Citation Nr: 21005376 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 12-24 499 DATE: February 1, 2021 ORDER An effective date of June 28, 2007 for service connection for posttraumatic stress disorder (PTSD) is granted. Entitlement to special monthly compensation (SMC) based on housebound status or the need for regular aid and attendance is denied. FINDINGS OF FACT 1. Entitlement to service-connected for PTSD first arose on June 28, 2007, the earliest date the Veteran was diagnosed with PTSD. 2. The Veteran did not have a single service-connected disability rated as 100 percent. 3. The Veteran was not housebound. 4. The Veteran was not in need of regular aid and attendance. CONCLUSIONS OF LAW 1. The criteria for an effective date of June 28, 2007, for the grant of service connection for PTSD have been met. 38 U.S.C. §§ 5101, 5107, 5110; 38 C.F.R. §§ 3.1, 3.114, 3.151, 3.155, 3.400. 2. The criteria for SMC based on the need for regular aid and attendance or at the housebound rate are not met. 38 U.S.C. §§ 1114(l), 1114(s), 5103, 5107; 38 C.F.R. §§ 3.102, 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1969 to April 1972. The Veteran died in December 2016. Prior to the Veteran’s death, in a June 2016 decision, the Board remanded the claim for an earlier effective date for service connection for PTSD. The Veteran died in December 2016, after the claim for an earlier effective date had been returned to the Board, along with a claim for entitlement to SMC. In March 2017, the Board dismissed the appeal due to the Veteran’s death. In the case of a joint class of potential substitutes, only one person of the joint class may be a substitute at any one time and the first eligible person in the joint class to file a request to substitute will be the substitute representing the joint class. 38 C.F.R. § 3.1010(e)(3)(ii). In this case, three of the Veteran’s adult children applied to be the substitute appellant, each application was received on the same date, July 14, 2017, and each was recognized by the AOJ as the substitute appellant on the same date, April 6, 2020. Because there is no clear first-to-file substitute, the Board has relied on a September 11, 2020 submission by the attorney who submitted the applications for each ot the three of the potential substitute claimants recognizing J.L.C.S. as the proper substitute appellant. The Board notes that because the appellant is the adult child of the Veteran, he does not qualify as a “child” who can receive accrued benefits, pursuant to 38 C.F.R. §§ 3.57. The record contains no indication, nor does the appellant contend, that he became permanently incapable of self-support before reaching the age of 18. Under these circumstances, the appellant is only eligible for the accrued benefit necessary to reimburse expenses bore in relation to the last sickness or burial of the Veteran. See 38 C.F.R. § 3.1000 (a)(5). 1. Earlier Effective Date for Service Connection for PTSD The appellant asserts that the Veteran was entitled to an effective date earlier than April 23, 2010 for service connection for PTSD, arguing that his effective date should be August 6, 1986. Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a); 38 C.F.R. §§ 3.400, 3.400(b)(2). The effective date of an evaluation and award of compensation on an original claim for compensation will be the day following separation from active duty service or the date entitlement arose if claim is received within 1 year after separation from service; otherwise, date of receipt of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (b)(2). In this case, the agency of original jurisdiction (AOJ) originally denied the Veteran’s claim for service connection for PTSD in a December 1986 rating decision. The Veteran did not disagree with the decision, no new and material evidence was received by VA within one year of the issuance of the rating decision, and no VA treatment records were created within one year of the rating decision. The December 1986 rating decision therefore became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). The appellants’ representative argues that the Veteran was entitled to an effective date of August 6, 1986 for service connection for PTSD, the date VA received his first claim of entitlement, asserting that 38 C.F.R. § 3.156(c) requires that the Board reconsider the initial December 1986 rating decision denying service connection. Section 3.156(c) requires a Veteran’s claim to be reconsidered without regard to the finality of any prior decision when VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim. Although the December 1986 rating decision references the Veteran’s service treatment records, there is no indication that his personnel records were associated with the claims file at the time. And, as pointed out by the representative, the AOJ requested and was provided with the Veteran’s service personnel records, including his DD Form 214, in December 2002 and were considered as part of the March 2003 rating decision. VA received the Veteran’s second claim for service connection for PTSD in September 2002 and again denied the claim in a March 2003 rating decision. However, while the Veteran neither disagreed with the March 2003 rating decision nor submitted a claim to reopen entitlement to service connection within one year of receiving the decision, the Veteran began receiving treatment at a VA facility in December 2003 and VA treatment records were created within one year of the denial. Those records were constructively before the Agency of Original Jurisdiction (AOJ), but the AOJ never determined whether the evidence was new and material. Therefore, the March 2003 rating decision did not become final and the Veteran’s September 19, 2002 claim remained pending. 38 C.F.R. § 3.156 (b); Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014); Lang v. Wilkie, 971 F.3d 1348, 1354-55 (Fed. Cir. 2020). Ultimately, however, the effective date of service connection depends not only on the date VA received the Veteran’s claim but also on the date on which entitlement arose. In this case, the medical evidence does not demonstrate treatment or diagnosis for PTSD until June 28, 2007, when the Veteran was first diagnosed with PTSD, as documented in VA treatment records of that date. Thereafter, the November 2010 VA examiner determined that the Veteran’s PTSD symptoms were caused by traumatic experiences he suffered in Vietnam and were the result of a fear of hostile military or terrorist activity. While the Veteran continually asserted entitlement to PTSD from the time of his initial claim, he was not shown to have the training necessary to competently diagnose a complex psychiatric illness such as PTSD. The Board therefore finds that an effective date of June 28, 2007, but no earlier, for service connection for PTSD is warranted as that is the date entitlement first arose. 2. SMC The appellant asserts the Veteran was entitled to SMC at the housebound rate or due to the need for regular aid and attendance. The VA has a ‘well-established’ duty to maximize a claimant’s benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). This duty to maximize benefits requires VA to assess all of a claimant’s disabilities to determine whether any combination of disabilities establishes entitlement SMC under 38 U.S.C. § 1114. See Bradley, 22 Vet. App. 280, 294 (2008). SMC is payable at the housebound rate where the Veteran has a single service-connected disability rated as 100 percent and, in addition: (1) has a service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability, and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). Subsection 1114(s)(1) requires that a disabled Veteran whose disability level is determined by the ratings schedule must have at least one disability that is rated at 100 percent in order to qualify for the special monthly compensation provided by that statute. Under the law, subsection 1114(s) benefits are not available to a Veteran whose 100 percent disability rating is based on multiple disabilities, none of which is rated at 100 percent disabling. Although TDIU may satisfy the “rated as total” element of section 1114(s), TDIU based on multiple underlying disabilities cannot satisfy the section 1114(s) requirement of “a service-connected disability” because that requirement must be met by a single disability. Buie v. Shinseki, 24 Vet. App. 242, 250 (2010). The appellant, in essence, asserts that there was an error in the July 2012 rating decision, arguing that the July 2012 rating decision wrongly determined that the Veteran was entitled to TDIU based on a combination of his service connected disabilities and, instead, should have found that the Veteran was entitled to a TDIU based on either his service-connected type II diabetes alone, his service-connected PTSD alone, or his service-connected hearing loss alone in order to maximize the potential benefit. See, e.g., September 2012 Notice of Disagreement; November 2015 VA Form 9; September 2020 Representative Brief. The Board has reviewed the evidence to determine whether the Veteran would have been eligible for TDIU based on any one of his service-connected disabilities alone. During a November 2010 VA examination for PTSD, the Veteran reported he had not worked since 1985 after suffering a back injury but gave no indication he was unable to work due to his psychiatric symptoms. The examiner noted a remote history of the Veteran throwing things and hitting walls but described the Veteran’s impulse control at the time of the examination as “ok.” The Veteran reported no problems with memory and no difficulty concentrating. There are no symptoms related to PTSD described in the examination that would have prevented the Veteran from obtaining or maintaining substantially gainful employment. Nor do any of the Veteran’s subsequent treatment records include objective symptoms or subjective reports by the Veteran that he was unable to work due to his psychiatric disability. The evidence provided by the Veteran prior to his death further supports a finding that the Veteran was unable to work due a combination of his service-connected disabilities. The Veteran provided a statement dated in May 2012 by Dr. D.C., the Veteran’s VA primary care provider, who opined that the Veteran was unable to obtain and maintain substantially gainful employment due to the severity of his service-connected PTSD, diabetes, peripheral neuropathy, tinnitus, and hearing loss. Dr. D.C. opined the Veteran’s disabilities limited his ability to move freely without shortness of breath, caused ongoing pain issues related to osteoarthritis and chronic low back discomfort with radicular pain, required him to use a walker to ambulate, caused numbness in his feet, and resulted in the blistering of his feet. Dr. D.C.’s opinion is clear that a combination of the limitations caused by the Veteran’s service-connected disabilities prevented him from obtaining or maintaining gainful employment. The Board has also considered the Veteran’s statements, which generally show that the Veteran believed he was unable to work due to a combination of his disabilities. In his December 2011 claim for TDIU, the Veteran asserted that he was unable to work due to a combination of the limitations resulting from his type II diabetes, hearing loss, tinnitus, PTSD, and peripheral neuropathy. In his May 2012 Notice of Disagreement, the Veteran again asserted he was entitled to TDIU based on a combination of his disabilities. Finally, in a May 2016 statement, the Veteran stated that he was unable to work due to diabetes mellitus and peripheral neuropathy, but because this statement is at odds with his earlier assertions in both his claims and during medical treatment, the Board finds that it is not credible and affords it limited weight. See Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff’d per curiam, 78 F.3d. 604 (Fed. Cir. 1996). Moreover, the AOJ, in its July 2012 rating decision, provided detailed reasoning and explanation for the assignment of TDIU based on a combination of the Veteran’s service-connected disabilities. In short, the Board can find no credible medical or lay evidence demonstrating that any one of the Veteran’s service-connected disabilities alone prevented him from obtaining and maintaining substantially gainful employment or that the July 2012 rating decision erred in determining that the Veteran was entitled to TDIU based on a combination of his service connected disabilities. As such, the Veteran was not entitled to SMC at the statutory housebound rate. The Veteran’s initial grant of TDIU was based on a combination of service-connected disabilities, not a single disability as required by Buie and the Veteran is not otherwise in receipt of a 100 percent rating for a single disability. Nor was the Veteran permanently housebound by reason of service-connected disability or disabilities, entitling him to SMC pursuant to 38 U.S.C. § 1114(s)(2). The appellant does not assert that the Veteran was permanently housebound. And the lay and medical evidence demonstrates the Veteran was able to leave his home prior to his death, at times with assistance, but at other times was able to drive himself. See, e.g., October 2015 Examination for Housebound Status; May 2016 Veteran Statement; January 2016 VA Treatment Records; February 2016 VA Treatment Records. Finally, the Board has considered whether the Veteran was eligible for SMC based on the need for regular aid and attendance. SMC is payable to a veteran who, as a result of service-connected disabilities, is so helpless as to need or require the regular aid and attendance of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b)(3). A veteran will be considered in need of regular aid and attendance if he or she is: (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). Factual need for aid and attendance is based on the following criteria: the inability of the veteran to dress or undress himself or herself, or to keep himself or herself 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 aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); the inability of a veteran to feed himself or herself through the loss of coordination of upper extremities or through extreme weakness; the inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect a veteran from the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352 (a). A veteran need not have all the disabling conditions enumerated in the provisions of 38 C.F.R. § 3.352 (a) to establish eligibility for aid and attendance, but at least one of the enumerated factors must be present. It is only necessary that the evidence establish that a veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Turco v. Brown, 9 Vet. App. 222 (1996). In this case, the available evidence is somewhat contradictory. In an October 2015 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, Dr. S.C. III, reported the Veteran needed assistance with bathing and hygiene due to difficulty transferring, needed help dressing, and could not drive himself. On the other hand, contrary to Dr. S.C. III’s report, VA treatment records prior to the Veteran’s death indicate that he was generally independent and not in need of regular aid and attendance. In January 2016 VA treatment records, the Veteran reported he lived alone and was still able to drive short distances. On examination, he was able to rise from sitting and back with minimal assistance and could sit and stand from the bed with contact guard assistance only and was independent in all activities of daily living, including eating, bathing, dressing, transferring, and toileting. In a February 2016 VA treatment record, the Veteran stated he took all medication without assistance and was able to cook for his family when they came over. He paid to have his home cleaned and his son took him to the store and appointments as needed if he called, but the Veteran was still able to drive himself. A functional assessment showed that the Veteran needed help ambulating, transferring, doing laundry, and grocery shopping, but was able to bathe, do hygiene care, dress, toilet, feed, cook meals, and transport himself. Taken as a whole, the greater weight of the medical and lay evidence does not demonstrate that the Veteran needed regular aid and attendance. He was not 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; he was not a patient in a nursing home because of mental or physical incapacity; and while the Veteran’s son helped him with tasks such as shopping when the Veteran asked, the Veteran was generally able dress and undress himself, keep himself clean and presentable, did not require frequent adjustment of a prosthetic or orthopedic appliances, could feed himself, was able to attend to the wants of nature, and did not require care or assistance on a regular basis to protect him from the hazards or dangers incident to his daily environment. Therefore, the Veteran was not entitled to SMC based on the need for regular aid and attendance. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Mine 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.