Citation Nr: 21073120 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 11-01 094 DATE: December 7, 2021 ORDER From February 2, 2013 to October 21, 2014, the claim for entitlement to a rating of 20 percent and no greater for right ankle strain is granted. Beginning December 1, 2020, the claim for entitlement to a rating of 20 percent and no greater for right ankle strain is granted. Prior to February 2, 2013, and from January 1, 2015 through November 30, 2020, the claim for entitlement to a rating greater than 10 percent for right ankle strain is denied. The claim for entitlement to a rating greater than 10 percent for left knee strain is denied. The claim for entitlement to an initial rating greater than 30 percent for irritable bowel syndrome (IBS) is denied. The claim for entitlement to special monthly compensation (SMC) based on the need for aid and attendance from October 22, 2014 through December 31, 2014 is denied. REMANDED The claim for a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. From February 2, 2013 through October 21, 2014 the service-connected right ankle strain is manifested by marked limited motion with consideration for pain, pain on movement, and pain with and without weightbearing; weakness; instability; and pain on flare-ups and repetitive motion; and is not manifested by ankylosis, malunion of os calcis or astragalus, or astragalectomy. 2. Beginning December 1, 2020 the service-connected right ankle strain is manifested by marked limited motion with consideration for pain, pain on movement, and pain with and without weightbearing; and pain on flare-ups and repetitive motion; and is not manifested by ankylosis, malunion of os calcis or astragalus, or astragalectomy. 3. Prior to February 2, 2013, and from January 1, 2015 to November 30, 2020, the service-connected right ankle strain is manifested by no more than moderate limited motion with consideration for pain, pain on movement, pain with and without weightbearing; and pain on flare-ups and repetitive motion; and is not manifested by ankylosis, malunion of os calcis or astragalus, or astragalectomy. 4. Throughout the period on appeal, the service-connected left knee strain is manifested by zero degrees extension to 50 degrees flexion at its most limited with consideration for pain, pain on movement, pain with and without weightbearing; and pain, weakness, fatigability, incoordination or lack of endurance on flare-ups and repetitive motion; and is not manifested by ankylosis, subluxation or instability, symptomatic or dislocated cartilage, impairment of the tibia and fibula, or genu recurvatum. 5. The Veteran is in receipt of the maximum available rating for severe IBS under Diagnostic Code (Code) 7319, manifested by diarrhea or alternating diarrhea and constipation with more or less constant abdominal distress; there is no evidence of bowel leakage or of involuntary bowel movements necessitating the use of a pad. 6. For the period of time from October 22, 2014 through December 31, 2014, the Veteran's service-connected disabilities did not render her so helpless as to need regular aid and attendance. CONCLUSIONS OF LAW 1. From February 2, 2013 through October 21, 2014, the criteria for a rating of 20 percent and no greater for right ankle strain have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Code 5271. 2. Beginning December 1, 2020, the criteria for a rating of 20 percent and no greater for right ankle strain have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Code 5271. 3. Prior to February 2, 2013 and from January 1, 2015 through November 30, 2020, the criteria for a rating greater than 10 percent for right ankle strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Code 5271. 4. The criteria for a rating greater than 10 percent for left knee strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Codes 5260; 5256, 5257, 5258, 5259, 5261, 5262, and 5263. 5. The criteria for an initial rating greater than 30 percent for IBS have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.31, 4.114, Code 7319. 6. For the period of time from October 22, 2014 through December 31, 2014, the criteria for entitlement to SMC based on the need for the regular aid and attendance of another person have not been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active service with the U.S. Army from November 2000 to April 2007. These claims come before the Board from rating decisions in September 2011, August 2013, and June 2016 of the Department of Veterans Affairs (VA) Regional Offices (ROs) in Atlanta, Georgia and Denver, Colorado in which claims for increased evaluations for the right ankle and left knee disabilities were denied, entitlement to TDIU was denied, service connection for IBS was granted and evaluated at 30 percent disabling; and SMC based on being housebound was granted. These claims were remanded by the Board to the RO in September 2015, January 2017, and April 2018. That development having been completed, the case is now again before the Board. For reasons explained below, the issue of entitlement to TDIU is again remanded for additional development. In her substantive appeals the Veteran requested a hearing before a Veterans Law Judge. Accordingly, a Board hearing was scheduled for her in May 2017, and notice of this hearing was provided in April 2017. In May 2017 and before the hearing was held, the Veteran through her attorney cancelled her hearing request. Because the Veteran requested cancellation of the scheduled hearing and has not again requested a hearing before the Board, the Board finds it has met its duty to provide the Veteran an opportunity to request a hearing before the Board. Increased Rating The Veteran generally seeks higher ratings for her service-connected right ankle and left knee disabilities, and for IBS. The claim for increased rating for IBS stems from the grant of service connection and the 30 percent rating initially assigned. The medical evidence supports the award of a 20 percent rating for the service-connected right ankle disability for particular periods of time during the pendency of this claim, as discussed below. However, the medical evidence does not support the award of a rating higher than 10 percent for the service-connected left knee disability or an initial rating higher than 30 percent for the service-connected IBS. The Board will discuss each claim in turn. Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Joints Additionally, in evaluating joint disabilities, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). At the outset, it is noted that the regulations for rating disabilities of the ankle were revised during the pendency of the Veteran's appeal, effective February 7, 2021. See 85 Fed. Reg. 230 (Nov. 30, 2020). Where the law or regulations governing a claim are changed while the claim is pending, the version most favorable to the claimant is applied. While the new version of the regulations may apply only from the effective date of change, here February 7, 2021, the old version of the regulations may apply both prior to the change in regulation and after the change in regulation. Karnas v. Derwinski, 1 Vet. App. 308 (1991); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003 (Nov. 19, 2003), 69 Fed. Reg. 25179 (2004). Here, the old criteria are the more favorable. Code 5271 was changed by the revision to specify that moderate limitation of motion required and marked limitation of motion required. The version prior to the change in law did not provide specific ranges of motion. Other relevant Codes were not changed. In any event, the revised regulations would not apply until February 2019, which they came into effect. Given the limited applicability of the new regulations the Board finds the old criteria are more favorable. The Board will not apply the new regulations in the present case but notes that the Veteran meets the criteria under both the old and new criteria from December 1, 2020 as will be noted in the relevant section. Concerning the left knee disability, the old criteria are again more favorable. Codes 5256, 5258, 5259, 5260, 5261, and 5263 were not been changed by the revision. Codes 5262 is changed, but does not apply, as the Veteran does not have impairment of the tibia or fibula. Code 5003 and 5010 are changed, but the new Code 5010 requires that post-traumatic arthritis be rated as limitation of motion, dislocation, or other instability under the affected joint. Code 5257, also changed by the revision, now contemplates ligament tear or sprain without or without repair, persistent instability and, for ratings above 10 percent, the prescription by a medical provider of an assistive device or brace, or both. In the case of either Code 5010 or Code 5257, the grant of a separate and/or higher evaluation is uncertain. The new Code 5010 appears to foreclose the award of a separate compensable rating under 5010 and 5257 by including instability as part of the criteria for 5010. The new Code 5257 addresses ligament injury and persistent instability, which the medical evidence does not show for either knee. Rather, the medical evidence reflects no surgery or instability in the left knee. In any event, the revised regulations would not apply until February 2019, when they came into effect. Given the limited applicability of the new regulations, the Board finds the old criteria are more favorable. The Board will not apply the new regulations to the left knee claim in the present case. 1. Right Ankle Right ankle strain was service connected in a January 2008 rating decision and evaluated as 10 percent disabling from April 2007 for moderate limitation of motion under Code 5271. In October 2014, the Veteran underwent surgery for the right ankle which required a period of convalescence afterward. Thus a temporary total disability rating was assigned from October 22, 2014 through December 31, 2014. See 38 C.F.R. § 4.30. The 10 percent rating was resumed effective January 1, 2015 and has been confirmed and continued since then. The Veteran asserts her right ankle disability has worsened over time. The medical evidence supports her contention, in part. The service-connected right ankle strain has been assigned a 10 percent rating for moderate limitation of motion under Code 5271. Marked limitation of motion is afforded a 20 percent rating. See 38 C.F.R. § 4.71a, Code 5271. The medical evidence presents three different time periods: a) February 2, 2013 through October 21, 2014; b) beginning December 1, 2020; and c) prior to February 2, 2013 and from January 1, 2015 to November 30, 2020. a) February 2, 2013 through October 21, 2014 This period of time begins with the Veteran's report to urgent care for her right ankle on February 2, 2013 and ends with surgical ligament repair of the right ankle on October 22, 2014. During this period of time the Board finds the medical evidence documents an overall disability picture that more closely approximates marked limitation of motion under Code 5271. Throughout this time period, VA and private treatment records show reports and observations of significant pain in the right ankle with decreased range of motion, inability to bear weight, lateral instability, swelling, and pain and tenderness to touch. Crutches were issued during urgent care treatment in February 2013 to alleviate weight bearing, and she was later also issued an ankle brace. Her gait was reported to become increasingly antalgic over this time period and she experienced re-injury in early 2014. Magnetic resonance imaging (MRI) results in May 2013 showed anterior talo-fibular ligament tear, probable talar contusion, and effusion in the ankle joint. The Veteran pursued conservative treatment to no avail, including prescribed pain medication, steroid shots into the ankle joint, and physical therapy. Ultimately, she underwent surgical ligament repair in October 2014. See CAPRI records generally. See also CAPRI records received 5/15/2013 (including Urgent Care entry), pp. 18, 22-23 of 192; CAPRI records received 8/29/2013, pp. 1 and 135 of 430; and CAPRI records received 6/17/2016, pp. 120, 124-125, 128 of 369. The Board is aware of the June 2013 VA examiner's findings of range of measurements at 25 degrees plantar flexion and 10 degrees dorsiflexion with consideration of pain and pain on motion; and no instability. This is consistent with March 2013 active range of motion findings noted in VA treatment records. However the Board finds the 2013 range of motion findings less probative when weighed against the overall right ankle disability picture documented in the VA and private treatment records for this period because the records from early 2013 to October 2014 reflect a steadily worsening right ankle condition marked by significantly decreased range of motion due to pain, instability, weakness, increasingly antalgic gait, decreasing ability to bear weight, reinjury and, ultimately the decision to go forward with surgical repair. The 20 percent evaluation is the highest rating warranted under Code 5271. A higher or separate compensable evaluation is not warranted because the medical evidence does not reflect findings of ankylosis, as required under Code 5270; or ankylosis of the subastragalar or tarsal joint, under Code 5272; or malunion of the os calcis or astragalus, under Code 5273; or astragalectomy, under Code 5274. See 38 C.F.R. § 4.71a, Codes 5270, 5272, 5273, and 5274. A higher 30 percent rating is provided under Code 5284 for severe injury of the foot, with 40 percent afforded for actual loss of the use of the foot. However, the medical evidence does not show that right ankle strain during this period of time approximates severe injury of the foot. There is no evidence that the Veteran was unable to use her right foot. Rather, the Veteran retained the ability to use her foot to ambulate, albeit with assistive devices; and she retained a normal arch. VA and private treatment records do not show or tend to show severe impairment of the foot other than the right ankle joint during this time period. See, generally, CAPRI records received 5/15/2013, 8/29/2013, 6/17/2016; see also 38 C.F.R. § 4.71a, Code 5284 (with Note). b) Beginning December 1, 2020 Beginning December 1, 2020, the medical evidence again shows the Veteran's right ankle is manifested by marked limitation of motion under Code 5271. VA examination in December 2020 shows the right ankle is limited to 10 degrees plantar flexion and 5 degrees dorsiflexion as compared to 20 degrees plantar flexion and 45 degrees dorsiflexion on the left with consideration for pain, pain on motion, and additional disability due to pain resulting from flare-ups and repetitive motion. This meets the criteria for a 20 percent rating under Code 5271 under both the old and the new criteria. As noted above, the 20 percent evaluation is the highest rating warranted under Code 5271. Higher or separate compensable evaluations are not warranted because the medical evidence does not reflect findings of ankylosis, as required under Code 5270; or ankylosis of the subastragalar or tarsal joint, under Code 5272; or malunion of the os calcis or astragalus, under Code 5273; or astragalectomy, under Code 5274. See 38 C.F.R. § 4.71a, Codes 5270, 5272, 5273, and 5274. A higher 30 percent rating is provided under Code 5284 for severe injury of the foot, with 40 percent afforded for actual loss of the use of the foot. However, the medical evidence does not show that right ankle strain during this period of time approximates severe injury of the foot. Moreover, there is no evidence that the Veteran is unable to use her foot. Rather, the records show the Veteran is consistently able to ambulate without assistive devices, maintains five of five strength, and exhibits no other right ankle impairment to include instability or inability to bear weight. See, generally, CAPRI records; December 2020 VA examination; see also 38 C.F.R. § 4.71a, Code 5284. c) Prior to February 2, 2013 and from January 1, 2015 through November 30, 2020 Throughout these time periods, the medical evidence does not support a rating more than 10 percent for the right ankle strain. Prior to February 2, 2013 and from January 1, 2015 through November 30, 2020, the right ankle range of motion measured at zero to 20 degrees dorsiflexion and zero to 45 degrees plantar flexion at its most limited with consideration for pain, pain on motion, and pain, fatigue, weakness or incoordination on flare-ups and on repetitive motion. Higher or separate compensable evaluations may be warranted during these time frames for ankylosis, ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, and astragalectomy. In addition, a higher, 20 percent rating is provided under Code 5284 for moderately severe injury of the foot. However, the medical evidence does not show that right ankle strain meets the requirements for higher or separate compensable evaluations under these Codes during either period of time. Rather, the medical evidence presents strength measured at 5 of 5 throughout, and no findings of ankylosis, ankylosis of the subastragalar or tarsal joint, malunion of os calcis or astragalus, or astragalectomy prior to February 2, 2013 or from January 1, 2015 and November 30, 2020. In addition, during this time there were no findings of other right ankle impairment to including instability, or inability to bear weight, inability to ambulate or the need for assistive devices. See, generally, CAPRI records and 2010, 2013, 2015, and 2016 VA examinations; see also 38 C.F.R. § 4.71a, Codes 5270, 5272, 5273, and 5274; and Code 5284 (with Note). d) Right Ankle Summary The Veteran has asserted her right ankle disability has worsened and progressed throughout her appeal. She is competent to report complaints of pain, instability, and weakness; and the Board has awarded increased ratings based, in part, on her lay testimony as consistent with the observations of VA and private treating health care providers. However, although the Board recognizes her military occupational specialty during active duty was as a health care specialist, the Veteran has not argued, and the record does not show, that she has the specialized medical training to diagnose or evaluate the level of disability manifested by her right ankle strain. Thus, the Board finds more probative the medical findings, diagnoses and observations of VA and private health care providers, and of VA examiners (with the exception of the 2013 VA examination) in assessing the level of right ankle disability during these periods of time. Accordingly, a 20 percent rating and no greater is warranted for right ankle strain from February 2, 2013 through October 21, 2014. The claim is granted. A 20 percent rating is warranted for right ankle strain beginning December 1, 2020. The claim is granted. A rating greater than 10 percent is not warranted for right ankle strain prior to February 2, 2013 and from January 1, 2015 through November 30, 2020. The claim is denied. e) Right Ankle Scar Scars are rated under 38 C.F.R. § 4.118. As the relevant scars are on the Veteran's right ankle, Code 7800, which contemplates scars of the head, face, or neck, is not applicable. During the pendency of the Veteran's appeal, the regulations governing the rating of scars was revised, effective August 13, 2018. See 83 Fed. Reg. 32592, 32597 (Jul. 13, 2018). As with the revised regulations concerning the right ankle and left knee discussed above, the version most favorable to the claimant is applied and the new version cannot be applied prior to its effective date. The old version applies prior to and after the date of change. See Karnas, 1 Vet. App. at 308; Kuzma, 341 F.3d at 1327; VAOPGCPREC 7-2003 (Nov. 19, 2003), 69 Fed. Reg. 25179 (2004). In this case, the Board finds that neither version is more advantageous, as the Veteran does not meet the criteria for an initial compensable evaluation under either the old or the new regulations. The October 2014 right ankle surgery left a scar on the right ankle, which has been service-connected as a residual of that surgery. However, the Veteran has not reported, and the record does not show, that the scarring is painful, unstable, associated with underlying soft tissue damage, comprises an area larger than 39 square centimeters, or otherwise causes any disability or impairment to include limitation of the right ankle joint. Rather, the 2020 VA examination reflects a right ankle scar measuring four centimeters by one centimeter, without findings of pain or instability. See 38 C.F.R. § 4.118, Codes 7801, 7802, 7804, 7805. Therefore, a compensable rating is not warranted for the scar that is the residual of the October 2014 surgery at any time since the October 2014 surgery. 2. Left Knee Left knee strain was service connected in a January 2008 rating decision and evaluated as 10 percent disabling from April 2007 for painful but otherwise uncompensable limitation of knee flexion motion under Code 5260. The 10 percent rating has been confirmed and continued since then. The Veteran asserts her left knee disability has worsened over time. The medical evidence does not support her contention. Medical evidence to include VA examinations conducted in 2010, 2013, 2015, 2016 and 2020 reflect findings of limited flexion motion to 50 degrees at its most limited, with consideration for pain, painful motion, and additional impairment due to pain, weakness, fatigability or incoordination on flare-ups and repeated use over time. This meets the criteria for a 10 percent rating under Code 5260 for painful, limited flexion motion otherwise not compensable under the Code where there is x-ray evidence of arthritis. See Code 5003. However, to warrant a 20 percent rating, there would need to be involvement of two or more major joints, which cannot occur in the case of the knee joint (see Id), or limitation of flexion to 45 degrees or less. The medical evidence does not show limitation of flexion to 45 degrees or less. See CAPRI records, generally; see VA examinations conducted in 2010, 2013, 2015, 2016 and 2020. See 38 C.F.R. § 4.71a, Codes 5003-5260. A higher or separate compensable evaluation is not warranted because the medical evidence does not reflect findings of ankylosis, as required under Code 5256; or recurrent subluxation or lateral instability, under Code 5257; or dislocated cartilage with episodes of locking and effusion in the joint, under Code 5258; or symptomatic removed cartilage, under Code 5259; or limitation of extension to 10 degrees or more, under Code 5261; or impairment of the tibia and fibula with nonunion or malunion of the tibia and fibula, under Code 5262; or genu recurvatum, under Code 5263. See 38 C.F.R. § 4.71a, Codes 5256, 5257, 5256, 5258, 5259, 2561, 5262 and 5263. The Veteran has asserted her left knee disability has worsened and progressed throughout her appeal, and she is competent to report complaints of pain, instability, and weakness. However, although the Board recognizes her military occupational specialty during active duty was as a health care specialist, the Veteran has not argued, and the record does not show, that she has the specialized medical training to diagnose or evaluate the level of disability manifested by her left knee strain. Thus, the Board finds more probative the medical findings, diagnoses and observations of VA and private health care providers, and of VA examiners in assessing the level of left knee disability. Accordingly, a rating greater than 10 percent for left knee strain is not warranted. The claim is denied. IBS Ratings under Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 under the Schedule of Ratings for the Digestive System are not to be combined with each other. A single evaluation is to be assigned under the Code which reflects the predominate disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. IBS was service connected in an August 2013 rating decision and evaluated as 30 percent disabling from November 2011 under Code 7399-3719. The Veteran appealed the evaluation initially assigned and argues that her symptoms are worse than have been evaluated. The medical evidence does not support her contentions. The Veteran's IBS is currently rated under 38 C.F.R. § 4.114, Code 7399-7319. The 30 percent rating contemplates severe symptoms, to include diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. This is the maximum available rating for IBS under Code 7319. A higher or separate compensable rating is are available under Code 7332 (for impairment of sphincter control). However, VA treatment records and 2013 and 2020 VA examinations show no evidence that the service-connected IBS is manifested by constant slight or occasional moderate leakage to warrant a 10 percent rating; or occasional involuntary bowel movements necessitating the wearing of a pad to warrant a 30 percent rating; or extensive leakage and fairly frequent involuntary bowel movements to warrant a 60 percent rating; or complete loss of sphincter control to warrant a 100 percent rating under the Code. There is therefore no evidence upon which to base a higher or separate compensable rating under Code 7332. See 38 C.F.R. § 4.114, Diagnostic Code 7332. Alternatively, the Board has considered the possibility of evaluating the service-connected IBS under other applicable codes governing other disorders of the digestive system in accordance with 38 C.F.R. § 4.114. However, the evidence of record does not reflect at any time during the period of appeal that the service-connected IBS has been manifested by symptoms of peritoneum adhesions, as is required under Code 7301; or of gastrointestinal ulcers under Codes 7304, 7305, 7306; or of gastritis under Code 7307; or of postgastrectomy syndrome under Code 7308; or of stomach stenosis, injury residuals, or vagotomy under Codes 7309, 7310, 7348; or of liver disease or liver disease without cirrhosis under Codes 7311, 7312, 7345; or of cholecystis or cholelithiasis or cholangitis under Codes 7314, 7315, 7316; or of gall bladder injury or removal under Codes 7317, 7318; or of amebiasis under Code 7321; or of dysentery or ulcerative colitis under Codes 7322, 7323; or of distomiasis under Code 7324; or of enteritis or enterocolitis under Codes 7325, 7326; or of diverticulitis under Code 7327; or of intestine resection under Code 7328, 7329; or of peritonitis under Code 7331; or of visceroptosis under Code 7342; or of femoral or hiatal hernia under Codes 7340, 7346; or of pancreatitis, under Code 7347. Thus, the Board finds that an evaluation under any other applicable Code would not avail the Veteran of a higher evaluation. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). The Veteran has generally asserted her IBS has worsened, and she is competent to report such. Nonetheless, she has not provided evidence of this. Rather, she reported in her 2020 VA examination that the condition has been stable since its onset in 2003. Moreover, although the Board recognizes her military occupational specialty during active duty was as a health care specialist, the Veteran has not argued, and the record does not show, that she has the specialized medical training to diagnose or evaluate the level of disability manifested by her IBS. Thus, the Board finds more probative the medical findings, diagnoses and observations of VA and private health care providers, and of VA examiners in assessing the level of IBS. Accordingly, an initial rating greater than 30 percent for IBS is not warranted. The claim is denied. SMC SMC based on being housebound was granted in June 2016 rating decision from October 22 through December 31, 2014. The Veteran has disagreed with this and argues that SMC on the higher level based on the need for aid and attendance of another should be granted. Compensation at the aid and attendance rate is payable when the 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 is blind in both eyes, or is permanently bedridden or so helpless as to need regular aid and attendance. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). Determinations as to the need for regular aid and attendance are factual and must be based upon the actual requirements for personal assistance from others. In making such determinations, consideration is given to such conditions as: the inability of the claimant to dress or undress herself, or to keep 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 assistance. The inability of the claimant to feed herself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, either physical or mental, which requires care or assistance on a regular basis to protect a claimant from hazards or dangers incident to one's daily environment. It is not required that all of the disabling conditions enumerated be present before a favorable rating is made. The particular personal functions that the claimant is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the claimant be so helpless as to need regular aid and attendance, not that there is a constant need. "Bedridden" constitutes a condition which, through its essential character, actually requires that an individual remain in bed. The fact that a claimant has voluntarily taken to bed, or that a physician has prescribed bed rest for a lesser or greater portion of the day will not suffice. 38 C.F.R. § 3.352(a). In Turco v. Brown, 9 Vet. App. 222, 224 (1996), the Court held that eligibility for SMC by reason of regular need for aid and attendance requires that at least one of the factors set forth in VA regulation is met. In addition, determinations that the claimant is so helpless as to need regular aid and attendance will not be based solely upon an opinion that the claimant's condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others. See Turco, 9 Vet. App. 222, 224. The evidence must show that the claimant is so helpless as to need regular and attendance; constant need for aid and attendance is not required. 38 C.F.R. § 3.352(a). In this case, SMC based on being housebound was awarded from October 22 through December 31, 2014 temporarily while the Veteran was on a temporary total evaluation of 100 percent for convalescence following surgery for her service-connected right ankle disability. During this time the Veteran was also service connected for major depressive disorder with anxiety disorder rated as 70 percent disabling; IBS rated as 30 percent disabling; left knee strain rated as 10 percent disabling; allergic rhinosinusitis rated as 10 percent disabling; right knee strain rated as 10 percent disabling; and bronchitis, vascular headaches, hypertension and residual right ankle scar rated as noncompensable. Notwithstanding, the record does not show, and the Veteran has not submitted (see Appellant Brief received 8/16/2017) evidence to support a finding that she meets any of the requirements for an award of aid and attendance, or the need for personal assistance from others. Private and VA treatment records show the Veteran underwent surgery on October 22, 2014 for her right ankle. Follow-up treatment records show she was cast in a non-weight bearing short leg cast. However, there is no evidence that she was unable to dress or undress herself, to keep herself clean and presentable; or that she required the frequent need of adjustment of any special prosthetic or orthopedic appliances that she was unable to perform without assistance. There is no evidence that she was, during this time, bedridden, unable to attend to the wants of nature, or required the care or assistance to protect her from the hazards or dangers incident to her daily environment. Rather, the record shows she was able to participate in follow-up treatment requiring travel outside her home. Because the evidence does not show, and the Veteran and her attorney have not provided evidence establishing or tending to establish that the Veteran required the aid and attendance of another or the need for personal assistance of others during the time period from October 14, 2014 through December 31, 2014, SMC based on the need for aid and attendance during this period is not warranted. Accordingly, the claim for a SMC based on the higher rate of the need for aid and attendance is denied. REASONS FOR REMAND First, it is noted that the Veteran has been granted VA Vocational Rehabilitation Education benefits in 2021. The analysis included a consideration of the impact of her service-connected disabilities on her employability in which VA determined she was employable, in part based on her assertion she had no current claim for individual unemployability. See "other" received 7/22/2021. Yet, the Veteran's attorney argued in 2017 that the Veteran has been unable to find permanent, full-time work due to her service-connected disabilities. As evidence, the attorney points to a December 2011 vocational assessment in which a vocational rehabilitation consultant opined that the Veteran met the criteria for TDIU effective April 6, 2007 due to emotional symptoms and functional difficulties resulting from PTSD, left knee and right ankle disabilities, sinus conditions, and headaches. See Third Party Correspondence received 9/29/2015. Turning to the Veteran's claims for TDIU, she reported in 2011 and 2016 she last worked full time in August 2009 and had become too disabled to work in September-October 2009. She further reported she was unemployed from January 2011 through November 2013; earnings over $2000.00 per month from November 2016 through February 2016, earnings of $240.00 per month in March 2016, and earnings over the past 12 months of $11,760. See October 2011 and September 2016 VA Forms 21-8940. Remand is therefore required to determine (1) whether the Veteran still wishes to apply, currently, for TDIU; and, if not, (2) what periods of time for which she does wish to claim TDIU. At the least, the agency of original jurisdiction must consider whether she meets the criteria for TDIU from August 2009 through October 2016. The matter is REMANDED for the following action: 1. Determine whether the Veteran wishes to pursue a current claim for TDIU. 2. If the answer to #1 is in the negative, determine for what other periods of time she intends to pursue a claim for TDIU during this appeal prior to the award of VA Vocational Rehabilitation Educational benefits in 2021. 3. Ensure her attorney is copied on any correspondence from VA in this regard. 4. For any period of time identified by the Veteran in #1 and #2 above and, should the Veteran or her attorney fail to respond, for that period of time from August 2009 through October 2016, conduct all appropriate development required, to include requesting wage data from the Veteran and from other appropriate sources. 5. After all other development is concluded, adjudicate the claim for TDIU. (Continued on the next page) 6. If any claim is denied, provide the Veteran and her attorney with a supplemental statement of the case and an appropriate time within which to respond. Thereafter, return the claim to the Board, if in order. N. RIPPEL Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bakke, Lila J. 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.