Citation Nr: 21061865
Decision Date: 10/05/21	Archive Date: 10/05/21

DOCKET NO. 18-53 471
DATE: October 5, 2021

ORDER

Entitlement to an earlier effective date of October 27, 2009 for the grant of service connection for traumatic brain injury (TBI) with headaches and posttraumatic stress disorder (PTSD) is granted, subject to controlling regulations governing the payment of monetary awards.

Effective from March 23, 2018, entitlement to special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(m) is granted.

Effective from March 23, 2018, entitlement to SMC pursuant to 38 U.S.C. § 1114(o) is granted.

Effective from March 23, 2018, SMC pursuant to 38 U.S.C. § 1114(r)(1) is granted.

Effective from March 23, 2018, entitlement to SMC pursuant to 38 U.S.C. § 1114(n) is dismissed as moot.

REMANDED

Entitlement to SMC pursuant to 38 U.S.C. § 1114(r)(2) is remanded.

Entitlement to SMC pursuant to 38 U.S.C. § 1114(t) is remanded.

FINDINGS OF FACT

1.  On October 27, 2009, the Veteran submitted a VA Form 21-526, Veteran's Application for Compensation and/or Pension, in which he claimed entitlement to service connection for a left eye condition and orbital fracture.

2.  The Veteran's TBI claim was reasonably encompassed in his October 27, 2009 service connection claim for a left orbital fracture disability.  There was no earlier informal or formal service connection claim for a TBI.

3.  At least since October 27, 2009, the Veteran demonstrated symptoms of TBI, headaches, and PTSD based on his established stressor.

4.  Effective from March 23, 2018, the evidence is at least evenly balanced as to whether the Veteran's service-connected right and left upper extremity tremors, weakness and muscle rigidity/stiffness due to Parkinson's disease result in functional loss of use of both hands.

5.  Effective from March 23, 2018, the evidence is at least evenly balanced as to whether the Veteran requires assistance in accomplishing the activities of daily living and is unable to protect himself from the hazards and dangers of his daily environment on account of his service-connected TBI with headaches and PTSD without consideration of the effects of his service-connected right and left upper extremity tremors, weakness and muscle rigidity/stiffness due to Parkinson's disease.

6.  Effective from March 23, 2018, the Veteran is entitled to SMC benefits under 38 U.S.C. § 1114(o) and has established the need for regular aid and attendance

7.  The award of SMC pursuant to 38 U.S.C. § 1114(o) and (r)(1) effective from March 23, 2018 is a greater benefit than SMC under 38 U.S.C. § 1114(n).

CONCLUSIONS OF LAW

1.  The criteria for earlier effective date of October 27, 2009 for the grant of service connection for TBI with headaches and PTSD have been met. 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.155 (in effect prior to March 24, 2015), 3.400.

2.  With reasonable doubt resolved in favor of the Veteran, the criteria for SMC pursuant to 38 U.S.C. § 1114(m), based on the loss of use of both hands are met effective from March 23, 2018.  38 U.S.C. §§ 1114(m), 5107(b); 38 C.F.R. §§ 3.102, 3.350, 3.352.

3.  With reasonable doubt resolved in favor of the Veteran, the criteria for SMC pursuant to 38 U.S.C. § 1114(o), based on the presence of an SMC (l) and an SMC (m) award, are met effective from March 23, 2018.  38 U.S.C. §§ 1114 (l), (m), 5107(b); 38 C.F.R. §§ 3.102, 3.350, 3.352.

4.  With reasonable doubt resolved in favor of the Veteran, the criteria for SMC pursuant to 38 U.S.C. § 1114(r)(1) are met effective from March 23, 2018.  38 U.S.C. §§ 1114(r)(1), 5107(b); 38 C.F.R. §§ 3.102, 3.350, 3.352.

5.  Entitlement to SMC pursuant to 1114(n) is moot effective from March 23, 2018.  38 U.S.C. §§ 1114(n), (o), (r)(1); 38 C.F.R. §§ 3.350, 3.352.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active duty service in the United States Army from July 1976 to February 1978.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2018 rating decision.

The June 2018 rating decision granted entitlement to service connection for TBI with headaches and PTSD effective from March 23, 2018.  The Veteran filed a timely notice of disagreement (NOD) in August 2018, the agency of original jurisdiction (AOJ) issued a Statement of the Case (SOC) in November 2018, and the Veteran perfected his appeal by filing a VA Form 9 in December 2018.

In a March 2020 decision, the Board denied entitlement to an effective date prior to March 23, 2018 for the grant of service connection for TBI with headaches and PTSD.  The Veteran appealed that determination to the United States Court of Appeals for Veterans Claims (Court).  In a January 2021 Order, the Court vacated that portion of the Board decision and remanded the matter to the Board for development consistent with the parties' Joint Motion for Partial Remand (Joint Motion).

In the March 2020 decision, the Board also remanded the issues of entitlement to SMC based on loss of use of the bilateral upper extremities pursuant to 38 U.S.C. § 1114(n), entitlement to SMC based on the need for aid and attendance due to loss of used of the bilateral upper extremities, pursuant ot 38 U.S.C. § 1114(l), entitlement to a higher level of SMC based on the need for aid and attendance due to all service-connected disabilities separate from the bilateral upper extremities pursuant to 38 U.S.C. § 1114(r)(1), and entitlement to SMC based on the need for aid and attendance due to the residuals of TBI pursuant to 38 U.S.C. § 1114(t).  Regarding the issues decided herein, the Board finds that the AOJ substantially complied with prior remand directives, to the extent possible, and no further action in this regard is warranted.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (concluding that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with the Board's remand instructions).

The Board notes that additional and relevant evidence was associated with the claims file after the December 2020 Supplemental Statement Case that addressed the SMC issues on appeal, including a VA examination and medical opinion dated in June 2021.  In a July 2021 letter, the Board requested for the Veteran to provide a waiver of the Agency of Original Jurisdiction's initial review of this additional evidence.  As the Veteran's representative provided the requested waiver in August 2021, the Board will proceed with its adjudication of the issues listed above.

I.  Duties to Notify and Assist

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

1.  Entitlement to effective date prior to March 23, 2018 for the grant of service connection for TBI with headaches and PTSD.

The Board notes that the procedural regulations for appeals to the Board have been considered as amended by the Appeals Modernization Act (AMA).  The substantive laws and regulations provided in this decision for the assignment of effective dates are from the former version that was in effect at the times relevant to this case.

Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.  38 U.S.C. § 5110(a).  The implementing regulation clarifies this to mean, 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 the date of receipt of the claim or the date entitlement arose, whichever is later.  38 C.F.R. § 3.400.  

The effective date for an award of service connection is the day following separation from active service or the date entitlement arose, if the claim is received within one year after separation from service; otherwise, the effective date is the later of the date of receipt of the claim or the date entitlement to service connection arose.  38 C.F.R. § 3.400(b)(2).

Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form.  The amendments implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant's effective date of benefits must be received in one of three specified formats.  The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen under 38 C.F.R. § 3.157.  See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1(p), 3.151, 3.155).  The amendments apply only to claims filed on or after March 24, 2015.

Under the former regulations prior to March 24, 2015, a specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA.  38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a).  The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p).  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 a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155(a).  To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim.  See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992).

A pending claim is an application, formal or informal, which has not been finally adjudicated. 38 C.F.R. § 3.160(c).  The pending claims doctrine provides that a claim remains pending in the adjudication process if VA fails to act on it.  Norris v. West, 12 Vet. App. 413, 422 (1999). Raising a pending claim theory in connection with a challenge to the effective-date decision is procedurally proper.  Ingram v. Nicholson, 21 Vet. App. 232, 249, 255 (2007).

In regards to the date of entitlement, the term "date entitlement arose" is not defined in the current statue or regulation. However, the Court has interpreted it as the date when the claimant met the requirements for the benefits sought. This is determined on a "facts found" basis.  See 38 U.S.C. § 5110(a); see also McGrath v. Gober; 14 Vet. App. 28, 35 (2000).  It is important to note that an effective date generally can be no earlier than the facts found.  DeLisio v. Shinseki, 25 Vet. App. 45 (2011).  For instance, if a claimant filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested.  Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the weight of the evidence must be against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

The Veteran has contended through his representative that he is entitled to an effective date of October 27, 2009 for the grant of service connection for TBI with headaches and PTSD.  See May 2021 Statement from Representative.  The representative has indicated that the Veteran's service connection claim for his left orbital fracture disability that was submitted on this date reasonably encompassed a service connection claim for a TBI.

The record shows that a coversheet from the Santa Rosa County Veterans Services Office dated on October 19, 2009 noted that the attached items included a VA Form 21-22 as well as a VA Form 21-526.  This coversheet was stamped as received by the Department of Veterans Affairs (VA) Regional Office and Insurance Center (VAROIC) Philadelphia on October 27, 2009.  A second stamp on this document indicates that the cover letter and the identified attachments were later received at the VA Regional Office (VARO) in St. Petersburg, Florida on November 12, 2009.  However, the stamp from VAROIC Philadelphia demonstrates that they were initially received by VA on October 27, 2009.

The attached VA Form 21-526, Veteran's Application for Compensation and/or Pension, also dated and signed by the Veteran on October 19, 2009, noted that the Veteran was applying for compensation.  Under Section I of the form that provided spaces for the Veteran to list the disabilities he was claiming, the Veteran listed a left eye condition, hearing loss, a sinus condition, and an orbital fracture.  The Veteran indicated that these complaints began during service in November 1977, and they had continued to be present since that time.  The Veteran indicated that the relevant treatment was in his service medical records.  Under Section III of the form that included a space for the Veteran to provide an explanation regarding how the disabilities listed on page 1 were related to his military service, the Veteran reported that while he was stationed at Fort Wainwright in Alaska, he was deployed on a field training exercise to Fort Richardson in Alaska.  The Veteran was 30 days into this period of field training in very extreme cold "when another soldier went nuts and stomped my head in."  The Veteran reported that he underwent reconstructive surgery for the entire left side of his face in addition to the orbital fracture.  The Veteran added that "[a]ll of my conditions resulted from this."  He also reported being on continuous medications, including Percocet and Neurontin.

The coversheet received on October 27, 2009 also indicated that the Veteran was submitting a January 5, 1978 Medical Condition/Physical Profile record and VA Form 21-4142 with his claim.  The associated January 5, 1978 Medical Condition - Physical Profile Record was addressed to the commander at Fort Wainwright, Alaska from the commander at Basset Army Hospital in Fort Wainwright.  The record noted that the Veteran was medically qualified to return to duty with limitations as evidenced by a medical examination and review of his health record on December 19, 1977.  The Veteran's defects included a repair of an orbital blow out fracture, and he needed to wear a ski mask when exposed to sub-freezing weather.

The VA Form 21-4142 indicated that the Veteran had received treatment from Dr. H. for "[r]esiduals of orbital fracture."  The AOJ obtained records from Dr. H. in November 2009, and a December 2007 treatment record noted that the Veteran was status post left facial fracture and a left hearing deficit, he was always fatigued, and he had problems sleeping.  The assessment included insomnia, left hearing deficits status post left facial fracture, and fatigue.  In August 2009, the assessment included insomnia and generalized anxiety disorder.

A National Personnel Records Center (NPRC) response to the AOJ's November 2009 request for service treatment records (STRs) shows that the requested records were mailed in November 2009.  On November 17, 1977, an STR noted that the Veteran was an 18-year-old with a diagnosis of left orbital blow fracture based on an x-ray.  A plan was made to admit the Veteran to the Ear, Nose and Throat (ENT) department for a workup.  A subsequent December 19, 1977 ENT note stated that the Veteran was now about 3 weeks post repair of the left orbital fracture.  On December 21, 1977, an STR noted that the Veteran was referred by his commanding officer for a mental status valuation due to his request for a discharge.  He reported feeling depressed and being unable to cope with being in the military.  The Veteran had contemplated going absent without leave (AWOL) or suicide if he could not be discharged.  He also reported drinking and smoking heavily due to his feelings about the Army.  His girlfriend also recently left the state.  He was described as rather disheveled in appearance with a depressed mood and appropriate affect.  The assessment noted that the Veteran was currently quite depressed, probably to some extent due to his recent separation from his girlfriend.  He also admittedly had an alcohol/drug related problem.  It was recommended that he have follow-up for a drug/alcohol related problem, with appropriate supervision of depression, and what administrative action the commanding officer deemed necessary.

In February 1978, an STR related to follow-up repair for the left orbital blow out fracture noted that the Veteran was doing well with a good cosmetic result.  A February 1978 Report of Mental Status Evaluation noted that the Veteran had normal behavior, he was fully alert and oriented, his mood was level, his thinking process was clear, his thought content was normal, and his memory was good.  The record noted that there was no significant mental illness, and the Veteran was mentally responsible, able to distinguish right from wrong, able to the adhere to the right, and he had the mental capacity to understand and participate in board proceedings.  Although the February 1978 service examination prior to the Veteran's separation did not document any relevant abnormalities, the February 1978 Report of Medical History included the Veteran's report of a head injury, eye trouble, and depression or excessive worry.  The Veteran did not report frequent or severe headache.  The Veteran reported that he was in fair condition with the exception of damage to the left eye.  In response to questions regarding history of operations and hospital treatment, the Veteran reported repair of an orbital blow out fracture and indicated the hospital treatment was at Bassett Army hospital.  The physician's summary noted that the Veteran sustained a head injury in a fight, and he also sustained the orbital fracture from a fight.

In a subsequent February 1978 Statement of Medical Condition, the Veteran indicated that his medical condition had changed since the separation examination; but he only reported an orbital blow out fracture to the left eye.  On March 27, 1978, an STR noted that the Veteran was seen in December 1977 for a mental status examination due to depression and a request for discharge.  The Veteran had been homesick with girlfriend problems.  The assessment noted that the Veteran was depressed with admitted abuse of alcohol and drugs.  There was no plan for any further action, and the case was closed.

In a December 2009 statement, the Veteran reported that in November 1977, he received injuries from an unprovoked attack during a field exercise.  When he was attacked, only his head was exposed as he was zipped up in his sleeping bag.  The Veteran stated that his eye and head were punched and kicked repeatedly until he was unconscious as the attacker was displeased with the guard duty schedule.  He was evacuated back to Fort Wainwright where they performed emergency surgery.  To the best of the Veteran's recollection, he was hospitalized for 2 to 3 weeks and also given approximately 3 weeks of convalescent leave.  The Veteran indicated that he had taken many over the counter anti-inflammatory medications over the years to treat the pain from the injury.  He also reported seeking private treatment in January 2008 for eye pain, pressure, constant twitching, and hearing problems in his left ear.

A December 16, 2009 Compensation and Pension Inquiry shows that the AOJ subsequently requested a VA eye examination as well as a VA TBI examination.  The general remarks section of the document noted that the Veteran was claiming an orbital blowout fracture and a left eye condition for service connection.  The requested opinion section of the record similarly noted that the Veteran was claiming orbital fracture and left eye condition.  The AOJ requested for the examiner to please review the medical records, evaluate for the current level of disability, and give a current diagnosis for the claimed condition.  Then, the examiner was requested to provide an opinion as to whether it was at least as likely as not that the claimed condition was the same or was a result of "LEFT ORBITAL FRACTURE BLOW OUT OF LEFT EYE ALSO CLAIMED IN STR'S AS HEAD INJURY shown during active duty."

The record shows that the requested VA examinations were later conducted in January 2010 by a certified physician's assistant (PA-C).  The eye examination report noted under the medical history that the Veteran reported twitching of the left lower lid since the left eye infra-orbital blowout fracture trauma while in service.  The examiner noted that the claims file confirmed that the Veteran had surgery to repair the blowout fracture in 1978; and there was no other reported eye injury, surgery or disease.  Under the diagnosis section of the report, the examiner repeated this medical history and noted that the Veteran had the best corrected acuity, and best corrected near acuity, of 20/20 on the right and 20/20 on the left.  The examiner stated that the lower lid twitching was at least as likely as not due to, or aggravated by, the left eye intra-orbital blowout fracture.

In the January 2010 VA TBI examination, the report indicated that the examination had been requested in relation to an orbital fracture.  Under a section of the report for the history of the TBI, the examiner noted that the date of the injury was November 17, 1977.  The examiner added that the Veteran had a left orbital fracture altercation.  Regarding the nature and mechanism of the injury, the examiner stated that another soldier kicked the Veteran in the face multiple times while he was a sleeping bag.  The examiner noted that the Veteran had a loss of consciousness, adding that he did not remember how long this event occurred.  Other soldiers need to pull the soldier off the Veteran, and he was medivacked to the hospital.  He underwent an orbital fracture repair surgery.  The Veteran was hospitalized for 2 weeks, and he was home on convalescent leave for 3 to 4 weeks.  He then returned to Alaska for a couple of months before he was discharged.  

The examiner stated that the TBI occurred in service, and the classification of the TBI at the time of the injury was mild per the Veteran.  The examiner noted that the actual event was not documented in the claims file other than the Veteran sought medical treatment.  The examiner noted that the Veteran experienced headaches that occurred a couple of times a month depending on the weather.  The headaches were located on the left side of the face under the eye in the maxillary region.  Daily, intermittent twitching under the left eye was also noted.  The examiner noted that there was no dizziness or vertigo, weakness of paralysis, sleep disturbance, fatigue, malaise, mobility, balance, assistive device, speech or swallowing difficulties, pain, bowel problems reportedly related to TBI, bladder problems reportedly related to TBI, sensory changes, seizures, hypersensitivity to sound or light, symptoms of autonomic dysfunction, decreased sense of taste or smell, neurobehavioral symptoms, psychiatric symptoms, memory impairment, other cognitive problems, and no reported erectile dysfunction.

The examiner noted that the Veteran had subjective symptoms of occasional headache and facial twitching that did not interfere with work, instrumental activities of daily living, or work, family, or other close relationships.  The diagnoses section included mild TBI that had resolved.  The examiner also noted a diagnosis of cephalgia and stated that the preponderance of medical expertise did not support chronic recurring or persistent cephalgia as a residual of mild TBI.  The last diagnosis was left orbital fracture status post surgery.  The examiner also noted that there was residual involuntary twitching of the left lower orbital that was at least as likely as not caused by, or a result of, active military service.

The AOJ then issued a March 2010 rating decision that granted entitlement to service connection for left ear hearing loss effective from October 27, 2009; and entitlement to service connection for left orbital fracture, status post surgery, with left lower eyelid twitching (claimed as left eye condition) effective from October 27, 2009.  The rating decision also denied entitlement to service connection for sinus condition, entitlement to service connection for right ear hearing loss, and entitlement to a 10 percent evaluation based upon multiple, noncompensable, service-connected disabilities.  The Veteran was notified of this decision and his appellate rights in a March 2010 letter.

On June 11, 2016, the Veteran submitted a VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, and indicated that he was claiming an increased rating for his left orbital fracture disability and service connection for facial disfigurement.  A June 2017 rating decision granted an increased rating of 20 percent for the left orbital fracture disability effective from February 16, 2017; and an August 2017 rating decision denied entitlement to service connection for facial disfigurement.  The Veteran was notified of these decisions and his appellate rights in letters dated in June 2017 and August 2017.

The Veteran's representative submitted an NOD with the June 2017 rating decision in November 2017.  The representative asserted in a statement with the NOD that the AOJ failed to adjudicate whether the Veteran's claim for a left eye condition reasonably encompassed a claim for a TBI.  The representative noted that a veteran is not expected to have the medical expertise to diagnose him or herself with a given condition, and then claim service connection specifically for that condition.  The representative cited to Clemons v. Shinseki, 23 Vet. App. 1 (2009) and noted that the Veteran did not intend to limit his claim to an eye condition alone.  Rather, his claim should have been more broadly construed to include his TBI in service, which caused his eye condition, among other residuals.  These residuals included Parkinson's disease, headaches, vision loss, hearing loss, sleep apnea, and urinary incontinence.

On March 23, 2018, the Veteran submitted a VA Form 21-526, Veteran's Application for Compensation and/or Pension, and noted that he was claiming compensation.  The Veteran stated that he was submitting a service connection claim for a TBI and noted that the disability began in November 1977.  Under the Remarks section of the form, the Veteran added that he was claiming service connection a TBI, to include all residuals secondary to the TBI.  The Veteran indicated that the residuals included Parkinson's disease, headaches, loss of vision, loss of hearing, sleep apnea, esophagus injury, and urinary incontinence.

In July 2017, a private treatment record from Dr. J. noted that the Veteran had a history of a severe head injury on November 17, 1977 while in the Army.  Multiple residuals of a TBI had been present since that time.  Dr. J. noted that the current diagnoses included post-traumatic headache (chronic post-traumatic headache).  Dr. J. added that the Veteran had a severe head injury event on November 17, 1977 when he was assaulted by another soldier.  The Veteran was wrapped in a sleeping bag at the time and had another soldier kicking him in the face multiple times to the point where he had extensive, prolonged loss of consciousness and required a Medi-Vac to the hospital where he had surgery for a severe left blowout orbital fracture repair and required 2 plus weeks of hospitalization followed by convalescence for several more weeks thereafter.  He initially had significant loss of consciousness and memory.  The Veteran received a diagnosis of left orbital blowout fracture that required extensive surgical repair.  

Dr. J. noted that the Veteran had been under his medical care for the past 10 years and displayed multiple conditions that were either directly or partially related to his history of significant TBI at the age of 18.  Dr. J. also noted that the prior VA TBI examination was performed by an unqualified provider.  VA guidelines required 4 specialist types including psychiatrists, physiatrists, neurosurgeons, and neurologists to diagnose TBI and the sequalae.  Dr. J. explained that he was a board-certified specialist in physical medicine and rehabilitation physiatry.  Dr. J. noted that since the left orbital fracture in November 1977, the Veteran had experienced problems with memory loss, difficulty concentrating, insomnia, sleep apnea, positional headaches, neck pain and stiffness, muffled hearing, and occasional ringing in the ears.  Dr. J. also indicated that he had experienced depression.  The assessment was history of severe traumatic head injury and TBI from the assault in the Army in November 1977 and the residuals of TBI, which Dr. J. indicated included post-traumatic headache and chronic depression.

In May 2018, a VA Disability Benefits Questionnaire (DBQ) for an initial evaluation of residuals of TBI was completed by a psychiatrist.  The diagnosis was TBI.  The examiner noted that the Veteran was attacked by a soldier while lying in a sleeping bag.  He was struck several times in the face, resulting in a left orbital fracture which required surgical repair.  He was then medivacked to the hospital, and he sustained loss of consciousness for greater than 30 minutes.  Although the Veteran was unsure of the exact length of the loss of consciousness, the incident did require hospitalization for a three week period.  The date of the onset of the symptoms was in 1977, and the symptoms gradually progressed and developed since that time.  He reported experiencing episodes of depression in close proximity to the incident.  He also reported worsening headache symptoms.  The Veteran's reported frequent headaches were included under the subjective symptoms of TBI; and under the neurobehavioral effects of TBI, the examiner noted that the Veteran reported irritability, feelings of depression, anxiety, and decreased frustration tolerance.  He had been diagnosed with major depressive disorder and was currently prescribed Cymbalta.  

The VA examiner provided a positive nexus opinion in May 2018.  The examiner noted that the Veteran sustained a TBI in 1977 which resulted in orbital fracture.  He experienced loss of consciousness for an unclear amount of time which was at least greater than 30 minutes.  He was hospitalized for close to 3 weeks to repair a facial fracture.

An April 2018 VA examination related to headaches noted that the Veteran had a diagnosis of tension headaches.  The Veteran indicated that disability began in 1977 in conjunction with the TBI.

A May 2018 VA examination related to PTSD noted that the diagnosis was PTSD, chronic.  The Veteran did not have more than one mental disorder diagnosed.  The examiner noted that the Veteran had a TBI diagnosis, and the TBI symptoms included memory loss, headaches, tinnitus, dizziness/unsteady gait, and photosensitivity.  The post-trauma symptoms included exaggerated startle response, hypervigilance/social withdrawal, heightened anxiety state, intrusive memories, nightmares/poor sleep, disrupted focus, irritability, and arousal to/avoidance of cues/triggers.  The relevant stressor was identified was the 1977 in-service assault associated with the TBI.  Symptoms of the Veteran's PTSD were noted to include a depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, impairment of short and long-term memory, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships.

The June 2018 rating decision then granted entitlement to service connection for a TBI with headaches and PTSD effective from March 23, 2018.  The rating decision explained that the AOJ had combined the PTSD evaluation with the TBI evaluation as the examiner could not delineate the symptoms.  Service connection for PTSD was established as directly related to military service.

After consider the foregoing evidence, the Board finds that the Veteran's October 27, 2009 service connection claim for a left orbital fracture reasonably encompassed a service connection claim for a TBI.  See e.g., Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that the scope of a mental health disability claim includes any mental disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record).  The Board has considered the Veteran's report in his October 27, 2009 VA Form 21-526 for the left orbital fracture that the disability was associated with an in-service head injury in November 1977 that was the result of a physical assault, his report in the VA Form 21-526 indicating that there was relevant information in the STRs, the fact that the February 1978 Report of Medical History from the STRs noted that the Veteran sustained a head injury as well as the left orbital fracture in a fight, and the conclusion from the January 2010 VA examination that the Veteran did sustain a TBI during service.  Resolving all reasonable doubt in his favor, the Board agrees with the Veteran and finds that the October 27, 2009 VA Form 21-526 included a claim of service connection for a TBI.  See Sellers v.Wilkie,965 F.3d 1328 (Fed. Cir. 2020) (a document that identifies a sickness, disease, or injury relating to the disability for which compensation was sought, even at a high level of generality, can constitute a claim); Shea v. Wilkie, 926 F.3d 1362, 1368-69 (Fed. Cir. 2019) (VA "must look beyond the four corners" of a claim-stating document "when the documents themselves point elsewhere," such as to medical records).

As noted above, the Veteran first submitted this claim on October 27, 2009.  The evidence does not reflect that a claim for entitlement to service connection for a TBI, headaches, or PTSD was ever adjudicated, either explicitly or implicitly, until the June 2018 rating decision that resulted in a grant of service connection for the disability, which is on appeal herein.  The claim therefore remained pending.  See Charles v. Shinseki, 587 F.3d 1318, 1323 (Fed. Cir. 2009) (a claim remains pending "until there is either a recognition of the substance of the claim in an RO decision from which a claimant could deduce that the claim was adjudicated or an explicit adjudication of a subsequent 'claim' for the same disability" (quoting Williams v. Peake, 521 F.3d 1348, 1350 (Fed. Cir. 2008)).  There was no earlier submission that can be reasonably construed as an informal or formal service connection claim for PTSD.  As such, the earliest date of claim for the Veteran's service connection claim for the TBI with headaches and PTSD is October 27, 2009.  Consequently, the remaining question is whether entitlement arose by that date.

In determining the date entitlement arose, when an original claim for benefits is pending, the Board must determine when a claimant's disability manifested itself under all the "'facts found'" and "the date on which the evidence is submitted is irrelevant."  McGrath v. Gober, 14 Vet. App. 28, 35 (2000).  In other words, to the extent that the claim for service connection that was granted was for service connection for TBI with headaches and PTSD, there need not have been a contemporaneous diagnosis of the disability.  While it is true that TBI with headaches and PTSD is not the type of medical condition that lay evidence, standing alone, is competent and sufficient to identify, Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014), there is more than lay evidence indicating that the Veteran had symptoms of the disability at the time he filed his October 27, 2009 claim.  The Veteran's described symptom of headaches that was noted as being a subjective symptom of his TBI during the May 2018 VA examination was similar to the headaches that were reported during the January 2010 VA examination.  In addition, the report from the May 2018 VA examination for PTSD noted that the disability was manifested by a chronic sleep impairment as well as symptoms anxiety appears to be consistent with the insomnia and generalized anxiety disorder that was noted in the August 2009 private treatment record.  Based on the evidence indicating that the symptoms noted in August 2009 and January 2010 were early manifestations of a TBI with headaches and PTSD, it cannot be said that the date entitlement arose was later than the date of claim.

Consequently, the Board finds that October 27, 2009 is the appropriate effective date for the grant of service connection for TBI with headaches and PTSD.  As there is no evidence or argument that an earlier effective date is warranted, the benefit of the doubt doctrine is not for application.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

2.  Entitlement to SMC pursuant to 38 U.S.C. § 1114(m).

3.  Entitlement to SMC pursuant to 38 U.S.C. § 1114(o).

4.  Entitlement to SMC pursuant to 38 U.S.C. § 1114(r)(1).

5.  Entitlement to SMC pursuant to 38 U.S.C. § 1114(n)

The Board notes that an SMC claim is part and parcel of an increased rating claim, when such a claim is raised by the record.  See Akles v. Derwinski, 1 Vet. App. 118 (1991); see also Bradley v. Peake, 22 Vet. App. 280 (2008) (stating that SMC "benefits are to be accorded when a [V]eteran becomes eligible without need for a separate claim").  In this case, the Veteran's SMC claims on claim were raised in the context of several initial increased rating claims.

The June 2018 rating decision granted entitlement to service connection for these disabilities effective from March 23, 2018 for TBI with headaches and PTSD; Parkinson's disease with sleep disturbance; right and left upper extremity tremors, weakness and muscle rigidity/stiffness due to Parkinson's disease; neurogenic bladder also claimed as urinary incontinence due to Parkinson's disease; difficulty chewing/swallowing also claimed as esophagus injury due to Parkinson's disease; right and left lower extremity balance and muscle rigidity/stiffness; stooped posture due to Parkinson's disease; constipation due to Parkinson's disease; loss of sense of smell, complete, due to Parkinson's disease; speech changes with hoarseness due to Parkinson's disease; tinnitus effective from March 23, 2018.  The AOJ also granted entitlement to service connection for right ear hearing loss and recharacterized the Veteran's previously service-connected left ear hearing loss as bilateral hearing loss.  

The Veteran filed a timely NOD with the assigned disability ratings in August 2018.  In an August 2018 statement associated with the NOD, the representative also raised several theories of entitlement to SMC in relation to the newly service-connected disabilities, including SMC pursuant to 38 U.S.C. § 1114(t).  The AOJ then issued an SOC in November 2018; the Veteran perfected his appeal by filing a VA Form 9 in December 2018, and the Board adjudicated the initial increased rating claims in the March 2020 decision.  In the March 2020 decision, the Board assumed jurisdiction over the SMC claims discussed above that were raised in the context of the initial increased rating claims and remanded the issues to the AOJ.  As the appeal period for the initial increased rating claims began on March 23, 2018, the date from which service connection for the disabilities was granted, the appeal period for the SMC claims also begins on this date.  To the extent that the Board has herein granted entitlement to an earlier effective date of October 27, 2009 for the grant of service connection for TBI with headaches and PTSD, the AOJ has not yet implemented this award or assigned an initial disability rating during this period; and the earlier period prior to March 23, 2018 is therefore not included with the initial increased rating claim that was addressed by the Board in the March 2020 decision.  The Veteran may appeal the initial assigned rating prior to March 23, 2018 when the AOJ implements the Board's award of an earlier effective date for the grant of service connection.

In addition to the SMC issues discussed above, the Board remanded the issue of entitlement to SMC based on the need for aid and attendance due to loss of use of the bilateral upper extremities, pursuant to 38 U.S.C. 1114(l).  Following the Board's remand, the AOJ issued a December 2020 rating decision that granted entitlement to SMC based on the need for regular aid and attendance under 38 U.S.C. 1114(p) and 38 CFR 3.350(f)(3) at the intermediate rate between subsection (l) and subsection (m) based on the AOJ's finding that the Veteran was entitled to the rate equal to subsection (l) with additional disability, specifically left orbital fracture, status post surgery, with left lower eyelid twitching, that was independently ratable at 50 percent or more from March 23, 2018.  As this grant was made effective for the entire appeal period associated with the SMC claims on appeal, the Board finds that it constitutes a full award of the benefits sought on appeal with respect to the remanded claim for SMC pursuant to 38 U.S.C. § 1114(l).  See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997).

The Board also notes that although the issue of entitlement to SMC pursuant to 38 U.S.C. § 1114(m) based on the loss of use both hands was not included in the Board's March 2020 remand, the Veteran's representative has the raised the issue during the pendency of the current appeal.  See, e.g., Statement from Representative dated in October 2019.  The Board has consequently assumed jurisdiction over the issue.  Akles, 1 Vet. App. at 121.

SMC at the aid and attendance rate is payable when a veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or 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), or is permanently bedridden or so helpless as to need regular aid and attendance.  See 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b).

Loss of use of a hand or foot is defined as no effective function remaining other than that which would be equally well served by an amputation stump at the site of election below the elbow or knee with use of a suitable prosthetic appliance.  The determination will be made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc., in the case of the hand, or of balance, propulsion, etc., in the case of a foot, could be accomplished equally well by an amputation stump with prosthesis.  38 C.F.R. §§ 3.350(a)(2)(i), 4.63.

The Court has stated that "[t]he relevant inquiry concerning an SMC award is not whether amputation is warranted but whether the appellant has had effective function remaining other than that which would be equally well served by an amputation with use of a suitable prosthetic appliance."  The responsibility for determining loss of use lies with the adjudicator and not an examining physician.  Tucker v. West, 11 Vet. App. 369, 373 (1998) (citing 38 C.F.R. §§ 3.350(a)(2), 4.63).

Pursuant to 38 C.F.R. § 3.350(b)(3) and (4), the criteria for determining that a veteran is so helpless as to need regular aid and attendance, including a determination that he is permanently bedridden, are contained in 38 C.F.R. § 3.352(a).  That regulation provides that the following will be accorded consideration in determining the need for regular aid and attendance: inability of a 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; inability to feed himself through the 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 him from hazards or dangers incident to his daily environment.

"Bedridden" is defined as that condition, which, through its essential character, requires that a claimant remain in bed, and is a proper basis for this determination.  The fact that a claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice.

It is not required that all the above disabling conditions be found to exist before a favorable rating may be made.  The particular personal functions that a veteran is unable to perform should be considered in connection with his condition as a whole.  It is only necessary that the evidence establish that a veteran is so helpless as to need regular aid and attendance, not that there is a constant need.

Determinations that a veteran is so helpless as to need regular aid and attendance will not be based solely upon an opinion that his condition is such as would require him to be in bed.  They must be based on the actual requirement of personal assistance from others.  See 38 C.F.R. § 3.352(a).

SMC under 38 U.S.C. § 1114(m) is warranted if the veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both hands, or of both legs with factors preventing natural knee action with prostheses in place, or of one arm and one leg with factors preventing natural elbow and knee action with prostheses in place, or has suffered blindness in both eyes having only light perception, or has suffered blindness in both eyes, rendering such veteran so significantly disabled as to be in need of regular aid and attendance.

SMC at the rate payable under 38 U.S.C. 1114(n) is warranted if the veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both arms with factors preventing natural elbow action with prostheses in place, has suffered the anatomical loss of both legs with factors that prevent the use of prosthetic appliances, or has suffered the anatomical loss of one arm and one leg with factors that prevent the use of prosthetic appliances, or has suffered the anatomical loss of both eyes, or has suffered blindness without light perception in both eyes.

The SMC rate payable under 38 U.S.C. 1114(o) is warranted if the veteran, as the result of service-connected disability, has suffered disability under conditions which would entitle such veteran to two or more of the rates provided in one or more subsections (l) through (n) of this section, no condition being considered twice in the determination, or if the veteran has suffered bilateral deafness (and the hearing impairment in either one or both ears is service connected) rated at 60 percent or more disabling and the veteran has also suffered service-connected total blindness with 20/200 visual acuity or less, or if the veteran has suffered service-connected total deafness in one ear or bilateral deafness (and the hearing impairment in either one or both ears is service connected) rated at 40 percent or more disabling and the veteran has also suffered service-connected blindness having only light perception or less, or if the veteran has suffered the anatomical loss of both arms with factors that prevent the use of prosthetic appliances.

SMC at the rate payable under 38 U.S.C. § 1114(o) is warranted for combinations. Determinations must be based upon separate and distinct disabilities.  This requires, for example, that where a veteran who had suffered the loss or loss of use of two extremities is being considered for the maximum rate on account of helplessness requiring regular aid and attendance, the latter must be based on need resulting from pathology other than that of the extremities.  If the loss, or loss of use, of two extremities or being permanently bedridden leaves the person helpless, increase is not in order on account of this helplessness.  Under no circumstances will the combination of "being permanently bedridden" and "being so helpless as to require regular aid and attendance" without separate and distinct anatomical loss, or loss of use, of two extremities, or blindness, be taken as entitling to the maximum benefit.  The fact, however, that two separate and distinct entitling disabilities, such as anatomical loss, or loss of use of both hands and both feet, result from a common etiological agent, for example, one injury or rheumatoid arthritis, will not preclude maximum entitlement.  38 C.F.R. § 3.350 (e)(3).  The maximum rate, as a result of including helplessness as one of the entitling multiple disabilities, is intended to cover, in addition to obvious losses and blindness, conditions such as the loss of use of two extremities with absolute deafness and nearly total blindness or with severe multiple injuries producing total disability outside the useless extremities, these conditions being construed as loss of use of two extremities and helplessness.  38 C.F.R. § 3.350(e)(4).

SMC rate payable under 38 U.S.C. § 1114(r)(1) is warranted where the veteran is entitled to SMC at the rate authorized under subsection (o), the maximum rate authorized under subsection (p), or at the intermediate rate authorized between the rates authorized under subsections (n) and (o) and at the rate authorized under subsection (k).  The veteran must also be in need of regular aid and attendance.  See 38 U.S.C. § 1114(r).

The Veteran's service-connected disabilities during the appeal period on and after March 23, 2018 have included left orbital fracture, status post surgery, with left lower eyelid twitching (also claimed as left eye condition); TBI with headaches and PTSD; Parkinson's disease with sleep disturbance (also claimed as sleep apnea) associated with TBI with headaches and PTSD; right and left upper extremity tremors, weakness and muscle rigidity/stiffness due to Parkinson's disease associated with TBI with headaches and PTSD; neurogenic bladder also claimed as urinary incontinence due to Parkinson's disease associated with TBI with headaches and PTSD; difficulty chewing/swallowing also claimed as esophagus injury due to Parkinson's disease associated with TBI with headaches and PTSD; constipation due to Parkinson's disease associated with TBI with headaches and PTSD; stooped posture due to Parkinson's disease associated with TBI with headaches and PTSD; right and left lower extremity balance and muscle rigidity/stiffness due to Parkinson's disease associated with TBI with headache and PTSD; tinnitus associated with TBI with headaches and PTSD; loss of sense of smell, complete, due to Parkinson's disease associated with TBI with headaches and PTSD; speech changes with hoarseness due to Parkinson's disease associated with TBI with headaches and PTSD, and bilateral hearing loss.

In May 2018, a VA examination related to central nervous system conditions noted that the Veteran had a diagnoses for essential tremor and Parkinson's disease.  The Veteran reported that he had been diagnosed with a right hand tremor associated with his TBI.  The current symptoms were hand tremors, dementia, headaches, seep disturbance, urinary incontinence, and depression.  The examiner stated that the Veteran had symptoms of hoarseness, moderate swallowing difficulties.  He also had sleep disturbances consisting of sleep apnea that required the use of a breathing assistance device such as a continuous positive airway pressure (CPAP) machine.  In addition, the Veteran had a bowel functional impairment manifested by chronic constipation and voiding dysfunction causing urine leakage that required the wearing of absorbent material that was changed 2 to 4 times a day.  He experienced a daytime voiding interval between 1 and 2 hours, and he woke to void 3 to 4 times a night.  There were no signs or symptoms of obstructed voiding, and the Veteran did not require the use of an appliance in relation to the voiding dysfunction.  In addition, the Veteran did not have a history of recurrent symptomatic urinary tract infections.  Although the Veteran had erectile dysfunction, the examiner stated that it was not as likely as not attributable to a central nervous system condition.  The neurologic examination showed that the Veteran had normal speech and a normal gait.  Under the functional impact section of the report, the examiner stated that the central nervous system conditions impacted the Veteran's ability to work as they affected his gait, prolonged standing/walking, and prevented lifting.  The examiner also indicated that the disabilities were associated with memory loss and behavioral changes that would hinder any meaningful employment.

The examiner noted that the Veteran had muscle weakness in the upper and/or lower extremities.  Muscle strength testing showed that the Veteran had less than normal strength (4 out of 5) bilaterally in the elbow flexion, elbow extension, wrist flexion, wrist flexion, grip, and pinch (thumb to index finger).  He had normal strength (5 out of 5) in the bilateral knee extension, ankle plantar flexion, and ankle dorsiflexion.  The deep tendon reflexes were normal (2+) bilaterally in the biceps, triceps, and brachioradialis.  The reflexes were increased without clonus (3+) in the bilateral knees and ankles.  The Veteran did not have muscle atrophy attributable to a central nervous system condition.  The examiner summarized that the Veteran had moderate bilateral upper extremity weakness and no bilateral lower extremity weakness.  There were no other pertinent physical findings.  The examiner stated that the Veteran did not have depression, cognitive impairment, or dementia, or any other mental health condition attributable to a central nervous system disease and/or its treatment.  The Veteran did not use any assistive devices as a normal mode of locomotion.  The examiner opined that due to a central nervous system condition, there was functional impairment of an extremity such that no effective function remained other than that which would be equally well-served by an amputation with prosthesis.  The examiner noted that this opinion pertained to the right and left upper extremities, adding that the tremor and weakness were the conditions causing the loss of effective function.

In June 2020, Dr. J., MD, provided an opinion related to the Veteran's SMC claims on appeal.  Dr. J. indicated that she had reviewed the claims file in addition to interviewing the Veteran.  Dr. J. opined that from the time period from March 2018 to the present, the Veteran's service-connected TBI with associated Parkinson's disease and residuals had at least as likely as not rendered him in need of regular aid and attendance which would require hospitalization, nursing home care, or other institutional care.  Dr. J. noted that the VA examinations and statements from the Veteran's wife, son, and daughter, who were all nursing professionals, evoked an image of a severely impaired adult in need of substantial assistance for all functional and personal activities of daily living as well as protection from the hazards of his environment.  Dr. J. highlighted the July 2018 statement from the Veteran's daughter that the Veteran required assistance with cooking, cleaning, caring for himself, and managing his medication regimen.  Dr. J. also noted his daughter's report that the fact that the family were all nurses allowed them to properly care for her father's conditions and they would otherwise need to hire a full-time health aid.  The Veteran's wife also reported in a July 2018 statement that the Veteran had difficulty getting in and out of bed, difficulty changing his clothes, he forgot that the stove was on and left it running for hours, and he would sometimes fall around the house.  The Veteran's son also reported in a July 2018 statement that the Veteran needed assistance in everything the Veteran did, and the son indicated that if he was not around to assist the Veteran's wife, the son felt as though he would need assistance from someone else.  The Veteran's son also reported that the Veteran's wife took a lot of time off work to care for the Veteran, and she would possibly need to stop working if the son was not around.

Dr. J. noted that cognitive impairments were common in TBI, Parkinson's disease, and PTSD.  The examiner noted that the Veteran suffered from health conditions that in addition to Parkinson's disease, were managed by pharmaceutical treatment that have potentially life-threatening adverse effects if the medication regimens were not carefully followed.  In this regard, Dr. J. noted that the May 2018 VA TBI examination noted that the Veteran had evidence of cognitive impairment with the examiner noting evidence of "mild cognitive impairment" based on the Montreal Cognitive Assessment (MoCA).  The Veteran's short-term memory was impaired as evidenced by the report of recalling only 3 out of items at 5 minutes.  The examiner reported that the Veteran indicated he had slowed thought processes with poor concentration and forgetfulness that had worsened over the past several years.  Dr. J. noted that impairments with executive function would place the Veteran at risk of inability to follow a complex set of instructions regarding a medical regimen with associated risks of toxicity or loss of effectiveness, with either risk leading to further complications and possibly hospitalization for acute events or placement in long-term care to allow for daily supervision of his health requirements.

Dr. J. also noted that the July 2019 VA examination for Parkinson's disease noted under the functional impact section of the report that problems with memory and concentration would preclude the Veteran from completing most complex tasks.  Dr. J. explained that effective self-care would be considered a complex task.  Dr. further highlighted July 2018 statements from the Veteran's family members reporting that he forgot to take his medication and forgot to eat.  The Veteran also informed Dr. J. that he would forget whether he took one or more medications, and he had at times taken extra doses as a result.  Dr. J. opined that the Veteran's inability to properly manage his medication represented the hazards of his environment that could readily result in medication mishaps and require hospitalization.  The need to appropriately manage medication was also critical to control the motor symptoms of the Veteran's Parkinson's disease which resulted in postural instability and gait and balance impairments causing frequent falls in persons with Parkinson's disease.  Related medications needed to be administered on a strict schedule to prevent the waning of effectiveness.

In addition, Dr. J. noted that the 2018 statements from the Veteran and his family members supported that he experienced recurrent ground level falls.  Dr. J. stated that the Veteran's described episodes of freezing of the lower extremities was a symptom of the rigidity of Parkinson's disease.  Dr. J. stated that this symptom could often occur with transitions from sitting to standing.  Postural instability was another major component of Parkinson's disease with the slowed movement (bradykinesia) and rigidity of muscles impairing an individual's capacity to adapt to position changes from sitting to standing or turning a corner while ambulating.  This issue created a risk for ground level falls with injuries.  Dr. J. noted that the May 2018 and July 2019 VA examinations indicated that the Veteran had stooped posture and balance impairment.  The July 2019 VA examination also indicated mild bradykinesia or slowed motion.  The Veteran's wife also reported in her July 2018 statement that the Veteran had a difficult time switching between carpeted floors and tile floors as he could not obtain enough of a grip on tiled floors.  The tremors and muscle rigidity left him unbalanced and were associated with the falls.

The Veteran's interview with Dr. J. and the July 2018 statement from the Veteran's son also indicated that he demonstrated sleeping walking, which reflected a common Parkinson's disease complication known as REM Sleep Behavior disorder.  The disorder was associated with an individual acting out dreams, and the Veteran had reported getting up at night and urinating in his closet or a drawer, and Dr. J. stated that this complaint was related to his neurogenic bladder urgency/frequency condition related to Parkinson's disease.  He was not able to go outside the home during one of these episodes.  Dr. J. stated that an episode may be violent and could represent a hazard of injury to the Veteran and his family members looking after him.

Regarding the upper extremity functional impairments, Dr. J. noted that the May 2018 VA examination indicated that the Veteran retained no effective function of the upper extremities other than that which would be equally well served by an amputation with prosthesis.  The report also specified in the prompt that functions for the upper extremity included grasping, manipulation, etc.  Dr. J. also found it significant that the report noted that the Veteran was right-hand dominant and indicated that he had no use of the right hand due to moderate tremor.  The July 2019 VA examination for Parkinson's disease also noted that due to the Veteran's Parkinson's disease, he had difficulty walking and maintaining balance.  His right hand could not perform even basic function such as writing, typing, maintaining grip, or brushing teeth.  Dr. J. stated that the motor dysfunction in the upper extremities due to Parkinson's disease was not limited to the function of the hand and involved the complex coordination of the entire arm, forearm, and hand functions to generate normal, smoothly coordinated movements in all of those areas to allow useful function of the hand for the recognized activities of daily living, grooming, hygiene, self-feeding, dressing, bathing, and toileting.  In Dr. J.'s medical experience, persons who did not have a movement disorder such as Parkinson's disease, but who did have distal amputations with properly fitted prosthesis often have more useful function of the limb than the Veteran has exhibited at the time his VA examinations for TBI and Parkinson's disease.  

Dr. J. stated that while the Veteran could potentially grasp an item, he could not control the movement to feed himself without severe spillage, shave without cutting himself, brush his teeth, or perform other personal hygiene activities as detailed in the reports from his family members.  The Veteran's daughter reported that he often spilled food on his clothes and her mother took care of caring for the Veteran's personal hygiene and appearance.  As the Veteran was not able to zip, button, or tie; his daughter had assisted him in putting on pants, a shirt, and shoes.  The Veteran's wife reported in the July 2018 statement that she assisted the Veteran in taking care of his personal appearing and dressing, and the Veteran did not shave due to his tremors.  The Veteran's wife stated that the tremors were uncontrollable.  He was reported to have marked difficulty with clothing fasteners, often being unable to manage to press buttons on television remotes or iPads, and he could not be expected to use his fingers for fine motor activity such as using a keyboard or similar manipulations using the hands.  He could not bring a cup of liquid to his mouth safely due to the tremor with severe spillage.  Dr. J. stated that his family members' reports deserve to be considered as the observations of medical professional given the nursing professional education of the family members.

The lower extremity functional impairments of the Veteran's TBI with associated Parkinson's disease also prevented normal, independent ambulation and mobility for activities of daily living such as dressing and toileting.  Dr. J. noted that the May 2018 VA examination indicated that the Veteran had limited walking and no use of his right hand due to moderate tremor.  The July 219 VA examination for Parkinson's disease indicated that the disability caused difficulty walking and maintaining balance.  Dr. J. indicated that these symptoms were consistent with Parkinson's disease as individuals with the disability lost the ability to produce a normal, reciprocating gait due to bradykinesia and rigidity of limb function due to impaired motor control of muscle action and postural instability.  

Dr. J. also noted that swallowing difficulties with dysphagia (difficulty swallowing) and aspiration (swallowed material entering the airway) were common in Parkinson's disease, and aspiration pneumonia was often the eventual cause of death for individuals with Parkinson's disease.  Dr. J. noted that the Veteran's dysphagia was serious, and he required the assistance of family members for food preparation.  A December 2019 record noted that the Veteran reported increasing difficulty swallowing as well as more frequent episodes of choking with solids and liquids.  As a result, he required a dysphagia diet with food prepared in a way to make swallowing safer.  Dr. J. observed that the Veteran's wife reported that the Veteran required supervision while eating due to a choking hazard from progressive dysphagia.  All food and beverages must be carefully prepared by someone else to reduce the choking and aspiration hazard while eating or drinking.

The Veteran also suffered with neurogenic bladder with incontinence as a result of his Parkinson's disease.  The May 2018 VA examination indicated that he required absorbent material to be changed during the day and had nighttime voiding intervals that caused frequent, often urgent, urination.  The Veteran's motor disturbances also resulted in the reduced ability to make it to the toilet once the urge to urinate struck, leaving him at risk for incontinence that might overflow a protective garment.  The Veteran often needed assistance to safely don and off clothing and absorbent materials to keep himself normally presentable.

In November 2020, a VA examination specific to headaches noted that the diagnosis was tension headaches.  The examiner noted that the Veteran reported experiencing headaches on and off for years due to the separation of his sinuses that remained from the trauma and subsequent repair to his left orbital fracture.  He reported having headaches several times a month that originated under his left eye.  The headaches had persisted without resolve since their onset.  The headaches were associated with pulsating or throbbing head pain and pain on both sides of the head.  The Veteran also experience symptoms of nausea and sensitivity to light.  The headaches lasted for 1 to 2 days.  The examiner stated that the Veteran did not have characteristic prostrating attacks of migraine/non-migraine headache pain, and he did not have very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability.  There were no other pertinent physical findings.  The examiner opined that the headache condition did not impact his ability to work.

A November 2020 Disability Benefits Questionnaire (DBQ) for peripheral nerves conditions noted that the diagnoses were bilateral idiopathic peripheral autonomic neuropathy and bilateral carpal tunnel syndrome.  The examiner noted that the Veteran was right hand dominant, and he reported that his right resting tremor had significantly worsened, stating that he could not really use his right hand anymore.  He also endorsed bilateral hand weakness that limited his ability to perform activities of daily living.  In addition, the Veteran's gait was impacted.  He reported that he froze, noting that his leg felt like a concrete block and he locked up.  He additionally reported worsening of extreme sensitivity to hot and cold temperatures in his fingers and toes in all extremities.  He stated that he also experienced pain and needles in his hands and feet.

The Veteran's current bilateral upper extremity symptoms included moderate constant pain, moderate intermittent pain, mild paresthesias and/or dysesthesias and mild numbness.  His bilateral lower extremity symptoms included mild  constant pain, mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness.  Additional symptoms were noted to include a moderate resting tremor in the right hand and a mild resting tremor in the left hand.  The examiner indicated that the severity of the tremor in the bilateral upper extremities was moderate on the right and mild on the left.  The examination included the results of muscle strength testing, with 3 out of 5 representing active movement against gravity, and 4 out of 5 representing active movement against some resistance.  The elbow flexion was 4 out of 5 bilaterally; the elbow extension was 3 out of 5 on the right and 4 out of 5 on the left; the wrist extension was 3 out of 5 on the right and 4 out of 5 on the left; the wrist extension was 4 out of 5 bilaterally; the grip was 3 out of 5 bilaterally; and the pinch (thumb to index finger) was 3 out of 5 bilaterally.

The knee extension was 3 out of 5 on the right and 4 out of 5 on the left.  The ankle plantar flexion and ankle dorsiflexion were 4 out of 5 bilaterally.  No muscle atrophy was present.  The reflex examination produced normal (2+) results bilaterally in the biceps, triceps, brachioradialis, knee, and ankle.

Sensory testing produced normal findings in the bilateral shoulder area, and decreased sensory findings in the bilateral inner arm/forearm and hand/fingers.  There were normal findings bilaterally in the upper anterior thigh and decreased findings in the bilateral thigh/knee, lower leg/ankle, and foot/toes. No trophic changes were present.  The Veteran's gat was noted to be abnormal, but the examiner added that it was not evaluated as the Veteran was using a scooter and his right foot was in a cast.  The Veteran had moderate incomplete paralysis in the right radial nerve and mild incomplete paralysis in the left radial nerve.  He had mild incomplete paralysis bilaterally in the median nerve, ulnar nerve, mucosocutaneous nerve, and circumflex nerve.

Regarding the lower extremities, he had mild incomplete paralysis in the sciatic nerve, external popliteal nerve, posterior tibial nerve, and anterior crural nerve.  The examiner noted that the Veteran constantly used a scooter as a normal mode of locomotion in relation to his other idiopathic peripheral autonomic neuropathy.  The examiner opined that due to a peripheral nerve condition, there was no functional impairment of an extremity such that no effective function remined other than that which would be equally well-served by an amputation with prosthesis.  The question related to this response noted that functions of the upper extremity included grasping, manipulation, etc., while functions for the lower extremity included balance and propulsion, etc.

In a November 2020 VA examination for residuals of TBI, the examiner addressed the facts of TBI-related cognitive impairment and subjective symptoms of TBI.  The examiner noted that the Veteran had a complaint of mild memory loss (such as difficulty following a conversation, recalling recent conversations, remembering the names of new acquaintances, or finding words, or often misplacing items), attention, concentration, or executive functions, but without objective evidence on testing.  The examiner summarized that the Veteran reported difficulty recalling recent conversations or remembering names.  The Veteran's judgement was normal. His social interaction was occasionally inappropriate with the examiner stating that he reported avoiding social interactions as he did not do well with, and was awkward in, social interactions.  Regarding orientation, the Veteran was always oriented to person, time, place, and situation.  His motor activity was moderately decreased due to apraxia.  The examiner marked the choice for visual spatial orientation that was mildly impaired; occasionally becoming lost in unfamiliar surroundings and having difficulty reading maps or following directions.  He was able to use assistive devices as a global positioning system (GPS).  The examiner noted that the Veteran reported becoming lost in familiar and unfamiliar surroundings, but he was able to use assistive devices such as a GPS.  

Regarding subjective symptoms, the Veteran reported difficulty with insomnia, fatigue and headaches, and Parkinson's disease symptoms and residuals that impaired his ability to work and impacted his close relationships.  In terms of neurobehavioral effects, the Veteran reported irritability, anxiety, depression, and moodiness that frequently impaired his interactions.  The Veteran had been diagnosed with major depressive disorder, and he took medication for that condition.  He was able to communicate by spoken and written language, and to comprehend spoken and written language.  His level of consciousness was normal.  The Veteran's residuals included headaches, including migraine headaches; and the examiner marked other, stating that the Veteran had been evaluated by neurology, ophthalmology, ENT, and audiology for assessment of residual issues.  He received VA compensation for numerous residuals.  There were no other pertinent physical findings.

In an Individual Unemployability Statement signed in December 2020 that was associated with the TBI examination, the examiner noted that the Veteran had been evaluated by neurology, ophthalmology, and ENT for an assessment of residual issues.  This multitude of residuals precluded his ability to work and do anything other than menial tasks which required little to no ability to focus, concentrate, or remember anything for more than a few seconds to minutes at a time.

In November 2020, the Veteran was provided with a VA Examination for Housebound Status or Permanent Need for Regular Aid and Attendance.  The examiner indicated that the relevant diagnoses that the equated to the level of assistance described in the report included TBI cognitive dysfunction, Parkinson's disease, multiple sclerosis (MS), throat cancer with metastasis, unsteady gait, falls, neurogenic bladder, urinary incontinence, bowel incontinence, right foot fracture, and dysphagia.  The examiner noted that the Veteran's medications include daily use of metoprolol, Nuedexta, omeprazole, vitamins C and D3, asprin, and fish oil; twice daily use of Brilinta, carbidopa-levodopa, diazepam, hydroxychloroquine, and leflunomide; and nightly use of solifenacin, Ambien, and atorvastatin; and as needed use of nitroglycerin and oxycodone.

The examiner noted that the Veteran's nutrition was normal, adding that he required thickened liquids due to dysphagia caused by Parkinson's disease and radiation treatment for cancer.  Regarding the Veteran's gait and ambulation, he was unable to bear weight on his right foot due to fracture and used a knee scooter.  His gait was otherwise steady.  In response to a question as to the disabilities that restricted the listed activities/functions, the examiner noted that the Veteran had difficulty with buttoning clothes and bathing due to his gross tremor.  He was also unable to walk due to an inability to bear weight on the right leg and an unsteady gait.  The Veteran was also unable to feed himself.  The examiner stated that significant assistance was needed for this activity as the Veteran had a gross tremor in his right hand and frequently dropped food.  He was unable to hold any utensils.  The Veteran was also unable to prepare his own meals, and the examiner again cited to the Veteran's gross tremor in his right hand and inability to hold utensils as well as his inability to bear weight on his right leg.  The examiner noted that the Veteran was not confined to a bed, and he was not legally blind.  In addition, the examiner stated that the Veteran did not require nursing home care.

The Veteran also needed assistance in bathing and tending to other hygiene needs, with the examiner noting that significant assistance was needed for dressing and undressing, bathing, grooming, keeping himself ordinarily clean and presentable, and toileting.  He also required medication management as he frequently forgot what medications were needed and when to take them.  The examiner stated that the Veteran did not have the ability to manage his own financial affairs.  In support of this response, the examiner noted that the Veteran was physically unable to write checks or do the online functions needed to manage finances.  He was unable to use a keyboard or type.

The Veteran's posture and build were described as normal, and his general appearance was noted to be alert and oriented as well as calm and cooperative.  The examiner also addressed the restrictions of each upper extremity.  The examiner indicated that the Veteran had restrictions related to grip, fine movements, the ability to feed himself, buttoning clothing, shaving, and attending to the needs of nature.  Specifically, the right upper extremity had a decreased grip strength and gross tumor, and the left upper extremity had a decreased grip strength.  There were no other upper extremity restrictions.     

Regarding lower extremity restrictions, the right lower extremity had restrictions manifested by no weight bearing, balance restrictions due to unsteadiness, and propulsion restrictions due to no weight bearing.  There were no right lower extremity restrictions related to atrophy or contractures or other interference.  The left lower extremity did not have any restrictions.  The spine, trunk, and neck were within normal limits.

Regarding all other pathology that affected the Veteran's ability to perform self-care, ambulate, or travel beyond the premises of the home, or, if hospitalized, beyond the ward or clinical area, the examiner commented that the Veteran was unable to dress himself or button his clothes.  He required significant assistance in bathing, grooming, and feeding himself due to gross tremors and his inability to bear weight on his right foot.  The Veteran also had frequent episodes of bowel and bladder incontinence and had difficulty going out beyond the home.  In a typical day, the Veteran was only able to go to medical appointments due to frequent episodes of bowel and bladder incontinence and the soiling of his clothes.  The Veteran was unable to perform activities of daily living and required significant assistance with bathing, meal preparation, and feeding due to his gross hand tremors.  Regarding the circumstances under which the Veteran was able to leave the home or immediate premises, the examiner stated that the Veteran was able to leave for medical appointments, but he was unable to attend social gatherings due to his bladder and bowel incontinence.  The examiner indicated that the Veteran left his home 1 to 2 days a week for medical appointments.  Aids such as canes, braces, or the assistance of another person was required for locomotion, and the Veteran was able to travel 1 block.

In a March 2021 statement, the Veteran addressed the November 2020 VA examiner's finding that he did not have the ability to manage his own financial affairs.  The Veteran reported that although he had physical and memory issues as a result of his TBI, he did have the capacity to manage his financial affairs.  The representative also highlighted that the November 2020 VA examiner's finding was based on the Veteran's physical restrictions in using a computer and writing checks rather than mental incapacity, and the representative noted that the Veteran described in the March 2021 statement how modern technology allowed him to manage his finances through adaptive equipment and online banking.  See March 2021 Statement from Representative.

In June 2021, a VA examiner completed a DBQ for PTSD in relation to the AOJ's proposed finding of incompetency for the Veteran.  The diagnoses were unspecified depressive disorder and neurocognitive disorder due to Parkinson's disease.  The examiner noted that there was no PTSD diagnosed at that time.  The Veteran also had a TBI diagnosis, and the examiner stated that all symptoms and social/occupational ratings in the evaluation pertained to the Veteran's depression and TBI.  The TBI impaired cognition and the depressive disorder was associated with depressed mood, insomnia, irritability, and decreased interests.  The examiner opined that the Veteran had occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, and/or mood.

The Veteran reported that he did not realize that he had cognitive issues until approximately 10 years ago since he was medically retired.  Parkinson's disease had also affected his thinking skills.  The Veteran reported that he was not claiming any psychological issues and was competent to take care of his bills.  He only had memory lapses and processing problems due to his Parkinson's disease and multiple sclerosis.  The Veteran also reported having trouble sleeping at night and feeling frustrated at the things he could no longer do.  He had seen a therapist a few times over the years for depression, and his depression was secondary to his medical problems.  The Veteran also reported having dreams about dying, but the examiner did not indicate that he had current symptoms of suicidal ideation in the symptoms section of the report.  The examiner also stated that the suicide risk was not at elevated acute risk.  The current symptoms were noted to include a depressed mood, chronic sleep impairment, and disturbances of motivation and mood.  The examiner did not mark the available choice to indicate that the Veteran had intermittent inability to perform activities of daily living in relation to the diagnoses noted in the report.  The examiner stated that the mental status evaluation revealed impaired memory impaired problem-solving speed, impaired concentration, and moderately severe right arm tremor.  The Veteran was cooperative, he had a pleasant mood, and he was friendly and mentally competent.  In an associated June 2021 medical opinion, the examiner opined that he was mentally competent to handle his finances.  The AOJ later determined that the Veteran was considered competent in a June 2021 rating decision.

Regarding the question of whether the evidence from the appeal period supports a finding that the Veteran had loss of use of both hands as a result of his service-connected right and left upper extremity tremors with weakness and muscle rigidity/stiffness, the Board has considered the findings from the May 2018 VA examination report that addressed the functional impairment of these disabilities.  Although the muscle strength testing results were consistently 4 out of 5 for the bilateral upper extremities with normal deep tendon reflexes, the examiner still found that the Veteran had moderate right and left upper extremity weakness.  The examiner also cited to this weakness and the Veteran's tremors in support of the conclusion that there was functional impairment of both the right and left upper extremity such that no effective function remained other than that which would be equally well-served by an amputation with prosthesis.  The Board finds that this determination is probative as the examiner provided an explanation for the conclusion.  The clinical findings from the November 2020 VA Examination for Housebound Status or Permanent Need for Regular Aid and Attendance also indicated that the Veteran's right upper extremity's decreased grip strength and gross tumor, and the left upper extremity's decreased grip strength was associated with restrictions related to grip, fine movements, the ability to feed himself, buttoning clothing, shaving, and attending to the needs of nature.  The Board also finds that this determination regarding the functional limitations of the Veteran's hands in terms of activities of daily living is also entitled to probative weight as it is consistent with the statements from the Veteran's family members indicating that he was extremely limited in his ability to use his hands to accomplish activities of daily living.  

The Board also finds that Dr. J.'s June 2020 opinion related to the bilateral upper extremities that persons who did not have a movement disorder such as Parkinson's disease, but who did have distal amputations with properly fitted prosthesis often have more useful function of the limb than the Veteran has exhibited at the time his VA examinations for TBI and Parkinson's disease, to be probative as it was based on Dr. J.'s professional expertise.  In addition, the November 2020 VA examiner's determination from the VA examination report specific to peripheral neuropathy indicating that the Veteran's bilateral upper extremity disabilities did not result in loss of use is probative as it was based on the findings from the examination.

In light of the above evidence, while Veteran appears to have retained some function of his hands, the evidence is at least evenly balanced as to whether his service-connected right and left upper extremity tremors with weakness and muscle rigidity/stiffness due to Parkinson's disease associated with TBI and with headaches and PTSD resulted in loss of use of both hands such that acts like grasping and manipulation would be accomplished equally well by an amputation stump with prosthesis.  As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the appellant, entitlement to SMC based on loss of use of both hands under 38 U.S.C. § 1114(m) is therefore warranted.  38 U.S.C. § 5107(b); 38 C.F.R. 3.102.

As a result of the Board's decision to grant SMC for loss of use at the (m) rate, the Veteran has suffered from conditions entitling him to two of the rates provided in 38 U.S.C. § 1114(l) through (n).  If both of these awards can be maintained without any condition being considered twice, the Veteran will be eligible for increased SMC under 38 U.S.C. § 1114(o).  As noted above, the December 2020 rating decision granted SMC based on the need for regular aid and attendance under 38 U.S.C. 1114(p) and 38 CFR 3.350(f)(3) at the intermediate rate between subsection (l) and subsection (m) based on the AOJ's finding that the Veteran was entitled to the rate equal to subsection (l) with additional disability, specifically left orbital fracture, status post surgery, with left lower eyelid twitching, that was independently ratable at 50 percent or more from March 23, 2018.  Regarding the basis for finding that the Veteran was entitled to SMC pursuant to 38 U.S.C. § 1114(l), a review of the December 2020 rating decision shows the AOJ's conclusion that the November 2020 VA examination findings revealed that the Veteran required the assistance of another person due to the residuals of his TBI and Parkinson's disease.  To the extent that this determination may have contemplated the Veteran's right and left upper extremity tremors, weakness and muscle rigidity/stiffness due to Parkinson's disease that were the basis for the award of SMC under 38 U.S.C. § 1114(m), the Board will consequently consider whether the Veteran is entitled to SMC pursuant to 38 U.S.C. § 1114(l) based on the effects of his disabilities other than the bilateral upper extremity disabilities for the purposes of determining whether entitlement to SMC under 38 U.S.C. § 1114(o) may be warranted.  Although the text of the statute is silent on this question, 38 C.F.R. § 3.350(e)(3) provides that, "The fact, however, that two separate and distinct entitling disabilities, such as anatomical loss, or loss of use of both hands and both feet, result from a common etiological agent, for example, one injury or rheumatoid arthritis, will not preclude maximum entitlement."  

The Board has considered Dr. J.'s June 2020 opinion indicating that the Veteran requires medication management as a result of the memory impairment associated with his TBI with headaches and PTSD disability.  The Board finds that this opinion is highly probative as Dr. J. referenced pertinent findings and details from VA examinations as well as the statements of family members in support of the opinion.  In addition, the Board notes that the details regarding medication management discussed by Dr. J. are largely consistent with the information in the referenced VA examination reports and lay statements.  As indicated by Dr J., the May 2018 VA examination for TBI showed that the examiner marked that the Veteran had objective evidence on testing of mild impairment of memory, attention, concentration, or executive function resulting in mild functional impairment.  The examiner noted that the Veteran reported slowed thought processes, poor concentration, and forgetfulness.  The May 2018 VA examination for PTSD also noted that the Veteran's symptoms of PTSD included mild memory loss and impairment of short and long-term memory.  The subsequent November 2020 VA examination specific to TBI indicated that the Veteran still had relevant problems with memory loss, noting that the Veteran reported a complaint of mild memory loss such as difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding words, or often misplacing items), attention, concentration, or executive functions, but without objective evidence on testing.  The Veteran reported difficulty recalling recent conversations and remembering names.  Dr, J.'s opinion is also consistent with the November 2020 VA Examination for Housebound Status or Permanent Need for Regular Aid and Attendance in which the examiner noted that the Veteran required medication management as he frequently forgot what medications were needed and when to take them.  Based on this evidence, it is at least as likely as not that, even if the Veteran did not have functional loss related to his right and left upper extremity disabilities, the Veteran would still need regular aid and attendance based solely on the effects of the TBI with headaches and PTSD disability on his memory.  See 38 C.F.R. § 3.352(a).  Consistent with this finding, the Board concludes that, since March 23, 2018, the Veteran has been entitled to SMC at the rate authorized by 38 U.S.C. § 1114(o) as since that time, he has experienced disabilities which entitle him to SMC at the rates provided in subsection (l) and (m) without considering the same condition twice.

As explained above, 38 U.S.C. § 1114 (r)(1) provides for increased SMC if a veteran is entitled to SMC at the 38 U.S.C. § 1114(o) rate and is in need of regular aid and attendance.  Here, the Veteran has been found entitled to SMC pursuant to 38 U.S.C. § 1114(o), and also as being in need of regular aid and attendance. Accordingly, entitlement to SMC pursuant to 38 U.S.C. § 1114 (r)(1) is also warranted during the entire claim period.

Finally, in light of the grant of benefits described above, entitlement to SMC under 38 U.S.C. § 1114(n) is rendered moot and must be dismissed.  In this regard, entitlement to SMC under 38 U.S.C. § 1114(n) is a lesser benefit than SMC pursuant to 38 U.S.C. § 1114(o) and (r)(1).  Thus, the award of SMC pursuant to 38 U.S.C. § 1114(o) and (r) (1) renders the issue of entitlement to SMC under 38 U.S.C. § 1114(n) moot.  Therefore, no additional benefit (monetary or otherwise) can be gained through an award of SMC under 38 U.S.C. § 1114(n), nor does any controversy remain.

REASONS FOR REMAND

1. Entitlement to SMC pursuant to 38 U.S.C. § 1114(r)(2) is remanded.

2. Entitlement to SMC pursuant to 38 U.S.C. § 1114(t) is remanded.

38 U.S.C. § 1114(r)(2) provides that if the veteran, in addition to such need for regular aid and attendance, is in need of a higher level of care, such veteran shall be paid a monthly aid and attendance allowance...if the Secretary finds that the veteran, in the absence of the provision of such care, would require hospitalization, nursing home care, or other residential institutional care.

For the purposes of 38 U.S.C. § 1114(r)(2), the need for a higher level of care shall be considered to be need for personal health-care services provided on a daily basis in the veteran's home by a person who is licensed to provide such services or who provides such services under the regular supervision of a licensed health-care professional.  38 C.F.R. § 3.352(b).  The existence of the need for such care shall be determined by a physician employed by the Department or, in areas where no such physician is available, by a physician carrying out such function under contract or fee arrangement based on an examination by such physician.  38 U.S.C. § 1114(r)(2).

As noted above, the Veteran is now in receipt of SMC pursuant to 38 U.S.C. § 1114(r)(1).  As such, he satisfies the initial criteria for SMC at the rate under 38 U.S.C. § 1114(r).  The Board also finds that the June 2020 letter from Dr. J. reasonably raises the question of whether the Veteran is need of a higher level of care due to his service-connected disabilities as contemplated by 38 U.S.C. § 1114(r)(2) as Dr. J. indicated that the Veteran was completely dependent on his family members to perform activities of daily living, and Dr. J. emphasized the fact that the Veteran's family members were professional nurses.  As such, the Board has assumed jurisdiction over the issue.  Akles v. Derwinski, 1 Vet. App. 118, 121 (1991).  Although the nurse practitioner who completed the November 2020 VA Examination for Housebound Status or Permanent Need for Regular Aid and Attendance found that the Veteran did not require nursing home care, the record does not contain a contemporaneous opinion of a VA physician as to whether the Veteran requires a higher level of care as stipulated under 38 U.S.C. § 1114(r)(2).  It also does not appear that Dr. J. was employed by VA at the time of the June 2020 opinion as the curriculum vitae (CV) associated with the opinion indicated that Dr. J.'s past employment for VA ended in 2019.  The AOJ should consequently obtain a VA medical opinion from an examiner physician regarding this issue on remand.

As one of the requirements for an award of SMC pursuant to 38 U.S.C. § 1114(t) is that the Veteran is not eligible for compensation under 38 U.S.C. § 1114(r)(2), the Board finds that any decision with respect to the claim for the remanded issue of entitlement to SMC pursuant to 38 U.S.C. § 1114(r)(2) may affect the Veteran's claim for entitlement to SMC pursuant to 38 U.S.C. § 1114(t).  Thus, the claims are inextricably intertwined.  See Harris v. Derwinski, 1 Vet. App. 180 (1991).  Final appellate review of this claim must be deferred until the appropriate actions concerning the Veteran's claim for SMC pursuant to 38 U.S.C. § 1114(r)(2) are completed and the matters are either resolved or prepared for appellate review.

The matters are REMANDED for the following action:

1. The AOJ should request that the Veteran provide the names and addresses of any health care providers who have provided treatment related to his appeal.  After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file.

The AOJ should also secure any outstanding, relevant VA medical records, to include records dated since March 2020.

2.  After completing the preceding development in paragraph 1, obtain a VA medical opinion from a physician related to the Veteran's claim for SMC pursuant to 38 U.S.C. § 1114(r)(2).  The claims file must be made available to the examiner.  The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions.  A clear explanation for all opinions based on specific facts for the case as well as relevant medical principles is needed.  If an examination is deemed necessary, one must be provided.

The Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptoms.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.  

The examiner should provide an opinion as to the following questions:

(a) Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's service-connected disabilities require personal health-care services provided on a daily basis in the Veteran's home by a person who is licensed to provide such services or who provides such services under the regular supervision of a licensed health-care professional.

The physician examiner is informed that "personal health care services" for purposes of the requested opinion include (but are not limited to) such services as physical therapy, administration of injections, placement of indwelling catheters, and the changing of sterile dressings, or like functions which require professional health-care training or the regular supervision of a trained health-care professional to perform.

The physician is also informed that "under the regular supervision of a licensed health-care professional" for purposes of the requested opinion means that an unlicensed person performing personal health-care services is following a regimen of personal health-care services prescribed by a health-care professional, and that the health-care professional consults with the unlicensed person providing the health-care services at least once each month to monitor the prescribed regimen.  The consultation need not be in person; a telephone call will suffice.

(b) If the answer to question (a) is yes, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that in the absence of the provision of such care, the Veteran would require hospitalization, nursing home care, or other residential institutional care.

3.  After undertaking any other development deemed appropriate, readjudicate the issues on appeal, to include the inextricably intertwined issue of entitlement to SMC pursuant to 38 U.S.C. § 1114(t).   

 

GAYLE STROMMEN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K.C. Spragins, 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.