POSTTRAUMATIC STRESS DISORDER (PTSD)

DEREK R. BROWN · 2020 · Case ID: 20010034

MIXED

Summary

The veteran, who served from August 1966 to September 1973, appealed the denial of increased disability ratings for posttraumatic stress disorder (PTSD) with dysthymia and sleep impairment, and the denial of special monthly compensation (SMC) for being housebound or needing aid and attendance. The Board granted an initial rating of 70% for PTSD with dysthymia and sleep impairment, finding that the veteran's symptoms, including suicidal ideation, irritability, and sleep impairment, met the criteria for this rating level during the period of October 7, 2010, to January 15, 2012. The Board denied a higher rating, concluding that the evidence did not demonstrate total occupational and social impairment. The Board also denied SMC for being housebound, as the veteran's highest single disability rating was 90%, not 100%. However, the Board granted SMC for aid and attendance, finding that the veteran required significant assistance with activities of daily living, such as bathing, dressing, meal preparation, and medication management, due to his service-connected stroke residuals, PTSD, and cognitive impairment.

Rationale

Benefit of the doubt applied for initial 70% rating; Symptoms met criteria for 70% rating (suicidal ideation, irritability, sleep impairment); Evidence did not support total occupational/social impairment for 100% rating

Special Benefit

SMC - AID & ATTENDANCE; SMC - HOUSEBOUND

Docket No.

17-52 634

Full Decision Text

Citation Nr: 20010034
Decision Date: 02/06/20 Archive Date: 02/06/20

DOCKET NO. 17-52 634
DATE: February 6, 2020

ORDER

Entitlement to an initial disability of 70 percent, but no higher, for posttraumatic stress disorder with dysthymia and sleep impairment from October 7, 2010 to January 15, 2012 is granted.

Entitlement to a disability rating higher than 70 percent for posttraumatic stress disorder with dysthymia and sleep impairment from January 16, 2012 to November 19, 2017 is denied.

Entitlement to special monthly compensation based on being housebound is denied.

Entitlement to special monthly compensation based on the need for aid and attendance is granted.

FINDINGS OF FACT

1. Resolving reasonable doubt in the appellant’s favor, from October 7, 2010 to January 15, 2012, the Veteran’s posttraumatic stress disorder with dysthymia and sleep impairment resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.

2. The Veteran’s posttraumatic stress disorder with dysthymia and sleep impairment was not manifested by total occupational and social impairment.

3. Since October 7, 2010, the Veteran did not have a single disability rated as 100 percent disabling and was not eligible for special monthly compensation based on being housebound.

4. The evidence demonstrates that the Veteran required the regular aid and attendance of another person as a result of his service-connected disabilities.

CONCLUSIONS OF LAW

1. From October 7, 2010 to January 15, 2012, the criteria for an initial rating of 70 percent, but no higher, for posttraumatic stress disorder with dysthymia and sleep impairment were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411.

2. From January 16, 2012 to November 19, 2017, the criteria for a rating higher than 70 percent for posttraumatic stress disorder with dysthymia and sleep impairment were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411.

3. The criteria for special monthly compensation based on the Veteran being permanently housebound were not met. 38 U.S.C. §§ 1114(s), 5107(b); 38 C.F.R. §§ 3.102, 3.350(i).

4. The criteria for special monthly compensation based on the Veteran’s need for regular aid and attendance of another person were met. 38 U.S.C. §§ 1114(l), 5107(b); 38 C.F.R. §§ 3.102, 3.350(b), 3.352(a).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from August 1966 to September 1973. He died in November 2017. The Veteran’s widow has been substituted as the appellant pursuant to 38 U.S.C. § 5121A.

Increased Rating

Posttraumatic Stress Disorder

The appellant contends that her husband’s service-connected posttraumatic stress disorder and dysthymia with sleep impairment warranted ratings higher than 30 percent from October 7, 2010 to January 15, 2012, and 70 percent from January 16, 2012 to November 19, 2017.

In a September 2011 rating decision, the Veteran was granted entitlement to service connection for posttraumatic stress disorder and dysthymia with sleep impairment, and assigned an evaluation of 30 percent, effective October 7, 2010. In a December 2013 rating decision, the Veteran’s evaluation for this disorder was increased to 70 percent, effective January 16, 2012, based on the results of a January 2012 VA examination.

The Veteran’s posttraumatic stress disorder and dysthymia with sleep impairment was evaluated under the General Rating Formula for Mental Illnesses. 38 C.F.R. § 4.130, Diagnostic Code 9411.

A 30 percent rating applies if the veteran has 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
disorder was increased to 70 percent, effective January 16, 2012, based on the results of a January 2012 VA examination.

The Veteran’s posttraumatic stress disorder and dysthymia with sleep impairment was evaluated under the General Rating Formula for Mental Illnesses. 38 C.F.R. § 4.130, Diagnostic Code 9411.

A 30 percent rating applies if the veteran has 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, mild memory loss (such as forgetting names, directions, or recent events). Id.

A 50 percent rating applies if the veteran has 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; difficulty in establishing and maintaining effective work and social relationships. Id.

A 70 percent rating applies if the veteran has 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. Id.

A 100 percent rating applies if the veteran has 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. Id.

Under 38 C.F.R. § 4.126(a), an evaluation of a mental disorder must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission. The assigned rating should be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. While the evaluation should consider the extent of social impairment, a rating should not be assigned based solely on social impairment. 38 C.F.R. § 4.126(b). The list of symptoms within the criteria for each rating is not exhaustive, so the impact of other symptoms particular to a veteran on occupational and social functioning should also be considered. Mauerhan v. Principi, 16 Vet. App. 436 (2002).

The Veteran first attended a VA psychiatric examination in December 2010. He reported that his symptoms had been worsening in severity over the past five years, and that he had irritability, intrusive memories, nightmares, flashbacks, avoidance of people or situations that remind him of Vietnam, trouble sleeping, and social isolation. He reported that his ability to function at his job had suffered due to his emotional instability, and that he woke up every hour or so, with vivid imagery of combat trauma. He also reported dysthymia, trouble with motivation, and feeling hopeless and overwhelmed. He said that his symptoms strained his marriage and affected his daily functioning. He reported feeling very fatigued and not having energy for anything except watching TV. He said that he did generally have a good relationship with his wife. Mental status examination revealed that his appearance and hygiene were appropriate, his speech was normal, he was lucid and oriented, and there were no observed obsessive traits, delusions, or hallucinations. His thought processes were appropriate. The Veteran did report passive thoughts of death and feelings of hopelessness. The examiner opined that the Veteran was as likely as not unemployable due to his psychiatric symptoms, and that his symptoms caused difficulty establishing and maintaining work and social relationships, that he was unable to maintain an effective family role, and that he had intermittent inability to perform recreation or leisurely pursuits.

VA treatment records show that in September 2010, the Veteran reported having symptoms of
did generally have a good relationship with his wife. Mental status examination revealed that his appearance and hygiene were appropriate, his speech was normal, he was lucid and oriented, and there were no observed obsessive traits, delusions, or hallucinations. His thought processes were appropriate. The Veteran did report passive thoughts of death and feelings of hopelessness. The examiner opined that the Veteran was as likely as not unemployable due to his psychiatric symptoms, and that his symptoms caused difficulty establishing and maintaining work and social relationships, that he was unable to maintain an effective family role, and that he had intermittent inability to perform recreation or leisurely pursuits.

VA treatment records show that in September 2010, the Veteran reported having symptoms of exaggerated startle response, depression, anxiety, and severe sleep disturbance. He denied suicidal ideation or hallucinations. He reported that his Christian faith was helpful to him, and that he wanted to stay around for his family. Mental status examination revealed that the Veteran was neatly dressed with normal speech and a restricted affect.

In December 2010, the Veteran reported symptoms of avoidance, numbness, isolation, having no friends, finding it hard to connect with his family, hyperarousal, hypervigilance, short temper, jumpiness, and difficulty with sleep. Mental status examination revealed that he was casually dressed, well-groomed, with normal speech, frustrated mood, and that he had fair judgment and insight. The Veteran was oriented to time and place, and he denied suicidal ideation.

The Veteran attended counseling at VA throughout 2011. He was always appropriately dressed, appropriately oriented, and had normal thought and insight. He denied suicidal ideation. In May 2011, he reported that he went to church twice a week, and was looking forward to an upcoming trip to Finland. In July 2011, he reported that he had gone to Finland for a month to visit his daughter and grandchildren, and that he had a great time. He also reported feeling depressed because of a strained relationship with his wife. In August 2011 he reported having poor concentration. His affect was blunted, but his cognitive processes were within normal limits. In September 2011, he reported that his medication was helping with nightmares, and that he went on walks regularly, watched TV or sports, and was doing some chores around the house. Mental status examination revealed good hygiene, normal speech, a dysthymic affect, goal-directed thought processes, and fair insight.

The Veteran has also submitted private psychiatric counseling records. At a July 2010 initial evaluation he reported having nightmares/flashbacks, panic attacks, feeling frequently nervous or anxious, a lack of interest in normal activities, irritability/mood swings, depression, and paranoia. He denied hearing voices. It was noted that his wife’s support and faith in the church had tempered his symptoms. He did report presently having suicidal thoughts. The evaluator wrote that the Veteran had passive suicidal ideation on occasion, with no plan or intent. In August 2010, he was noted to be taking Prozac, and that he had ongoing anxiety, depression, irritability, flashbacks, sleep impairment. He had improving mood and decreased anxiety, depression, and irritability in September 2010.

In 2010 and 2011, the Veteran has also received counseling at a Vet Center. Pertinent progress notes show that the Veteran has reported symptoms of depression and irritability. He had slowed speech and blunted affect. A March 2011 letter from his Vet Center psychologist stated that the Veteran was quick to anger, easily irritated, and had challenges maintaining healthy relationships. He also had insomnia, flashbacks, and numbness.

At a January 2012 VA examination, the Veteran was found to have a depressed mood, anxiety, chronic sleep impairment, mild memory loss, impairment of short and long-term memory, difficulty in adapting to stressful circumstances, and to neglect personal appearance or hygiene. The examiner found that the Veteran had occupational and social impairment with deficiencies in most areas. On the basis of these examination results, the agency of original jurisdiction increased the Veteran’s evaluation to 70 percent, effective January 16, 2012.

Based on review of all the evidence above, and affording the Veteran the benefit of the doubt, the Board finds that an initial evaluation of 70 percent can be assigned for the period of October 7, 2010 to January 15, 2012. The Veteran has had symptoms of severe depression, anxiety, severe sleep impairment, isolation, irritability and anger, feelings of hopelessness, and suicidal ideation. The Board will resolve reasonable doubt in favor of the Veteran, and finds that the assignment of the more favorable 70 percent evaluation should be
areas. On the basis of these examination results, the agency of original jurisdiction increased the Veteran’s evaluation to 70 percent, effective January 16, 2012.

In assigning this rating, the Board finds that while many, though not all, of the rating criteria for 70 percent are satisfied, an increased rating for a psychiatric disorder does not require that all deficiencies listed in the rating criteria are met. Mauerhan, 16 Vet. App. at 443. Most significantly, the Veteran has had symptoms of suicidal ideation. While the Veteran has denied having any plan or intent to actually kill himself, the Court has held that the presence of suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). In light of Bankhead, the Board finds that the Veteran’s reports of suicidal thoughts during this period is probative evidence in determining that his psychiatric symptoms resulted in occupational and social impairment with deficiencies in most areas.

Based on the foregoing, the Board finds that the evidence is at least in equipoise as to the whether the Veteran’s posttraumatic stress disorder with dysthymia and sleep impairment was productive of occupational and social impairment with deficiencies in most areas from October 7, 2010 to January 15, 2012, and entitlement to a 70 percent rating for that term is granted. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (“By requiring only an ‘approximate balance of positive and negative evidence’ the Nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding... benefits.”).

The Board does not, however, find that a 100 percent evaluation was warranted at any time since October 7, 2010. While the Veteran demonstrated severe symptoms associated with his posttraumatic stress disorder with dysthymia and sleep impairment, overall evidence is not reflective of total occupational and social impairment. The evidence shows that the Veteran suffered from depression, anxiety, chronic sleep impairment, suicidal ideation, memory impairment, irritability, anger, isolation, hypervigilance, nightmares, and irritability. While these symptoms were serious, the evidence does not show that it caused him total functional impairment.

VA treatment records after 2012 showed continued reports of suicidal ideation, depression, memory loss, and irritability. In December 2014, he reported that he continued to have nightmares and bad memories about Vietnam, that he had a depressed mood, decreased appetite, and passive thoughts of not wanting to live. He stated that he did look forward to Skyping with his grandchildren, and he had a good relationship with his wife.

In February 2015, the Veteran reported having increased cognitive impairment, including impairment in memory. He reported a decreased appetite and passive thoughts of not wanting live, but he had no intent or plan.

In May 2015, the Veteran reported having very low motivation and feeling depressed. In July and September 2015, he reported having no motivation and that he preferred to stay in his room. He stated that he had a good visit from his family from Finland. He said that he was working on his anger, was interested in being with his family and their activities, and was feeling less depressed. Mental status examination revealed that he was alert and dressed appropriately, his memory, concentration, thought process, and speech were normal.

In November 2015, the Veteran reported that he was feeling less irritable. In December 2015, the Veteran reported that he was doing better and would be taking an airline trip to Iceland. Mental status examination revealed that his attention was sufficient, he was oriented, and speech was clear, but he reported impaired recent memory.

In April 2016, the Veteran reported having depression, lack of enjoyment, low energy, impaired self-esteem, and isolation. He still had very great difficulty sleeping at night. He reported similar symptoms in July 2016, as well as difficulty remembering and following throughout with his actions. He stated that he no longer attended church due to urinary incontinence, and that he had thoughts of hopelessness and passive suicidal ideation. In December 2016, the Veteran reported that he was looking forward to the holidays, and that while he got irritated with family at times, he enjoyed spending time with his grandchildren.

In March 2017, he reported being occupied because he and his wife were helping to look after their grandson and three dogs. He reported episodes of irritability but had been coping, and planned on attending new sports stadiums in the future. Mental status examination revealed that he was casually dressed, with slowed speech, a blunted affect, goal-oriented thought, and intact insight. He denied suicidal ideation. His wife reported that the Veteran was inappropriately angry with her and that he was not coping well with his irritability.

Based on the above evidence, the Board finds that the Veteran’s symptoms were not equivalent in either frequency, severity, or duration to the symptoms set forth in the criteria for a 100 percent rating. They also are not shown to cause total occupational and social impairment. While the Veteran has reported trouble concentrating, he has consistently been found to present normally, with either slowed or normal speech. At all of his VA treatment consultations, he was found to be appropriately dressed with good hygiene. While the January 2012 VA examiner checked that the Veteran had neglect of hygiene or appearance, this finding appears to be an outlier, and is not consistent with the many other notations documenting that the Veteran was dressed appropriately with normal presentation and hygiene. At no time was the Veteran found to demonstrate a gross impairment in thought processes or communication. His speech was always normal and goal-directed, and he was found to have at least fair insights and judgment.

The Veteran did report having memory loss on multiple occasions, and was noted to have some cognitive impairment affecting his memory and concentration. These symptoms were not of sufficient severity to be equivalent to the symptoms corresponding to a 100-percent rating. A mild memory loss is one of the listed criteria for a rating of 30 percent, and impairment of short- and long-term memory with the ability to retain only highly learned material and forgetting to complete tasks is contemplated by the criteria for a 50-percent rating. 38 C.F.R. § 4.130, Diagnostic Code 9411. There is no indication that the Veteran had memory impairment that was so severe that it was the equivalent of forgetting the names of close relatives, his own occupation, or his own name.

The Veteran was also never found to be severely disoriented, and he never used illogical, obscure, or irrelevant speech. The Veteran never was found to have had any hallucinations or delusions. He was always found to be alert and oriented.

The Veteran’s irritability and anger outbursts, which caused tension in his marriage, are symptoms encompassed by the 70 percent rating, which contemplates symptoms such as impaired impulse control with unprovoked irritability. The Veteran was never found to be a persistent danger to himself or others, and he never reacted with physical violence. He also never showed grossly inappropriate behavior.

As was noted above, the Veteran did express suicidal ideation, and this is in large part why he was assigned a 70 percent rating for the first stage on appeal. But the Veteran never indicated any plan for suicide, and he reported on many occasions that he would not kill himself because of his family. His medical providers never found that suicidal ideation was an actual, immediate threat. The frequency and duration of these symptoms of suicidal ideation thus did not constitute symptomatology consistent with higher than a 70 percent rating.

While the Veteran’s irritability and isolation limited his personal interactions and caused tension with his wife, overall he indicated that he had a positive relationship with his wife, who was his primary caretaker as his physical health failed. He also had good relationships with his children and grandchildren, and expressed enthusiasm over talking with them on Skype and enjoying their visits. The Veteran also expressed positive his feelings about his faith, which was an emotional support for him, and
on many occasions that he would not kill himself because of his family. His medical providers never found that suicidal ideation was an actual, immediate threat. The frequency and duration of these symptoms of suicidal ideation thus did not constitute symptomatology consistent with higher than a 70 percent rating.

While the Veteran’s irritability and isolation limited his personal interactions and caused tension with his wife, overall he indicated that he had a positive relationship with his wife, who was his primary caretaker as his physical health failed. He also had good relationships with his children and grandchildren, and expressed enthusiasm over talking with them on Skype and enjoying their visits. The Veteran also expressed positive his feelings about his faith, which was an emotional support for him, and he attended church with the help of his wife until physical problems became too severe for him to attend.

The Board has considered the lay assertions of the Veteran and the appellant, and they are consistent with the 70 percent rating already assigned. The probative evidence shows that the Veteran’s symptoms were not equivalent in frequency, severity, or duration to the symptoms contemplated by the criteria for a 100 percent rating, for the reasons discussed above.

The Board has considered the Veteran’s symptoms which are not included in the rating criteria listed under 38 C.F.R. § 4.130 and whether they constitute symptoms that would be comparable in type and degree (frequency, severity, and duration) to the criteria for a 100 percent rating. Mauerhan, 16 Vet. App. at 443. The Veteran has been noted to have nightmares, hypervigilance, and sleep impairment. Although these symptoms were significant, the Board finds they were not equivalent in severity to the symptoms contemplated by a 100 percent. Rather, these symptoms were readily captured by the criteria for a 70 percent rating, and they were not equivalent in severity to the symptoms corresponding to a 100 percent rating, which is assigned for symptoms more severe than those associated with lower evaluations. See 38 C.F.R. § 4.130.

In this case, the Veteran’s symptoms were not shown to have caused total occupational and social impairment. At no time has any VA examiner found this to be the case, and the Board finds that this is also not reflected in the Veteran’s treatment records or the statements previously provided by the Veteran or his spouse. The Board has also found that the Veteran’s symptoms were not equivalent to the symptoms contemplated by a 100 percent rating, which is an independent element that must be satisfied. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013).

In sum, the Board finds that the Veteran’s impairment due to posttraumatic stress disorder with dysthymia and sleep impairment did not cause total occupational and social impairment at any time during the period on appeal, and the disorder was not manifested by symptoms equivalent in frequency, severity, and duration to the symptoms associated with a 100 percent rating. Because the preponderance of the evidence weighs against a rating higher than 70 percent, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

Special Monthly Compensation

The Veteran also appealed the denial of entitlement to special monthly compensation based on a need for aid and attendance or due to being housebound. The Veteran wrote in February 2016 that he needed assistance to dress, bathe, use the restroom, and protect him from the daily hazards of his environment.

The appellant submitted a letter in March 2016 stating that her husband was not capable of functioning on his own, and that she had to drive him to medical appointments, prepare meals and occasionally assist him in eating, help to dress him, and assist him with using the toilet, bathing, and shaving. She wrote that he also has limited mental acuity, and was not able to remember dates or medical appointments.

Special monthly compensation is payable under several circumstances, including when a veteran is permanently bedridden or so helpless as to be in need of the regular aid and attendance of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350.

A veteran shall be considered to be in need of regular aid and attendance if: he is blind in both eyes; is a patient in a nursing home because of mental or physical incapacity; or establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352.

Determinations as to the need for aid and attendance are based on the actual requirements of personal assistance from others. In determining the need for regular aid and attendance, consideration will be given to the
permanently bedridden or so helpless as to be in need of the regular aid and attendance of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350.

Determinations as to the need for aid and attendance are based on the actual requirements of personal assistance from others. In determining the need for regular aid and attendance, consideration will be given to the inability of the Veteran to dress or undress himself, or to keep himself clean; frequent need of adjustment of any prosthetic which by reason of the disability cannot be done without aid; inability of the Veteran to feed himself; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect himself from the hazards or dangers of his daily environment. Bedridden will be that condition which, through its essential character, actually requires that the Veteran remain in bed. 38 C.F.R. § 3.352. It is mandatory for VA to consider the enumerated factors within the regulation, and at least one must be present. Turco v. Brown, 9 Vet. App. 222 (1996).

Special monthly compensation is also warranted when a veteran has a single service-connected disability rated as 100 percent disabling and is permanently housebound by reason of his service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(b).

In this case, the Veteran did not qualify for special monthly compensation due to being housebound under 38 U.S.C. § 1114(s), because he did not have a disability rated as 100 percent disabling at any time during the period on appeal.

At the time of his death, the Veteran was service connected for posttraumatic stress disorder and dysthymia with sleep impairment; a visual pathway disorder with cataracts, glaucoma, and diabetic retinopathy; diabetes mellitus with xerosis; bilateral lower extremity peripheral vascular disease; right lower extremity peripheral neuropathy; residuals of a right hemisphere cerebrovascular accident (stroke); and hypertension. He had a combined disability evaluation of 90 percent, and no one disability was rated as 100 percent disabling.

Because the Veteran did not have a single, permanent service-connected disability rated 100 percent disabling during the period on appeal, he did not meet the legal criteria for payment of special monthly compensation under the criteria for being housebound. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(b).

The Board acknowledges that there is a period, prior to the current period on appeal, when the Veteran had a 100 percent rating for a single disability. In an August 2012 rating decision, the Veteran was granted service connection for residuals of a right hemisphere cerebrovascular accident (stroke) and assigned an evaluation of 100 percent from October 23, 2008 to March 31, 2009, and a 10 percent evaluation thereafter. This evaluation is not, however, currently on appeal before the Board, and the Board cannot revisit the evaluation assigned in this rating decision. 38 U.S.C. § 7105.

The Veteran did not submit any correspondence indicating a desire to apply for special monthly compensation based on a need for aid and attendance or due to being housebound until September 2015. This claim was adjudicated in a January 2016 rating decision, and the Veteran perfected an appeal of this decision. A veteran is presumed, however, to be seeking the maximum benefit under any applicable theory, and the claim of entitlement to special monthly compensation could be considered to have arisen in conjunction with the claim for an increased rating for posttraumatic stress disorder, which is on appeal. See, e.g., Akles v. Derwinski, 1 Vet. App. 118 (1991); see generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).

The increased rating claim on appeal comes from a September 2011 rating decision which granted entitlement to service connection for posttraumatic stress disorder and dysthymia with sleep impairment and assigned an effective date of October 7, 2010. October 7, 2010 is therefore the farthest back that the Board’s jurisdiction extends over the current appeal.

While the Veteran was assigned a 100 percent rating for his residuals of a stroke from October
is on appeal. See, e.g., Akles v. Derwinski, 1 Vet. App. 118 (1991); see generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).

While the Veteran was assigned a 100 percent rating for his residuals of a stroke from October 23, 2008 to March 31, 2009. This period of time falls before the appeal period currently on appeal, and the Board is not able to consider the evidence from this period in its current determination of whether entitlement to special monthly compensation is warranted.

The Board does, however, find that the Veteran met the criteria for special monthly compensation under 38 U.S.C. § 1114(l) based on a need for aid and attendance from another person during the current appeal period. This regulation does not specifically require that the Veteran have a single disability rated as totally disabling; rather, the evidence must show that the Veteran has an actual requirement for personal assistance from others in order to perform activities of daily living due to his service-connected disabilities. See 38 C.F.R. § 3.352

In September 2015, the Veteran submitted an Examination for Housebound Status or Permanent Need for Regular Aid and Attendance completed by his physician. She wrote that the Veteran’s brain hemorrhage and posttraumatic stress disorder restricted his functioning. She found that he was not able to feed himself or prepare his own meals and needed assistance with bathing and tending to hygiene needs due to his left-sided weakness from a stroke. He also required medication management due to mild cognitive impairment.

The Veteran’s VA treatment records also show that the Veteran struggled with partial paralysis in his left arm and leg due to his stroke, and that he was greatly dependent on his wife to help him with transferring in and out of bed, using the bathroom, and getting around. In February 2015, a VA social worker wrote that the Veteran would probably qualify for aid and attendance due to the combination of his psychiatric diagnoses, cognitive disorder, and stroke. In September 2015, the Veteran reported to his social worker that his wife was stressed caring for his needs and that he needed assistance with his activities of daily living.

In April 2016, the Veteran was approved for five-days a week of assistance from the Homemaker and Home Health Aide Care program. A referral was made for the Veteran to have a home health aide, because he was dependent in activities of daily living, including help with bathing, housekeeping, meals, laundry, and shopping.

Based on the evidence in the Veteran’s VA treatment records, the September 2015 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, and the written statement of the Veteran and his wife regarding the functional impact of his service-connected disabilities, it is clear that the Veteran did require significant assistance with all activities of daily living in the final years of his life, most of which were tirelessly provided by his spouse. The Board finds that the Veteran’s service-connected disabilities were manifested by several of the factors listed in 38 C.F.R. § 3.352(a): inability of claimant to attend to the wants of nature; and incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment.

Accordingly, the Board finds that the criteria for special monthly compensation based on the need for aid and attendance were met. The Veteran was unable to prepare his own meals, bathe and dress himself, or attend to his wants of nature without assistance. He was completely dependent on the assistance of his wife for his activities of daily living, and the evidence therefore demonstrates that entitlement to special monthly compensation based on aid and attendance was warranted. The criteria for special monthly compensation under 38 C.F.R. § 3.352(a) have been met, and the claim is granted. See Wise, 26 Vet. App. 517, 531.

DEREK R. BROWN

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board Mary E. Rude, 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.

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