Citation Nr: 18142557 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 16-16 170 DATE: October 17, 2018 ORDER An earlier effective date for assignment of a 100 percent rating for posttraumatic stress disorder (PTSD), effective March 11, 2014, is granted. An earlier effective date for special monthly compensation (SMC) based on aid and attendance, effective March 11, 2014, is granted. REMANDED Service connection for traumatic brain injury, claimed as residuals of a head injury, is remanded. FINDINGS OF FACT 1. The claim for entitlement to an earlier effective date for assignment of a 100 percent rating for posttraumatic stress disorder (PTSD) was factually ascertainable as of March 11, 2014. 2. The claim for entitlement to SMC based on the need of aid and attendance was factually ascertainable as of March 11, 2014. CONCLUSIONS OF LAW 1. The criteria for an earlier effective date of March 11, 2014, for assignment of a 100 percent rating for PTSD, have been met. 38 U.S.C. §§ 5101, 5107, 5110; 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.159, 3.400. 2. The criteria for an effective date of March 11, 2014, for SMC based on the need for aid and attendance, have been met. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.401. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from February 1968 to February 1970. This matter is before the Board of Veterans’ Appeals (Board) on appeal from December 2014 and March 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2015, the Board remanded the issues for additional development. This matter has now returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). As alluded to above, the March 2016 rating decision granted SMC based on aid and attendance criteria from August 11, 2014. Effective Date The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Except as otherwise provided, the effective date of an evaluation and an award of pension, compensation, or dependency and indemnity compensation based on an original claim or a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date the claim arose, whichever is later. 38 C.F.R. § 3.400. Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if the formal claim has not been filed, an application form will be forwarded to the claim for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of the receipt of the formal claim. 38 C.F.R. § 3.155. 1. Entitlement to an earlier effective date for assignment of a 100 percent rating for posttraumatic stress disorder (PTSD). The Veteran asserts, through his attorney, that the effective date for the assignment of a 100 percent rating for PTSD should be as of August 11, 2013. On March 11, 2014, VA received a lay statement documenting the current state of the Veteran’s mental health regarding his service-connected disabilities, to include PTSD. The Board has reviewed the record and finds that when resolving reasonable doubt in favor of the Veteran, an earlier effective date of March 11, 2014, is warranted. The Veteran’s spouse submitted lay evidence that the Veteran is unable to work, he does not remember much, he is unable to cook, he is unable to play cards or participate in bowling, and he cannot or will not converse with others. The Board has reviewed the record, but has not found any formal or informal written communication that could be construed as a claim of an increased rating for PTSD prior to the now assigned March 11, 2014 effective date. Additionally, based on the evidence of record, the Board does not find that it was factually ascertainable that the Veteran’s PTSD had worsened to a 100 percent rating prior to March 11, 2014. The Veteran has been afforded the benefit of the doubt, and as such, an earlier effective date of March 11, 2014, but no earlier is warranted for assignment of his 100 percent disabling rating for PTSD. 2. Entitlement to an earlier effective date for special monthly compensation based on aid and attendance. SMC is payable to individuals who are permanently bedridden or are so helpless as a result of service-connected disability as to be in need of the regular aid and attendance of another person under the criteria set forth in 38 C.F.R. § 3.352(a). 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350(b)(3). Determinations as to need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to such conditions as the following: 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 appliance which by reason of the particular disability cannot be done without aid; 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 daily environment. 38 C.F.R. § 3.352 (a). In Turco v. Brown, 9 Vet. App. 222, 224 (1996), the Court held that it was not required that all of the disabling conditions enumerated in the provisions of 38 C.F.R. § 3.352(a) be found to exist to establish eligibility for aid and attendance and that such eligibility required at least one of the enumerated factors be present. The Court added that the particular personal function which the Veteran was unable to perform should be considered in connection with his or her condition as a whole and that it was 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. The Board notes that 38 C.F.R. § 3.401(a) indicates that an effective date for a claim of entitlement to special monthly compensation for aid and attendance will be, except as provided in 38 C.F.R. § 3.400(o), the date of receipt of claim or date the entitlement arose, whichever is later. However, when an award of pension or compensation based on an original or reopened claim is effective for a period prior to the date of receipt of the claim, any additional pension or compensation payable by reason of need for aid and attendance or housebound status shall be awarded for any part of the award’s retroactive period for which entitlement to the additional benefit is established. Id. Meanwhile, 38 C.F.R. § 3.400(o)(2) states that if an increase in disability precedes the claim by a year or less, the effective date is the date that the increase is shown to have occurred (factually ascertainable). The Veteran’s spouse submitted lay testimony in March 2014 regarding the Veteran’s need for regular aid and attendance. The Veteran’s spouse’s testimony reflects that the Veteran needed regular aid and attendance. His spouse explained that he no longer works, drives, or hunts. He forgets frequently and would attempt to eat plate patterns. He no longer participates in playing cards with friends or bowling. He does not leave the car if he accompanies his spouse on a store trip. Additionally, in an December 2014 VA examination, the examiner noted that the Veteran had total occupational and social impairment. The examiner reported that asking the Veteran questions was met with long pauses, attempts to form words, and blank stares. His wife reported similar symptoms as from her March 2014 lay statement, including impaired memory, in addition to bladder and bowel incontinence over the past months. The examiner noted that the Veteran is not capable of managing his financial affairs and that his wife is his sole caretaker. The Board has reviewed the record, but has not found any formal or informal written communication that could be construed as a claim for SMC based on aid and attendance prior to the now assigned March 11, 2014 effective date. Additionally, based on the evidence of record, the Board does not find that it was factually ascertainable that the Veteran needed the aid and attendance of another prior to March 11, 2014. The Veteran has been afforded the benefit of the doubt. As such, the Board finds that an effective date of March 11, 2014, but no earlier, for special monthly compensation based on the need for aid and attendance is warranted. REASONS FOR REMAND 1. Entitlement to service connection for traumatic brain injury, claimed as residuals of a head injury, is remanded. The Veteran currently has residuals (dementia, memory loss, depression, fatigue, dizziness, vision problems) that may be due to a traumatic brain injury. Concerning the in-service injury, the Board notes that the service treatment records are absent for documentation of the incident described by the Veteran. However, his description of being struck in the head during basic training is consistent with the circumstances of his service. 38 U.S.C. § 1154(a). The Board finds his statement regarding the head injury credible as it is internally consistent and highly plausible. Moreover, he has not been scheduled for a VA examination to determine the nature and etiology of his head injury residuals. The Board finds that a VA examination, with a probative medical opinion as to whether the Veteran’s head injury residuals were incurred in or are otherwise related to service, is warranted as such would be useful for a full and fair adjudication of this issue. The matter is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. 2. After associating any treatment records with the claims file, then schedule the Veteran for an appropriate VA examination. The claims file should be made available to the examiner and reviewed in conjunction with the examination. After reviewing the record and examining the Veteran, the examiner is to respond to the following: (a.) Is it at least as likely as not (50 percent or greater) that the Veteran’s residuals of a head injury (dementia, memory loss, etc.) were caused by a disease or injury in service? (b.) If no, then is it at least as likely as not (50 percent or greater) that the Veteran’s residuals of a head injury were either 1) proximately due to OR 2) aggravated by his service-connected disabilities? **Please review the Veteran’s submitted documents (see, e.g., 11/11/2014 Correspondence) and acknowledge the documents were reviewed.** The term “aggravated” refers to a worsening of the underlying condition beyond the natural progression of the disease, as opposed to temporary or intermittent flare-ups or symptoms that resolve with return to the baseline level of disability. If aggravation is found, please state, to the extent possible, the baseline level of disability prior to aggravation. For all examination reports above, the examiner is to provide a comprehensive medical rationale for any opinion offered. In forming an opinion, the examiner should not rely solely on the absence of corroborating evidence. Rather, the examiner should consider the extent to which there is a medical nexus. If the examiner cannot offer an opinion without resort to speculation, he or she should explain why and state what additional evidence, if any, would be required to offer an opinion. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Morales, Associate Counsel