Citation Nr: 22012120 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 18-46 391 DATE: March 2, 2022 ORDER Entitlement to a temporary total evaluation of 100 percent based on surgical or other treatment necessitating convalescence for a service-connected condition (atrial fibrillation) is dismissed. Entitlement to service connection for irritable bowel syndrome is dismissed. New and material evidence has been received to reopen the claim for entitlement to service connection for a TBI disability, and the claim is reopened. Entitlement to an earlier effective date of May 23, 2013, but no earlier for a 100 percent disability rating for PTSD is granted. Entitlement to a total disability rating based on individual employability (TDIU) is granted. Entitlement to special monthly compensation based on aid and attendance from May 23, 2013, is granted. REMANDED Entitlement to service connection for a traumatic brain injury (TBI) is remanded. FINDINGS OF FACT 1. On May 7, 2021, through the Veteran's authorized representative, and the Veteran's confirmation the Veteran withdrew his claim for entitlement to a temporary total evaluation of 100 percent based on surgical or other treatment necessitating convalescence for a service-connected condition (atrial fibrillation). 2. The November 2019 rating decision granted the Veteran's claim for service connection for an irritable bowel syndrome disability, which is considered a full grant. 3. The November 2009 rating decision denied service connection for a TBI disability; the Veteran did not timely appeal the denial; and new and material evidence was not received as to the issue within the one-year appeal period following issuance of the November 2009 rating decision. 4. Evidence received since the November 2009 rating decision is new and raises a reasonable possibility of substantiating the claim for entitlement to service connection for a TBI disability. 5. In the April 2011 rating decision, the Veteran was awarded service connection for PTSD, that action constitutes a full grant of the Veteran's appeal for entitlement to service connection for a PTSD disability. 6. Resolving reasonable doubt in the Veteran's favor, a 100 percent disability rating is warranted from May 23, 2013, the time the Veteran "filed" his claim for post-traumatic stress disorder (PTSD). 7. The evidence of record shows that the Veteran was unable to secure or follow a substantially gainful occupation. 8. Resolving reasonable doubt in his favor, from May 23, 2013, the Veteran was so helpless as to be in need of regular aid and attendance due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to a temporary total evaluation of 100 percent based on surgical or other treatment necessitating convalescence for a service-connected condition (atrial fibrillation) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of entitlement to an irritable bowel syndrome disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The November 2009 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.302, 20.1103. 4. New and material evidence having been received, the claim for entitlement to service connection for a TBI disability is reopened. 38 U.S.C. §§ 1110, 1131, 5108; 38 C.F.R. § 3.303. 5. The April 2011 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 6. The criteria for entitlement to an earlier effective date from May 23, 2013, for the increase in evaluation of post-traumatic stress disorder (PTSD) to 100 percent disabling have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 4.130, Diagnostic Code 9411. 7. Entitlement to a total disability rating based on individual employability (TDIU) is granted. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 8. The criteria for entitlement to SMC based on the need for regular aid and attendance are met. 38 U.S.C. §§ 1114; 38 C.F.R. §§ 3.102, 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1999 to September 2002 and additional service in the Reserves. This matter is before the Board of Veterans' Appeals (Board) on appeal of the December 2013 and March 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues considered in this decision. 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). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in this decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only those reasons for rejecting evidence favorable to the claimant be addressed). 1. Entitlement to a temporary total evaluation of 100 percent based on surgical or other treatment necessitating convalescence for a service-connected condition (atrial fibrillation). 2. Entitlement to service connection for irritable bowel syndrome The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the Veteran or by his or her authorized representative. Id. In the present case, during the May 2021 Board hearing, the Veteran, through his authorized representative, with the Veteran's confirmation has withdrawn his appeal for a temporary total evaluation of 100 percent based on surgical or other treatment necessitating convalescence for a service-connected atrial fibrillation condition and hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal for a temporary disability rating for the Veteran's service-connected atrial fibrillation condition, and it is dismissed. The Board also notes that a November 2019 rating decision granted the Veteran service connection for an irritable bowel syndrome disability. That action constitutes a full grant of the Veteran's appeal for entitlement to service connection for an irritable bowel syndrome disability. Therefore, that issue is no longer on appeal. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). Reopening Issues In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. An exception to this rule is provided in 38 U.S.C. § 5108, which states that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is existing evidence not previously considered by VA. Material evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the United States Court of Appeals for Veterans Claims (Court) held that the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) to have a finally denied claim reopened under 38 U.S.C. § 5108. The Court has also held that the law should be interpreted as enabling reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The focus is not exclusively on whether evidence remedies the principal reason for denial in the last prior final decision, but on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. Id. at 118. In general, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 3. New and material evidence has been received to reopen the claim for entitlement to service connection for a TBI disability, and the claim is reopened. The Veteran submitted an original claim for entitlement to service connection for a TBI disability in May 2009. In the November 2009 rating decision, the RO denied the Veteran entitlement to service connection for a TBI disability. The RO explained that there was no evidence that the Veteran has a diagnosis of a TBI. The RO notified the Veteran of the decision in a letter dated in November 2009. The notification letter explained to the Veteran his right to appeal the denial. The Veteran did not submit a timely notice of disagreement or new and material evidence as to the denial within the one-year appeal period. As such, the Veteran did not timely appeal the November 2009 rating decision's denial of entitlement to service connection for a TBI disability. See 38 C.F.R. §§ 3.156(b), 20.201, 20.302. The November 2009 rating decision is therefore final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Evidence associated with the record since the final November 2009 rating decision includes a private examination and the Veteran's testimony. See April 2021 private medical opinion, May 2021 Hearing Transcript. This evidence is new in that it was not previously considered by VA. It is also material because the evidence together relates to an unestablished fact necessary to substantiate the claim. See Shade, 24 Vet. App. at 118. Accordingly, the Board finds that new and material evidence has been received to reopen the Veteran's claim for entitlement to service connection for a TBI disability, therefore the claim is reopened. 38 C.F.R. § 3.156(a). 4. Entitlement to an effective date of May 23, 2013, but no earlier for a 100 percent disability rating for PTSD The Veteran seeks an earlier effective date prior to November 5, 2013. The effective date of a rating and award of compensation based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. However, an increased rating may be awarded up to one year prior to receipt of the claim if the evidence shows an increase in disability was factually ascertainable during that period. 38 C.F.R. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). For this purpose, the evidence must show that the increase in disability was sufficient to warrant a higher rating under the rating criteria. Hazan v. Gober, 10 Vet. App. 511, 519 (1992). Thus, determining the proper date for an increased rating requires (1) a determination of the date of the receipt of the claim for the increased rating and (2) a review of all the evidence of record since one year, prior to the date of the claim, to determine when an increase in disability was "factually ascertainable" in terms of meeting or approximating the criteria for a higher rating. See id. at 521. 38 U.S.C. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2) are applicable only where the increase precedes the claim, provided that the claim is received within one year after the increase. Harper v. Brown, 10 Vet. App. 125, 126-27 (1997). The phrase "otherwise, date of receipt of claim" provides the applicable effective date when a factually ascertainable increase occurred more than one year prior to receipt of the claim for increased compensation. Id.; see also VAOPGCPREC 12-98 at 2. Because neither 38 U.S.C. § 5110(b)(2) nor 38 C.F.R. § 3.400(o)(2) refer to the date of the claim as the effective date of an award of increased disability compensation, the effective date for increased disability compensation is the date on which the evidence establishes that a veteran's disability increased, if the claim is received within one year from such date. In determining when an increase is "factually ascertainable," VA should look to the record as a whole, including testimonial evidence and expert medical opinions, to determine when the increase took place. VAOPGCPREC 12-98 at 5. The Veteran submitted a claim for PTSD in May 2009. The RO issued a rating decision denying the Veteran's claim for PTSD in November 2009. The Veteran submitted a notice of disagreement in June 2010. In January 2011, the RO issued a statement of the case (SOC). The Veteran submitted a letter requesting more time to get evidence and indicated that he disagreed with the statement of the case. While the Veteran did not actually file a proper Form 9, VA responded to a Congressional inquiry in February 2011, indicating that VA accepted the letter received by the Veteran as a true Form 9. Then in the April 2011 rating decision, the RO awarded the Veteran service connection for PTSD, and granted him a 50 percent disability rating, effective May 19, 2009. That action constitutes a full grant of the Veteran's appeal for entitlement to service connection for a PTSD disability. Therefore, that issue is no longer on appeal. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). The Veteran's representative contends that on September 23, 2011, the response VA gave to a congressional inquiry, that stated, "This letter is in regard to your appeal for entitlement to service connection for post-traumatic stress disorder, any mental condition to include anxiety disorder, gastroesophageal reflux disease, atrial fibrillation, traumatic brain injury, and broken ribs." The Congressional Correspondence received in the Regional Office on February 15, 2011, has been accepted as your formal appeal in lieu of the VA Form 9 appeal." The representative contends that this letter indicates that there is ongoing adjudication for the Veteran's PTSD to include the appropriate rating. The Board respectfully disagrees with the Veteran's representative's characterization of the Congressional inquiry response. The response to the Congressional inquiry stated that the appeal was about entitlement to service connection and does not mention anything about an increased rating claim. VA was responding to the Congressional inquiry by letting Congress know that although the Veteran did not file using the proper form, that VA considered it lieu of the proper documentation. While the drafter of the congressional inquiry response did not acknowledge that the Veteran was already service connected for PTSD, there was no indication that an increased rating claim was filed by the Veteran. The drafter simply did not verify if the Veteran's claim was resolved and was awarded with service connection prior to responding to the inquiry. Thus, the April 2011 rating decision is final. In May 2013, the Veteran called and told the VA that he has had a caregiver for the past two years. In November 2013, the Veteran was afforded a VA examination for aid and attendance, and then one for PTSD based on the Veteran's aid and attendance examination, which showed his symptoms manifested as a total and occupational and social impairment. In December 2013, the Veteran was awarded a 100 percent disability rating effective November 5, 2013. Therefore, the determination before the Board now is whether there is any evidence within the appeal period prior to November 5, 2013, that would warrant granting the Veteran a 100 percent disability rating. VA considered the Veteran's May 23, 2013, call indicating that he had a caregiver as the claim date. The appeal period is from May 23, 2012, to November 5, 2013. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (discussing the one-year "look-back" period for non-initial increased rating claims). In August 2009, the Veteran had a VA examination for PTSD. The examiner opined that the Veteran's symptoms manifest as total occupational and social impairment due to mental disorder signs and symptoms. The Veteran has obsessive compulsive symptoms. He has ongoing aggressive fantasies and paranoid sensitivities. In a June 2010 discharge summary, the examiner noted that the Veteran reported that he found himself yelling at one of his children when he was in the Army. He has been under a lot of pressure lately and was having trouble controlling his temper. He was being discharged from the military for medical reasons, and this was causing him financial concern. In a July 2010 mental health counseling note, the examiner noted that the Veteran was accompanied by his wife. The Veteran denied suicidal or homicidal ideation, and there was no indication of hallucinations. The Veteran described having frequent panic attacks and fearing he will die, and he has had frequent trips to the ER for anxiety. The Veteran described having a close and loving relationship with his wife and children. He understands that his wife needs space. The Veteran denied having flashbacks but has nightmares frequently and has symptoms of hyperarousal. For example, he cannot take a shower unless is wife is in the room and has anxiety when in crowds of people. He denied depression on a daily basis but feels depressed when he is having anxiety symptoms. In a December 2010 mental health counseling note, the examiner indicated that the Veteran was engaged in the therapeutic process and had no indication of suicidal or homicidal ideation. The Veteran has expressed that he has spent more time out of the home and has noticed that when he stays inside for too long his anxieties worsen. In September 2010, the Veteran was afforded a VA examination for PTSD. The examiner noted that the Veteran has been unsuccessful in the national guard and has been socially withdrawn and unable to function at a normal level at home and at work. The Veteran has nightmares, intrusive thoughts all day every day, flashbacks, anxiety, and is hyper aroused. The Veteran does not drive due to road rage and agoraphobia. He is capable to handle ADL and financial matters. He has strong ties to his family. In a May 2013 psychology note, the examiner indicated that the Veteran continues to barely function in his life. The examiner noted that the Veteran's worries are consistent with a panic disorder. The Veteran has filed bankruptcy due to medical bills. The Veteran is unable to care for himself without his wife being present. In an October 2013 caregiver report the social worker indicated that the Veteran and his spouse are struggling financially. The spouse indicated that she did not work because she did not want to leave the Veteran alone with their toddler, then she stated that she did not want to leave him alone. The social worker indicated that the Veteran's spouse indicated they do not go out due to a lack of gas money, and the Veteran isolates. She stated that the Veteran is getting too comfortable in the house, and she vacillates between reporting the Veteran is going stir crazy and the Veteran does not want to leave the home. The Veteran's spouse also admits that they pretty much just blow [their money]. The social worker indicated that there are contradictions of documentation in the Veteran's medical chart and what the Veteran's spouse reports. CSC pointed out that Veteran attended last PCP appointment alone with one of their children. Wife states that it was their second youngest son (Veterans favorite child, which wife reports Veteran wants this son around him everywhere Veteran goes) and she was parking the car and was in the waiting room. CSC highlighted another time (Oct 23, 2012 S. Texas Psychology note) when Veteran was alone with children. Wife adamantly denies that Veteran has been alone driving with the children and her not present. CSC encouraged Veteran to obtain copies of his medical records. Resolving reasonable doubt in the Veteran's favor, the Board finds that entitlement to an effective date of May 23, 2013 (the date the Veteran filed his claim), but no earlier for a 100 percent disability rating for PTSD is warranted. The Board finds that there are inconsistencies within the record, but it is unlikely that the Veteran's condition worsened on the date of the November 2013 VA examination. The Board notes that some of the examiners have noted that the Veteran's symptoms manifest as total occupational impairment, specifically that the Veteran is unlikely to be able to work, but he has a good relationship with his spouse and children. He also appears to do better when he gets out of the house, as long as he avoids crowds. The Board acknowledges that the Veteran has his spouse stand outside of the bathroom door when he showers, and while the Board finds that this activity could be construed under the 100 percent rating criteria, the severity, frequency, and duration of this activity does not render the Veteran's symptoms to manifest at a total occupational and social impairment level. Thus, the Board finds that an effective date of May 23, 2013 (the date the Veteran filed his claim), but no earlier, for a 100 percent disability rating for PTSD is warranted. 5. Entitlement to a total disability rating based on individual employability (TDIU) The Veteran has indicated that he cannot work due to his service-connected disabilities. A TDIU may be granted where a Veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or higher, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or higher. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining whether a TDIU is warranted, consideration may be given to a Veteran's level of education, special training, and previous work experience, but not to his or her age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The determination of whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities is a factual determination rather than a medical question. Therefore, responsibility for the ultimate determination of whether a veteran is capable of securing or following a substantially gainful occupation is placed on VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); see also 38 C.F.R. § 4.16; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). In January 2021, the Veteran submitted an application for increased compensation. The Veteran indicated that he last worked at the US Army until May 19, 2009. The Veteran reported that he completed the 11th grade. The Veteran indicated that he was no longer able to perform the physical or mental requirements of gainful activity. As of May 23, 2013, the Veteran was service connected for the following disabilities: PTSD, rated at 100 percent disabling; gastroesophageal reflux disease with gastritis and irritable syndrome associated with post-traumatic stress disorder, rated at 60 percent disabling; and atrial fibrillation associated with post-traumatic stress disorder, rated at 10 percent disabling. The Board notes prior to May 23, 2012, the only difference is the Veteran had a 50 percent rating for PTSD. Accordingly, the schedular percentage requirements for a TDIU were met at all times during the relevant period, as the Veteran had a combined rating of 70 percent or higher throughout the relevant period. See 38 C.F.R. § 4.16(a). The Veteran has been in receipt of a schedular 100 percent rating for his PTSD since May 23, 2013. However, the grant of a TDIU is not the same as a schedular 100 percent disability rating, and the award of a TDIU based on a single disability in addition to the award of a schedular 100 percent rating may result in the payment of additional benefits in the form of special monthly compensation based on housebound status. See Buie v. Shinseki, 24 Vet. App. 242 (2011); 38 U.S.C. § 1114(s). A TDIU claim does not automatically become moot when a combined 100 percent schedular rating is assigned based on multiple service-connected disabilities because a separate award of TDIU predicated on a single disability could form the basis for an award of special monthly compensation (SMC) under 38 U.S.C. § 1114(s) (SMC warranted where veteran has a totally rated service-connected disability, as well as "additional service-connected disabilities independently ratable at 60 percent or more"). See Bradley v. Peake, 22 Vet. App. 280, 293 (2008) (holding that a grant of TDIU based on a single disability constitutes a totally rated service-connected disability for purposes of section 1114(s)). In a June 2010 discharge summary, the examiner noted that the Veteran reported that he found himself yelling at one of his children he was in the Army. He has been under a lot of pressure lately and is having trouble controlling his temper. He is being discharged from the military for medical reasons, and this is causing him financial concern. In September 2010, the Veteran was afforded a VA examination for PTSD. The examiner noted that the Veteran has been unsuccessful in the national guard and has been socially withdrawn and unable to function at a normal level at home and at work. The Veteran has nightmares, intrusive thoughts all day every day, flashbacks, anxiety, and is hyper aroused. The Veteran does not drive due to road rage and agoraphobia. He is capable to handle ADL and financial matters. He has strong ties to his family. In a May 2013 psychology note, the examiner indicated that the Veteran continues to barely function in his life. The examiner noted that the Veteran's worries are consistent with a panic disorder. The Veteran has filed bankruptcy due to medical bills. The Veteran is unable to care for himself without his wife being present. In an October 2013 caregiver report the social worker indicated that the Veteran and his spouse are struggling financially. The Veteran's spouse indicated that she did not work because she did not want to leave the Veteran alone with their toddler, then she stated that she did not want to leave him alone. The social worker indicated that the Veteran's spouse indicated they do not go out due to a lack of gas money, and the Veteran isolates. She stated that the Veteran is getting too comfortable in the house, and she vacillates between reporting the Veteran is going stir crazy and the Veteran does not want to leave the home. The Veteran's spouse also admits that they pretty much just blow [their money]. In January 2020, the Veteran was afforded a VA examination for his stomach disabilities. The examiner noted that the Veteran's functional impact as reported by the Veteran included mostly pain, which affected his ability to concentrate and sleep. In January 2020, the Veteran was afforded a VA examination for his heart disability. The examiner indicated that the Veteran's heart disability does not impact his ability to work. The Board finds that since the Veteran has left the National Guard that he has been unemployed, and his treatment providers have consistently stated that the Veteran struggles to function at a normal level at home and at work, specifically his mental health. By May 2013, the Veteran's examiners have indicated that the Veteran has had difficulty functioning with daily life. The Board acknowledges that some of the records are inconsistent in the severity of the Veteran's limitations, but they are consistent in that the Veteran is unable to work based solely off his PTSD service-connected disability. While the Veteran's other service-connected disabilities may impact his performance, these other disabilities taken together or considered separately would not preclude the Veteran from securing a substantially gainful occupation, but his PTSD would preclude him from working. 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). If the evidence is not in approximate balance or nearly equal in the veteran's favor, the claim must be denied. Lynch v. McDonough, 2021 U.S. App. LEXIS 37307, No. 2020-2067 (Fed. Cir., Dec. 17, 2021). The Board concludes that the probative evidence of record demonstrates that the Veteran is unable to secure or follow a substantially gainful occupation due solely to his service-connected disabilities. As such, the evidence is at least at equipoise as to whether the Veteran is entitled to a TDIU. Therefore, affording the benefit of the doubt to the Veteran, entitlement to a TDIU is warranted. 38 U.S.C. § 5107; see also Gilbert, 1 Vet. App. 49. The Board notes that the AOJ will set an effective date for the award of a TDIU. This preserves the Veteran's right to appeal the effective date awarded by the AOJ. See DAV v. Secretary of Veterans Affairs, 327 F.3d. 1339 (Fed. Cir. 2003). 6. Entitlement to special monthly compensation based on aid and attendance The Veteran seeks entitlement to SMC based on the need for regular aid and attendance. He essentially contends that his service-connected disabilities require him to seek the aid and attendance of another person on a daily basis. The Veteran was awarded SMC housebound status in November 2013. SMC may be granted to a Veteran on the basis of the need for regular aid and attendance from another person or of being housebound. In other words, a Veteran may receive SMC for either needing the regular aid and attendance of another person or for being housebound but not for both simultaneously. SMC by reason of the need for regular aid and attendance of another person is a greater monthly benefit than SMC by reason of being housebound. 38 U.S.C. §§ 1114 (l), (s). SMC by reason of the need for regular aid and attendance of another person is payable if a Veteran, as the result of service-connected disability, either: (1) has suffered the anatomical loss or loss of use of both feet, (2) has suffered the anatomical loss or loss of use of one hand and one foot, (3) is blind in both eyes, (4) is permanently bedridden, or (5) is with such significant disabilities/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). Determinations should be on the basis of a Veteran being permanently bedridden rather than needing regular aid and attendance to avoid reduction during hospitalization where aid and attendance is provided in kind. 38 C.F.R. § 3.350(b)(4). Bedridden means that the Veteran is actually required to remain in bed. 38 C.F.R. § 3.352(a). The fact that the Veteran has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. Id. In determining the need for regular aid and attendance of another person, several factors are for consideration. Id. These include: (1) the inability of the Veteran to dress or undress himself or to keep himself ordinarily clean and presentable, (2) the frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the Veteran's 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.), (3) the inability of the Veteran to feed himself through loss of coordination of his upper extremities or through extreme weakness, (4) the inability of the Veteran to attend to the wants of nature, (5) incapacity, physical or mental, which requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment, and (6) the Veteran being bedridden. Id. Granting SMC by reason of the need for regular need for aid and attendance of another person requires that at least one of the above disabling factors be met. Turco v. Brown, 9 Vet. App. 222 (1996). Regarding being bedridden, however, a favorable determination will not be based solely upon an opinion that the Veteran's condition is such as would require him to be in bed. 38 C.F.R. § 3.352(a). Such a determination instead must be based on the actual requirement of personal assistance from others. Id. In this case, on May 23, 2013, the Veteran called the VA and indicated that he has had a caregiver for the past two years. As of May 23, 2013, the Veteran was service connected for the following disabilities: PTSD, rated at 100 percent disabling; gastroesophageal reflux disease with gastritis and irritable syndrome associated with post-traumatic stress disorder, rated at 60 percent disabling; and atrial fibrillation associated with post-traumatic stress disorder, rated at 10 percent disabling. The Veteran is receiving ongoing care for his PTSD, gastroesophageal reflux disease, and atrial fibrillation. In a May 2013, psychology note the examiner noted that the Veteran continues to barely function in his life. The examiner noted that the Veteran's worries are consistent with a panic disorder. The Veteran filed bankruptcy due to medical bills. It was further stated that the Veteran certainly would be unable to care for himself without his wife being present. In an October 2013 caregiver report, the social worker indicated that the Veteran and his spouse are struggling financially. The Veteran's spouse indicated that she did not work because she did not want to leave the Veteran alone with their toddler, then she stated that she did not want to leave him alone. The social worker indicated that the Veteran's spouse indicated they do not go out due to a lack of gas money, and the Veteran isolates. She stated that the Veteran is getting too comfortable in the house, and she vacillates between reporting the Veteran is going stir crazy and the Veteran does not want to leave the home. The Veteran's spouse also admits that they pretty much just blow [their money]. The social worker indicated that there are contradictions of documentation in the Veteran's medical chart and what the Veteran's spouse reports. CSC pointed out that Veteran attended last PCP appointment alone with one of their children. Wife states that it was their second youngest son (Veterans favorite child, which wife reports Veteran wants this son around him everywhere Veteran goes) and she was parking the car and was in the waiting room. CSC highlighted another time (Oct 23, 2012 S. Texas Psychology note) when Veteran was alone with children. Wife adamantly denies that Veteran has been alone driving with the children and her not present. In November 2013, the Veteran was afforded a VA examination for aid and attendance or housebound examination. The Veteran traveled to this examination alone, he stays around his home with self-restricted outside activity. The Veteran is capable of performing all self-care skills and functions and does not have any impairments that affect the Veteran's ability to protect himself from the daily environment. The examiner indicated that the Veteran does not have any restrictions of leaving the home and can walk a mile. The Veteran knows the amount of his benefit, can handle payments, knows the amount of his bills, and is capable of managing his financial affairs. In April 2021, the Veteran submitted a TBI questionnaire from his private examiner. The examiner indicated that he has seen the Veteran weekly, since May 2019. The Veteran can feed himself but is limited in preparing his own meals. The Veteran needs reminders to take care of his personal hygiene. The Veteran does not require home care or constant assistance. The Veteran is not capable of managing his own finances, as his concentration, focus is poor, and the Veteran struggles to do basic math. The examiner indicated that the Veteran requires transportation and assistance during appointments, managing medications, managing emotional stability. In May 2021, the Veteran testified during a Board hearing that he forgets to eat, bathe, has memory issues, and his mind wanders. The Veteran has burned a lot of things cooking and caused small fires in the kitchen. The Veteran stated he forgets to shut the refrigerator, flush the toilet, and shower. The Veteran's spouse testified that she bathes the Veteran, "he gets vulnerable and cannot do it," and sometimes wipes him after toileting. She drives him everywhere and follows up to make sure he turns off burners, closes the refrigerator. She reported that the Veteran had what she thinks was a flashback and ran through a glass door. She reminds him to eat and prepares meals that are easier for him to digest because he has stomach issues. The Veteran testified that they sleep in the parking lot of a hospital, at times because it comforts him. Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's condition has progressed, and while there is conflicting information between different examination reports the Board finds that the evidence is at least in relative equipoise as to whether the Veteran's service-connected disabilities cause him to be so helpless as to be in need of personal assistance from others. He requires assistance in managing his medications, having meals provided for him, requires help with toileting and bathing, and making appropriate choices due to his service-connected disabilities. Accordingly, the claim for SMC for aid and attendance from another is granted from May 23, 2013; this is a greater benefit than SMC at the housebound rate the Veteran is currently receiving. REASONS FOR REMAND 1. Entitlement to service connection for a traumatic brain injury (TBI) is remanded. The Veteran contends that his TBI is related to active military service. In May 2021, the Veteran testified during a Board hearing that he was assaulted while on duty. Specifically, he testified he was "hit with a pistol, and then we were stomped, beaten, beat in the head, kicked by the boot, and then they had a pipe and they beat us there. They tried to kill us though pretty much." The Veteran testified that he still has dizziness, difficulty breathing, memory problems. The Veteran testified he went through a medical panel in approximately 2014 with doctors, and they said he had a TBI. The Veteran testified he went through another panel, he thinks they might have been doctors but also caseworkers, or social workers, but they reconfirmed he had a TBI. In April 2021, the Veteran submitted a TBI questionnaire from his private examiner. The examiner indicated that the Veteran had a diagnosis of TBI, that was as likely as not a direct result of head trauma during military service. However, the examiner did not provide a rationale for this assessment besides stating it was due to his professional experience and examination of the patient. Based on the April 2021 private examination, the Veteran has a diagnosis of a TBI. Thus, the Board finds the evidence of record is sufficient to trigger VA's duty to assist in providing an examination. See 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In addition, the Veteran identified some records that may not be associated with the record. Specifically, that he went through a couple of panels after separation from service. The Veteran indicated that this most likely occurred prior to 2014, but the date is unknown. The Board reviewed the "panel notes" within the Capri records received on September 14, 2016, but there were no "TBI screenings." These may be the panel records, described by the Veteran, but since the claims file is being returned it should be updated to include any new or outstanding medical treatment records. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). The matter is REMANDED for the following action: 1. Obtain all outstanding VA treatment records including but not limited to the TBI panels that occurred after the prior to 2015. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Then, schedule the Veteran for an examination to determine the nature and etiology of his claimed TBI disability. The complete record including a copy of this remand must be made available to and reviewed by the examiner. The examiner must address the following: Is it at least as likely as not (50 percent probability or greater) that the TBI disability had its onset during the Veteran's active service or is otherwise causally or etiologically related to his active service? (Continued on the next page) 3. Then, the Veteran's claim must be readjudicated. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Quist Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.