Citation Nr: 19144398 Decision Date: 06/07/19 Archive Date: 06/07/19 DOCKET NO. 15-44 147 DATE: June 7, 2019 ORDER Entitlement to an earlier effective date of October 5, 2012, for an increased evaluation of post-traumatic stress disorder (PTSD) is granted. An evaluation of 100 percent for PTSD is granted from October 5, 2012. Entitlement to a finding of total disability based on individual unemployability (TDIU) is dismissed. Entitlement to special monthly compensation (SMC) based on the need for the regular aid and attendance of another (A&A) is granted. FINDINGS OF FACT 1. The Veteran’s claim for SMC based on A&A was received on October 5, 2012, and included an inferred claim for increased rating for PTSD. 2. Service-connected PTSD is manifested by persistent danger of hurting self or others, with symptoms such as disorientation to time or place. 3. The Veteran requires the regular aid and assistance of another in performing the activities of daily living and protecting himself from the hazards of his daily environment. 4. The Veteran is in receipt of a 100 percent schedular rating for PTSD for the entirety of the appellate period, and so the question of entitlement to TDIU is moot. CONCLUSIONS OF LAW 1. The criteria for an earlier effective date of October 5, 2012, for PTSD are met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.155, 3.400 (2018). 2. The criteria for an increased evaluation for PTSD are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2018). 3. The criteria for entitlement to SMC based on A&A are met. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 3.350, 3.352 (2018). 4. The criteria for dismissal of a claim of entitlement to TDIU are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.19 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1978 to July 1978 and January 2003 to April 2004. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his wife testified at a November 2018 hearing held before the undersigned at the Jackson, Mississippi RO. A transcript of those proceedings has been associated with the file. During the hearing, the Veteran clarified that he is not pursuing a claim on the theory of clear and unmistakable error. 5. Earlier effective date for assignment of an increased evaluation for PTSD For increases in disability, the effective date will generally be the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (o)(1). Otherwise, the effective date may be assigned beginning from the earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred if a complete claim or intent to file a claim is received within 1 year from such date, otherwise, date of receipt of claim. 38 C.F.R. § 3.400 (o)(2). The Veteran received an increased evaluation from May 30, 2013, the date of his VA examination for PTSD. During the November 2018 hearing, the Veteran’s wife competently and credibly testified that the Veteran had been in the same condition since he filed a claim on October 5, 2012, for entitlement to aid and attendance. The Board finds her testimony probative. Indeed, the RO scheduled the examination in response to receipt of that claim. October 5, 2012 is both the date of receipt of claim and date entitlement to the benefit is first established, based on the Veteran’s wife’s testimony. There is no date certain within the prior year when entitlement can be shown, and some records indicate that more serious symptomatology may have actually preceded the year. Entitlement to an earlier effective date of October 5, 2012, for an increased evaluation of PTSD is granted. 6. Increased evaluation for PTSD The Veteran is currently rated 70 percent disabled by PTSD from October 5, 2012, based on the above decision. The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides that occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships, is rated 70 percent disabling. Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name, is rated 100 percent disabling. 38 C.F.R. § 4.130. The rating formula is not intended to constitute an exhaustive list, but rather is intended to provide examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. Instead, VA must consider all symptoms of a Veteran’s condition that affect the level of occupational and social impairment, and assign an evaluation based on the overall disability picture presented. However, the impairment does need to cause such impairment in most of the areas referenced at any given disability level. Vazquez-Claudio v. Shinseki, 713 F. 3d. 112 (Fed. Cir. 2013). Treatment records show that the Veteran has consistently appeared on time for his appointments, appropriately groomed, alert and oriented, with appropriate speech, denying any suicidal or homicidal ideations, with good judgment and insight. A May 2011 treatment note documents disturbances in the Veteran’s sleep and motivation, as well as increased irritability. During a May 2013 VA examination, the Veteran endorsed irritability, short temper, sleep disturbances, marital difficulties, and disturbances in motivation. He reported relationships with his siblings, children, and grandchildren. He enjoyed spending time with other veterans, going fishing, and attending cookouts. During an April 2014 VA examination, the examiner noted the Veteran’s hyperarousal, difficulty concentrating, depressed mood, anxiety, suspiciousness, chronic sleep impairment, difficulty establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work. The Veteran reported that he had good relationships with his wife and children. Though prone to verbal aggression, he is not physically aggressive. At the November 2018 hearing, the Veteran’s wife described that the Veteran exhibited gross impairment in thought processes or communication by getting up and walking out of the house in the middle of conversation. He has not recently described experiencing persistent delusions or hallucinations. He does not exhibit grossly inappropriate behavior. However, his impaired memory is so severe that he presents a persistent, though unintended, danger to himself and others. It appears that he has turned on the stove, forgotten it, and walked away from it on multiple occasions. His difficulties performing activities of daily living such as maintaining personal hygiene seem to arise more from his physical incapacities, such as carpal tunnel syndrome, than from his mental disorder. His wife testified that he forgets where he is, exhibiting disorientation to place. While the record shows that the Veteran exhibits appropriate behavior and speech with doctors and presents well-groomed, his wife reports that the Veteran flies into rages and has been noted to be a wandering danger. His memory problems have contributed to several small house fires, such that he clearly requires close supervision at all times. With his gross impairment in thought processes or communication, his persistent endangering of himself and others, and his disorientation to place, his symptoms appear to rise to the level of a 100 percent evaluation. A 100 percent evaluation for PTSD is granted from October 5, 2012, the effective date established above. 7. TDIU As the Veteran has been granted a schedular 100 percent rating for the entire period on appeal based solely on his PTSD, the issue of TDIU is moot and dismissed. The regulations provide for such a benefit only “where the schedular rating is less than total.” 38 C.F.R. § 4.16(a). 8. Special monthly compensation (SMC) for aid and attendance (A&A) The Veteran seeks SMC on the basis of A&A. SMC is designed to provide a higher level of compensation to Veterans who, by reason of the singular or combined effects of service-connected disabilities, face challenges above and different than the loss of earning capacity the rating schedule is designed to evaluate. 38 C.F.R. §§ 3.350, 4.1. A&A may be awarded for anatomical loss or loss of use of both feet, or loss of one hand and one foot, blindness in both eyes, being permanently bedridden, or needing the regular aid and assistance of another in performing the activities of daily living or protecting oneself from the hazards of daily life. 38 C.F.R. §§ 3.350, 3.352. The Veteran does not allege, and the evidence of record does not show, the presence of any of the specific entitlement disabilities. A&A entitlement therefore would require a factual finding that service-connected disabilities render the Veteran in need of the regular assistance of another person to attend to the activities of daily living (dressing and undressing, hygiene, toileting, etc.) or to protect himself from the normal daily hazards and dangers of his environment. 38 C.F.R. §§ 3.350, 3.52(a). A February 2016 examiner noted the Veteran’s diagnoses of PTSD, depression, carpal tunnel syndrome, and shoulder impingement. Next the examiner reported that the Veteran can feed himself, but he is unable to prepare his own meals. He is unable to complete tasks due to mental demands and an inability to focus. He requires assistance with bathing and tending to hygiene needs due to the decreased range of motion of his shoulders. He is not legally blind and does not require nursing home care. He requires medication management because he is unable to focus and properly take medicine as prescribed. He is unable to manage his own financial affairs, and his wife has power of attorney due to his inability to focus, inattention, and depression. He is unable to shave or button his clothes due to his carpal tunnel syndrome. He is unable to bend or squat and has difficulties with balance. He walks with a cane, exhibits an antalgic gait, and is stiff and arthritic, with limited range of motion. He has problems with dizziness and balance. He leaves the home for VA appointments only. During the November 2018 hearing, the Veteran and his wife described the Veteran heating something on the stove, forgetting about it, and leaving the home. His wife returned to a house full of smoke and burned countertops. Treatment records corroborate this behavior, which appears to be recurrent. The Veteran will also forget where he is. The Veteran described that his wife quit her job to take care of him out of fear that he was going to burn down the house. As is noted above, due to his PTSD, the Veteran is a danger to himself and others, and requires daily supervision for performance of routine activities, such as cooking. He has almost burned his house down on several occasions when unsupervised. Entitlement to SMC based A&A is warranted. There is no need to discuss entitlement to statutory housebound SMC based on a single disability rated 100 percent disabling plus additional disabilities rated a combined 60 percent or more, as A&A is the greater benefit. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. McDermott, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.