Citation Nr: 18147142 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 11-17 575 DATE: November 2, 2018 ORDER 1. Entitlement to service connection for post-traumatic stress disorder (PTSD) is denied. 2. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance, or at the housebound rate, is denied. FINDINGS OF FACT 1. A probative diagnosis of PTSD is not demonstrated by the evidence of record. 2. The competent evidence of record demonstrates that the Veteran is not housebound and/or in need of the regular aid and attendance of another person due to her service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2017). 2. The criteria for SMC based on aid and attendance/housebound status are not met. 38 U.S.C. §§ 1114, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.350, 3.352(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1989 to July 1989, and from December 1995 to January 2000. These matters come before the Board of Veterans’ Appeals (BVA or Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In February 2014, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. In March 2014, the Board remanded this matter for further development. In a May 2014 rating decision, to RO assigned a 100 percent disability rating for the service-connected acquired psychiatric disability, effective October 29, 2001. Regarding the previously remanded issue of entitlement to TDIU, the grant of a 100 percent disability does not always render the issue of TDIU moot. VA’s duty to maximize a claimant’s benefits includes consideration of whether his disabilities establish entitlement to SMC under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability and VA finds that TDIU is warranted based on a service-connected disability(ies) other than the disability that is rated at 100 percent, which would then satisfy the second requirement of an additional disability or disabilities of 60 percent. See Bradley, 22 Vet. App. at 294 (analyzing 38 U.S.C. § 1114 (s)); see also 75 Fed. Reg. 11,229-04 (March 10, 2010) (withdrawing VAOPGCPREC 6-1999). Thus, the Board finds the issue of entitlement to SMC has been raised by the record and will address this issue in the decision below. 1. Entitlement to service connection for PTSD is denied. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Direct service connection may not be granted without evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C. § 1112; 38 C.F.R. § 3.304. See Shedden v. Principi, 381 F.3d There are particular requirements for establishing service connection for PTSD in 38 C.F.R. § 3.304 (f), which take precedence over the general requirements for establishing service connection in 38 C.F.R. § 3.303. See Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Establishment of service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304 (f). Some chronic diseases, including psychosis, may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101 (3), 1112(a); 38 C.F.R. §§ 3.307 (a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Here, there is no showing or allegation that PTSD manifested to a degree of ten percent or more within one year of service. Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App 370, 374 (2002). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a headache, varicose veins, or tinnitus, the Veteran is not competent to provide evidence as to more complex medical questions, such as the etiology of psychiatric disorders. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. After a review of the evidence of record, the Board finds that the preponderance of the evidence is against a finding that the Veteran currently meets the criteria for a diagnosis of PTSD. The Board notes that post-service VA treatment records are inconsistent in determining whether the Veteran has a diagnosis of PTSD. Although some records noted a diagnosis of PTSD, others indicated only a possibility of PTSD. See July 10, 2002 and September 14, 2011 VA Treatment Records. Additionally, records obtained from the Social Security Administration (SSA) reflect that the Veteran was not found to have a diagnosis of PTSD. See Evaluation dated April 23, 2014. Furthermore, to the extent that any PTSD diagnosis has been rendered in a VA treatment record, such determinations have not been shown to have been based on a review of the Veteran’s claims file or any other detailed and reliable medical history. Additionally, these treatment records warrant less probative weight than the other medical evidence of record (which indicates that the Veteran does not have PTSD) as they do not contain an analysis or discussion as to whether or not all of the criteria for PTSD were met. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (recognizing the Board’s “authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence”). Simply stated, a great deal of medical evidence has been associated with the claims file that renders the diagnosis provided in certain VA treatment records less probative. In June 2014, the Veteran was afforded a VA psychological examination. The examiner determined that she did not meet the diagnostic criteria for PTSD under the DSM-IV or DSM-V criteria. See June 2014 VA Psychological Examination Report p. 11. The Board finds this opinion to be highly probative, as it was based on a thorough review of the claims file and provided a detailed report to support its conclusions. See Bloom v. West, 12 Vet. App. 185, 187 (1999). The June 2014 examiner also conducted a complete interview of the Veteran and reviewed the account of her experiences and reported stressors during service. For these reasons, the June 2014 opinion is afforded greater probative value than the inconsistent diagnosis of PTSD found in the post-service VA treatment records. In addition, the available service treatment records contain no complaints, symptoms, or diagnoses of PTSD. The Board notes that the Veteran has reported in-service stressors involving harassment. See June 2014 VA Examination Report. However, service connection is limited to those cases where disease or injury has resulted in a disability. In the absence of proof of a present disability for which service connection is sought, there is no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). Here, the greater weight of the evidence is against the conclusion the Veteran has PTSD. Accordingly, the claim for service connection for PTSD must be denied. In making this decision, the Board has also considered the lay evidence indicating that the Veteran has PTSD. The Veteran is competent to testify as to her observations. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007. In addition, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, unlike disorders that may be observable as to both their incurrence and their cause, the cause of a psychiatric disability is not readily apparent to lay observation, and the Court has held that psychiatric diagnoses are generally the province of medical professionals. See Clemons, supra (“It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant”). Moreover, even if credible and competent, the general lay assertions are outweighed by the specific and reasoned conclusion of the health care professional who diagnosed a psychiatric disability other than PTSD. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As explained above, the most persuasive and probative evidence of record does not reflect that the Veteran has a diagnosis of PTSD. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993). The lay statements of the Veteran, as well as the post-service VA treatment records were considered, but are found to be less probative than the June 2014 VA examination report. The Board finds it significant that the June 2014 report contains no diagnosis of PTSD, which further supports the finding that this disorder does not presently exist in this case. Thus, given the lack of probative and persuasive value of evidence demonstrating a current disability of PTSD, the evidence in this case is not so evenly balanced to allow application of the benefit-of-the-doubt rule as required by law and regulation. See Gilbert, supra; 38 C.F.R. § 3.102. Accordingly, for the reasons and bases discussed above, the Board concludes that the preponderance of the evidence is against a finding that there is a PTSD diagnosis in this case. See, e.g., Cohen v. Brown, 10 Vet. App. 128, 153 (1997) (Chief Judge Nebeker, concurring) (VA adjudicators may reject the claim upon a finding that the preponderance of the evidence is against a PTSD diagnosis). Therefore, service connection for PTSD is denied. 2. Entitlement to SMC is denied. Special monthly compensation is payable under 38 U.S.C. § 1114 (l) if, as the result of service-connected disability, the Veteran is permanently bedridden or is so helpless as to be in need of regular aid and attendance of another person. 38 U.S.C. § 1114 (l) (2012); 38 C.F.R. § 3.350 (b) (2017). Need for aid and attendance means being so helpless as to require the regular aid and attendance of another person. 38 C.F.R. § 3.350 (b). As it pertains to the present case, criteria for establishing such need include whether the Veteran is permanently bedridden or is so helpless as to be in need of regular aid and attendance as determined under criteria enumerated under 38 C.F.R. § 3.352 (a). Under 38 C.F.R. § 3.352 (a), the following factors will be accorded consideration in determining whether the Veteran is in need of regular aid and attendance of another person: (1) inability of the Veteran to dress or undress herself, or to keep herself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without such aid; (3) inability of the Veteran to feed herself because of the loss of coordination of upper extremities or because of extreme weakness; (4) inability to attend to the wants of nature; or (5) physical or mental incapacity which requires care or assistance on a regular basis to protect the Veteran from the hazards or dangers incident to her daily environment. 38 C.F.R. § 3.352 (a) (2017). 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 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 is 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). For the purposes of 38 C.F.R. § 3.352 (a), “bedridden” will be a proper basis for the determination of whether the Veteran is in need of regular aid and attendance of another person. “Bedridden” will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that a 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. 38 C.F.R. § 3.352 (a). SMC may be awarded at the housebound rate if a veteran has a single service-connected disability rated as total and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) by reason of service-connected disability or disabilities, is permanently housebound. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i) (2017). A veteran will be determined to be permanently housebound when she is substantially confined to her house (or ward or clinical areas, if institutionalized) or immediate premises due to disability or disabilities when it is reasonably certain that such a condition will remain throughout her lifetime. Id. The Veteran is service-connected for an acquired psychiatric disability with a 100 percent evaluation from October 29, 2001, as well as for headaches with a 30 percent evaluation from March 5, 2010. Turning to the evidence of record, at the June 2014 examination, the Veteran reported that she lived on her own, maintained her personal hygiene, and kept a clean household. She also stated that she was actively involved in veterans’ groups. SSA records indicate that the Veteran cared for her mother and managed her own meal preparation, personal care, shopping, household chores, and finances. These records further reflect that she left her home to attend medical appointments and veterans’ groups, to shop, and to visit family members. In December 2017, the Veteran stated that she was fixing up the house next to her home for family members. She also participated in family gatherings and continued to attend veterans’ groups. Most recently, in August 2018, the Veteran reported that she attended her local VA center for treatment, as well as various veterans’ groups. She was involved in art, yoga, and meditation. She further stated that she attended family activities and entertained family members in her home. Upon review of the evidence of record as summarized above, the Board finds that the preponderance of the evidence is against awarding SMC benefits due to the Veteran needing the regular aid and attendance of another person or being housebound. 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 she is not blind in both eyes. Additionally, the evidence does not reflect that the Veteran’s service-connected disabilities have rendered her unable to dress or undress herself, to keep herself ordinarily clean and presentable, to feed herself, to attend to the wants of nature, or that her service-connected disabilities require the need of adjustment of any special prosthetic or orthopedic appliance, or result in other incapacity that requires care or assistance on a regular basis to protect her from hazards or dangers incident to her daily environment. The evidence also does not reflect that the Veteran has a service-connected condition which, through its essential character, requires that she remain in bed or confined to her house. Viewing the evidence as a whole, the Board finds the Veteran is able to perform self-care activities and does not require the care or assistance of another person in performing these functions. Hence, the Board finds that the totality evidence reflects that the Veteran’s service-connected disabilities do not cause her to be permanently bedridden or so helpless as to be in need of regular aid and attendance. Consequently, the criteria for SMC based on the need for the regular aid and attendance of another person are not met. See 38 U.S.C. § 1114 (l); 38 C.F.R. §§ 3.350 (b), 3.352(a). The Board takes note of the findings made by the VA examiners, and VAMC records. Though the Veteran has periodically needed assistance with transportation, she is not so helpless as to be permanently bedridden or in need of regular aid and attendance of another. Moreover, the ultimate determination is a legal rather than a medical one. Cf. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (“[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”). As indicated above, the Veteran’s maintains the ability to manage activities of daily living and at no point during the appeal period has the Veteran been shown to require the regular aid and attendance of another due to the functional impact of her service-connected disabilities. Although the regulation specifically indicates that a constant need is not required to satisfy the aid and attendance criteria, the above evidence and analysis reflects that, even though there may be occasional instances when she may require assistance-this does not occur regularly. For all of the foregoing reasons, the Board finds that the preponderance of the evidence is against a finding that SMC based on aid and attendance and/or housebound is warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, supra. BETHANY L. BUCK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Erin J. Trojanowski, Associate Counsel