Citation Nr: A23010274 Decision Date: 05/16/23 Archive Date: 05/16/23 DOCKET NO. 211006-189968 DATE: May 16, 2023 ORDER Entitlement to an increased rating for posttraumatic stress disorder (PTSD) with persistent depressive disorder and major depressive disorder (MDD) with secondary alcohol use disorder is denied. Resolving doubt in the Veteran's favor, an effective date of June 16, 2020, for special monthly compensation (SMC) based on the need for aid and attendance is granted. FINDINGS OF FACT 1. The Veteran's October 2021 notice of disagreement (NOD) is not valid, insofar as it attempts to express disagreement with the effective date of 2. The Veteran's service-connected PTSD with persistent depressive disorder and MDD with secondary alcohol use disorder has been assigned the maximum 100 percent rating for the entire appeal period. 3. Resolving doubt in the Veteran's favor, beginning June 16, 2020, the Veteran's service-connected disabilities resulted in the need for regular aid and attendance. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased rating for PTSD with persistent depressive disorder and MDD with secondary alcohol use disorder have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code (DC) 9434-9411. 2. From June 16, 2020, the criteria for entitlement to SMC based on the need for aid and attendance are met. 38 U.S.C. §§ 1114(l), 5107(b); 38 C.F.R. §§ 3.102, 3.350(b), 3.352, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2007 to October 2013. In December 2020, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of entitlement to an increased rating for PTSD most recently addressed in a March 2020 rating decision. In February 2021, the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal, which found that new and relevant evidence had been received and adjudicated the claim based on the evidence of record at the time of that decision. In the October 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the February 2021 AOJ decision on appeal. 38?C.F.R. § 20.301. INCREASED RATING Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; see generally 38 C.F.R. Part 4. Where the evidence persuasively weighs in favor of an issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776, 781-82 (2021). 1. Entitlement to an increased rating for PTSD with persistent depressive disorder and MDD with secondary alcohol use disorder is denied. The Veteran seeks a higher rating for his service-connected PTSD with persistent depressive disorder and MDD with secondary alcohol use disorder. The Board finds that the appeal period before the Board begins on December 21, 2019, one year prior to the date VA received the VA Form 20-0995 supplemental claim for an increased rating. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). In April 2017, the Veteran filed an increased rating claim for his service-connected MDD. In an unappealed June 2017 rating decision, the AOJ continued the 50 percent evaluation. New and material evidence was not received within one year of issuance, and that decision became final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.156 (b), 20.202, 20.1103. In a May 2018 notification letter, the AOJ acknowledged receipt of an intent to file form submitted on April 30, 2018. On August 3, 2018, the Veteran submitted a VA 21-526EZ Form seeking service connection for PTSD, anxiety, and sleep disturbances secondary to PTSD. In a September 2018 rating decision, the AOJ increased the 50 percent rating of MDD (now claimed as PTSD, sleep disturbances, and anxiety) to 100 percent effective July 31, 2018; and 70 percent from September 17, 2018. The Veteran timely filed a notice of disagreement seeking an effective date prior to July 31, 2018, for the 100 percent rating and a in excess of 70 percent from September 17, 2018. Entitlement to a total disability rating based on individual unemployability (TDIU) was also raised. The AOJ issued a statement of the case (SOC) in March 2020, and concurrently issued a March 2020 rating decision, in which it recharacterized the Veteran's mental disorder from "MDD (now claimed as PTSD, sleep disturbances and anxiety)" to "PTSD with persistent depressive disorder and MDD with secondary alcohol use disorder." In the rating decision, the AOJ granted an earlier effective date of April 30, 2018, but not earlier, for the 100 percent evaluation (effectively rendering TDIU moot). The Veteran did not perfect an appeal from the SOC. On December 21, 2020, the Veteran filed a VA Form 20-0995 supplemental claim for PTSD. The Board observes that the form was not received within the 60-day period from the issuance of the SOC to timely opt-in for AMA, and the box for opt-in for AMA was left unchecked. Moreover, a timely VA Form 9 was not filed in the legacy system. Thus, the September 2018 legacy rating decision became final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.156 (b), 20.202, 20.1103. The Veteran filed a supplemental claim in December 2020 seeking an increased rating for PTSD. In the February 2021 rating decision on appeal, the AOJ continued the 100 percent disability rating for PTSD with persistent depressive disorder and MDD with secondary alcohol use disorder. The Veteran filed an NOD objecting to the both the evaluation and the effective date for PTSD; however, the NOD is not valid with respect to the latter. That is because the February 2021 rating decision did not assign an effective date, only continued a rating already in effect. Upon review of the evidence of record, the Board finds that the Veteran has been at the maximum schedular rating - 100 percent- for PTSD with persistent depressive disorder and MDD with secondary alcohol use disorder for the entirely of the appeal period under review. His total schedular rating is effective April 30, 2018, which encompasses the one-year lookback of his December 21, 2020, increased rating (supplemental rating) claim. As the Veteran's service-connected PTSD with persistent depressive disorder and MDD with secondary alcohol use disorder has been rated 100 percent for the entire period on appeal, there is no basis for assigning a higher rating. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, DC 9434-9411. There is no doubt to be resolved. Accordingly, the appeal must be denied. EARLIER EFFECTIVE DATES 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 a final disallowance, or a claim for increase will be 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. The effective date upon receipt of new and material evidence after a final disallowance will be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2). If a claim is filed within one year after separation from service, service connection will be effective as of the day after separation. 38 C.F.R. § 3.400 (b)(2). 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 one year from such date, otherwise, date of receipt of claim. 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 980 (Fed. Cir. 2010). A decision assigning an effective date for a service-connected disability becomes final when the decision is not appealed, and an appellant can only attempt to overcome finality of the decision by a request for revision based on clear and unmistakable error, or by a claim to reopen based upon new and material evidence. However, because the proper effective date for an award based on claim to reopen could be no earlier than the date on which that claim was received, only a request for revision based on clear and unmistakable error could result in the assignment of an earlier effective date. See Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006). 1. Resolving doubt in the Veteran's favor, an effective date of June 16, 2020, for SMC based on the need for aid and attendance is granted. The Veteran filed a VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance that was received December 21, 2020. The February 2021 rating decision on appeal granted entitlement to special monthly compensation based on Aid and Attendance criteria from December 21, 2020, the date VA received the claim. The award was based on findings on an Aid and Attendance examination report dated June 16, 2020, which noted that during the Veteran's PTSD episodes, his ability to feed himself, plan and prepare various aspects of meals including shopping and storing groceries, self bathe, groom, oral care, nail and hair care, getting prescriptions filled, keeping medications up to date, and taking them on time in proper dosages, all required daily assistance. SMC under 38 U.S.C. § 1114(l) and 38 C.F.R. § 3.350(b) is payable as the result of service-connected disability if a veteran has an anatomical loss or loss of use of both feet, or of one hand and one foot; has blindness in both eyes with visual acuity of 5/200 or less (or concentric contraction of the field of vision beyond 5 degrees in both eyes); is permanently bedridden; or is so helpless as to be in need of regular aid and attendance of another person. Need for aid and attendance means being so helpless as to require the regular aid and attendance of another person. 38 C.F.R. § 3.350(b)(3). The following will be accorded consideration in determining the need for regular aid and attendance: inability of claimant to dress or undress himself, or to keep himself 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.); inability of claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. It is not required that all of the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made. Turco v. Brown, 9 Vet. App. 222, 224 (1996). The particular personal functions that the Veteran is unable to perform should be considered in connection with his or her condition as a whole. It is only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance, not that there be a constant need. A Veteran will be found to be bedridden if the condition actually requires that he remain in bed, but not if he voluntarily stays in bed or if a physician merely recommends bed rest. Determinations that the Veteran is so helpless, as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant's condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others. In argument received in October 2021, the Veteran's attorney contends that the effective date for SMC based on aid and attendance is April 30, 2018, the date of his total disability rating for PTSD. The Board notes that a claim for entitlement to SMC may be inferred as part of a claim or appeal when a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). To that end, the Board refers to the first section of this decision, which discusses the Veteran's increased rating claim. As previously noted, the Veteran's increased rating claim for PTSD was filed on December 21, 2020, via VA Form 20-0995 supplemental claim. In this form, the Veteran explicitly requested an increased rating for PTSD, to include entitlement to SMC based on the need for aid and attendance. The Board reiterates, a decision assigning an effective date for a service-connected disability becomes final when the decision is not appealed, and an appellant can only attempt to overcome finality of the decision by a request for revision based on clear and unmistakable error, or by a claim to reopen based upon new and material evidence. However, because the proper effective date for an award based on claim to reopen could be no earlier than the date on which that claim was received, only a request for revision based on clear and unmistakable error could result in the assignment of an earlier effective date. See Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006). The Board acknowledges the attorney's argument regarding continuous pursuit of the April 2018 intent to file form. However, the Board does not find there was continuous pursuit from that claim in this case. However, to the extent that the attorney also argues that there was continuous pursuit from the March 2020 supplemental rating decision (which granted a 100 percent rating for PTSD with persistent depressive disorder and MDD with secondary alcohol use disorder, from April 30, 2018), or that entitlement to SMC was an inferred issue, the Veteran is not shown to have met the criteria for SMC A&A prior to June 2020. Prior to VA's receipt of the Veteran's Examination for Housebound Status or Permanent Need for Regular Aid and Attendance form (VA Form 21-2680) in December 2020, it was not factually ascertainable that the Veteran required regular aid and attendance. This is because according to Veteran Readiness and Employment (VRE) records, from June 2018 to February 2019, the Veteran successfully completed 600 hours for his massage therapy certification. Of which, 420 of those hours were supervised practical massage therapy training - massage and bodywork techniques clinical practicum. Additionally, from May 2019 to December 2019, the Veteran was enrolled in a university to complete his bachelor of science degree in psychology, which he began in 2014. There were no credible indicators suggesting his need of regular aid and attendance. The Board considered the deficiencies raised in both the Veteran's December 2020 lay statement and his girlfriend, S.H.C's December 2020 statement; however, his enrollment in university and self-reported employment appear to discredit his need for aid and attendance from June 2019. Notably, S.H.C. indicates that beginning around June 2019, the Veteran required her aid and attendance on a daily basis as a result of his PTSD because she was "responsible for all the cooking and cleaning in the house," had to "motivate him to eat," he relied on her for transportation "to and from medical appointments," he "lack[ed] the motivation to complete most daily tasks," and "relie[d] on [her] motivation and encouragement to get out of bed and begin the day." When viewed as a whole the Board does not find the lay statements credible or persuasive. A February 2020 VA examination report characterizes the Veteran's PTSD as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. He reported "on and off" full-time employment between 2016 and 2019 and described his impact as "alright," noting that when he was emotionally overwhelmed, he would miss workdays. At the time of this examination, the Veteran was reportedly working as a massage professional part-time, and doing "ok." He reported experiencing interpersonal conflicts but liked being in charge of his own schedule, and on days where he felt he was "living in a nightmare" (two to three days per week) he did not go into work. He reported experiencing significant depressive episodes three times a year. Although the Veteran was awarded a 100 percent disability rating for PTSD with persistent depressive disorder and MDD with secondary alcohol use disorder from April 2018, the evidence did not demonstrate regular need of aid and attendance since that date. Rather, the Board finds the evidence supports an earlier effective date from June 16, 2020, as this is when Dr. T.C. completed the examination report for aid and attendance. The Board observes that the effective date initially assigned is based on the date of receipt of the claim for aid and attendance; however, the examination was completed in June 2020 and in July 2020, Dr. T.C. echoed his earlier favorable opinion for the Veteran's need for regular aid and attendance. The Board again acknowledges the arguments presented in the Veteran's October 2021 brief. However, even if the Board were to find that this appeal was based on the continuous pursuit from the April 2018 claim, the Board finds that the Veteran's service-connected disabilities did not result in him having required the regular aid and attendance of another at that time. Indeed, while a 100 percent disability rating may allow for consideration of SMC, it does not automatically entitle one to the benefit without supporting evidence. In this case, there was no persuasive and credible evidence prior to June 16, 2020. Accordingly, the Board resolves doubt in the Veteran's favor for an effective date of June 16, 2020, for the award of SMC based on the Veteran's regular need of aid and attendance, but not earlier. The appeal is granted. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Telamour, Junia 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.