Citation Nr: A25041213 Decision Date: 05/06/25 Archive Date: 05/06/25 DOCKET NO. 220710-257135 DATE: May 6, 2025 ORDER The appeal seeking service connection for a jaw condition is dismissed. The appeal seeking a disability rating higher than 70 percent for posttraumatic stress disorder (PTSD) is dismissed. Special monthly compensation (SMC) based on aid and attendance is granted. REMANDED Entitlement to service connection for chronic pain is remanded. Entitlement to service connection for a kidney condition is remanded. FINDINGS OF FACT 1. On January 07, 2025, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant that a withdrawal of the appeal for entitlement to service connection for a jaw condition is requested. 2. The Veteran is already in receipt of a total disability rating based on individual unemployability due to his service-connected PTSD alone. 3. The Veteran is in need of regular aid and attendance due to his service-connected PTSD. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for service connection for a jaw condition by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for dismissal of the appeal for a disability rating higher than 70 percent for PTSD have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 3. The criteria for SMC based on aid and attendance have been met. 38 U.S.C. §§ 1114(l), 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the United States Army from August 1969 to March 1971. This appeal is before the Board of Veterans' Appeals (Board) on appeal of a June 2022 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). Given the date of the rating decision on appeal, the Veteran's appeal is governed by the modernized review system (known by the Board as AMA). 38 C.F.R. § 19.2. In the July 2022 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on January 07, 2025. A transcript of the hearing is of record. Therefore, the Board may only consider the evidence of record at the time of the June 2022 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. However, because the Board is remanding the claims of service connection for chronic pain and service connection for a kidney condition, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). WITHDRAWN Service connection for a jaw condition 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. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the appellant has withdrawn the issue of entitlement to service connection for a jaw condition during the January 2025 Board hearing 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, and it is dismissed. DISMISSED Higher rating for PTSD The Veteran asserts he is entitled to a disability rating higher than 70 percent for PTSD. The appeal period for the claim for an increased rating for PTSD begins on March 09, 2022, the day the Veteran filed his claim. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). It is noted that the Veteran is in receipt of a total disability rating based on individual unemployability (TDIU) from May 02, 2017, due to his service-connected PTSD. Currently, PTSD is his only service-connected disability. Under these circumstances, the Board finds that a claim for increase to 100 percent for his PTSD from March 09, 2022, to the present is moot. To assign a separate 100 percent rating for the Veteran's PTSD based on the same symptomatology for which he was granted a TDIU rating, for the same appeal period, would constitute pyramiding and is prohibited by 38 C.F.R. § 4.14. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disability. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). As the symptomatology for which the Veteran's TDIU was granted overlaps with the symptomatology that would warrant a subsequent grant for increase for the Veteran's service-connected PTSD, entitlement to a 100 percent rating for the Veteran's PTSD is not warranted. SMC SMC based on aid and attendance The Veteran is seeking SMC based on a need for regular aid and attendance. SMC is payable to individuals who are permanently bedridden or are so helpless as the result of a service-connected disability as to be in need of the regular aid and attendance of another person under the criteria set forth in 38 C.F.R. § 3.352(a), 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b)(3). A veteran will be considered in need of regular aid and attendance if he or she: (1) is blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; or (2) is a patient in a nursing home because of mental or physical incapacity; or (3) establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). 38 C.F.R. § 3.351(c). The following factors will be accorded consideration in determining the need for regular aid and attendance: inability of a claimant to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustments of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of a claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, either physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352(a). A finding that a veteran is "bedridden" will also provide a proper basis for the determination. Bedridden will be that condition which, through its essential character, actually requires that the veteran remain in bed. Id. The particular personal functions that the veteran is unable to perform are considered in connection with the veteran's 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 be a constant need. Determinations that a veteran is so helpless as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant's condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others. Id. In adjudicating claims for special monthly compensation, VA must consider all of the enumerated factors listed in the regulation and, if at least one of the factors is present, special monthly compensation should be awarded. Prejean v. West, 13 Vet. App. 444, 448 (2000) (citing Turco v. Brown, 9 Vet. App. 222 (1996)). Special monthly compensation is alternatively payable for being permanently housebound by reason of a service-connected disability or disabilities. This requirement is met when the veteran has a single service-connected disability rated at 100 percent and (1) another service-connected disability rated at 60 percent or more, or (2) is permanently housebound by reason of a service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). This requirement is met when the veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities will continue throughout his or her lifetime. Id. Turning to the evidence of record, the Veteran has been in receipt of a TDIU since May 02, 2017, due to his service-connected PTSD alone. The Veteran underwent a VA examination in April 2018. The Veteran reported experiencing passive suicidal ideations. Symptoms were documented as anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and suicidal ideation. A mental evaluation was conducted in June 2019. Here, the Veteran reported feeling depressed due to the constant pain he was feeling as a result of his facial neuropathy. He reported daily sadness, loss of interest in things he used to enjoy, guilt, and worthlessness. The Veteran acknowledged having thoughts of death to escape pain and suffering. It was also noted that the Veteran experienced anger and anxiety, and that he stays in bed most of the day. The evaluator noted cognitive limitations to include poor memory and clinically significant depression and anxiety symptoms. The Veteran appeared for a VA examination in April 2022. Here, the examiner found that the Veteran had occupational and social impairment with deficiencies in most areas. The Veteran reported symptoms of depressed mood, anxiety, chronic sleep impairment, flattened affect, disturbances of motivation and mood, anger, irritability, and increased isolation from society. During the January 2025 Board hearing, the Veteran's wife testified that she assists the Veteran with his daily activities of living. She reported that she prepares his meals, assists him with bathing and getting dressed, administers his medication, and drives him to all of his appointments. The Veteran reported that he has been totally occupationally and socially impaired since approximately 2017. In viewing the evidence in a light most favorable to the Veteran, the Board finds that entitlement to SMC is warranted from May 02, 2017. In this regard, resolving any reasonable doubt in favor of the Veteran, the evidence shows that the Veteran is in need of regular aid and attendance due to his service-connected PTSD. The Veteran's wife competently and credibly testified that she regularly assists the Veteran with bathing, dressing, and other activities of daily living. Further, the evidence of record supports a finding that the Veteran's PTSD is manifest by significant depression and anxiety, chronic sleep impairment, cognitive limitations, irritability, poor memory, feelings of worthlessness, and suicidal ideation. The evidence suggests that such symptoms have significantly impacted the Veteran and require the Veteran's wife to regularly assist him with activities of daily living. Accordingly, entitlement to SMC based on aid and attendance, from May 02, 2017, is warranted. REASONS FOR REMAND Service connection for chronic pain is remanded. The Veteran's claim for chronic pain is part and parcel to the claim for entitlement to service connection for facial neuropathy (also claimed as trigeminal neuralgia). The Veteran stated during the January 2025 Board hearing that his chronic pain is a symptom of facial neuropathy. The claim for service connection for facial neuropathy was remanded by the Board in an April 15, 2025, Board decision. A decision on the remanded issue of service connection for facial neuropathy could significantly impact a decision on the issue of service connection for chronic pain, thus, the issues are inextricably intertwined. Accordingly, a remand is required. The Board notes that the claim for service connection for chronic pain will be remanded without a request for development in a corresponding remand directive as the request for development would be duplicative of the request given for the issue of service connection for facial neuropathy in the previous April 15, 2025, Board remand. Service connection for a kidney condition The Veteran asserts he is entitled to service connection for a kidney condition. The issue of entitlement to service connection for a kidney condition is remanded to correct a duty to assist error that occurred prior to the June 2022 rating decision on appeal. The Agency of Original Jurisdiction (AOJ) did not obtain a VA examination prior to the rating decision on appeal regarding whether the Veteran's kidney condition is at least as likely as not related to his military service, to include exposure to herbicides. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination for his kidney condition. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the Veteran's kidney condition at least as likely as not related to in-service exposure to herbicide agents? The examiner is advised that a negative opinion cannot be based solely on the fact that the kidney condition is not on the list of diseases that are presumptively associated with exposure to herbicide agents. Provide a rationale to support the opinion(s). JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. K. Hall, 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.