Citation Nr: 18123704 Decision Date: 08/02/18 Archive Date: 08/02/18 DOCKET NO. 15-28 880 DATE: August 2, 2018 ORDER A separate initial rating of 20 percent for pseudoseizures associated with the service-connected PTSD is granted beginning December 14, 2010. A rating higher than 70 percent for posttraumatic stress disorder (PTSD) is denied. An earlier effective date than December 14, 2010 for the grant of service-connection for PTSD with pseudoseizures is denied. An earlier effective date of February 2, 2011, but no earlier, for the total disability rating due to individual unemployability (TDIU) is granted. REMANDED Entitlement to special monthly compensation at the aid and attendance rate is remanded. Entitlement to an earlier effective date than May 20, 2011 for an award of special monthly compensation at the housebound rate is remanded.   FINDINGS OF FACT 1. For the entire rating period beginning December 14, 2010, the pseudoseizures associated with the service-connected PTSD were manifested by minor seizures occurring, at worst, four times per week. 2. The weight of the competent and credible evidence demonstrates that the Veteran’s service-connected PTSD resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, but not in total occupational and social impairment beginning December 14, 2010 and a referral for extraschedular consideration is not warranted. 3. The Veteran was not precluded by his service-connected PTSD with pseudoseizures from obtaining and maintaining any form of gainful employment for the period prior to February 2, 2011. 4. The Veteran’s employment after February 2, 2011 was marginal and the Veteran has not been gainfully employed since February 2, 2011. 5. Resolving all reasonable doubt in the Veteran’s favor, he has been precluded from obtaining and maintaining any form of gainful employment by his service-connected PTSD with pseudoseizures beginning February 2, 2011. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for a separate, initial 20 percent rating for pseudoseizures are met for the entire rating period beginning December 14, 2010. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.124a, DC 8914 (2017). 2. The criteria for a disability rating higher than 70 percent for the Veteran’s PTSD for the period beginning December 14, 2010 are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.130, Diagnostic Code 9411 (2017). 3. The criteria to establish entitlement to a TDIU for the period prior to February 2, 2011, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017). 4. The criteria to establish entitlement to a TDIU for the period beginning February 2, 2011, are approximated. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1996 to March 2002. This matter comes before the of Veterans’ Appeals (Board) on appeal from the December 2011 and August 2013 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). By way of procedural background, the Board issued a decision in May 2017. In that decision, the Board found the initial rating period for the service-connection claim for PTSD with pseudoseizures began December 14, 2010, the date the claim for service connection for PTSD was submitted. In the May 2017 decision, the Board also granted TDIU and special monthly compensation at the housebound rate effective May 20, 2011. Additionally, the Board granted an increased rating for the PTSD to 70 percent for the entire appellate period. Subsequently, the Veteran appealed to the Court of Appeals for Veterans Claims (CAVC), and a partial joint motion for remand was granted by the Court in March 2018. Specifically, the Veteran maintains that he is entitled to a separate rating for pseudoseizures associated with the service-connected PTSD or that he is entitled to higher than 70 percent for the service-connected PTSD due to the pseudoseizures, to include extraschedular consideration. The Court also remanded the issues of the effective dates for the grant of PTSD with pseudoseizures, the effective date of the grant of special monthly compensation at the housebound rate, and the effective date of the grant of TDIU. Additionally, the Veteran contends he is entitled to SMC at the aid and attendance rate. Preliminary Matters The Board limits its discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran, his representative, and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Pertinent Increased Rating Laws and Regulations Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). In rendering a decision on appeal, the Board must also 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. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). 1. A separate initial rating of 20 percent for pseudoseizures associated with the service-connected PTSD is granted beginning December 14, 2010. The Veteran’s pseudoseizures are now considered a symptom of his service-connected PTSD. See May 2017 Board decision. He contends that the pseudoseizures are not adequately addressed by the 70 percent rating for the PTSD under diagnostic code 9411 and that a separate rating is warranted. See June 2018 brief. The Board previously found in the May 2017 decision that the pseudoseizures are a manifestation of the service-connected PTSD and conversion disorder. A pseudoseizure is an attack resembling an epileptic seizure but having purely psychological causes, and is also called pseudoepilepsy. See Dorland’s Illustrated Medical Dictionary 1546 (32nd. ed. 2012). Conversion disorder is a mental disorder characterized by conversion symptoms (loss or alteration of voluntary motor or sensory functioning suggesting physical illness, such as seizures, paralysis, dyskinesia, anesthesia, blindness, or aphonia) having no demonstrable physiological basis and whose psychological basis is suggested by (1) exacerbation of symptoms at times of psychological stress, (2) relief from tension or inner conflicts (primary gain) provided by the symptoms, or (3) secondary gains (support, attention, avoidance of unpleasant responsibilities) provided by the symptoms. See Dorland’s Illustrated Medical Dictionary 549 (32nd. ed. 2012). Although the rating schedule for acquired psychiatric disorders contemplates difficulty adapting to stressful circumstances, pseudoseizures are beyond what is contemplated by the rating criteria for mental disorders and resemble an epileptic seizure; therefore, the Board finds that it is appropriate to consider whether a separate rating for pseudoseizures is warranted under the DC’s 8914 as a condition analogous to epilepsy. See November 2011 examination report. Psychomotor epilepsy is evaluated under the General Rating Formula for Major and Minor Epileptic Seizures (General Rating Formula). The General Rating Formula provides for a 10 percent rating when there is a confirmed diagnosis of epilepsy with a history of seizures. A 20 percent rating is warranted when there is at least 1 major seizure in the last 2 years or at least 2 minor seizures in the last 6 months. A 40 percent rating is warranted when there is at least 1 major seizure in the last 6 months or 2 in the last year or an average of at least 5 to 8 minor seizures weekly. A 60 percent rating requires an average of at least 1 major seizure in 4 months over the last year or 9 to 10 minor seizures per week. An average of at least 1 major seizure in 3 months over the last year or more than 10 minor seizures weekly merits an 80 percent rating. The highest disability rating of 100 percent is reserved for when there is an average of at least 1 major seizure per month over the last year. 38 C.F.R. § 4.124a, Diagnostic Codes 8910 to 8914, General Rating Formula. After review of the lay and medical evidence of record, the Board finds that a separate 20 percent rating for pseudoseizures is warranted for the entire rating period from December 14, 2010. During a December 2011 VA seizure disorder examination, the Veteran reported that he started having spells in 2007. Symptoms included episodes of sudden loss of postural control, complete or partial loss of use of one or more extremities, random motor movements, perceptual illusions, speech disturbance, gait disturbance, tremors, and occasional falls. The Veteran also reported tasting blood and dirt during a pseudoseizure and left side facial drooping with left hand contraction. If the pseudoseizure is severe, the Veteran reported his entire body “locked up.” The most recent episode occurred on November 30, 2011. No tonic clonic activity was found. The examiner also indicated that the Veteran’s “seizure” symptoms were “not due to a true seizure disorder,” but were pseudoseizures due to a well-document conversion disorder as documented in mental health treatment notes. The Veteran’s pseudoseizures had been witnessed by his spouse and children at home. The Veteran required continuous medications to control his pseudoseizures. The examiner reported the Veteran did not have minor pure petit mal or akinetic type seizures or major seizures associated with tonic clonic convulsions. The examiner did find the Veteran experienced psychomotor seizures between 0 and 4 times per week. The Veteran did not have a psychotic disorder, psychoneurotic disorder, or personality disorder associated with the pseudoseizures. No scars associated with the Veteran’s pseudoseizures were found. An August 2007 electroencephalography was normal and no seizure activity was seen. An April 2012 VA treatment record, the Veteran indicated that he had pseudoseizures about once a week when he was reminded of his traumas. The Veteran’s wife and children assert in June 2013 correspondences that the unpredictability and frequency of the Veteran’s pseudoseizures require care at all times. Specifically, the Veteran’s wife reported that the Veteran had frequent pseudoseizures when he was left alone, but he also had them when he went out with his spouse, such as trips to the grocery store. The Veteran’s wife asserted that the Veteran would have a pseudoseizure any time he could not see her, and that the Veteran could not be left alone. The Veteran’s son also reported that the Veteran once had a pseudoseizure in the pool when his son was 12 years old, and he had to jump in to prevent his father from drowning. In a July 2013 VA PTSD examination, Veteran reported that he was fired from Lowe’s in June 2011 after working for 3 months due to his pseudoseizures. He also reported that his pseudoseizures had increased to the point that he was frequently unable to leave his house. Thus, the credible and probative evidence shows that the pseudoseizures are minor and occur, at worst, four times per week. The schedular criteria provide a 20 percent rating for epileptic seizures that are manifested by at least two major seizures in the last six months or two or more minor seizures per week; therefore, resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for a separate, initial 20 percent rating for pseudoseizures, as analogous to minor psychomotor epileptic seizures, is warranted under DC 8914. The weight of the evidence is against a finding that a rating more than 20 percent for the pseudoseizures is warranted under DC 8914 because the evidence does not show that the Veteran’s pseudoseizures are, on average, manifested by at least one major seizure in the last 6 months or 2 in the last year, or five to eight minor seizures on a weekly basis. The severity and frequency of the pseudoseizures are contemplated by the schedular criteria for a 20 percent rating under DC 8914. 2. Entitlement to a rating higher than 70 percent for posttraumatic stress disorder, to include extraschedular consideration. The Veteran’s psychiatric disorder is rated at 70 percent under Diagnostic Code 9411 for PTSD for the entire rating period on appeal beginning December 14, 2010. A rating of 30 percent is warranted for PTSD if 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, or mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is assigned for 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; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. A 70 percent disability rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech 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 inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. A 100 percent disability rating is assigned total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, or for the veteran’s own occupation or name. Id. Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM-IV. The amendments replace those references with references to the recently updated “DSM-5.” As the Veteran’s claim was certified to the Board after to August 4, 2014, the DSM-5 is applicable to this case. According to the DSM-5, clinicians do not typically assess GAF scores. See 38 C.F.R. § 4.126(a). As discussed above, the Board, in the May 2017 decision, granted a higher disability rating of 70 percent for the service-connected PTSD for the entire period on appeal beginning December 14, 2010. Per the joint motion for partial remand, the Veteran now maintains that he is entitled a higher than 70 percent disability rating for the service-connected PTSD with pseudoseizures and/or extraschedular consideration. See June 2018 brief. First, the Board notes that the pseudoseizures have now been granted a separate initial 20 percent disability rating as discussed above. Thus, the pseudoseizures as a symptom of the service-connected PTSD are not considered in the assignment of a disability rating for the PTSD. To compensate the pseudoseizure symptoms within the PTSD when they have already been compensated by a separate rating code would be impermissible pyramiding. Turning to case at hand, the pertinent evidence of record includes a November 2011 VA PTSD examination. During the evaluation, the Veteran reported that he had been married for 17 years and had 2 children. He also stated that he had a few friends and knew people at church. The Veteran also noted that he and his wife enjoyed shooting at ranges. It was noted that the Veteran denied suicide attempts, but indicated “a few” physical altercations with people. Current symptoms were noted to include anxiety and mild memory loss. The Veteran further indicated that his wife told him he had nightmares and some sleep disturbances. The examiner noted that the Veteran’s mood was dysthymic and mildly anxious. He denied suicidal or homicidal ideation, delusions, or perceptual distortion. The Veteran was afforded a July 2012 VA PTSD examination. The examiner diagnosed the Veteran with PTSD and conversion disorder. The examiner indicated that the Veteran had occupational and social functional impairment with reduced reliability and productivity. The examiner indicated that the PTSD symptoms were mild to moderate and could be differentiated from the conversion disorder, which include the pseudoseizures, as moderate to severe. The Veteran reported being married for 18 years and having two kids. He described his marriage as “wonderful” and the relationship with his children as “good.” The Veteran maintained a relationship with his parents, but did not have contact with his half siblings. He reported having one friend he talks to once or twice a month, but no other significant social contacts. The Veteran reported he was terminated from his last employer, Lowes, due to his pseudoseizures. His previous employer was with Walmart, but he reported he was terminated for having an inappropriate relationship with a coworker. The examiner found the Veteran exhibited depressed mood, anxiety, chronic sleep impairment, mild memory loss such as forgetting names, directions or recent events, disturbances in mood and motivation, and difficulty in establishing and maintaining effective work and social relationships. The Veteran was appropriately dressed with good grooming and hygiene. He was oriented as to person, place, and time. His recall was good. The Veteran endorsed chronic moderate depressed mood. He reported occasional suicidal ideations. HE experienced chronic sleep impairment, daytime fatigue, flashbacks, and nightmares every night. The Veteran felt irritable and secluded himself. The Veteran reported anxiety around other people, and had been sucking his thumbs lately inexplicably. The Veteran reported occasional audio and visual hallucinations of people yelling in Serbian when they are not. The overall PTSD symptoms alone were noted to be mild to moderate. The evidence also includes a July 2013 VA PTSD examination report. The examiner confirmed a diagnosis of chronic, moderate PTSD and conversion disorder of moderate to serous impairment. During the evaluation, the Veteran indicated that he continued to live with his wife and 2 children. He denied having any friendships, but maintained contact with his parents and occasionally attended family functions. Current symptoms included depressed mood, anxiety, panic attacks occurring weekly or less often, chronic sleep impairment, mild memory loss, flattened affect, disturbance of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Veteran also reported feeling emotionally “blank” and having a lot of aggression. He stated that he heard voices about 1-2 times a week and indicated that he sees a “group of people” that were related to one of his PTSD stressors. He reported staying in bed most of the day. The examiner noted that the Veteran had not worked since 2011. If he were to be employed, the examiner stated that he would likely experience mild to moderate PTSD-related impairments relating to tolerating noise and groups of people VA treatment records, to include a June 2012 VA mental health note, which reflects the Veteran’s report of occasional, transient suicidal thoughts. Social Security Administration disability records show that the Veteran was awarded disability benefits, effective June 10, 2011 for his anxiety and somatoform disorders. On a January 2012 SSA Psychiatric Review Technique report, a psychologist indicated that the Veteran had moderate to severe PTSD and conversion disorder. It was noted that the Veteran had “marked” difficulties in maintaining social functioning and “moderate” difficulty in activities of daily living and in maintaining concentration, persistence, and pace. SSA records also include a December 2011 psychiatric evaluation report from Dr. J.L.B., Jr., a psychologist. During the evaluation, the Veteran reported symptoms of nightmares, panic attacks, crying spells, and excessive hypervigilance. He also had racing thoughts and was unable to focus, with a decreased attention span. In 2007, it was noted that the Veteran continued to be flooded with memories of his wartime experiences. He remained hypervigilant and socially withdrawn. The Veteran also previously had episodes of suicidal ideation without intent. Dr. J.L.B. noted that the Veteran’s medications caused drowsiness. The Veteran was noted to be married and had 2 children. He indicated that he had a good relationship with his family and that he last worked in June 2011, and after having a seizure, the Veteran stated that he was terminated. Upon mental status examination, Dr. J.L.B. noted that there were no difficulties in his receptive or expressive communication skills. His mood was moderately to severely depressed. He was also anxious and restless. There was also some obsessive thinking. Dr. J.L.B. also indicated that the Veteran slept excessively, but did attend church and had some friends. He also developed a hobby of painting guns. Dr. J.L.B. then opined that the Veteran would have “substantial difficulty performing most work-related tasks due to his psychiatric symptoms.” Upon review of all evidence of record, both lay and medical, the Board finds that the preponderance of the evidence is against a higher than 70 percent rating for the service-connected PTSD for the entire rating period on appeal. The treatment records and psychiatric examinations discussed above reveal that the Veteran’s PTSD has been manifested by depression, some social isolation, anxiety, sleep impairment, mild memory loss, nightmares, and near-continuous depression. He has also reported occasional suicidal ideations, occasional audio and visual hallucinations, and some obsessive thinking. See e.g., December 2011 report from Dr. J. B and July 2012 VA psychiatric examination. Most of these symptoms are specifically included in the 70 percent rating criteria under Diagnostic Code 9411 and more nearly approximate occupational and social impairment, with deficiencies in most areas, such as work, judgment, thinking, and mood. However, for the entire rating period on appeal, the Veteran’s PTSD does not more nearly approximate total social impairment and do not contemplate the symptomology considered under the 100 percent rating criteria. The evidence shows that the Veteran has been married for approximately 20 years and has a good relationship with his children and parents. He also reported attending church and having some friends. According to the December 2011 evaluation report, Dr. J. B. noted the Veteran painted and shot guns as a hobby. In reaching this conclusion regarding the degree of occupational and social impairment, the Board has considered all the Veteran’s psychiatric symptoms and impairment, whether or not the symptom is specifically listed in the rating criteria, considering such symptoms as “like or similar to” the symptoms in the rating criteria. See Mauerhan, 16 Vet. App. at 442; Vazquez-Claudio, 713 F.3d at 116-17. The evidence shows that the Veteran’s overall PTSD picture is already adequately contemplated by the 70 percent rating granted in the May 2017 Board decision. The Veteran experiences disturbance of motivation and mood (depression and anxiety), anxiety attacks, and sleep impairment, but these symptoms are specifically contemplated in the 30, 50, and 70 percent rating criteria. The same is true with the Veteran’s occasional suicidal ideations, obsessive thoughts, and difficulty in adapting to stressful circumstances, which are symptoms specifically contemplated under the 70 percent PTSD disability rating. Although the Veteran has reported experiencing some audio and visual hallucinations, he does not report that they are persistent. There is no evidence of record that the Veteran is unable to perform activities of daily living, to include maintaining minimum personal hygiene. The Veteran’s PTSD symptoms, without consideration of the additional symptoms of the related pseudoseizures, do not more nearly approximate 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; or memory loss for names of close relatives, own occupation, or own name. For these reasons, the Board finds that the evidence of record does not demonstrate total social impairment and does not more nearly approximate the symptoms contemplate under the 100 percent rating criteria. Accordingly, the Board finds that a rating higher than 70 percent for the PTSD is not warranted for the entire initial rating period on appeal. Extraschedular Consideration In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant’s disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff’d, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). As the Board has now granted a separate disability rating for the pseudoseizures, the evidence in this case does not show such an exceptional disability picture of the Veteran’s PTSD symptomatology that it cannot be addressed by the available schedular rating under DC 9411 for PTSD and Ce pseudoseizures as analogous to psychomotor epilepsy. A comparison between the levels of severity and symptomatology of the Veteran’s disability, with the established criteria found in the rating schedule, shows that the rating criteria reasonably describe the Veteran’s disability level and symptomatology. The Veteran’s signs and symptoms and their resulting impairment, are contemplated by the rating schedule. As noted above, the Veteran’s service connected PTSD has been primarily productive of depression, some social isolation, anxiety, sleep impairment, mild memory loss, nightmares, near-continuous depression, occasional suicidal ideations, occasional audio and visual hallucinations, and some obsessive thinking. See e.g., December 2011 report from Dr. J.L.B and July 2012 and July 2013 VA examinations. Most of these symptoms are specifically included in the 70 percent rating criteria under DC 9411 and more nearly approximate occupational and social impairment, with deficiencies in most areas, such as work, judgment, thinking, and mood. Notably, these symptoms are either explicitly part of the schedular rating criteria or are “like or similar to” those symptoms and impairment explicitly listed in the schedular rating criteria. Mauerhan, 16 Vet. App. at 443. The levels of occupational and social impairment are also explicitly part of the schedular rating criteria. Accordingly, the schedular rating criteria contemplate the Veteran’s service-connected connected PTSD and for the pseudoseizures. As the pseudoseizures have now been addressed with a separate rating, there is no evidence in the record or allegation of symptoms of and/or impairment due to the PTSD disability not encompassed by the criteria for the assigned schedular rating. 3. An earlier effective date than December 14, 2010 for the grant of service connection for PTSD with pseudoseizures is denied. The Veteran’s attorney asserts that the effective date for service-connection for PTSD with pseudoseizures should be February 2, 2007, the date VA received the Veteran’s claim for service-connection for a “complex partial seizure disorder.” A rating decision issued in July 2007 denied service connection for a complex partial seizure disorder as the evidence of records did not relate his seizure disability to military service. The Veteran did not submit a notice of disagreement to this rating decision. However, the Veteran’s attorney notes that August and November 2007 VA treatment records dated within one year of the rating decision diagnose the Veteran with pseudoseizures, note that pseudoseizures are not a “true seizure disorder,” and attribute the pseudoseizures to the Veteran’s “PTSD and other life stressors.” The Veteran’s attorney contends that because VA received new and material evidence within one year of the July 2007 rating decision regarding the claim for service connection for a complex partial seizure disorder, that the July 2007 rating decision never became final. Additionally, citing Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Veteran’s attorney requests that the Board broaden the claim of entitlement service-connection for a complex partial seizure disorder to a claim for PTSD, a psychiatric disability. In Clemons, the United States Court of Appeals for Veterans Claims held that, in determining the scope of a claim, the Board must consider the Veteran’s description of the claim; symptoms described; and the information submitted or developed in support of the claim. Id. at 5. In the instant matter, the Veteran’s claim is not based on amorphous, indeterminate neurological or convulsive symptoms; instead he has specifically identified as a distinct medical diagnosis – complex partial epileptic seizures and not a psychiatric disorder with seizure-like symptoms. Based on the facts of this case, the Board finds Clemons inapplicable. In Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008), the United States Court of Appeals for the Federal Circuit held that “distinctly diagnosed diseases or injuries must be considered as separate and distinct claims.” While a legal tension exists between the holdings of Clemons and Boggs, the Board finds that Boggs is more applicable to the present case, as a complex partial epileptic seizure disorder, which is a disease of the nervous system, and pseudoseizures that are solely psychological in etiology, are two separate and medically distinct diagnoses with two separate and distinct etiologies. The Board acknowledges that the August 2007 and November 2007 VA treatment records identifies the Veteran’s “spells” as pseudoseizures and attributes them to the Veteran’s “PTSD or other life stressors;” however, the Veteran did not submit his claim for service-connection for PTSD until December 2010. Until he submitted his service-connection claim for PTSD in December 2010, there were no indications of record that the Veteran’s PTSD was related to service. Furthermore, the November 2007 VA neurology record also attributed the pseudoseizures to his general life stressors without indication that these life stressors are related to service. Additionally, the Veteran was told as early as November 2007 that the pseudoseizures were likely psychological in natures; however, the Veteran waited until December 2010 to submit a claim for service-connection for a psychiatric disorder. Development of a claim for service-connection is a two-way street. If the Veteran wanted to submit a claim for service-connection for PTSD with pseudoseizures before December 2010, he could have done so. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). For the reasons above, the Board finds that expanding a claim for service-connection from a convulsive disorder of neurological etiology to an acquired psychiatric disorder was not warranted. 4. An earlier effective date of February 2, 2011 for a total disability rating due to individual unemployability is granted. As indicated above, the Veteran is currently in receipt of a TDIU beginning May 20, 2011. He now contends he was unable to obtain, and or, maintain substantially gainful employment prior to May 20, 2011 and that any employment he had after 2006 was not substantially gainful employment. See June 2018 brief. When any impairment of mind or body sufficiently renders it impossible for the average person to follow a substantially gainful occupation, that impairment will be found to be causing total disability. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In other words, VA will grant a TDIU when the evidence shows that a veteran is precluded, due to service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). The term “unemployability,” as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran’s service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a “living wage”). See Moore v. Derwinski, 1 Vet. App. 356 (1991). The Board notes that the ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007), rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to “the effect of combinations of disability,” VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner’s opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16 (a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011). Marginal employment shall not be considered substantially gainful employment, and generally shall be deemed to exist when a veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). The poverty threshold for one person was $11,139 in 2010 and $11,484 in 2011. See https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html. In this case, the grant of TDIU is based solely on his service-connected PTSD with pseudoseizures. Service connection is in effect for PTSD and pseudoseizure disabilities since December 14, 2010. The PTSD is rated at 70 percent and the Veteran now has a separate rating for the pseudoseizures of 20 percent. In addition, service connection is in effect obstructive sleep apnea (rated at 50 percent disabling) and a right ankle disability (rated at 10 percent disabling) effective December 14, 2010. Thus, the Veteran’s total disability rating for the entire period on appeal is 90 percent disabling with at least one disability rated higher than 40 percent. In his March 2012 TDIU application (VA Form 21- 8940), the Veteran reported that his PTSD prevented him from securing or following any substantial gainful employment. He reported completing 4 years of high school education, and specifically stated that he last worked and became too disabled to work on May 20, 2011, as a sales associate at Lowe’s. Significantly in this case, the evidence of record shows that the Veteran was, in fact, working for a portion of the period on appeal. The Veteran also reported that he was employed as a manager at Walmart 40 or more hours a week from February 2009 until February 2011; however, an employer verification form from Walmart indicated the Veteran was employed as a manager beginning February 2008. See also June 2012 VA examination when the Veteran reported working for Walmart from 2008 to 2011. In any case, despite the conflicting evidence of whether the Veteran began his employment at Walmart in 2008 or 2009, the evidence shows that he was employed at Walmart full time during the appellate period, which began December 20, 2010, and was employed there until February 2, 2011. There is no indication from the record that his employment before February 2, 2011 was not substantial or not gainful. The Veteran reported he worked full time as a manager and grossed $1,350 per month, which exceeds the annualized poverty level for 2010 and 2011. See March 2012 TDIU application. Additionally, the Veteran reported in July 2012 VA examination that he was terminated from Walmart due to an inappropriate relationship with another coworker. There is no evidence of record he was terminated from Walmart due to his service-connected disabilities. Because the evidence shows that he was gainfully and substantially employed until February 2, 2011, the Board finds that his service-connected disabilities did not render him unable to secure and follow gainful employment in a variety of settings before that date. A TDIU is not warranted when the Veteran is employed in gainful and substantial employment. However, although the Veteran worked at Lowes beginning March 18, 2011 until May 20, 2011, the Veteran’s TDIU application also indicates the Veteran was only working 20 to 30 hours per week, only earned $700 gross per month, and that he missed 6 days of work in three months due to his service-connected PTSD and pseudoseizures before his employment was terminated due to his pseudoseizures. Thus, the Board finds his employment at Lowes was not substantially gainful, and an earlier effective date for TDIU is granted as of February 2, 2011.   REASONS FOR REMAND 1. Entitlement to special monthly compensation (SMC) at the aid and attendance rate is remanded. The Board granted SMC at the housebound rate in the May 2017 decision. The Veteran and his spouse contend that he is entitled to SMC at the higher aid and attendance rate because his wife must care for him full time and cannot leave him alone due to his service-connected PTSD with pseudoseizures. The Veteran reports falls, injuries, and a near drowning due to the pseudoseizures. However, the Veteran has not yet been afforded a VA examination to evaluate whether he requires aid and attendance due to his service-connected disabilities. Thus, a remand of this issue is necessary to afford the Veteran a VA examination. 2. Entitlement to an earlier effective date for award of SMC at the housebound rate is remanded. A remand is warranted for the issue of entitlement to an earlier effective date than May 20, 2011 for SMC at the housebound rate. The Veteran is only entitled to SMC at the housebound rate or SMC at the higher aid and attendance rate, but not both simultaneously. However, it is possible that the Veteran’s disabilities could warrant aid and attendance for the entire period on appeal, a portion of the period on appeal, or not at all. As discussed above, the Veteran has not yet been afforded a VA examination for aid and attendance and that claim is being remanded. Thus, the claim for an earlier effective date for the grant of SMC at the housebound rate is inextricably intertwined with the claim for SMC at the aid and attendance rate; therefore, the earlier effective date for SMC at the housebound rate is also remanded. The matter is REMANDED for the following action: 1. Obtain any outstanding pertinent VA treatment records and associate them with the claims file. 2. Schedule the Veteran for a VA examination to determine whether he requires aid and attendance due to his service-connected disabilities, to include PTSD with pseudoseizures, obstructive sleep apnea, and right ankle disability. 3. Then readjudicate the claims for SMC at the aid and attendance rate and the claim for an earlier effective date than May 20, 2011 for award of SMC at the housebound rate. If the full benefit sought on appeal is not granted, return the claims to the Board for further appellate consideration. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Harper, Associate Counsel