Citation Nr: 21069735 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 18-46 194A DATE: November 19, 2021 ORDER Entitlement to service connection for major depressive disorder (MDD) as secondary to the service-connected disability of schizoaffective disorder has been withdrawn. Entitlement to special monthly compensation (SMC) for aid and attendance is granted. REMANDED Entitlement to service connection for migraine headaches as secondary to the service-connected disability of schizoaffective disorder and/or obstructive sleep apnea is remanded. FINDINGS OF FACT 1. During the August 2021 videoconference hearing, the Veteran, through his authorized representative, expressed his intent to withdraw his appeal as to entitlement to service connection for MDD as secondary to the service-connected disability of schizoaffective disorder. 2. Affording the Veteran with the benefit of the doubt, his service-connected disabilities have rendered him so helpless as to require the regular aid and attendance of another person to perform personal care functions of everyday living or to protect him from hazards and dangerous incidents to the daily environment. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to service connection for MDD as secondary to the service-connected disability of schizoaffective disorder by the appellant (or his authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for SMC based on the need for aid and attendance of another person have been met. 38 U.S.C. §§ 1114 (l), 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.350(b)(3), 3.352(a), 4.3. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2006 to September 2007. These matters come before the Board of Veterans' Appeals (Board) on appeal of a May 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, and an August 2018 rating decision issued by a VA RO. The Veteran testified at an August 2021 videoconference Board hearing before the undersigned Veterans Law Judge (AVLJ). During his appeal, a September 2016 rating decision granted an increased rating of 100 percent (total disability) for schizoaffective disorder, effective January 23, 2014, the date of claim. As this rating decision represented a full grant of the benefits sought on appeal, this matter is no longer in appellate status. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). In the August 2021 Board hearing, the Veteran's attorney raised an alternative theory of secondary service connection for his claimed migraine headaches. The Board has recharacterized the claim above to reflect the newly raised theory. It will be addressed in the remand section below. WITHDRAWAL OF CLAIM The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the Veteran or by his authorized representative. 38 C.F.R. § 19.55(a). Except for appeals withdrawn on the record at a hearing, withdraw of an issue must be done in writing. 38 C.F.R. § 19.55(b). During an August 2021 videoconference hearing, the Veteran, through his authorized representative, expressed his intent to withdraw his appeal as to service connection for MDD, secondary to schizoaffective disorder. The Veteran acknowledged his intent on the record. The Board finds the Veteran's request at the hearing qualifies as a valid withdrawal of the issue. 38 C.F.R. § 20.204(b). Since the Veteran has withdrawn the claim, there remain no allegations of errors of fact or law for appellate consideration. The Board does not have jurisdiction to review the appeal as to this issue, and it is dismissed. 2. Entitlement to SMC for aid and attendance. The Veteran seeks entitlement to SMC on the basis that his service-connected disabilities require that he receive the regular aid and attendance of another person. See November 2016 Notice of Disagreement (NOD) with the September 2016 rating decision. For entitlement to SMC based on the need for aid and attendance under 38 U.S.C. § 1114(l), the evidence must show that the Veteran experienced the anatomical loss or loss of use of both feet, one hand and one foot, blindness in both eyes with visual acuity of 5/200 or less, or being permanently bedridden or so helpless because of service-connected disability that he needs the regular aid and attendance of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). A list of basic considerations that are critical in determining the need for the regular aid and attendance of another person are outlined in 38 C.F.R. § 3.352(a). Those considerations include: an inability of the Veteran to dress or undress him or herself, or to keep him or herself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of claimant to feed him or herself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. In addition, determinations as to the need for aid and attendance must be based on actual requirements of personal assistance from others. It is not required that all the disabling conditions listed above be found to exist before a favorable rating for SMC may be made. Id. Rather, the particular personal functions which a Veteran is unable to perform should be considered in connection with his or her condition as a whole. It is only necessary that the evidence establish the Veteran is so helpless as to need regular aid and attendance, not that there is a constant need. Id. The Veteran is currently service connected for schizoaffective disorder, rated 100 percent disabling; sleep apnea associated with schizoaffective disorder, rated 50 percent disabling; and tinnitus, rated 10 percent disabling. The Board notes the Veteran also currently receives SMC based on housebound status under 38 U.S.C. § 1114(s), granted effective in September 2018. Post service treatment records include a September 2016 VA social work record that noted the Veteran's mother reported the Veteran requires assistance with activities of daily living (ADLs), movement, and other tasks when he is manic. A September 2018 Caregiver Program record noted that the Veteran is eligible for the Program of Comprehensive Assistance for Family Caregivers. Specifically, it was noted that the Veteran needs assistance with planning and organizing, safety, and medication management. The Board compared the above evidence with multiple VA treatment records between 2013 and 2018, including an April 2018 VA primary care record that included a functional activity screen that concluded no assistance is necessary. In addition, a November 2015 VA psychiatry admission record noted the Veteran can accomplish ADLs without assistance. The Board reviewed Social Security Administration (SSA) records included in the claims file that indicate a finding of mild restriction of ADLs, mild difficulty in maintaining social functioning, and moderate difficulty in maintaining concentration, persistence, or pace. SSA medical records dated October 2006 note that there might be periods of disorganized and tangential thinking. The Veteran, through his attorney, submitted an April 2018 VA Form 21-2680 (Examination for Housebound Status or Permanent Need for Regular Aid and Attendance) completed by a VA staff physician. The examination report noted the Veteran had poor insight and judgment. The examiner confirmed the Veteran can feed himself, does not need assistance in bathing and tending to other hygiene needs, is not legally blind, does not require nursing home care, and can manage his own finances. However, the examination report specifically noted the Veteran is not able to prepare his own meals and he is unable to keep track of his medications and without supervision his condition would worsen. The Board observes no other medical opinions regarding entitlement to aid and attendance in the Veteran's claims file. During the November 2019 Board hearing, the Veteran, through his attorney, asserted that he required assistance with ADLs including hygiene. The Veteran also testified that he is reliant on assistance to wake up, take his medication, make food, keep the house and laundry clean, grocery shop, and get to his scheduled medical appointments. The Veteran reported needing assistance since separating from active service. The Veteran's mother also testified during the August 2021 Board hearing, indicating that she has assisted the Veteran since 2018 because his condition was getting worse. She also reported that when his schizophrenia symptoms flare-up, he cannot do simple things for himself. After a thorough review of the available evidence, the Board finds that the evidence is at least in equipoise as to the question of whether the Veteran requires the regular assistance of another to complete his activities of daily functioning, including taking his prescribed psychiatric medication, such that he satisfies the requirements for a grant of SMC based on the need for aid and attendance under 38 U.S.C. § 1114(l) and 38 C.F.R. § 3.350(b). Although there is no evidence that the Veteran physically cannot complete his activities of daily functioning, the preponderance of the available evidence demonstrates that he is unable to carry out necessary functions such as cooking, taking his medication, and ensuring his safety during psychiatric flare-ups without significant assistance from another person. Specifically, the April 2018 evaluation stressed that the Veteran could not perform these basic functions without continual help from others. Based on the above and affording the Veteran with the benefit of the doubt, the Board concludes that his service-connected conditions render him so helpless as to require the need for aid and attendance of another person. The criteria for SMC pursuant to 38 U.S.C. § 1114(l) have been met. The appeal to this extent is granted. REASONS FOR REMAND The Board has reviewed the evidence presently of record and observes there are VA treatment records indicating that the Veteran suffers from a headache condition. See September 2018 VA nursing outpatient record that noted complaints of chronic headaches. The Veteran asserts his headaches have occurred since separation from service. See August 2021 Board hearing. The Board notes that there are no medical opinions of record which address the nature and etiology of his claimed headache condition. The Veteran has also asserted his headaches are secondary to his service-connected schizoaffective disorder and obstructive sleep apnea. The Veteran's attorney has submitted medical literature that indicates a potential secondary causation. On remand, an examination to secure a medical opinion addressing direct and secondary service connection theories (with an adequate rationale) is necessary. The matters are REMANDED for the following action: Afford the Veteran with the appropriate VA medical examination to ascertain the nature and etiology of his claimed headache condition. The claims file must be reviewed by the examiner. The examiner is asked to provide an opinion as to whether the headache disorder is at least as likely as not (at least an approximate balance of positive and negative evidence) directly related to his active service, or was caused, or aggravated by a service-connected disability (listed in a December 2018 rating decision), specifically to include service-connected schizoaffective disorder, sleep apnea associated with schizoaffective disorder, and/or tinnitus. If the opinion is that a service-connected disability or combination of service-connected disabilities aggravated the claimed headaches, the examiner should specify, so far as possible, the degree of disability resulting from such aggravation. All opinions must be supported by a thorough explanation (rationale). A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Banks, Associate 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.