
sought on appeal.  See Mayfield v. Nicholson, 19 Vet. App. 
103 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. 
Cir. 2006) (VA can demonstrate that a notice defect is not 
prejudicial if it can be demonstrated ... that any defect in 
notice was cured by actual knowledge on the part of the 
appellant that certain evidence (i.e., the missing 
information or evidence needed to substantiate the claim) was 
required and that the appellant should have provided it.); 
see also Overton v. Nicholson, 20 Vet. App. 427 (2006).  His 
familiarity with the pertinent criteria for a higher rating 
is further demonstrated by the fact that he has had prior 
claims for an increased rating since service connection was 
established.

All the law requires is that the duty to notify is satisfied 
and that claimants are given the opportunity to submit 
information and evidence in support of their claims.  Once 
this has been accomplished, all due process concerns have 
been satisfied.  See Bernard v. Brown, 4 Vet. App. 384 
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 
38 C.F.R. § 20.1102 (harmless error).  In view of the 
foregoing, the Board finds that the veteran was notified and 
aware of the evidence needed to substantiate his claims and 
the avenues through which he might obtain such evidence, and 
of the allocation of responsibilities between himself and VA 
in obtaining such evidence.  Accordingly, there is no further 
duty to notify.

In addition, the duty to assist the veteran has been 
satisfied in this case.  All available medical records 
pertinent to the issues on appeal are in the claims folder, 
to include records from the Social Security Administration 
(SSA).  Nothing indicates that the veteran has identified the 
existence of any other relevant evidence that has not been 
obtained or requested.  Further, he has had the opportunity 
to present evidence and argument in support of his claims.  
However, on all three of his Substantive Appeals he indicated 
that he did not desire a Board hearing in conjunction with 
his appeal.  Moreover, he was accorded VA medical 
examinations in June 2004 and March 2006 regarding this case.  
Consequently, for these reasons, the Board concludes that VA 
has fulfilled the duty to assist the appellant in this case.

The Board notes that it has thoroughly reviewed the record in 
conjunction with this case.  Although the Board has an 
obligation to provide reasons and bases supporting this 
decision, there is no need to discuss, in detail, the 
extensive evidence submitted by the appellant or on his 
behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. 
Cir. 2000) (the Board must review the entire record, but does 
not have to discuss each piece of evidence).  Rather, the 
Board's analysis below will focus specifically on what the 
evidence shows, or fails to show, on the claims.  See 
Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting 
that 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).  

When there is an approximate balance of positive and negative 
evidence regarding any issue material to the determination of 
a matter, the benefit of the doubt shall be given to the 
claimant.  38 U.S.C.A. § 5107(b).  When a reasonable doubt 
arises regarding service origin, such doubt will be resolved 
in the favor of the claimant. Reasonable doubt is doubt which 
exists because of an approximate balance of positive and 
negative evidence which does not satisfactorily prove or 
disprove the claim.  38 C.F.R. § 3.102.  The question is 
whether the evidence supports the claim or is in relative 
equipoise, with the claimant prevailing in either event, or 
whether a fair preponderance of the evidence is against the 
claim, in which event the claim must be denied.  Gilbert v. 
Derwinski, 1 Vet. App. 49, 54 (1990).  

In this, and in other cases, only independent medical 
evidence may be considered to support medical findings.  The 
Board is not free to substitute its own judgment for that of 
such an expert.  See Colvin v. Derwinski, 1 Vet. App. 171, 
175 (1991).  Here, nothing on file shows that the veteran has 
the requisite knowledge, skill, experience, training, or 
education to render a medical opinion.  See Espiritu v. 
Derwinski, 2 Vet. App. 492, 494 (1992).  Consequently, his 
contentions cannot constitute competent medical evidence.  
38 C.F.R. § 3.159(a)(1).

I.  PTSD

Legal Criteria.  Disabilities must be reviewed in relation to 
their history.  38 C.F.R. § 4.1.  Other applicable, general 
policy considerations are:  interpreting reports of 
examination in light of the whole recorded history, 
reconciling the various reports into a consistent picture so 
that the current rating may accurately reflect the elements 
of disability, 38 C.F.R. § 4.2; resolving any reasonable 
doubt regarding the degree of disability in favor of the 
claimant, 38 C.F.R. § 4.3; where there is a question as to 
which of two evaluations applies, assigning the higher of the 
two where the disability picture more nearly approximates the 
criteria for the next higher rating, 38 C.F.R. § 4.7; and, 
evaluating functional impairment on the basis of lack of 
usefulness, and the effects of the disability upon the 
person's ordinary activity, 38 C.F.R. § 4.10.  See Schafrath 
v. Derwinski, 1 Vet. App. 589 (1991).

In general, the degree of impairment resulting from a 
disability is a factual determination and generally the 
Board's primary focus in such cases is upon the current 
severity of the disability.  Francisco v. Brown, 7 Vet. 
App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 
(1994).  However, the Court recently held that "staged" 
ratings are appropriate for an increased rating claim when 
the factual findings show distinct time periods where the 
service-connected disability exhibits symptoms that would 
warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 
505 (2007).

With regard to the veteran's request for an increased 
schedular evaluation, the Board will only consider the 
factors as enumerated in the applicable rating criteria.  See 
Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. 
Derwinski, 2 Vet. App. 625, 628 (1992).

Diagnostic Code 9411 provides that PTSD is evaluated under 
the general rating formula used to rate psychiatric 
disabilities other than eating disorders.  38 C.F.R. § 4.130.

When a mental condition has been formally diagnosed, but 
symptoms are not severe enough either to interfere with 
occupational and social functioning or to require continuous 
medication, a noncompensable (zero percent) evaluation is 
warranted.  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 continuous 
medication warrants a 10 percent evaluation. 

A 30 percent disability rating is in order when there is 
occupational and social impairment with occasional decrease 
in work efficiency and intermittent periods of inability to 
perform occupational tasks (although generally functioning 
satisfactorily, with routine behavior, self-care and 
conversation normal), due to such symptoms as: depressed 
mood, anxiety, suspiciousness, panic attacks (weekly or less 
often), chronic sleep impairment, mild memory loss (such as 
forgetting names, directions, recent events). 

A 50 percent rating is warranted when there is occupational 
and social impairment with reduced reliability and 
productivity due to such symptoms 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; difficulty in 
establishing and maintaining effective work and social 
relationships. 

A 70 percent rating is warranted where there is 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 worklike 
setting); inability to establish and maintain effective 
relationships.

A 100 percent rating is warranted where there is 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.

In addition, 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.  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.  However, 
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 on the 
basis of social impairment.  38 C.F.R. § 4.126(b).


Analysis.  In the instant case, the Board finds that the 
veteran does not meet or nearly approximate the criteria for 
a rating in excess of 70 percent for his service-connected 
PTSD during any portion of the appeal period.

The veteran's service-connected PTSD is not manifested by 
total occupational and social impairment, due to such 
symptoms as: gross impairment in thought processes or 
communication; persistent delusions or hallucinations; 
grossly inappropriate behavior; persistent danger of hurting 
self or others; intermittent inability to perform activities 
of daily living (including maintenance of minimal personal 
hygiene); disorientation to time or place; memory loss for 
names of close relatives, own occupation, or own name.

The June 2004 VA examination found, in pertinent part, that 
the veteran's speech was of normal tone, volume, and pacing, 
with no pressure of speech.  Further, it was noted that he 
was not threatening or angry during the examination, nor did 
he indicate bizarre or unusual behavior.  Moreover, it was 
specifically stated that he was not a danger to himself or 
others; that he needed no help with activities of daily 
living; that he was oriented to person, place, and situation; 
and that his memory, both recent and remote, was intact.  The 
Board acknowledges that the examiner found the veteran's 
thought process to have significant circumstantiality and 
tangential thinking.  Nevertheless, he could reach goal idea, 
but often what appeared to be vague information, but in the 
end he could bring it together and show how it was connected.  
As such, this symptom appears to encompass circumstantial, 
circumlocutory, or stereotyped, speech, which, as noted 
above, is actually part of the criteria for a 50 percent 
rating under Diagnostic Code 9411.  Therefore, it does not 
appear to be the type of gross impairment in thought 
processes or communication so as to warrant a 100 percent 
rating.  In addition, the veteran's content of thought 
revealed no overt delusions, hallucination, or signs of 
grandiosity.  

The more recent March 2006 VA medical examination found the 
veteran's attitude to be cooperative, attentive; his 
attention was intact; his speech was spontaneous, clear, 
coherent; his thought process was goal directed and coherent; 
his thought content was unremarkable; he had no presence of 
suicidal or homicidal thoughts; he was found able to maintain 
minimum personal hygiene; and had no problems with activities 
of daily living.  Although there was some evidence of memory 
impairment, his remote memory was found to be normal, his 
recent memory only mildly impaired, and his immediate memory 
was only moderately impaired.  The Board acknowledges that 
the veteran was found to be disoriented to time, but this one 
symptom in and of itself does not support a 100 percent 
rating, particularly in light of the fact that none of the 
other requisite symptomatology and/or impairment is present.  
Further, the veteran was found to be oriented to person and 
place.

The Board also acknowledges that the veteran's PTSD has 
resulted in occupational and social impairment.  However, all 
compensable evaluations under the schedular criteria include 
such impairment.  Therefore, the issue is whether the level 
of the veteran's occupational and social impairment is of 
such severity as to warrant a rating in excess of 70 percent.

Of particular importance in evaluating the veteran's level of 
occupational and social impairment are the global assessment 
of functioning (GAF) scores he has been assigned, because 
such designations are based on a scale reflecting the 
"psychological, social, and occupational functioning in a 
hypothetical continuum of mental health-illness."  Carpenter 
v. Brown, 8 Vet. App. 240, 242 (1995).  

GAF scores ranging between 81 and 90 reflect absent or 
minimal symptoms (e.g., mild anxiety before an exam), good 
functioning in all areas, interested and involved in a wide 
range of activities, socially effective, generally satisfied 
with life, no more than everyday problems or concerns (e.g., 
an occasional argument with family members).  GAF scores 
ranging between 71 and 80 reflect 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).  GAF scores ranging between 61 
to 70 reflect some 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, and 
has some meaningful interpersonal relationships.  Scores 
ranging from 51 to 60 reflect more 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).  Scores ranging from 41 to 50 reflect serious 
symptoms (e.g., suicidal ideation, severe obsessional 
rituals, frequent shoplifting) or any serious impairment in 
social, occupational or school functioning (e.g., no friends, 
unable to keep a job).  Scores ranging from 31 to 40 reflect 
some impairment in reality testing or communication (e.g., 
speech is at times illogical, obscure, or irrelevant) or 
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 other children, is defiant 
at home, and is failing at school).  A score from 21 to 30 is 
indicative of behavior which is considerably influenced by 
delusions or hallucinations or serious impairment in 
communication or judgment or inability to function in almost 
all areas.  A score of 11 to 20 denotes some danger of 
hurting one's self or others (e.g., suicide attempts without 
clear expectation of death; frequently violent; manic 
excitement) or occasionally fails to maintain minimal 
personal hygiene (e.g., smears feces) or gross impairment in 
communication (e. g., largely incoherent or mute).  A GAF 
score of 1 to 10 is assigned when the person is in persistent 
danger of severely hurting self or others (recurrent 
violence) or there is persistent inability to maintain 
minimal personal hygiene or serious suicidal acts with clear 
expectation of death.  See 38 C.F.R. § 4.130 (incorporating 
by reference the VA's adoption of the DSM-IV, for rating 
purposes).

In this case, both the June 2004 and March 2006 VA medical 
examinations assigned a GAF score of 50, which, as noted 
above, indicates serious symptoms (or any serious impairment 
in social, occupational or school functioning.  The examiner 
also stated that the PTSD had resulted in frequent impaired 
work, family, and other relationships.  However, the examiner 
also specifically stated that such impairment was moderate.  
Further, the examiner stated that other conditions/diagnoses 
noted in the past included dementia, as well as delusions 
noted on prior evaluations, but that these disorders were a 
separate process from the PTSD.  

It is also noted that both examinations were conducted by the 
same examiner, who described the level of the veteran's 
occupational and social impairment on the June 2004 VA 
examination by terms consistent with the symptomatology for a 
70 percent rating under Diagnostic Code 9411.  For example, 
the examiner stated that the veteran's history indicated 
difficulty adapting to stressful circumstances which would 
include the work setting; that his history in the past 
indicated that he did not tolerate supervision and being 
bossed; and that he had difficulty establishing effective 
working relationships and responds more often by being 
confrontational.  There were also references to impaired 
impulse control on the June 2004 examination.  At the more 
recent March 2006 VA examination, the examiner stated that 
the veteran's PTSD symptoms were at the same level they were 
when evaluated in June 2004, and that the symptoms had been 
stable.

The Board further observes that the examiner opined in May 
2006 that the veteran's nonservice-connected dementia was the 
reason why the veteran needed aid and attendance, and that 
the PTSD did not cause him to need aid and attendance.  

In view of the foregoing, the competent medical evidence does 
not reflect the veteran's PTSD has resulted in total 
occupational and social impairment.   Therefore, the 
preponderance of the evidence is against a rating in excess 
of 70 percent for PTSD.  

II.  Special Monthly Compensation

Legal Criteria.  Special monthly compensation is payable to a 
person who is permanently bedridden or so helpless as a 
result of service-connected disability that he is in need of 
the regular aid and attendance of another person.  38 
U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b).

Determinations as to the need for aid and attendance must be 
based on actual requirements of personal assistance from 
others.  In making such determinations, consideration is 
given to such conditions as: Inability of the claimant to 
dress and undress himself or to keep himself ordinarily clean 
and presentable; frequent need of adjustment of any special 
prosthetic or orthopedic appliance; inability of the claimant 
to feed himself through loss of coordination of the upper 
extremities or through extreme weakness; inability to tend to 
the wants of nature; or incapacity, physical or mental, which 
requires care and assistance on a regular basis to protect 
the claimant from the hazards or dangers incident to 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 
claimant remain in bed.  It is not required that all of the 
disabling conditions enumerated above be found to exist 
before a favorable rating may be made.  The particular 
personal functions which the claimant 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 claimant is so helpless as to need regular aid and 
attendance, not that there be a constant need.  38 C.F.R. § 
3.352(a).

In addition, determinations that the appellant 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 to be in bed.  They must be based 
on the actual requirement of personal assistance from others.  
See Prejean v. West, 13 Vet. App. 444 (2000); Turco v. Brown, 
9 Vet. App. 222 (1996).


Analysis.  In the instant case, the Board finds that the 
veteran does not meet or nearly approximate the criteria for 
special monthly compensation based on the need for regular 
aid and attendance.

In addition to his PTSD, the veteran is service connected for 
bilateral hearing loss, evaluated as noncompensable; and 
tinnitus, evaluated as 10 percent disabling.

The record reflects the veteran's service-connected 
disabilities have not resulted in the inability to dress and 
undress himself or to keep himself ordinarily clean and 
presentable; frequent need of adjustment of any special 
prosthetic or orthopedic appliance; inability of the claimant 
to feed himself through loss of coordination of the upper 
extremities or through extreme weakness; inability to tend to 
the wants of nature; or incapacity, physical or mental, which 
requires care and assistance on a regular basis to protect 
the veteran from the hazards or dangers incident to his daily 
environment.  As noted above, both the June 2004 and March 
2006 VA medical examinations indicated the veteran's PTSD did 
not prevent him from completing activities of daily living.  
The March 2006 examination also found that he was able to 
maintain minimum personal hygiene.  There is no indication 
that the service-connected hearing loss and tinnitus, either 
separately or together, causes such impairment.  Moreover, 
nothing in the record indicates any he had special prosthetic 
or orthopedic appliance, nor impairment of the upper 
extremities, due to the service-connected disabilities.

The record does reflect that the veteran was hospitalized for 
inpatient care in 2006, and that diagnoses were PTSD and 
dementia.  However, as already noted, the VA examiner opined 
in May 2006 that the veteran's nonservice-connected dementia 
was the reason why the veteran needed aid and attendance, and 
that the PTSD did not cause him to need aid and attendance.  
In short, there is competent medical evidence on file which 
enables the Board to differentiate between symptomatology 
attributed to the nonservice-connected dementia and the 
service-connected PTSD.  See Mittleider v. West, 11 Vet. App. 
181, 182 (1998).  No competent medical evidence is of record 
which refutes this May 2006 VA medical opinion.

In view of the foregoing, the Board finds that the 
preponderance of the evidence is against the veteran's claim 
of entitlement to special monthly compensation based on the 
need for aid and attendance.

III.  TDIU

Legal Criteria.  It is the established policy of the VA that 
all veterans who are unable to secure and follow a 
substantially gainful occupation by reason of service- 
connected disabilities shall be rated totally disabled.  38 
C.F.R. § 4.16(b).  A total disability will be considered to 
exist 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.  A total 
disability may or may not be permanent.  Total ratings will 
not be assigned, generally, for temporary exacerbations or 
acute infectious diseases except where specifically 
prescribed by the schedule.  38 C.F.R. § 3.340(a).

A total disability rating for compensation purposes may be 
assigned where the schedular rating is less than total, where 
it is found that the disabled person is unable to secure or 
follow a substantially gainful occupation as a result of a 
service-connected disability ratable at 60 percent or more or 
as a result of two or more disabilities, providing at least 
one disability is ratable at 40 percent or more, and there is 
sufficient additional service-connected disability to bring 
the combined rating to 70 percent or more.  38 C.F.R. §§ 
3.340, 4.16(a).

In determining whether the veteran is entitled to a total 
disability rating based upon individual unemployability, 
neither his nonservice-connected disabilities nor his 
advancing age may be considered.  Van Hoose v. Brown, 4 Vet. 
App. 361 (1993).  The sole fact that a claimant is unemployed 
or has difficulty obtaining employment is not enough. A high 
rating in itself is a recognition that the impairment makes 
it difficult to obtain and keep employment.  The question is 
whether the veteran is capable of performing the physical and 
mental acts required by employment, not whether the veteran 
can find employment.  Id.


Analysis.  In the instant case, the Board finds that the 
veteran is not entitled to a TDIU.

As already noted, the veteran is service-connected for PTSD, 
evaluated as 70 percent disabling; hearing loss, evaluated as 
noncompensable; and tinnitus, evaluated as 10 percent 
disabling.  Therefore, he has a combined disability rating of 
70 percent.  See 38 C.F.R. § 4.25.  In short, he satisfies 
the requirements for consideration of a TDIU on a schedular 
basis.  

Despite the foregoing, the medical and other evidence of 
record does not reflect that the veteran is unable to obtain 
and/or maintain substantially gainful employment due solely 
to his service-connected disabilities.  For the reasons 
detailed above, the Board has determined that the veteran's 
PTSD has not resulted in total occupational impairment.  The 
medical evidence regarding the hearing loss and tinnitus do 
not indicate they cause such impairment, even when combined 
with the service-connected PTSD.  

The Board further finds that there is no competent medical 
evidence of record which reflects that the veteran is unable 
to obtain and/or maintain substantially gainful employment 
due solely to his service-connected disabilities.  Moreover, 
the record reflects that he experiences significant 
impairment due to nonservice-connected disabilities.  For 
example, the SSA records indicate that disability benefits 
were awarded primarily due to the impairment caused by 
atherosclerotic cardiovascular disease, status-post double 
coronary artery bypass.  Although there was a secondary 
diagnosis of anxiety neurosis, the records reflect that the 
primary disability was the aforementioned heart disorder, and 
service connection has been denied for such a disability.  In 
addition, as detailed above, there is competent medical 
evidence to the effect that he requires aid and attendance 
due to nonservice-connected dementia, which is a separate and 
distinct disability from his service-connected PTSD.

In view of the foregoing, the Board finds that the 
preponderance of the evidence is against the veteran's claim 
of entitlement to a TDIU.

IV.  Conclusion

For the reasons stated above, the Board finds that the 
preponderance of the evidence is against the veteran's 
current appellate claims, and the benefits sought on appeal 
must be denied.  As the preponderance of the evidence is 
against these claims, the benefit of the doubt doctrine is 
not for application in the instant case.  See generally 
Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 
(Fed. Cir. 2001).  

ORDER

Entitlement to an increased rating for PTSD, currently rated 
as 70 percent disabling, is denied.

Entitlement to special monthly compensation based on the need 
for aid and attendance is denied.

Entitlement to a TDIU due to service-connected disabilities 
is denied.


____________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs