Citation Nr: 0814942	
Decision Date: 05/06/08    Archive Date: 05/12/08

DOCKET NO.  07-15 479	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, 
Mississippi


THE ISSUES

1.  Entitlement to an effective date earlier than February 
15, 2002 for the award of service connection for post 
traumatic stress syndrome (PTSD). 

2.  Entitlement to an effective date earlier than May 6, 2005 
for the grant of a 100 percent evaluation for post traumatic 
stress syndrome (PTSD). 

3.  Entitlement to special monthly compensation based upon 
the need for regular aid and attendance or on account of 
being housebound.  


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARINGS ON APPEAL

Appellant and his spouse.
ATTORNEY FOR THE BOARD

A.G. Alderman, Associate Counsel


INTRODUCTION

The veteran had active military service from November 1966 to 
August 1968.

This case comes before the Board of Veterans' Appeals (Board) 
on appeal from multiple rating decisions of the Department of 
Veterans Affairs (VA) Regional Office (RO) in Jackson, 
Mississippi.

On appeal is the March 2005 decision which assigned service 
connection and an effective date of February 15, 2002 for his 
50% rating for PTSD.  The veteran appealed the service 
connection date and the disability rating.  

In July 2005, the RO assigned a 100 percent disability rating 
for PTSD, with an effective date of May 6, 2005.  The veteran 
appealed the effective date of this decision.  

Also on appeal is the June 2006 rating decision that denied 
special monthly compensation based on aid and attendance or 
housebound status.

The Board notes that the veteran's spouse has been appointed 
his trustee.  Both the veteran and his spouse appeared at 
hearings held at the RO in June 2004 and December 2006.  
Transcripts of those hearings have been associated with the 
claims file.  The veteran and his spouse also appeared before 
the undersigned for a hearing in September 2007.  A 
transcript of that hearing has been associated with the 
claims file.




FINDINGS OF FACT

1.  The veteran filed his original claim for service 
connection for PTSD on February 15, 2002.

2.  No informal claims for service connection for PTSD were 
filed prior to February 15, 2002.

3.  The veteran's PTSD symptoms prior to May 6, 2005 did not 
cause total occupational and social impairment.

4.  The veteran's service-connected PTSD does not render him 
so helpless that he requires aid and assistance on a regular 
basis.


CONCLUSIONS OF LAW

1.  The criteria for the assignment of an effective date 
earlier than February 15, 2002, for the award of service 
connection for PTSD are not met.  38 U.S.C.A.       §§ 
5101(a), 5107, 5110 (West 2002); 38 C.F.R. §§ 3.1(p), 3.151, 
3.155, 3.400(b) (2007).

2.  An effective date prior to May 6, 2005 for the grant of a 
100 percent evaluation for (PTSD) is not warranted.  8 
U.S.C.A. §§ 5101(a), 5107, 5110 (West 2002); 38 C.F.R. §§ 
3.1, 3.151, 3.155, 3.157, 3.400 (2007).

3.  The criteria for special monthly compensation based on 
the permanent need for aid and attendance of another person 
or on account of being housebound have not  been met. 38 
U.S.C.A. § 1114 (West Supp. 2005); 38 C.F.R. §§ 3.351, 3.352 
(2007).




REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Effective Dates

A.  Effective Date of Service Connection

The effective date of an award of disability compensation to 
a veteran will be the day following separation from active 
service or date entitlement arose if the claim is received 
within one year of separation from active service; otherwise, 
it will be the date of receipt of claim, or the date when 
entitlement arose, whichever is later.  38 C.F.R. § 
3.400(b)(2)(i).

In general, "date of receipt" means the date on which a 
claim, information or evidence was received in VA.  38 C.F.R. 
§ 3.1(r).

A specific claim in the form prescribed by the Secretary must 
be filed in order for benefits to be paid to any individual 
under the laws administered by the VA.  38 U.S.C.A. § 
5101(a); 38 C.F.R. § 3.151(a).  A "claim" means a formal or 
informal communication in writing requesting a determination 
of entitlement or evidencing a belief in entitlement to a 
benefit.  38 C.F.R. § 3.1(p).

Any communication or action, indicating intent to apply for 
one or more benefits under the laws administered by VA, from 
a claimant, his duly authorized representative, a Member of 
Congress, or some person acting as next friend of a claimant 
who is not sui juris may be considered an informal claim.  
Such informal claim must identify the benefit sought.  Upon 
receipt of an informal claim, if a formal claim has not been 
filed, an application form will be forwarded to the claimant 
for execution.  If received within 1 year from the date it 
was sent to the claimant, the formal claim will be considered 
filed as of the date of receipt of the informal claim.  38 
C.F.R. § 3.155(a).

A report of examination or hospitalization will be accepted 
as an informal claim for benefits under an existing law or 
for benefits under a liberalizing law or Department of 
Veterans Affairs issue, if the report relates to a disability 
which may establish entitlement.  38 C.F.R. § 3.157(a). 

When there has not been a prior allowance or disallowance of 
compensation for the claimed disorder (i.e., service 
connection awarded, but disorder rated as noncompensable), VA 
records can not be accepted as an informal claim under 38 
C.F.R. § 3.157.  See Crawford v. Brown, 5 Vet. App. 33 35-36 
(1993); see also Lalonde v. West, 12 Vet. App. 377, 382 
(1999) (because the appellant had not been granted service 
connection for his anxiety disorder, the mere receipt of 
medical records cannot be construed as an informal claim); 
Kessel v. West, 13 Vet. App. 9, 23 (1999) (there has not been 
a prior allowance or disallowance of a claim for service 
connection for the claimed condition, and any examination 
reports could not be accepted as an informal claim). 

Once a formal claim for pension or compensation has been 
allowed or a formal claim for compensation disallowed for the 
reason that the service-connected disability is not 
compensable in degree, receipt of report of examination or 
hospitalization by Department of Veterans Affairs or 
uniformed services will be accepted as an informal claim for 
increased benefits or an informal claim to reopen.  The date 
of an outpatient or hospital examination at, or admission to, 
a VA hospital will be accepted as the date of receipt of the 
informal claim to reopen when a claim specifying the benefit 
sought is received within one year from the date of such 
examination, treatment, or hospital admission.  38 C.F.R. § 
3.157(b)(1).

Evidence from a private physician or layperson can also 
constitute an informal claim for increase, but the date of 
receipt of such evidence will constitute date of claim, if 
the evidence is within the competence of those reporting it, 
and it shows a reasonable probability of an allowance.  38 
C.F.R. § 3.157(b)(2).

VA is required to identify and act on informal claims for 
benefits.  38 C.F.R.  § 3.155(a).  See also Servello v. 
Derwinski, 3 Vet. App. 196, 198-200 (1992).  In determining 
whether there was an earlier claim, the Board is required to 
determine all potential claims raised by the evidence, 
applying all relevant laws and regulations, regardless of 
whether the claim is specifically labeled as a claim for the 
benefit.  Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. 
Cir. 2001).  However, an "informal claim must identify the 
benefit sought."  Id.  The Federal Circuit has elaborated 
that VA, "has a duty to fully and sympathetically develop 
the veteran's claim to its optimum in order to determine if 
an informal claim had been raised.  With respect to all pro 
se pleadings,...VA [must] give a sympathetic reading to the 
veteran's filings by determining all potential claims raised 
by the evidence, applying all relevant laws and regulations. 
"  Szemraj v. Principi, 357 F. 3d 1370 (2004).

After the evidence has been assembled, it is the Board's 
responsibility to evaluate the entire record. 38 U.S.C.A. § 
7104(a).  When there is an approximate balance of evidence 
regarding the merits of an issue material to the 
determination of the matter, the benefit of the doubt in 
resolving each such issue shall be given to the claimant.  38 
U.S.C.A. § 5107; 38 C.F.R. § 3.102.  In Gilbert v. Derwinski, 
1 Vet. App. 49, 53 (1990), the Court stated that "a veteran 
need only demonstrate that there is an 'approximate balance 
of positive and negative evidence' in order to prevail."  To 
deny a claim on its merits, the preponderance of the evidence 
must be against the claim.  See Alemany v. Brown, 9 Vet. App. 
518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

First, in his notice of disagreement, dated June 2005, the 
veteran argues that he originally filed his claim for PTSD in 
February 2000 and that his service connection date should 
have been February 2000, not February 2002.  

Another statement from the veteran's spouse, dated August 
2005, indicates that the veteran was admitted to a 
psychiatric ward in February 2000 after receiving a diagnosis 
of PTSD from Dr. Bobo, a private physician.  She further 
stated that the veteran's records clearly show a service 
connected diagnosis of PTSD at that time; therefore, benefits 
should be retroactive back to that date.  

Upon examination of the claims file, it appears that the 
first correspondence related to a PTSD claim from the veteran 
to the RO was the original claim, which was received at the 
RO on February 15, 2002.  It also appears that the veteran's 
private and VA medical records show that the veteran was not 
treated for symptoms of PTSD until February 2002.  He was 
finally diagnosed with PTSD by Dr. Cook., a private 
practitioner, in July 2002, and by VA in November 2002.

At the hearing before the Board in September 2007, the 
veteran's trustee, his spouse, claimed that the veteran went 
to VA to fill out paperwork for his disability in November 
2001 and that the effective date for service connection 
should be November 2001.  She also testified that she filed a 
claim with the Social Security Administration (SSA) at that 
point and that the veteran was awarded benefits for PTSD from 
November 2001.  

First, the Board has reviewed all VA medical records and 
notes that there is no indication that the veteran sought 
treatment or filled out paperwork regarding the veteran's 
PTSD prior to February 2002.  However, even if the veteran 
had sought VA treatment prior to February 2002, he provided 
no communication or action indicating an intent to apply for 
one or more benefits under the laws administered by VA; 
therefore, the Board cannot find that the veteran submitted 
an informal claim for service connection.  

Second, the Board also notes that the veteran's claim for SSA 
was not submitted until February 2002.  The fact that SSA 
benefits were granted, effective November 2001, is of no 
consequence as both VA and SSA have differing sets of laws 
and guidelines for granting benefits.  

Applying the pertinent VA regulations to the facts of this 
claim, it is clear that an effective date prior to February 
15, 2002, is not warranted. The provisions of 38 C.F.R. § 
3.400 specifically provide that the effective date of an 
award of compensation will be the date of receipt of the 
claim, or the date entitlement arose, whichever is later.  
There is no evidence or statement dated prior to the February 
15, 2002 claim for service connection for a psychiatric 
disorder that can be construed as an earlier claim.  38 
C.F.R. § 3.155.  

The law is clear.  The effective date of an award of 
compensation based on original claim (received beyond one 
year after service discharge) or a claim reopened after final 
adjudication shall be fixed in accordance with the facts 
found, but shall not be earlier than the date of receipt of 
the application thereof (emphasis added).  38 U.S.C.A. 
§ 5110(a); 38 C.F.R. § 3.400.  A specific claim in the form 
prescribed by the Secretary ........must be filed in order for 
benefits to be paid or furnished to any individual under the 
laws administered by the Secretary.  38 U.S.C.A. § 5101(a).  

The pertinent facts are not in dispute, and the law, 
specifically 38 U.S.C.A. §§ 5101 & 5110, is dispositive in 
this matter.  Together, these two Sections mandate that a 
claim must be specific, and that the effective date of an 
award shall not be earlier than the date of receipt of the 
claim (emphasis added).  

VA is not required to anticipate any potential claim for a 
particular benefit where no intention to raise it was 
expressed.  See Brannon v. West, 12 Vet. App. 32, 35 (1998); 
Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995).  There is 
no provision in the law for awarding an earlier effective 
date based on the veteran's assertion that the disability 
existed before he filed the claim.  

The U.S. Court of Appeals for Veterans Claims (Court) has 
held that where the law not the evidence is dispositive, the 
Board should deny an appeal because of an absence of a legal 
merit or the lack of entitlement under the law.  Sabonis v. 
Brown, 6 Vet. App. 426 (1994).  The veteran has failed to 
allege facts which meet the criteria in the law or 
regulations, and his claim must be denied.

B.  Effective Date of 100 Percent Rating

The veteran also seeks an effective date earlier than May 6, 
2005 for his 100 percent rating for PTSD.  VA initially 
granted the veteran a 50 percent rating, effective as of the 
date of his claim, February 15, 2002.  The veteran appealed 
the rating and was granted a 100 percent rating in July 2005, 
effective May 6, 2005, the date of the veteran's notice of 
disagreement.  Since this appeal ensued after the veteran 
disagreed with the initial rating assigned following a grant 
of service connection, separate ratings may be assigned for 
separate periods of time based on the facts found, a practice 
known as "staging."  See Fenderson v. West, 12 Vet. App. 
119 (1999).  Reasonable doubt as to the degree of disability 
will be resolved in the veteran's favor. 38 C.F.R. § 4.3.

VA's Schedule for Rating Disabilities (Rating Schedule) 
determines the disability ratings that apply in each case, 38 
C.F.R. Part 4. The percentage ratings represent the average 
impairment in earning capacity resulting from diseases and 
injuries incurred or aggravated during military service and 
their residual conditions in civil occupations. 38 U.S.C.A. § 
1155; 38 C.F.R. § 4.1.

The veteran's disability is currently evaluated under 
Diagnostic Code (DC) 9411, which pertains to PTSD.  Under DC 
9411, a 50 percent disability rating requires moderate 
occupational and social impairment with reduced reliability 
and productivity with such symptoms as impaired judgment, 
disturbances of motivation and mood, and difficulty in 
establishing and maintaining effective work and social 
relationships.

A 70 percent rating is warranted where the disorder is 
manifested by 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 that is 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); and an inability to 
establish and maintain effective relationships  38 C.F.R. § 
4.130, DC 9411.

A 100 percent rating is indicative of 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 of names of close relatives, own occupation or 
own name.  Id.

The Board has thoroughly reviewed all the evidence in the 
veteran's claims folder.  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 veteran 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).

On November 20, 2002, the veteran had a VA examination for 
mental disorders.  The veteran reported that he had problems 
with falling asleep, guilt, flashbacks, and public contact.  
He said he has withdrawn from his family, has trouble 
concentrating, has a startle response, and has intrusive 
thoughts.  He indicated that he left his last job less than a 
year prior to the exam.  When asked about his daily routine, 
he indicated that he will eat breakfast and then sit all day 
doing nothing.

The examiner indicated that his affect was depressed, shallow 
and restricted.  He indicated no suicidal ideation.  The 
examiner noted that the veteran showed no evidence of a 
thought disorder, and his orientation to person, place, and 
time was within normal limits.  The veteran's memory was 
intact but has trouble concentrating.  His insight was not 
developed.  

The veteran was diagnosed with chronic PTSD and the examiner 
stated that the veteran showed signs of exposure to the 
threat of death on the battlefield, re-experiencing, 
avoidance behavior, symptoms of increased arousal, prolonged 
duration of disturbances, and significant impairment in 
social, occupational and other areas of functioning.

The veteran had a VA PTSD evaluation for stressors on 
November 26, 2002.  The examiner had reviewed the claims file 
and indicated that the veteran was able to give a history 
consistent with the information provided in his claims file.  
The examiner stated that the veteran exhibited symptoms of 
depression with withdrawal, and that the veteran feels 
hopeless, suicidal, and feels cut off from people.  He 
further stated that the veteran has concentration problems, 
which are indicated with his difficulty making decisions due 
to anxiety.  The veteran showed mixed results for PTSD as he 
did not show evidence of hypervigilance, irritability, 
physiological arousal, concentration problems or anger.  
However, the veteran admitted to traumatic experiences, 
painful guilt, disturbing dreams, and detachment from others.  

In the diagnosis, the examiner indicated that the veteran 
shows significant depression and it is the more prominent 
symptom over his anxiety disorder, which is likely PTSD.  The 
examiner noted that the veteran had premorbid anxiety prior 
to entering service, as well as emotional detachment 
evidenced by his personality disorder which is prominently 
schizoid and avoidant in nature.  He concluded that the 
personality factors likely contribute to the veteran's 
emotional detachment, lack of bonding in relationships as 
well as occupational problems.  He stated that the veteran 
has flashbacks which interfere with his functioning, however, 
it was the examiner's opinion that the major depression and 
personality disorder have more prominent manifestations in 
the veteran's current level of social and occupational 
functioning.

VA outpatient treatment records from 2002-2005 report similar 
symptoms and conditions related in the November 2002 VA 
examinations.  

Based upon the evidence, the Board finds that the symptoms 
and findings reported in the VA examinations and in the VA 
outpatient treatment records prior to May 2005 do not support 
a rating of 100 percent.  

Specifically, prior to May 2005 (which is the only issue 
before the Board regarding this claim, at this time) the 
evidence does not show that the veteran's disability is 
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 of 
names of close relatives, own occupation or own name.  In 
fact, the VA examiner attributed most of the veteran's 
occupational and social difficulties to his anxiety and 
personality disorder.  

It is important for the veteran and his spouse to understand 
that not all evidence in this record supports the current 
finding of a 100 percent evaluation for PTSD, let alone a 
finding that the veteran should have received more 
compensation for PTSD earlier than May 2005.  In fact, 
significant evidence exists in this case that does not 
support a 100 percent evaluation for PTSD, including 
indications of personality disorder.  Service connection may 
not be granted for a personality disorder.  38 C.F.R. 
§§ 3.303(c), 4.9.  See Winn v. Brown, 8 Vet. App. 510, 516 
(1996), and cases cited therein.  

Further, outpatient treatment records in April 2005 indicate 
that the veteran was doing "fairly well" until he attempted 
to reduce his medication, clearly not supporting his claim 
for a 100 percent evaluation at this time.  Finally, the May 
2005 VA examination, which appears to be the basis for the 
100 percent evaluation, does not always indicate difficulties 
that would clearly support a 100 percent finding, providing 
more evidence against the current claim before the Board at 
this time that the veteran should have received the 100 
percent evaluation prior to this time.            

In sum, the weight of the credible evidence demonstrates that 
the veteran is not entitled to an initial evaluation of 100 
percent for PTSD prior to May 2005.  As the preponderance of 
the evidence is against the claim, the benefit of the doubt 
doctrine is not for application.  See generally Gilbert v. 
Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 
3d 1361 (Fed. Cir. 2001).

II.  Special Monthly Compensation

Special monthly compensation (SMC) is payable to a veteran 
who is, as a result of his service-connected disabilities, so 
helpless as to need or require the regular aid and attendance 
of another person.  38 U.S.C.A. § 1114(l); 38 C.F.R. § 
3.350(b)(3).  A veteran 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 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).

The following criteria will be considered in determining 
whether the veteran is in need of the regular aid and 
attendance of another person: the inability of the veteran 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 such aid; the 
inability of the veteran to feed himself through the loss of 
coordination of upper extremities or through extreme 
weakness; the inability to attend to the wants of nature; or 
an incapacity, physical or mental, which requires care or 
assistance on a regular basis to protect the veteran from the 
hazards or dangers incident to his daily environment.  38 
C.F.R. § 3.352(a).

In Turco v. Brown, 9 Vet. App. 222 (1996), the Court held 
that it was not required that all of 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 Court added that the 
particular personal function which the veteran was unable to 
perform should be considered in connection with his condition 
as a whole and that it was 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

In this case, no medical evidence indicates that 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 five degrees or less; or 
that he is a patient in a nursing home because of mental or 
physical incapacity.  It appears that the veteran's claim is 
based solely on a factual need for aid and attendance of 
another person under the criteria set forth in 38 C.F.R. § 
3.352(a).  

If the veteran does not qualify for increased benefits for 
aid and attendance, increased compensation benefits may still 
be payable if the veteran has a single permanent disability 
rated 100 percent disabling, and has either additional 
service-connected disability or disabilities independently 
ratable at 60 percent or more, or is permanently housebound 
by reason of service-connected disability or disabilities. 38 
U.S.C.A. § 1114(s); 38 C.F.R. § 3.351(d). A veteran is 
"permanently housebound" when he is substantially confined 
to his house (ward or clinical areas, if institutionalized) 
or immediate premises due to service-connected permanent 
disability or disabilities. 38 C.F.R. § 3.350(i)(2).  The 
veteran is currently service connected for PTSD at 100 
percent; however, he does not have an additional disability 
rated at 60 percent or more.  Therefore, he does not qualify 
for SMC under this provision.

The veteran was afforded a VA examination for aid and 
attendance in May 2007.  The examiner recorded that the 
veteran was age 62 at the time, and that his spouse puts out 
his medications for him.  The veteran indicated that he 
avoids crowded places, but that he has a driver's license and 
drove alone in the early morning to a grocery store two 
months prior to the exam.  He also indicated that he gardens.  
When questioned, he indicated that he bathes himself, uses 
the bathroom, feeds himself, and dresses himself.  The 
examiner noted that he was wearing lace-up combat boots, 
which the veteran laced himself.  He stated that his spouse 
cooks his meals.

The examiner indicated that the veteran's statements were at 
odds with those reported in a February 2006 VA examination, 
and the examiner indicated that further assessment of the 
veteran's capabilities was needed.  The examiner further 
stated that it did not appear that the veteran was 
experiencing major problems with the basic activities of 
daily living (ADLs), other than having his medications set 
out for him.

In the addendum to the examination, the examiner indicated 
that he had reviewed a psychological test report, dated June 
2007, which indicated that the veteran's inability to perform 
ADLs appear more related to his mood and psychotic disorder 
functioning than due to a cognitive disorder.  The examiner 
indicated that he was unsure as to which ADLs the veteran was 
unable to complete as the veteran had stated that he could 
bath, dress and toilet independently, and drives short 
distances.  It was the examiner's opinion that the veteran 
does not need aid and attendance on the basis of his 
diagnosis of PTSD, providing persuasive evidence against the 
veteran's claim.

The Board finds this exam highly probative, weighing against 
the veteran's claim, as he indicated that he could use the 
bathroom, feed himself and dress himself.  He was able to 
lace his combat boots.  He also stated that he could drive 
short distances and garden, all of which weigh against the 
need for aid and attendance.  

The VA exam conducted in February 2006 indicates that the 
veteran needs assistance with all ADLs except eating.  The 
spouse indicated that if she did not take the veteran to the 
bathroom that he would not go.  The veteran would not soil 
himself, but he would refuse to take himself to the rest 
room.  The veteran did not suffer incontinence.  The examiner 
opined that these symptoms did not appear to be related to 
the veteran's PTSD, weighing against he veteran's claim for 
aid and attendance based on a service connected disorder.

The veteran indicated that his eyesight impairs him, however, 
the VA examiner found that the condition was not related to 
PTSD.  The examiner further opined that the veteran's 
cognitive problems appear to be a separate unrelated entity 
from PTSD and depression and will require further evaluation, 
which also weighs against the claim.  

The physician's report for SMC, completed by Dr. Easley in 
November 2005, indicates that the veteran has urinary 
incontinence, poor memory, and agitation.  Dr. Easley 
indicated that the veteran had loss of bladder and anal 
sphincter control, that the veteran was not competent to 
manage his financial affairs, and that he was not bedridden 
or blind.  Dr. Easley further noted that the veteran needed 
assistance less than 50 percent of the time with dressing and 
ambulation, needed assistance more than 50 percent of the 
time with feeding and protecting himself from everyday 
hazards of everyday life, and was totally dependent on others 
for bathing, hygiene, using the toilet, and preparing meals.

VA outpatient treatment record dated October 2005 shows that 
the spouse indicated that the veteran had become increasingly 
forgetful and was not changing his clothes unless it was 
firmly requested that he do so.  She also indicated that the 
veteran was unable to maintain his medication regimen without 
assistance and that he had been having problems with 
incontinence.  The veteran expressed guilt associated with 
not being able to do things for himself.

At a hearing before the decision review officer (DRO) in 
December 2006, the veteran's spouse testified that she had to 
quit work to take care of the veteran because he refused to 
bath, eat, take his medications, go to the bathroom, and 
because he has problems around people.  She testified that 
the veteran was capable of doing the tasks himself but that 
he would not perform his ADLs because of his medications.  
For example, when going to the bathroom, he will go but he 
misses the toilet.  She also testified that he had seizures 
on a regular basis.

In September 2007 at a hearing before the undersigned, the 
veteran's spouse testified that she put out the veteran's 
medications, and makes sure he eats and is groomed.  She 
stated that she lays out his clothes and takes care of his 
nails.  She testified that she drives him wherever he needs 
to go.  She also testified that the veteran has to be told to 
get dressed.

The Board has also considered the multiple lay statements by 
the veteran's spouse that indicates that she has to help the 
veteran with all his basic needs, including a letter received 
by the RO in September 2007.  In this letter, the veteran's 
spouse indicated that she quit her job to care for the 
veteran.  She also stated that the veteran can dress himself 
and use the bathroom, providing evidence against the claim.

Overall, the examinations and treatment records provide 
persuasive evidence against the need for regular aid and 
attendance and against this claim.  These records simply do 
not show that the veteran requires assistance bathing, 
dressing, cleaning, or with the activities of daily living 
due to a service connected or non-service connected 
disability.  

Per the May 2007 and February 2006 VA exams, it was the 
examiner's opinion that the veteran does not need aid and 
attendance on the basis of his diagnosis of PTSD.  The 
veteran stated in his exam that he could do most ADLs, as 
well as garden and drive, providing evidence against his own 
claim.  The veteran's spouse testified that the veteran could 
dress himself and use the bathroom.  She also indicated at 
the VA outpatient exam that the veteran had to be told to get 
dressed, but she did not indicate that he could not dress 
himself.  She testified before the DRO in December 2006 that 
the veteran was capable of doing tasks himself but that he 
will not perform his ADLs because of his medications.  

The post-service medical record, as a whole, is found to 
provide evidence against this claim.  The evidence does not 
show that (while the veteran may need to be reminded to do 
certain tasks) the veteran is unable to dress or undress 
himself or to keep himself ordinarily clean and presentable.  
The evidence does not show that the veteran cannot feed 
himself through the loss of coordination of upper extremities 
or through extreme weakness; or that he cannot attend to the 
wants of nature.  

The evidence also fails to show that the veteran has an 
incapacity, physical or mental, which requires care or 
assistance on a regular basis to protect him from the hazards 
or dangers incident to his daily environment.  38 C.F.R. § 
3.352(a).  The spouse herself has never indicated that such a 
situation exists in this case.  

The Board does not dispute the fact that the veteran has 
significant problems; however, the standard for aid and 
attendance status is quite high.  Consequently, it is 
apparent from the medical evidence that the basic 
requirements for special monthly pension or compensation on 
the account of regular aid and attendance have not been met.  
38 C.F.R. § 3.352(a).

Accordingly, the Board finds that the preponderance of the 
evidence is against special monthly pension or compensation 
by reason of need for regular aid and attendance.  38 
U.S.C.A. § 5107.  As such, the evidence is not so evenly 
balanced as to require resolution of doubt in the claimant's 
favor.  Id.  The appeal is denied.


III.  The Duty to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 
(VCAA), the United States Department of Veterans Affairs (VA) 
has a duty to notify and assist claimants in substantiating a 
claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 
5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007).  

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his representative, if any, of any information, 
and any medical or lay evidence, that is necessary to 
substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. 
§ 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  
Proper notice from VA must inform the claimant of any 
information and evidence not of record (1) that is necessary 
to substantiate the claim; (2) that VA will seek to provide; 
(3) that the claimant is expected to provide; and (4) must 
ask the claimant to provide any evidence in his possession 
that pertains to the claim in accordance with 38 C.F.R. 
§ 3.159(b)(1).  This notice must be provided prior to an 
initial unfavorable decision on a claim by the agency of 
original jurisdiction, or regional office (RO).  Mayfield v. 
Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. 
Principi, 18 Vet. App. 112 (2004).  

For an increased-compensation claim, section § 5103(a) 
requires, 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.  Vazquez-Flores v. 
Peake, 22 Vet. App. 37 (2008).   Further, 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.  

Additionally, 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, 22 Vet. App. 37. 

Here, the duty to notify was not completely satisfied prior 
to the initial unfavorable decisions on the claims by the RO.  
Under such circumstances, VA's duty to notify may not be 
"satisfied by various post-decisional communications from 
which a claimant might have been able to infer what evidence 
the VA found lacking in the claimant's presentation."  
Rather, such notice errors may instead be cured by issuance 
of a fully compliant notice, followed by readjudication of 
the claims.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. 
Cir. 2006) (where notice was not provided prior to the RO's 
initial adjudication, this timing problem can be cured by the 
Board remanding for the issuance of a VCAA notice followed by 
readjudication of the claim by the RO) see also Prickett v. 
Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a 
fully compliant VCAA notification followed by readjudication 
of the claim, such as an SOC or SSOC, is sufficient to cure a 
timing defect).  

In this case, the VCAA duty to notify was satisfied 
subsequent to the initial RO decision by way of a letters 
sent to the veteran in March 2002, May 2005, August 2005, and 
December 2005 that fully addressed all notice elements, 
including the Vazquez-Flores criteria.  The letters informed 
the veteran of what evidence was required to substantiate the 
claims and of his and VA's respective duties for obtaining 
evidence.  The veteran was also asked to submit evidence 
and/or information in her or his possession to the RO.  The 
letters also informed the veteran of effective date 
assignments as well as the criteria for increased ratings.  

Although the notice letters were not sent before the initial 
RO decision in this matter, the Board finds that this error 
was not prejudicial to the veteran because the actions taken 
by VA after providing the notice have essentially cured the 
error in the timing of notice.  Not only has the veteran been 
afforded a meaningful opportunity to participate effectively 
in the processing of his claim and given ample time to 
respond, but the RO also readjudicated the case by way of a 
supplemental statement of the case issued in July 2007 after 
the notice was provided.  For these reasons, it is not 
prejudicial to the veteran for the Board to proceed to 
finally decide this appeal as the timing error did not affect 
the essential fairness of the adjudication.  

VA has a duty to assist the veteran in the development of the 
claim.  This duty includes assisting the veteran in the 
procurement of service medical records and pertinent 
treatment records and providing an examination when 
necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

The Board finds that all necessary development has been 
accomplished, and therefore appellate review may proceed 
without prejudice to the veteran.  See Bernard v. Brown, 4 
Vet. App. 384 (1993).  The RO has obtained VA outpatient 
treatment records and records from SSA.  The veteran 
submitted private treatment records and lay statements, and 
was provided an opportunity to set forth his contentions 
during the hearing before the undersigned Veterans Law Judge.  
The veteran was afforded multiple VA medical examinations.  
Significantly, neither the veteran nor his representative has 
identified, and the record does not otherwise indicate, any 
additional existing evidence that is necessary for a fair 
adjudication of the claim that has not been obtained.  Hence, 
no further notice or assistance to the veteran is required to 
fulfill VA's duty to assist him in the development of the 
claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 
F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. 
App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. 
App. 183 (2002).

ORDER

An effective date earlier than February 15, 2002, for the 
award of service connection for PTSD is denied.

An effective date earlier than May 6, 2005 for the grant of a 
100 percent evaluation for PTSD is denied.

Entitlement to special monthly pension by reason of regular 
aid and attendance is denied.


____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs