Citation Nr: 21007225 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 20-09 184 DATE: February 9, 2021 ORDER The appeal to establish clear and unmistakable error (CUE) in the November 2015 rating decision that denied service connection for an acquired psychiatric disorder, is dismissed without prejudice. Entitlement to service connection for the residuals of a subarachnoid hemorrhage (brain aneurysm), claimed as chronic traumatic encephalopathy and deterioration of the brain, is denied. Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C. § 1151 for additional disability due to surgery for a brain aneurysm in December 1988 and post-operative care by the Department of Veterans Affairs (VA) is denied. Entitlement to special monthly compensation (SMC) based on housebound status or the need for regular aid and attendance is denied. FINDINGS OF FACT 1. The November 2015 rating decision that denied service connection for an acquired psychiatric disorder is not a final decision. 2. A subarachnoid hemorrhage (brain aneurysm) was not manifest in service or within one year of separation and is otherwise unrelated to service. 3. Additional disability, including encephalopathy, was not the result of carelessness, negligence, lack of proper skill, error in judgment, or other instance of fault on the part of VA, nor was it due to an event not reasonably foreseeable. 4. The Veteran does not require regular aid and attendance nor is he factually housebound due to service-connected disability; the Veteran does not have a single, permanent service-connected disability rated 100 percent disabling, with additional service-connected disability or disabilities independently ratable at 60 percent. CONCLUSIONS OF LAW 1. Because the November 2015 decision denying service connection for a psychiatric disorder is not final, the Veteran’s motion based on clear and unmistakable error must be dismissed without prejudice. 38 C.F.R. § 3.105(a). 2. A subarachnoid hemorrhage (brain aneurysm) was not incurred in or aggravated by service and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112. 1113, 1137; 38 C.F.R. § §§ 3.303, 3.307, 3.309. 3. The criteria for entitlement to compensation under 38 U.S.C. § 1151 for additional disability following a brain aneurysm have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361. 4. The criteria for SMC for aid and attendance and housebound benefits have not been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1964 to September 1968. These matters come to the Board of Veterans’ Appeals (Board) on appeal from November 2015 and December 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a September 2020 virtual hearing. A transcript of the proceeding is of record. In a pre-hearing conference, the undersigned VLJ clarified the issues on appeal and inquired as to whether there is additional evidence to be submitted. The VLJ also explained the concept of service connection claims, special monthly compensation, claims for additional disability under 38 U.S.C. § 1151, and clear and unmistakable error. Testimony on the elements necessary to substantiate the appeal was elicited. These actions complied with any duties owed during a hearing. 38 C.F.R. § 3.103. 1. Clear and Unmistakable Error (CUE) in the November 18, 2015 rating decision. The Veteran contends that VA committed clear and unmistakable error (CUE) in the November 18, 2015 rating decision when service connection for a psychiatric disorder was denied. After reviewing the record, the Board must dismiss the motion for CUE because the November 18, 2015 decision that denied service connection for a psychiatric disorder is not a final decision as defined by applicable law and regulation. Under 38 C.F.R. § 3.105 (a), CUE that requires revision of a prior final rating action exists only where it appears “undebatably” that “[e]ither the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied.” Russell v. Principi, 3 Vet. App. 310, 313 (1992). A determination that there was CUE must be based on the record and the law that existed at the time of the prior unappealed rating decision. Id. at 314. Here, the Veteran filed a claim for service connection for an acquired psychiatric disorder in November 2011. He claimed the disability as anxiety as secondary to hearing loss and tinnitus. The Regional Office (RO) denied service connection for depression and anxiety, to include as secondary to a service-connected disease or injury, in a June 2012 rating decision. The Veteran was informed of this decision in a letter dated June 26, 2012. VA received no appeal or new and material evidence within a year and this decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 19.52, 20.201, 20.1103. In September 2013 the Veteran filed to reopen the claim for service connection for a psychiatric disorder. The RO denied the claim to reopen in an April 2014 rating decision, finding that no new and material evidence had been submitted. The Veteran was informed of this decision in a letter dated April 4, 2014. VA received no appeal or new and material evidence within a year and this decision became final. In July 2015 the Veteran filed to reopen the claim for service connection for an acquired psychiatric disorder. The RO denied the claim in the November 18, 2015 rating decision. The Board notes that the RO did not address whether new and material evidence had been received. The Veteran was notified of this decision in a letter dated November 23, 2015. In February 2016 he filed a timely Notice of Disagreement for the denial of service connection for a psychiatric disorder as secondary to his service-connected hearing loss and tinnitus. Thereafter, in April 2019 the Veteran’s then-attorney filed a motion arguing that the November 18, 2015 decision denying service connection for an acquired psychiatric disorder constituted clear and unmistakable error (CUE). Notably, the Veteran’s attorney did not argue that the June 2012 or September 2013 rating decisions denying service connection for a psychiatric disorder and declining to reopen the claim constituted CUE. His arguments centered entirely on the November 18, 2015 decision. In February 2020 the RO issued a Statement of the Case (SOC) and determined that the November 2015 rating decision was not clearly and unmistakably in error for failing to establish entitlement to service connection for an acquired psychiatric disorder. The February 2020 SOC characterized the issue as whether the rating decision dated November 18, 2015, was clearly and unmistakably in error for failure to establish entitlement to service connection for depression and anxiety. The Veteran filed a VA Form 9 in February 2020, appealing among other issues the RO’s determination that the November 2015 rating decision did not constitute CUE. Here, the November 18, 2015 decision denying service connection for an acquired psychiatric disorder is not final. 38 C.F.R. § 3.105(a)(1) states that “[d]ecisions are final when the underlying claim is finally adjudicated as provided in § 3.160 (d).” Under section 3.160 (d), a legacy claim that is adjudicated by VA is considered finally adjudicated when the period in which to file a Notice of Disagreement expires or the claim is disposed on appellate review, whichever occurs first. See 38 C.F.R. § 3.160 (d)(1). Generally, a claimant must file a NOD with a determination by the agency of original jurisdiction within one year from the date that that agency mails notice of the determination to him or her. Otherwise, that determination will become final. See 38 C.F.R. § 19.52 (a). Service connection was denied for a psychiatric disorder in the November 18, 2015 rating decision. The Veteran filed a timely NOD disagreeing with that decision in February 2016, within a year of receiving notice of the decision. His February 2016 NOD refers specifically to the RO’s denial of service connection for a psychiatric disorder. No SOC has been issued relating specifically to the Veteran’s claim for service-connection for an acquired psychiatric disorder; the February 2020 SOC refers only to the Veteran’s CUE motion. There has been no other appellate decision on the issue. In sum, the November 18, 2015 decision is not a final decision subject to revision by appellate authority under 38 C.F.R. § 3.105. The Veteran filed a timely NOD for that decision in February 2016, no SOC has been issued addressing the issue of entitlement to service connection for a psychiatric disorder, and no appellate decision has otherwise been made. As the decision is not final as to the BVA, there cannot be a valid motion for CUE (in regard to the BVA). Accordingly, the appeal is dismissed without prejudice to the Veteran. The Board also notes that we do not have jurisdiction over the Veteran’s claim for service connection for an acquired psychiatric disorder. As explained above, in February 2016 the Veteran filed a NOD disagreeing with the November 18, 2015 rating decision denying service connection for a psychiatric disorder. The RO issued a SOC in February 2020 finding that the November 18, 2015 decision did not constitute CUE. However, no SOC has been issued for the denial of service connection for an acquired psychiatric disorder. The February 2020 SOC makes clear that the RO only considered the Veteran’s CUE motion. The Veteran’s Form 9 refers to the February 2020 determination relating to CUE. Furthermore, at the September 2020 prehearing conference, the undersigned VLJ clarified that clear and unmistakable error in a prior denial of service connection for a psychiatric disorder was on appeal rather than the claim for service connection itself. As such, the issue of entitlement to service connection for an acquired psychiatric disorder is not on appeal and is currently before the Board. The issue is referred to the Agency of Original Jurisdiction for appropriate action, if any. See 38 C.F.R. § 20.904 2. Entitlement to service connection for a subarachnoid hemorrhage (brain aneurysm) and the residuals thereof, claimed as chronic traumatic encephalopathy and deterioration of the brain. The Veteran seeks service connection for the residuals of a subarachnoid hemorrhage (brain aneurysm) he suffered in 1988, claimed variably as chronic traumatic encephalopathy (CTE) and as deterioration of the brain. After reviewing the evidence, the Board concludes that service connection for a brain aneurysm or any residuals thereof is not warranted on any basis. Legal Criteria Veterans are entitled to compensation if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service). To establish entitlement to service-connected compensation benefits, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service the so-called ‘nexus’ requirement.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Brain hemorrhages are identified as a “chronic disease” under 38 U.S.C. § 1101 and 38 C.F.R. § 3.309 (a). Service connection may be established for a brain hemorrhage if manifest to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (a). “For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.” 38 C.F.R. § 3.303 (b). Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (a). Any increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice connected disease or injury will be service connected. 38 C.F.R. § 3.310 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary 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 evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis The Veteran’s service treatment records do not show any relevant symptoms, complaints, or treatments related to any subarachnoid hemorrhage, brain aneurysm, or any other relevant disease or injury. The September 1968 separation examination shows that the head, face, neck, neurological, and vascular system were clinically normal. A blood clot was noted as being removed from the Veteran’s left knee in 1963 with no complications or sequelae. The Veteran’s sitting blood pressure was reported at 118/72 and was not indicated to be abnormal. Post-service VA treatment records show the Veteran had a right posterior communicating artery brain aneurysm in 1988. He underwent surgery for the subarachnoid hemorrhage on December 4, 1988. A craniotomy and left ventriculostomy surgery on December 4, 1988. A May 22, 1989 VA treatment record shows that the Veteran was hospitalized from December 2, 1988 to December 20, 1988 with diagnoses of subarachnoid hemorrhage secondary to rupture of aneurysm of the right posterior communicating artery, potential third nerve palsy secondary to the aneurysm, hypertension, cocaine dependence, and acute blood loss anemia. The surgical procedures were a craniotomy with clipping of the aneurysm and a ventriculostomy. June 1989 followup notes state that the Veteran seemed to be doing well physically but was still depressed and his memory problems continued. A September 2011 VA CT scan of the brain showed chronic encephalomalacia in the left frontal and right frontotemporal regions. He was assessed with chronic tension headaches, depression, tinnitus, and pseudodementia likely secondary to depression. The VA physician declined to relate his cerebral aneurysm to military service or depression. A January 2012 CT scan is noted as showing inferior right frontal, anterior right temporal, and left anterior frontal lobe chronic encephalomalacia. The Veteran reported short term memory loss at a July 2015 VA neurology appointment that had begun 7 months prior and daily headaches that had been occurring since his 1988 surgery. A CT scan was performed due to the memory loss and headaches. The scan showed right frontotemporal craniotomy changes with aneurysm clip in the right MCA. There was a left frontal burr hole with focal underlying encephalomalacia, mild periventricular microangiopathic changes, and mild generalized brain atrophy. At an August 2015 VA neuropsychology appointment, the Veteran reported a marked decline in his memory following his 1988 surgery, and that his memory gradually improved over time but did not go back to his pre-surgical baseline. He complained that his memory had continued to decline in recent years again. In October 2015 he reported that he feels something wrong happened after his 1988 aneurysm surgery during post-operative anesthesia management, and that he feels like he had chronic traumatic encephalopathy (CTE) after watching documentaries. The Veteran was provided a VA Examination for central nervous system and neuromuscular diseases in July 2019. The examiner diagnosed cerebral aneurysm rupture status post craniotomy and clipping with scar. The date of diagnosis was 1988. The Veteran reported that he has never been the same since the aneurysm and reported poor memory and double vision, and that the incident has affected his whole life. The examiner also concluded that there was no objective evidence to support a diagnosis of chronic traumatic encephalopathy or deterioration of the brain. The Veteran has testified that his brain aneurysm was related in-service stress and anxiety or, in the alternative, is related to his service-connected hearing loss and tinnitus. See September 2020 Board Hearing Transcript. After reviewing the evidence, the Board concludes that service connection is not warranted for a brain hemorrhage, brain aneurysm, or any residuals thereof. The evidence is clear that the Veteran’s brain aneurysm occurred in 1988. There is no evidence in the service treatment records of any brain hemorrhage, aneurysms, or of any related symptoms, diseases, or injuries. Rather, the relevant systems were normal; at separation. No brain hemorrhage manifested within one year of separation. Finally, there is no competent evidence that the brain aneurysm and any residuals thereof are related to his service-connected disease or injury. The Board has considered the lay statements of record. The Veteran is competent to report his observations and relate what he was told by medical professionals. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Here, to the extent the Veteran contends that his brain aneurysm is attributable to an in-service disease or injury, or is related to his service-connected disabilities, the Board finds the contemporaneous medical records far more probative than any of the Veteran’s assertions. Here, the medical evidence clearly shows the Veteran’s aneurysm occurred in December 1988, over twenty years after he separated from service. The service treatment records are absent any complaints or indications of any relevant disease or injury. There is no indication that the Veteran is relating any information that he was told by medical professionals, nor has he asserted that a medical professional told him that his aneurysm and the associated residuals are related to service or his service-connected disabilities. The medical record is silent as to any medical professional indicating as such. Indeed, the only documented opinion appears to be contained in a September 2011 VA CT scan report, wherein the treating physician declined to relate his cerebral aneurysm to military service. Furthermore, the Veteran is not competent to address the etiological questions at issue in this claim. While the Veteran is competent to testify as to his personal experiences, he is not competent to opine as to a relationship between his brain aneurysm, the current residuals thereof, and either his service or his service-connected hearing loss and tinnitus. Making such a connection would require specialized education, training, or experience that the Veteran does not possess. See 38 C.F.R. § 3.159 (a)(2); see also Jandreau, 492 F.3d at 1377. Therefore, his statements as to nexus are not probative. In addition, chronic disease (brain hemorrhage) was not “noted” during service or within one year of separation within the meaning of section 3.303 (b). While the Board notes the Veteran’s assertion that in-service stress contributed to his brain aneurysm, we find that the service treatment records do not show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Rather, the head, vascular, and neurological system were normal at separation. Furthermore, the evidence does not establish that brain hemorrhage was manifest to a compensable degree within one year of separation. Instead, the subarachnoid hemorrhage/brain aneurysm occurred in 1988, over twenty years after separation. 38 C.F.R. §§ 3.307; 3.309. There is no reliable evidence linking the Veteran’s claimed brain disorder and aneurysm to service or his service-connected disabilities. The contemporaneous records establish that there were no documented manifestations of such a disorder in service. The head, neurological, and vascular systems were physically normal upon separation. There were no manifestations of brain hemorrhage or aneurysm within one year of separation. The brain hemorrhage manifested in December 1988, many years after separation. The only evidence supporting a relationship between the Veteran’s service-connected hearing disabilities and his brain aneurysm are his own lay assertions, and he is not competent to offer such a nexus opinion. The Board acknowledges the conflicting evidence regarding whether the Veteran has chronic traumatic encephalopathy (CTE). VA CT scans show chronic encephalopathy. VA examiners have determined the Veteran does not have CTE. At least one of his private physicians has reported a diagnosis of CTE. However, whether the Veteran currently has CTE is not dispositive of the issue at hand. The evidence of record shows that the Veteran’s current brain disorders, to include encephalopathy, originate from the December 1988 brain aneurysm. There is no evidence that the aneurysm, or any resulting residuals, were caused by an in-service disease or injury, manifested within one year of separation from service, or are related to the Veteran’s service-connected hearing loss and tinnitus. For the foregoing reasons, the claim of entitlement to service connection for the residuals of a brain aneurysm must be denied. The evidence does not show any relationship between the Veteran’s brain aneurysm, the current residuals thereof, and his service. There is no probative evidence that his aneurysm or any residuals are proximately due to or the result of a service-connected disease or injury, or that any increase in the severity of his disorders is proximately due to or the result of a service-connected disease or injury. The brain aneurysm was not manifest within an applicable presumptive period. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). In reaching this conclusion, the Board acknowledges that no VA medical opinions were obtained in relation to this claim. However, no VA nexus opinion is necessary for the adjudication of the claim. VA’s duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to decide a claim. C.F.R. § 3.159 (c)(4). In in determining whether the duty to assist requires that a VA medical examination be provided, there are four factors for consideration: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran’s service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, there is no evidence of record with respect to the existence of any brain hemorrhage, aneurysm, or any related disease or injury during service or within one year of separation from service. There is no competent, credible evidence of an association between the Veteran’s service-connected hearing disabilities and his aneurysm. Further, there is sufficient competent medical evidence of record to adjudicate the claim. The Veteran’s conclusory lay statements are not sufficient to trigger VA’s duty to provide a medical examination. Waters v. Shinseki, 601 F.3d 1274, 1278-79 (2010). Absent such evidence, the Board finds that it is unnecessary to require a medical expert to review the record because any medical opinion could not provide competent evidence of the incurrence of the claimed disability in service. 3. Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C. § 1151 for additional disability manifested by residuals of a brain aneurysm. The Veteran seeks compensation benefits under 38 U.S.C. § 1151 for additional disability incurred following the December 1988 brain aneurysm. He contends that he was given too much anesthesia during the surgery which resulted in additional disability, and that he was over-prescribed certain medications by VA that resulted in additional disability. He also generally contends that VA lost his medical records relating to the aneurysm, resulting in inadequate VA treatment following the aneurysm, which thereby resulted in additional disability. See, e.g., September 2020 Board Hearing Transcript. The law provides that compensation may be paid for a qualifying additional disability that is 1) not the result of the Veteran’s willful misconduct; 2) was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by VA either by a VA employee or in a VA facility; and 3) the proximate cause of the disability was A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination or (B) an event not reasonably foreseeable. 38 U.S.C. § 1151. VA regulations provide that benefits under 38 U.S.C. § 1151 (a) for claims received by VA on or after October 1, 1997 for additional disability due to hospital care, medical or surgical treatment, examination, require actual causation not the result of continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished, unless VA’s failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361. If additional disability is shown to exist, the next consideration is whether the causation requirements for a valid claim have been met. To establish actual causation, the evidence must show that the medical or surgical treatment rendered resulted in the Veteran’s additional disability. 38 C.F.R. § 3.361 (c)(1). In addition, the proximate cause of the disability claimed must be the event that directly caused it, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361 (d). It must be shown that the hospital care, medical or surgical treatment, or examination caused the Veteran’s additional disability, and that VA failed to exercise the degree of care that would be expected of a reasonable health care provider or that VA furnished the hospital care, medical or surgical treatment, or examination without the informed consent of the Veteran or the Veteran’s representative. To establish the proximate cause of an additional disability or death, it must be shown that there was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing hospital care, medical or surgical treatment, or examination. Whether the proximate cause of a Veteran’s additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361 (d). VA treatment records show the Veteran was hospitalized on December 3, 1988 after a right posterior communicating artery aneurysm. He underwent surgery for the subarachnoid hemorrhage on December 4, 1988. A craniotomy and left ventriculostomy surgery performed on December 4, 1988. The Board notes that the operation report is incomplete, and that the records from the Veteran’s initial hospitalization generally do not appear to be complete. A January 1989 VA ophthalmology consultation sheet shows the Veteran was status-post subarachnoid hemorrhage and clamping of the right communicating artery aneurysm. The record notes complete third nerve palsy and requested an evaluation for a corrective surgery. A May 8, 1989 physician’s note shows the Veteran complained of depression and memory deficit after intercranial bleeding in December 1988. At the time, the medical records pertaining to the Veteran’s hospitalization and surgery were unavailable. The Veteran reported diplopia which had mostly cleared up, pain in his right eye, and a toothache on the right side. The treating physician assessed the Veteran with dysthymic disorder secondary to serious neurological problems (i.e. intracranial bleeding). A May 22, 1989 VA treatment record shows that the Veteran’s medical records were obtained and that he was hospitalized from December 2, 1988 to December 20, 1988 with diagnoses of subarachnoid hemorrhage secondary to rupture of aneurysm of the right posterior communicating artery, potential third nerve palsy secondary to the aneurysm, hypertension, cocaine dependence, and acute blood loss anemia. The surgical procedures were a craniotomy with clipping of the aneurysm and a ventriculostomy. June 1989 followup notes state that the Veteran seemed to be doing well physically but was still depressed and his memory problems continued. An August 1989 letter from one of the Veteran’s VA physicians indicates the Veteran was followed by VA neurosurgery clinic and was status-post craniotomy for clipping of a right posterior communicating aneurysm. The physician noted that the Veteran has done well with surgery and has almost no residuals except for a vision defect in his right eye. The physician noted that the Veteran was “clear” from a neurosurgical standpoint to return to light duties. The Veteran had a followup with VA neurosurgery in March 1990 where he denied problems except for headaches when his blood pressure goes up. No neurological deficits were noted, and the treating physician stated the Veteran was doing well except for his hypertension. He reported memory problems in a July 1990 followup appointment, which the treating physician suspected was due to brain damage. Fourth cranial nerve palsy was noted in a February 1991 followup, and the Veteran reported no problems except that his hypertension medications made him sick. March 1993 VA neurosurgery followup notes show a “nerve problem” and that the Veteran’s memory was coming back. The Veteran had a VA psychiatry appointment in July 2000 VA where he reported a brain aneurysm in December 1988 and that he did not think his memory problems had interfered with his living as a truck driver. He was assessed with major depression, post cerebral aneurysm. An addendum note shows complaints of headaches, dizziness, nausea, and anxiety. A March 2009 VA gastroenterology consultation shows the Veteran reported a history of a brain aneurysm and surgery 20 years prior. In July 2009 he complained that he could not focus with his right eye, that he had double vision with looking up, and had fourth nerve paresis due to the aneurysm in 1988. A September 2011 VA CT scan of the brain showed chronic encephalomalacia in the left frontal and right frontotemporal regions. He was assessed with chronic tension headaches, depression, tinnitus, and pseudodementia likely secondary to depression. The treating VA physician declined to relate his cerebral aneurysm to military service or depression. A January 2012 CT scan is noted as showing inferior right frontal, anterior right temporal, and left anterior frontal lobe chronic encephalomalacia. The Veteran reported short term memory loss at a July 2015 VA neurology appointment that had begun 7 months prior and daily headaches that had been occurring since his 1988 surgery. A CT scan was performed due to the memory loss and headaches. The scan showed right frontotemporal craniotomy changes with aneurysm clip in the right MCA. There was a left frontal burr hole with focal underlying encephalomalacia, mild periventricular microangiopathic changes, and mild generalized brain atrophy. At an August 2015 VA neuropsychology appointment, the Veteran reported a marked decline in his memory following his 1988 surgery, and that his memory gradually improved over time but did not go back to his pre-surgical baseline. He complained that his memory had continued to decline in recent years again. In October 2015 he reported that he feels something wrong happened after his 1988 aneurysm surgery during post-operative anesthesia management, and that he feels like he had chronic traumatic encephalopathy (CTE) after watching sports documentaries. In September 2016 the Veteran was provided a VA examination. The examiner diagnosed the Veteran as status-post cerebral aneurysm rupture and status-post craniotomy to clip aneurysm, and residual static encephalopathy. Multiple negative opinions were provided. The examiner concluded that it was less likely than not that the Veteran’s surgery for cerebral aneurysm/cerebral vascular accident (CVA) in 1988 with chronic traumatic encephalopathy was caused by or became worse as a result of the VA treatment; that it is less likely than not that that additional disability resulted from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel; that it is less likely than not that additional disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider; and that it is less likely than not that failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability allowed the disease or disability to continue to progress. In support of these negative opinions, the September 2016 examiner stated that the Veteran’s static encephalopathy is typical of the type of CVA that aneurysmal ruptures cause due to vasoconstriction caused by the hemorrhage in and/or around the brain matter. It is not uncommon for patients to have stroke symptoms following an aneurysmal bleed. The Veteran’s residual symptoms would most certainly have been much worse without surgery, if he had survived without surgery, which is unlikely. See September 2016 VA Medical Opinion. In July 2019 the Regional Office requested another opinion for the Veteran’s section 1151 claim because relevant VA Medical Center treatment records were not available at the time of the September 2016 opinion. These VA treatment records had since been associated with the claims file. A new VA examination and opinion were provided in July 2019. The examiner diagnosed the Veteran with a cerebral aneurysm rupture status-post craniotomy and clipping with scar. The Veteran reported poor memory, that the aneurysm affected his whole life, and that he had double vision. The examiner remarked that it appeared the Veteran’s disabilities are a result of the ruptured aneurysm itself, rather than due to the surgery and repair. The examiner noted that cerebral aneurysm is a significant CNS event which can result in damage to the brain, that the Veteran has poor memory, judgment, difficulties with concentration and decision making, trouble following directions, and gets lost easily. These changes can be seen in individuals with ruptured aneurysms. The examiner opined that the Veteran did not sustain additional disability or injury as a result of his treatment by the VA Medical Center, or additional disability or injury which was not reasonably foreseeable. The examiner the Veteran allegations that he sustained additional injury at the VA from his cerebral aneurysm treatment in 1988. Medical records reveal that 12/5/1988 the Veteran was found to have a right-sided posterior communicating artery aneurysm and underwent clipping of the posterior communicating artery aneurysm. 48 hours later the ventriculostomy was removed and the Veteran demonstrated no indication of communicating hydrocephalus. There is no evidence of adverse outcome from the procedure, nor is there evidence of any unexpected abnormal residual outcome. Consequently, there are no grounds to suggest that the condition was caused by, or became worse due to VA treatment, that additional disability resulted from carelessness, negligence, lack of skill, etc., or that additional disability resulted from an event that could have been foreseen by a reasonable healthcare provider, or that there was failure on the part of the VA to treat the claimed disease or allowed it to progress. The Veteran testified before the undersigned VLJ at a September 2020 Board hearing. Regarding his claim under section 1151, the Veteran contended that his medical records were lost and that he had not been treated properly by VA following his aneurysm. He also reported that he was misdiagnosed by VA doctors and that VA had no record of his traumatic brain injury for 30 years thereafter. After a review of all the lay and medical evidence, the Board finds the preponderance of the evidence is against a finding of entitlement to compensation for additional disability pursuant to 38 U.S.C. § 1151. For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). “It is the factually accurate, fully articulated, sound reasoning for the conclusion . . . that contributes probative value to a medical opinion.” Id. at 304. A medical opinion that is factually accurate, fully articulated, and based on sound reasoning carries significant weight. Here, the Board finds the September 2016 to be of lessened probative value. The examiner provided the opinions after a review of the Veteran’s medical history and supported the conclusions with a thorough rationale. Furthermore, the examiner interviewed and examined the Veteran prior to offering the opinions. However, as the Regional Office noted, the Veteran provided relevant VA treatment records following the September 2016 examination and opinion. Thus, the September 2016 opinion was based on an incomplete record, and is of lessened probative value. The Board accepts the July 2019 VA nexus opinions as highly probative medical evidence. The examiner rendered the opinion after thoroughly reviewing the claims file and relevant medical records. Unlike the September 2016 examiner, the July 2019 examiner based his opinions on a review of the full claims file, including the medical records the Veteran provided. The examiner noted the Veteran’s pertinent history and provided a reasoned analysis of the case. The opinion is also supported by the medical evidence of record. The July 2019 VA medical opinion is supported by explanations based on the examiner’s medical knowledge, medical literature, and review of the Veteran’s record. The Veteran has not submitted any additional medical evidence or opinion from another medical professional indicating that VA was careless, negligent, lacked proper skill, erred in judgment, or had other fault that ultimately resulted in the Veteran having an additional disability following his 1988 brain aneurysm. The Board has no reason to doubt the competency or the veracity of the VA medical opinions. The assessments are uncontroverted by another medical opinion of record. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wray v. Brown, 7 Vet. App. 488 (1995). Thus, the only probative opinions of record weigh against the claim. The record contains no reliable evidence which tends to substantiate the Veteran’s contentions that he suffered additional disability due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing the medical or surgical treatment, or that the residuals were not reasonably foreseeable. Rather, the evidence demonstrates that the Veteran underwent surgery for a brain aneurysm in December 1988 that left him with memory problems, headaches, and eventually chronic encephalomalacia. The July 2019 VA medical opinion is the most probative opinion of record. The examiner indicated that cerebral aneurysm is a significant central nervous system event that can result in damage to the brain, noted that the Veteran has poor memory, judgment, difficulties with concentration and decision making, trouble following directions, and gets lost easily. Furthermore, the examiner noted that these changes can be seen in individuals with ruptured aneurysms. The examiner concluded that there was no evidence of an adverse outcome from the procedure, there was no evidence of any unexpected abnormal residual outcome, and that there were no grounds to suggest that the Veteran’s condition was caused by, or became worse due to VA treatment, that additional disability resulted from carelessness, negligence, lack of skill, etc., or that additional disability resulted from an event that could have been foreseen by a reasonable healthcare provider, or that there was failure on the part of the VA to treat the claimed disease or allowed it to progress. That the Veteran has continuing residuals following his December 1988 aneurysm surgery does not, in and of itself, establish carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault of VA in providing treatment. The Board has considered the Veteran’s various written statements and hearing testimony that VA was negligent in providing surgical and followup treatment. However, little probative, reliable evidence has been presented that supports the Veteran’s contentions. Though the Veteran is competent to provide lay testimony regarding his observations, he does not have the medical expertise necessary to address the medical issue of whether he received inadequate medical care that resulted in a worsening of the residuals of his brain aneurysm and ultimately additional disability in the form of his current condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. In expressing an opinion as to cause and negligence, the Veteran is not reporting readily apparent symptoms, nor is he reporting a contemporaneous medical diagnosis or describing symptoms that were later diagnosed by a medical professional. See Jandreau, 492 F.3d at 1377. Furthermore, the present case involves questions of alleged anesthesia complications, improper prescriptions, and improper treatment of the Veteran’s condition. The Veteran has not demonstrated that he has knowledge of the acceptable medical practices in treating his cerebral aneurysm and follow-up care such that his statements would be competent, nor has he indicated that the failure in the standard of care was such that it would be readily apparent to a layperson. The Veteran’s own medical opinions are outweighed by the reasoned, comprehensive, and neutral medical evidence contained in the VA medical opinions of record, which concluded that the Veteran did not sustain additional disability or injury as a result of his treatment by the VA Medical Center, or additional disability or injury which was not reasonably foreseeable. Furthermore, his assertions are broadly unsupported by the available VA and private medical records. There is no indication of any anesthetic complication during his December 1988 brain aneurysm surgery, or that he was improperly prescribed medications by VA following his aneurysm. Further, there is no indication that the Veteran’s VA doctors were unaware that he had an aneurysm in 1988. The available treatment records show the Veteran routinely informed his VA healthcare providers the he had an aneurysm in 1988, even where treatment records were documented as having been unavailable. The Board also notes that the Veteran has never argued that he was treated without informed consent. See 38 C.F.R. § 3.361(d)(1)(ii). The regulations regarding informed consent contained in 38 C.F.R. § 17.32 require that the Veteran be informed of the expected benefits, reasonably foreseeable associated risks, complications or side effects, reasonable and available alternatives, and anticipated results if nothing is done, by someone responsible for care or performing the procedure. The December 1988 surgery falls under the exception contained in 38 C.F.R. § 17.32 (c)(7), where practitioners may provide necessary medical care in emergency situations without the express consent of the patient when (i) immediate medical care is necessary to preserve life or prevent serious impairment of the health of the patient, (ii) the patient is unable to consent, and (iii) the practitioner determines that the patient has no surrogate or that waiting to obtain consent from the surrogate would increase the hazard to the life or health of the patient. However, there is no informed consent paperwork available. Furthermore, there is no indication in the record that the Veteran was treated without his informed consent at any time, and he has not contended otherwise. Accordingly, benefits are not warranted on this basis. For the foregoing reasons, the Board concludes that compensation pursuant to 38 U.S.C. § 1151 is not warranted. The claim is denied. 4. Entitlement to special monthly compensation (SMC). Generally, SMC is available when, as the result of service-connected disability, “a veteran suffers additional hardships above and beyond those contemplated by VA's schedule for rating disabilities.” Breniser v. Shinseki, 25 Vet. App. 64, 68 (2011) (citing 38 U.S.C. § 1114 (k)-(s)). The rate of SMC varies according to the nature of the veteran's service-connected disabilities. The basic levels of SMC are set out in section 1114 (k). He contends that he is eligible for SMC based on a need for aid and attendance or, alternatively, being housebound by reason of service-connected disabilities. Currently, he is service connected for bilateral hearing loss and tinnitus, rated 10 percent disabling. A Veteran shall be considered to be in need of regular aid and attendance if they have the anatomical loss or loss of use of both feet, or of one hand and one foot, or is blind in both eyes, with 5/200 visual acuity or less, or are permanently bedridden or have such significant disabilities as to be in need of regular aid and attendance. 38 U.S.C. § 1114 (l); 38 C.F.R. §§ 3.350 (b), 3.352 (a). SMC is payable where a Veteran suffers from a service-connected disability that renders them permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). In determining the need for regular aid and attendance, consideration will be given to the “inability of claimant to dress or undress himself (herself), or to keep himself (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 himself (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.” 38 C.F.R. § 3.352 (a). Although the Veteran need not show all these disabling conditions in order to establish entitlement to aid and attendance, there is a threshold requirement that at least one of the enumerated factors be present. See Turco v. Brown, 9 Vet. App. 222, 224 (1996). It is not required that all the disabling factors be found to exist before a favorable determination is made. The particular personal functions that the 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 the Veteran is so helpless as to need regular aid and attendance, not that there is a constant need. Id. SMC by reason of being housebound is payable if a Veteran has a service-connected disability rated as total and either: (1) has an additional service-connected disability or disabilities independently ratable at 60 percent or more or (2) is permanently housebound by reason of his service-connected disability or disabilities. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). The Veteran is permanently housebound when he is substantially confined to his dwelling and the immediate premises (or, if institutionalized, to his ward or clinical areas) due to service-connected disability or disabilities and it is reasonably certain that the disability or disabilities as well as the resultant confinement will continue or remain throughout his lifetime. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i)(2). Here, the majority of the Veteran’s arguments relating to his eligibility for SMC refer to depression, anxiety, chronic traumatic encephalopathy, and the residuals of his December 1988 brain aneurysm. To the extent that the Veteran argues that any of these diseases and disabilities render him in need of aid and attendance or housebound, service connection has been denied for all those disabilities, and entitlement to SMC based on aid and attendance or housebound status based on these particular disabilities must be denied. The Veteran’s service-connected disabilities of bilateral hearing loss and tinnitus are not rated as total and thus do not qualify him for housebound status under 38 C.F.R. § 3.350 (i)(1). To the extent that the Veteran may be housebound as set forth under 38 C.F.R. § 3.350 (i)(2), the record does not show he is not substantially confined to his dwelling and the immediate premises due to his service-connected disabilities. The record contains a September 2015 VA examination for housebound status or permanent need for regular aid and attendance. Diagnoses included diabetes mellitus, hypertension, COPD and obstructive sleep apnea, chronic headache, short term memory problems, anemia, cervical spondylosis/disc disease, depression, anxiety, and cerebral aneurysm. He was mostly concerned with his memory and finances. He was not confined to bed, was able to feed himself, and could prepare simple meals. He did not need assistance to bathe or tend to other hygiene needs. He was not legally blind, although wore corrective lenses. He did not require nursing home care or medication management and had the ability to manage his finances. He reported going out daily to get a newspaper and that he does his own shopping. He was provided a VA psychiatric examination in August 2016. The examiner diagnosed the Veteran with unspecified dementia and a frontal lobe executive functioning deficit. The examiner noted depressed mood, impairment of short- and long-term memory, impaired judgment and abstract thinking, and disturbances of motivation and mood. The examiner also determined it is not clear if the Veteran can manage his financial affairs. The Veteran had another VA psychiatric examination in June 2019. He was assessed with other specified depressive disorder and an unspecified neurocognitive disorder. The examiner noted that the treatment records suggest that the Veteran may be experiencing cognitive impairment secondary to his 1988 aneurysm. The Veteran complained of depressed mood, anxiety, and disturbances of motivation and mood. The examiner stated that the Veteran’s memory impairment was likely accounted for by a neurocognitive disorder. The examiner also concluded that it was unclear to what extent the Veteran can competently manage his finances independently. Here, the record is replete with reference to the impact the Veteran’s depression, anxiety, brain aneurism, and the residuals of his brain aneurysm cause him. Most of the Veteran’s lay statements of record refer to the impairment caused by these disorders. The Veteran contends that he is entitled to SMC based on the need for aid and attendance, as he claims that he needs assistance with activities of daily living. As the Veteran neither claims nor meets the qualifications of anatomical loss or loss of multiple extremities, the issue is whether the Veteran has “such significant disabilities as to be in need of regular aid and attendance” as a result of his service-connected disabilities. 38 U.S.C. § 1114 (l). However, very little to no of the Veteran’s impairment has been found due to his service-connected bilateral hearing loss and tinnitus. Rather, as shown by the most recent VA examinations, his impairments have been attributed to nonservice-connected neurocognitive disorders. In addition, no qualification for SMC due to blindness or visual impairment applies. 38 U.S.C. § 1114; 38 C.F.R. § 3.350. No SMC is warranted due to service connected disability. 38 U.S.C. § 1114; 38 C.F.R. § 3.350. His service-connected disabilities do not render him housebound. The Board concludes that no service-connected disabilities cause a need for aid and attendance or housebound status. The Veteran’s claim for special monthly compensation is denied. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morse 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.