Citation Nr: 21077127 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 18-55 258 DATE: December 28, 2021 ORDER Entitlement to an effective date earlier than January 18, 2016 for the grant of a 70 percent rating for posttraumatic stress disorder (PTSD), major depressive disorder (MDD) and generalized anxiety disorder (GAD) is denied. Entitlement to an effective date earlier than January 18, 2016, for the grant of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. Entitlement to a disability rating in excess of 70 percent for PTSD, MDD, and GAD is denied. Special monthly compensation (SMC) based on a need for aid and attendance is granted. FINDINGS OF FACT 1. The Veteran's claim for service connection for PTSD, MDD and GAD was granted in a March 2009 rating decision, with a 30 percent rating assigned on and after July 2, 2008. He was notified of this decision and timely disagreed with the rating. In response to the Veteran's disagreement, the rating was increased in a November 2010 rating decision to 50 percent, effective July 2, 2008. VA issued a Statement of the Case (SOC) in November 2010 and the Veteran submitted a substantive appeal (VA Form 9) in January 2011, but VA did not accept the substantive appeal because it was untimely. As a result, the March 2009 rating decision became final. The Veteran was also notified of the February 2011 decision regarding timeliness, did not timely disagree with it or submit new and material evidence within one year, and it became final. 2. VA received a claim for an increased rating for PTSD, MDD, and GAD on October 23, 2014. In a July 2015 rating decision, VA denied the claim. The Veteran was notified of this decision, did not timely disagree with it and it became final. 3. VA received a claim for a TDIU based on the Veteran's PTSD on January 18, 2016. In a June 2016 rating decision, VA granted a 70 percent rating for PTSD, MDD, and GAD on and after January 18, 2015. (In an October 2018 rating decision, VA revised the effective date to January 18, 2016 to correct a clear and unmistakable error.) There is no indication of an attempt to claim an increased rating for PTSD, MDD, and GAD between July 2015 and January 18, 2016 and it is not factually ascertainable that an increase in disability occurred within one year prior to January 18, 2016. 4. VA received a claim for a TDIU based on the Veteran's PTSD on January 18, 2016. In a June 2016 rating decision, VA granted a TDIU, effective January 18, 2016. VA did not receive a claim for a TDIU prior to that date and it is not factually ascertainable that an increase in disability resulting in unemployability occurred within one year prior to January 18, 2016. 5. Throughout the period on appeal, the Veteran's PTSD, MDD, and GAD have been manifested by occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. 6. Resolving reasonable doubt in the Veteran's favor, he is in need of the regular aid and attendance of another person due to his service-connected PTSD, MDD, and GAD. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date prior to January 18, 2016 for the grant of a 70 percent rating for PTSD, MDD, and GAD are not met. 38 U.S.C. §§ 5101, 5107, 5108, 5110, 7105 (2012); 38 C.F.R. §§ 3.104, 3.400, 19.34, 19.52, 20.1103 (2021). 2. The criteria for entitlement to an effective date prior to January 18, 2016 for the grant of a TDIU are not met. 38 U.S.C. §§ 5101, 5107, 5108, 5110, 7105; 38 C.F.R. §§ 3.104, 3.400, 19.52, 20.1103. 3. The criteria for a disability rating in excess of 70 percent for PTSD, MDD, and GAD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.126, 4.130, Diagnostic Code 9411 (2021). 4. The criteria for SMC based on a need of aid and attendance of another person have been met. 38 U.S.C. §§ 1114, 5017 (2012); 38 C.F.R. §§ 3.351, 3.350, 3.352 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from February 1971 to February 1973, including service in the Vietnam War. The Veteran and his spouse testified before the undersigned Veterans Law Judge during a June 2021 hearing and a transcript is of record. These matters are on appeal from a June 2016 rating decision. Neither the Veteran nor his attorney have raised any issues with the duty to notify or duty to assist with regard to the claims being decided below. 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. PTSD, MDD, and GAD Effective Date The Veteran asserts that he should be granted an effective date earlier than January 18, 2016, for a 70 percent rating for PTSD, MDD, and GAD. Unless specifically provided otherwise by statute, the effective date of an award for compensation benefits based on (1) an original claim, (2) a claim reopened after final adjudication, or (3) a claim for increase, is the date VA received the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400; Lalonde v. West, 12 Vet. App. 377, 382 (1999). With regard to a claim for increase, the effective date can be up to one year earlier than the date of the claim if it is factually ascertainable, based on all evidence of record, that an increase in disability occurred within one year of the date of claim. 38 C.F.R. § 5110(b)(3); 38 C.F.R. § 3.400. The Veteran first submitted a claim for entitlement to service connection for PTSD on July 2, 2008. VA granted service connection for PTSD, MDD, and GAD in a March 2009 rating decision and assigned a 30 percent rating on and after July 2, 2008. The Veteran submitted a Notice Of Disagreement in March 2010. VA accepted the NOD and responded on November 19, 2010 with a Statement of the Case (SOC) and a rating decision increasing the rating to 50 percent, effective July 2, 2008. The Veteran submitted a substantive appeal (VA Form 9) on January 28, 2011 but, because this was more than 60 days after the SOC and more than one year after the rating decision that was on appeal, VA found the substantive appeal to be untimely and informed the Veteran of its decision in a February 2011 letter. The March 2009 rating decision therefore became final and not subject to revision on the same factual basis. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 19.52, 20.1103. In addition, VA's February 2011 decision that the January 2011 substantive appeal was untimely was itself appealable. 38 C.F.R. § 19.34. The Veteran did not submit a notice of disagreement or additional evidence within the one year period following the decision. The decision became final and not subject to revision on the same factual basis. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. The Veteran submitted a claim for an increased rating for PTSD, MDD, and GAD on October 23, 2014. In a July 2015 rating decision, VA denied the claim. The Veteran did not submit a notice of disagreement within the one year period following the decision. The decision became final and not subject to revision on the same factual basis. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 19.52, 20.1103. Instead of appealing the July 2015 rating decision by submitting a notice of disagreement, the Veteran submitted a claim for a TDIU based on his PTSD on January 18, 2016. In the June 2016 rating decision on appeal, VA granted a 70 percent rating for PTSD, MDD, and GAD, effective January 18, 2015. (That decision made clear that the date was meant to be the date of the TDIU claim and so, to correct this typographical error, in an October 2018 rating decision, VA revised the effective date to January 18, 2016 based on clear and unmistakable error (CUE)). The Board has reviewed the claims file for any document, submitted after the July 2015 rating decision but before the Veteran's January 18, 2016, claim for a TDIU, that could be considered a claim for an increased rating for PTSD, MDD, and GAD. Lalonde, 12 Vet. App. at 381. The Board has found none. Moreover, neither the Veteran nor his attorney assert that the Veteran filed a claim during that time. The Veteran's attorney contends in a June 2018 statement that the January 2011 substantive appeal was timely and that the effective date should therefore be July 2, 2008. As stated above, VA's February 2011 decision that the January 2011 substantive appeal was untimely was itself appealable and has become final. In order for the Veteran to be awarded an effective date based on any of the prior rating decisions or the February 2011 decision regarding timeliness, he has to show CUE in the prior decision as a collateral attack. Flash v. Brown, 8 Vet. App. 332, 340 (1995). Any claim of CUE must be pled with specificity. See Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002). This specific allegation must assert more than merely disagreement with how the facts of the case were weighed or evaluated. Persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error. Neither the Veteran nor his attorney have raised CUE and, to the extent that the June 2016 rating decision contained CUE, VA corrected that error in the October 2018 rating decision. An effective date earlier than January 18, 2016 for a 70 percent rating for PTSD, MDD, and GAD is therefore only warranted if it is factually ascertainable that an increase in disability occurred within one year prior to January 18, 2016. During the June 2021 hearing, the Veteran's attorney contended that the increase in symptoms "would have been started within that one-year look-back period from January, 2015." However, the attorney did not cite any specific evidence of worsening during that period. For initial rating claims and increased rating claims, "the effective date can be no earlier than the date it was factually ascertainable" that a veteran's disability was diagnosed or worsened. Swain v. McDonald, 27 Vet. App. 219, 224 n. 4 (2015). The effective date should not be "assigned mechanically" as of the date of an examination. Id. at 224. There must be a factual basis for choosing an earlier date. The Veteran's attorney contended that the evidence of worsening was contained in a private medical opinion. The Veteran has submitted a June 2021 medical opinion by the private psychologist referenced during the hearing. However, that opinion found that the Veteran's "PTSD symptoms fits the VA disability rating of 100% back in 2013, 2014, and in 2015." The United States Court of Appeals for the Federal Circuit has held that 38 U.S.C. § 5110 and 38 C.F.R. § 3.400 require "that an increase in a veteran's service-connected disability must have occurred during the one year prior to the date of the veteran's claim in order to receive the benefit of an earlier effective date." Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). Even if the private medical opinion established a factually ascertainable increase in disability, the increase began over a year prior to the date of the claim for increase. It therefore cannot be a basis for granting an increased rating prior to the date of the claim. For those reasons, the Board concludes that the Veteran is not entitled to an effective date earlier than January 18, 2016, for a 70 percent rating for PTSD, MDD, and GAD, which is the date of the claim that led to the grant of an increased rating. 2. TDIU Effective Date The Veteran asserts that he should be granted an effective date earlier than January 18, 2016, for the grant of a TDIU. Specifically, he requests an effective date of July 14, 2013, which is the day after he was last employed full-time and is the date as of which the Social Security Administration (SSA) has found him to be disabled. The Board has reviewed the claims file for any document, submitted before the Veteran's January 18, 2016, claim, that could be considered a claim for a TDIU. Lalonde, 12 Vet. App. at 381. The Board has found none. Moreover, neither the Veteran nor his attorney assert that the Veteran filed a prior claim for a TDIU. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. However, for the reasons given above in the context of the effective date claim for the Veteran's psychiatric disabilities, there is no pending claim for a higher rating that was received prior to January 18, 2016. An effective date earlier than January 18, 2016 for a TDIU is therefore only warranted if it is factually ascertainable that an increase in disability resulting in unemployability occurred within one year prior to January 18, 2016. As stated above, SSA found that the Veteran became disabled on July 14, 2013, and the Veteran's attorney has also contended that that is the date on which the Veteran became unemployable. In addition, the Veteran has submitted a June 2021 medical opinion by a private psychologist, who opined that the Veteran's psychiatric symptoms caused total occupational and social impairment "back in 2013, 2014, and in 2015." As stated above, "an increase in a veteran's service-connected disability must have occurred during the one year prior to the date of the veteran's claim in order to receive the benefit of an earlier effective date." Gaston, 605 F.3d at 984. Even if the private medical opinion or SSA decision established a factually ascertainable increase in disability resulting in unemployability, the increase began over a year prior to the date of the claim. It therefore cannot be a basis for granting an increased rating, including a TDIU, prior to the date of the claim. For those reasons, the Board concludes that the Veteran is not entitled to an effective date earlier than January 18, 2016, for a TDIU, which is the date of the claim that led to the grant of a TDIU. 3. PTSD, MDD, and GAD Increased Rating The Veteran contends that his PTSD, MDD, and GAD warrant a higher rating than that currently assigned. It is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411, for PTSD, with a 50 percent rating from July 2, 2008 to July 14, 2013, a 100 percent rating based on hospitalization from July 15, 2013 to October 30, 2013, a 50 percent rating from November 1, 2013 to January 17, 2016, and a 70 percent rating on and after January 18, 2016. As stated above, VA received the Veteran's claim for a TDIU, which included a claim for an increased rating for PTSD, MDD, and GAD, on January 18, 2016. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4 (2021). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. "Staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When entitlement to compensation has already been established and an increased rating is at issue, the relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed. Id. at 509; see also 38 U.S.C. § 5110(b)(2) (2012); 38 C.F.R. § 3.400(o)(2) (2021). 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. Under 38 C.F.R. § 4.130, psychiatric impairment is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130 provides that a 70 percent evaluation is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful situations (including work or a worklike setting); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. A 100 percent rating is in order when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, occupation, or own name. Id. When evaluating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant's capacity for adjustment during periods of remission. See VazquezClaudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). VA shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126 (a). When evaluating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). During an April 2016 VA treatment appointment, the Veteran had difficulty sitting down and instead paced around the waiting room. The Veteran was afforded a VA examination by a psychologist in May 2016. The psychologist diagnosed PTSD. The Veteran reported that he continued to be married and described his marriage as rocky at times due to his psychiatric symptoms. He denied having any friends or engaging in social activities. He reported current symptoms of unwanted memories, nightmares, flashbacks, hypervigilance, sleep problems, being easily startled, irritability, anger problems, panic attacks, feelings of guilt, avoidance behavior, and feeling upset with reminders. The psychologist listed the Veteran's symptoms for rating purposes as depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. He was appropriately dressed and groomed, he was alert and oriented in all spheres, his thought processes were logical and coherent, his speech was fluent with rate and volume within normal limits, no psychotic processes were evident or endorsed, no psychomotor agitation was observed, his level of consciousness was normal, his mood was depressed and very anxious with congruent affect, and his judgment and insight appeared intact. He denied suicidal and homicidal ideation and the psychologist found that he was not an imminent threat to harm himself and was goal directed and future oriented. The psychologist characterized the Veteran's overall level of functional impairment as occupational and social impairment with deficiencies in most areas, which is consistent with a 70 percent rating. During a June 2016 VA treatment appointment, the Veteran reported questioning the purpose of living but did not have intent, a plan, or preparation for self-harm. The Veteran has submitted a June 2021 medical opinion by a private psychologist. As stated above, the psychologist opined that the Veteran's "PTSD symptoms fits the VA disability rating of 100% back in 2013, 2014, and 2015." The psychologist opined that the Veteran was totally occupationally and socially impaired due to such symptoms as gross impairment in thought process or communication, persistent delusions or hallucinations, grossly inappropriate behavior, intermittent in ability to perform activities of daily living, and disorientation to time or place. The psychologist did not explain finding total social impairment while also finding that the Veteran was dependent upon his spouse for assistance. In addition, the evidence cited by the psychologist was almost entirely from prior to the period on appeal. During the June 2021 hearing, the Veteran and his spouse testified primarily about the Veteran's symptoms prior to the period on appeal, particularly near the time of his 2013 inpatient hospitalization. With regard to current symptoms, the Veteran's spouse testified that the Veteran "is often not present" and is instead "somewhere else in his mind," requiring people to repeat statements to him. She also testified that the only people who visit their home are "the yard man, the pest control man, and [their] children, you know, and grandchildren." The Veteran testified that he tries to stay away from his children and grandchildren when "mentally not feeling too sure of [himself]" but "other than that," "it's love and support." He also testified that they "come over sometimes" and his spouse added that, if the Veteran is "not having a good day," "they'll kind of, stay away from him." Based on the evidence described above, the Board does not find the criteria for a 100 percent evaluation are more nearly approximated by the Veteran's symptoms at any point during the period on appeal. The record contains evidence of gross impairment in thought process or communication, persistent delusions or hallucinations, grossly inappropriate behavior, intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene, disorientation to time or place, and possibly danger of harm to himself or others. Self-harm is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). The frequency and severity of his ideation, noted on one occasion without intent or plan, is not such that he has been shown to be a persistent danger to himself or that he is totally socially and totally occupationally impaired. In addition, as stated above, the evidence for most of these symptoms during the period on appeal consists of a June 2021 private medical opinion that primarily relied on evidence from prior to the period on appeal. Furthermore, even the constant presence of some symptoms listed in the criteria for a 100 percent rating would be insufficient because the overall guiding criterion for a 100 percent rating is that both total occupational and total social impairment be present. 38 C.F.R. § 4.130; see, e.g., Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). In this case, the Veteran's symptoms have not been shown to be so severe that he has both total occupational and total social impairment. The Board acknowledges that VA has found the Veteran to be unemployable due to his service-connected disabilities. However, total social impairment is not shown. "Total" is defined as "whole, not divided; full; complete," and "utter, absolute." Black's Law Dictionary, 1498 (7th ed. 1999). The Veteran has been able to maintain some personal relationships, specifically with his spouse, children, and grandchildren. The Board acknowledges that these relationships are sometimes strained or distant, but that is reflected in the current 70 percent rating for "deficiencies in most areas," the criteria for which include inability to establish and maintain effective relationships. As stated above, the June 2021 private psychologist found total social impairment, but did not attempt to reconcile this finding with the existence of these relationships. Because the Veteran is not totally socially impaired, a 100 percent rating is not warranted. In the July 2016 NOD, the Veteran's attorney contended that a 100 percent rating is warranted because SSA found the Veteran incompetent to handle his benefits. This does not warrant a 100 percent rating because it does not establish total social impairment. The Board also notes that many of the Veteran's reported symptoms throughout the period on appeal are included among those specifically listed in the General Rating Formula for Mental Disorders, pursuant to which a 70 percent disability rating has been assigned. See 38 C.F.R. § 4.130. Importantly, the Board notes that symptoms noted in the rating schedule are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular disability rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). In other words, symptoms comparable to those listed in the General Rating Formula could be considered in evaluating the Veteran's extent of occupational and social impairment. Accordingly, in this case, the Board finds that the existence and severity of the Veteran's psychiatric symptoms are adequately contemplated by the 70 percent rating criteria. As noted above, many of the symptoms are specifically listed in the General Rating Formula for Mental Disorders, and the others are common psychiatric symptoms that-while not specifically listed-are comparable indicators of the type of occupational and social impairment contemplated in the Rating Formula. The Veteran's service personnel records note duty as a combat medic. The Veteran is therefore competent to provide a medical opinion because he is not a layperson. However, to the extent that the Veteran's statements can be construed as a medical opinion that he is totally socially impaired, the probative value of that opinion is outweighed by that of his testimony regarding his existing relationships with his spouse, children, and grandchildren. The Board has also considered the lay assertions of the Veteran's spouse regarding his symptoms, which she is competent to provide. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The lay evidence is also credible. The symptoms described in those lay statements comport with the 70 percent rating that has now been assigned. However, these lay statements do not provide any basis upon which to assign a higher rating because they do not reflect total social impairment. In sum, the Board finds that the Veteran's impairment due to PTSD, MDD, and GAD has been most consistent with a 70 percent disability rating throughout the period on appeal. 4. SMC Aid and Attendance Generally, with respect to claims of entitlement to SMC based on the need for the regular aid and attendance of another person, such claims will be granted when a veteran, due to a service-connected disability, has 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 be in need of regular aid and attendance. See 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). The record does not reflect that the Veteran has the anatomical loss or loss of both feet or one hand and one foot or is blind in both eyes, nor does he so contend. See 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). Thus, the question is whether he is permanently bedridden or so helpless as to be in need of regular attendance due to his service-connected disabilities. Determinations as to the need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to the following: inability of a veteran 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 of a veteran to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect a veteran from the hazards or dangers inherent in his daily environment. 38 C.F.R. § 3.352(a). It is not required that all of the disabling conditions listed above 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 be a constant need. Id. The Veteran has submitted a June 2021 medical opinion by a private psychologist, who opined that the Veteran's "severe PTSD with associated cognitive impairments and memory loss render the Veteran unable to manage his finances, unable to manage his medication, and unable to maintain personal hygiene without the regular aid of others." The psychologist further opined that "[w]ithout this aid, the Veteran would require institutional care." (Continued on the next page) The June 2021 private opinion is favorable to the Veteran's claim and the record contains no medical opinion to the contrary. There is competent, credible evidence that the Veteran's mental incapacity requires care or assistance on a regular basis to manage his finances, medications, and personal hygiene and that he therefore regularly needs the assistance of another person. As noted above, it is not necessary that all of the factors enumerated in 38 C.F.R. § 3.352 (a) be present in order for the claim to be granted. Resolving reasonable doubt in favor of the Veteran, the claim of entitlement to SMC based on the need for aid and attendance of another person is granted. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ryan Frank, 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.