KIDNEY DISEASE OF

J. SAIKH · 2026 · Case ID: A26029682

MIXED

Summary

The Veteran, who served from July 1988 to July 1991, appeals the denial of service connection for gout secondary to chronic kidney disease, an increased rating for fibromyalgia, a separate evaluation for TBI, and SMC based on aid and attendance. The Board granted service connection for gout secondary to chronic kidney disease, finding the evidence in approximate balance and resolving doubt in the Veteran's favor, despite a conflicting VA opinion. The Board denied an increased rating for fibromyalgia, finding the Veteran did not meet the criteria for constant pain refractory to therapy, and that his symptoms were better attributed to other diagnosed conditions or post-service injuries, not fibromyalgia itself. The Board also denied a separate evaluation for TBI, concluding that its residuals had resolved and its symptoms overlapped with PTSD, warranting a combined evaluation under PTSD criteria. However, the Board granted SMC based on the need for regular aid and attendance, finding that the combination of severe migraines and PTSD with TBI necessitated assistance with activities of daily living, medication management, and finances, despite some evidence of independent functioning. The Veteran's existing 100% rating for PTSD with TBI and 70% for migraines were noted, and the SMC grant will be implemented by the agency of original jurisdiction.

Rationale

Private medical records diagnosed gout due to renal impairment.; VA examiner did not address private medical findings or high uric acid levels.; Evidence in approximate balance, doubt resolved in Veteran's favor.

Special Benefit

SMC - AID & ATTENDANCE

Diagnostic Code

5025

Docket No.

250311-523477

Full Decision Text

Citation Nr: A26029682
Decision Date: 04/01/26 Archive Date: 04/01/26

DOCKET NO. 250311-523477
DATE: April 1, 2026

ORDER

Entitlement to service connection for gout, to include as secondary to service-connected chronic kidney disorder, is granted.

Entitlement to an initial evaluation in excess of 10 percent for fibromyalgia is denied.

Entitlement to a separate evaluation for traumatic brain injury (TBI) is denied.

Entitlement to special monthly compensation (SMC) based on the need for the regular aid and attendance of another is granted.

FINDINGS OF FACT

1. The Veteran's gout is related to his service-connected kidney disorder.

2. The Veteran's symptoms attributable to fibromyalgia were not manifested by exacerbations often precipitated by environmental or emotional stress or by overexertion, were not constant or near constant, or refractory to therapy.

3. The Veteran's PTSD and TBI symptoms frequently overlap, and it is not possible to differentiate what portion of each symptom is attributable to each diagnosis.

4. The Veteran's service-connected disabilities require the regular aid and attendance of another person.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for gout, as secondary to service-connected chronic kidney disorder, have been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.310.

2. The criteria for entitlement to an initial disability rating greater than 10 percent for fibromyalgia have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.71a, Diagnostic Code 5025.

3. The Veteran's service-connected PTSD and TBI do not warrant separate ratings. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.14, 4.124a, Diagnostic Code 8045, 4.126, Diagnostic Code 9411.

4. The criteria for entitlement to special monthly compensation benefits based on the need for aid and attendance of another person have been met. 38 U.S.C. §§ 1114; 38 C.F.R. §§ 3.102, 3.159, 3.350, 3.352.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty service from July 1988 to July 1991.

In this case, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR) in September 2024 regarding his gout claim after a September 2023 rating decision denied service connection for gout. He then submitted an HLR in January 2025 regarding his claims for SMC based on aid and attendance of another and evaluating TBI as a separate disorder following a May 2024 rating decision, which denied an increased evaluation for PTSD and SMC for aid and attendance. In January 2025, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal as to those claims.

The AOJ issued a rating decision denying an increased evaluation for fibromyalgia in March 2024.

The Veteran then submitted two VA Form 10182s in March 2025 regarding all four claims and elected the direct review docket. Therefore, the Board may only consider the evidence of record at the time of the March 2024 rating decision regarding the claim for fibromyalgia. With regard to the claim for service connection for gout, the Board may only consider the evidence of record at the time of the September 2023 agency of original jurisdiction (AOJ) decision, which was subsequently subject to higher-level review. With regard to the claims for entitlement to aid and attendance and a separate rating for TBI, the Board may only consider the evidence of record at the time of the May 2024 AOJ decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 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
aid and attendance and a separate rating for TBI, the Board may only consider the evidence of record at the time of the May 2024 AOJ decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 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 claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

Law and Analysis

As a preliminary matter, the Veteran asserts that the December 2022 Residuals of TBI VA examination report did not adequately reflect the findings of the examination or the severity of his current symptoms. See January 2023 Statement. However, as discussed in greater detail in the section pertaining to entitlement to a separate evaluation for TBI, a separate August 2022 VA examination also had similar findings. In addition, the Veteran was also provided with a VA examination for his PTSD in August 2022, and many of the symptoms that the Veteran mentioned in his January 2023 Statement such as memory impairment, disorientation to time and place, disturbances in motivation and mood, and impairment in social interactions, are reflected on that examination. Thus, the Board finds that the December 2022 VA TBI examination was adequate, and when taken together, the December 2022 and August 2022 TBI VA examinations and the August 2022 PTSD examination, contemplate the Veteran's symptoms.

The Veteran and his representative have not raised any other issues with the duty to notify or duty to assist. 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).

Service Connection

Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of a service-connected disease or injury. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.310 (a); Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023) (holding that, under the causation standard of 38 U.S.C. § 1110, secondary service connection is warranted where a nonservice-connected disability would have been less severe but-for a service-connected disability, either because there is an etiological link (to include worsening of functionality) between the two, or because the service-connected disability resulted in the inability to treat the non-service-connected disability). The Federal Circuit has held that 38 C.F.R. § 3.310(b) is inconsistent with 38 U.S.C. § 1110. Id.

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. §
link (to include worsening of functionality) between the two, or because the service-connected disability resulted in the inability to treat the non-service-connected disability). The Federal Circuit has held that 38 C.F.R. § 3.310(b) is inconsistent with 38 U.S.C. § 1110. Id.

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (benefit-of-the-doubt rule not for application when evidence persuasively favors one side or the other).

Gout

In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the Veteran is entitled to service connection for gout.

The Veteran has asserted that his gout is secondary to his service-connected chronic kidney disease. See June 2023 VA Form 21-526EZ, Application for Disability Compensation.

The Veteran's service treatment records are silent as to any symptoms or diagnoses of gout. The post-service medical records subsequently document a diagnosis of gout in November 2022. Numerous VA medical records document symptoms of gout including evidence of erythema and swelling of the toes, and tenderness of the toes. Private medical providers found high uric acid levels upon testing, including testing performed on May 26, 2023, and June 6, 2023. Additionally, private medical providers consistently diagnose "gout due to renal impairment" in medical records during that time period and prescribed the Veteran medication for the condition. See May 2023 and November 2022 Caritas Medical Center Records.

During a June 2023 appointment, after an evaluation of the Veteran and review of his lab results, a private medical provider diagnosed the Veteran with low-grade uric acid gout and opined that the kidney disease did affect his gout.

The Veteran was afforded a VA examination in connection with his claim in July 2023. The VA examiner opined that there was no gout present, despite the Veteran's report of a current gout flare during the examination. He indicated that the Veteran had previously reported acute gout flare-ups in July 2011 (which the Board notes was possibly a typo meant to state July 2021), June 2017, and December 2022. The VA examiner then noted that uric acid levels were normal during those appointments. However, the Board notes that the July 2023 VA examiner did not address the medical records which diagnosed gout, documented high uric acid levels, or explained that that while the Veteran's uric acid level was right at the goal of 6, gout could not be excluded. See February 2023 Comprehensive Metabolic Panel.

Based on the foregoing, the evidence is in approximate balance as to whether the Veteran's gout is caused by or worsened by his service-connected chronic kidney disease. The June 2023, May 2023, and November 2022 private medical records all indicate that the Veteran developed gout as a result of his kidney disorder. These findings were provided by medical providers who examined the Veteran, conducted diagnostic testing, and were familiar with the Veteran's medical history. Thus, these findings have significant probative value. In contrast, the July 2023 VA examiner's opinion did not address the medical records which diagnosed the Veteran with gout and had documented high uric acid levels. As such, the July 2023 VA opinion is afforded less probative weight.

Thus, resolving any reasonable doubt in favor of the Veteran, the Board finds that the Veteran is entitled to service connection for his gout, as secondary to his service-connected chronic kidney disease.

Increased Evaluation

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings.

If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.1. After careful consideration
disease.

Increased Evaluation

Where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27.

Fibromyalgia

The Veteran's service-connected fibromyalgia is currently assigned a 10 percent evaluation, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5025.

Diagnostic Code 5025 defines fibromyalgia as widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness, paresthesias, headache, irritable bowel symptoms, depression, anxiety, or Raynaud's-like symptoms. A Note to Diagnostic Code 5025 provides that widespread pain means pain in both the left and right sides of the body, that is both above and below the waist, and that affects both the axial skeleton (i.e., cervical spine, anterior chest, thoracic spine, or low back) and the extremities. 38 C.F.R. § 4.71a.

Under Diagnostic Code 5025, a 10 percent rating is warranted for fibromyalgia symptoms that require continuous medication for control. A 20 percent rating is warranted for fibromyalgia symptoms that are episodic, with exacerbations often precipitated by environmental or emotional stress or by overexertion, but that are present more than one-third of the time. Finally, a maximum rating of 40 percent rating is warranted for fibromyalgia symptoms that are constant, or nearly so, and refractory to therapy. Id.

According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY (11th Ed. 2007), "refractory" means resistant to treatment or cure, or unresponsive to stimulus.

The Board notes that under Diagnostic Code 5025 for fibromyalgia, while one requisite applies to all levels of the evaluation criteria (i.e., widespread musculoskeletal pain and tender points with associated symptoms), the level of disability is additionally based on the frequency of symptoms, response to therapy, and requirement for medication. Id.

However, the above criteria for evaluation of fibromyalgia under 38 C.F.R. § 4.71a, Diagnostic Code 5025 do not exclude assignment of separate evaluations when disabilities are diagnosed secondary to fibromyalgia. This includes, but is not limited to, disability diagnoses for which symptoms are included in the evaluation criteria under 38 C.F.R. § 4.71a, Diagnostic Code 5025, such as depression, anxiety, headache, and irritable bowel syndrome. VA provided additional insight into how to rate fibromyalgia in a June 1999 Federal Register notice. See 64 Fed. Reg. 32410 -32411 (June 17, 1999).

Specifically, according to 64 Fed. Reg. 32410 (
38 C.F.R. § 4.71a, Diagnostic Code 5025 do not exclude assignment of separate evaluations when disabilities are diagnosed secondary to fibromyalgia. This includes, but is not limited to, disability diagnoses for which symptoms are included in the evaluation criteria under 38 C.F.R. § 4.71a, Diagnostic Code 5025, such as depression, anxiety, headache, and irritable bowel syndrome. VA provided additional insight into how to rate fibromyalgia in a June 1999 Federal Register notice. See 64 Fed. Reg. 32410 -32411 (June 17, 1999).

Specifically, according to 64 Fed. Reg. 32410 (June 17, 1999), as the fibromyalgia evaluation criteria indicate, there may be multi-system complaints in fibromyalgia. If signs and symptoms due to fibromyalgia are present that are not sufficient to warrant the diagnosis of a separate condition, they are evaluated together with the musculoskeletal pain and tender points under the criteria in Diagnostic Code 5025 to determine the overall evaluation. The maximum schedular evaluation for fibromyalgia in such cases is 40 percent. If, however, a separate disability is diagnosed that is determined to be secondary to fibromyalgia, the secondary condition can be separately evaluated (see 38 C.F.R. § 3.310 (a)), as long as the same signs and symptoms are not used to evaluate both the primary and the secondary condition. See 38 C.F.R. § 4.14 (avoidance of pyramiding). In such cases, fibromyalgia and its complications may warrant a combined evaluation greater than 40 percent.

In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the Veteran is not entitled to an evaluation in excess of 10 percent for his service-connected fibromyalgia.

As a preliminary matter, the Board notes that the Veteran has already been awarded separate evaluations for his: PTSD with TBI, which includes consideration of psychiatric and cognitive symptoms; sarcoidosis with asthma and obstructive sleep apnea, which considers fatigue; migraine headaches; and irritable bowel syndrome. Thus, these symptoms may not be considered again as a part of the Veteran's fibromyalgia claim under Diagnostic Code 5025, as doing so would constitute impermissible pyramiding.

The Veteran was afforded a VA examination in July 2011, wherein the Veteran reported muscle and joint pains in his shoulders, hands, and knees, which did not affect his activities of daily living. The pain level was recorded as 6/10 on the day of the examination, but averaged 8/10 constant pain. The VA examiner declined to diagnose fibromyalgia and instead noted that the Veteran had injured his neck years after service, torn his meniscus in the right knee years after service, and broken his left hand post-service. As a result, with regard to fibromyalgia specifically, the examiner opined that the pain level attributable to the disorder was 0/0, since a diagnosis was not given. The 6/10 and 8/10 joint pain recordings were attributed to the Veteran's post-service injuries as described above.

The Veteran then submitted a December 2015 private medical opinion, which diagnosed fibromyalgia. Dr. L.H. noted that the Veteran was taking 2 medications for fibromyalgia and noted positive tender points on examination. Fatigue and brain fog were also reported. Dr. L.H. noted that the Veteran had been unable to go to work at times due to the condition. She then opined that the Veteran's activities of daily living are affected by the disorder as he must lie in bed because he cannot get comfortable. She noted that he was having episodes which were more severe in nature. Dr. L.H. also opined that his fibromyalgia evaluation should be of a severe level because he had constant pain, which was refractory to therapy. She noted that the Veteran was pushing himself to go to work in order to support his family, but she nevertheless found the fibromyalgia symptoms to be severe and constant.

The Veteran was then afforded a VA examination in June 2016. At that time, he reported experiencing pain regularly in his neck, back, shoulders, hands and knees. After an evaluation, the VA examiner opined that the Veteran did not meet the diagnostic criteria for fibromyalgia. Instead, the examiner noted that the Veteran's medical records demonstrated evidence of arthritis of the cervical spine, lumbar spine, and knees, as well as evidence suggestive of a bilateral rotator cuff injury.

During a Gulf War syndrome examination in July 2019, the VA
the Veteran was pushing himself to go to work in order to support his family, but she nevertheless found the fibromyalgia symptoms to be severe and constant.

During a Gulf War syndrome examination in July 2019, the VA examiner again declined to diagnose fibromyalgia. In that VA medical opinion, the VA examiner noted that the Veteran's disability pattern represented a disease with clear and specific etiology and diagnosis. The examiner went on to opine that the Veteran's achiness was more likely than not due to diagnosed arthritis and arthralgias secondary to sarcoidosis.

A VA examination for fibromyalgia was again performed in July 2020. The Veteran reported symptoms of soreness, pain in muscles, stiffness in joints, fatigue, mood swings and muscle cramps. He was being treated with muscle relaxers and epidural shots. However, the VA examiner declined to diagnose fibromyalgia, stating that there were no signs to support a diagnosis of the condition.

The Board notes that after affording the Veteran the benefit of the doubt, the Veteran has been awarded a 10 percent evaluation for tender points with widespread musculoskeletal pain and his continuous use of medication. However, the Board finds that the evidence of record, when reviewed as a whole, does not show that the Veteran experienced symptoms related to fibromyalgia which cause constant or nearly constant symptoms that are refractory to therapy or exacerbations often precipitated by environmental or emotional stress or by overexertion to warrant a higher evaluation.

While the December 2015 private medical provider, Dr. L.H., found that the Veteran had fibromyalgia, which caused severe and constant pain, that provider did not address the medical evidence of record diagnosing arthritis of the cervical and lumbar spine, and knees, the potential rotator cuff disorder, or the previous hand fracture. Indeed, the December 2015 provider failed to note or discuss these diagnoses in her own findings, "impression[s]" or "other medical history" report.

Additionally, while Dr. L.H. opined that the July 2011 VA examiner's findings were contradictory, the Board disagrees. Specifically, the July 2011 VA examiner report had separate sections for joint and muscle pains and fibromyalgia. The 2011 VA examiner found no diagnosis of fibromyalgia and thus, did not attribute any joint or muscle pain to the disorder in that section of the report. Instead, the July 2011 VA examiner opined that the joint pains that were constant and of a 6/10 or 8/10 severity level were due to post-service injuries and diagnoses which included a cervical spine injury, torn meniscus of the right knee, and a fractured left hand.

The July 2011 VA examiner's opinion was supported by VA examinations performed in June 2016, June 2019, and July 2020. These VA examiners found that the Veteran did not meet criteria for fibromyalgia and instead, the joint and muscle pain reported by the Veteran was attributable to his diagnosed arthritis of the cervical and lumbar spine and knee, and a possible rotator cuff injury. These disorders are not service-connected and may not be considered as a part of this claim. Additionally, while sarcoidosis is service-connected, an appeal regarding that claim is not presently before the Board.

Based on the foregoing, the Board finds that that the Veteran does not meet the criteria for an increased evaluation for his service-connected fibromyalgia. Accordingly, an evaluation in excess of 10 percent for fibromyalgia is not warranted and the claim is denied.

Entitlement to Separate Evaluations for PTSD and TBI

In a July 2016 rating decision, the Veteran was awarded service connection for PTSD with mild neurocognitive disorder due to traumatic brain injury and assigned an evaluation of 70 percent from November 1, 2010. In an April 2020 rating decision, the Veteran was granted service connection for traumatic brain injury (TBI) with cognitive impairment and assigned an evaluation of 70 percent, effective November 1, 2010. In a February 2023 rating decision, the AOJ found that the Veteran's TBI had resolved and that the Veteran's current symptoms were solely due to his PTSD. Thus, the AOJ
and the claim is denied.

Entitlement to Separate Evaluations for PTSD and TBI

The Veteran appealed the evaluation of the PTSD and TBI disorders together in his March 2025 Form 10182. While the Veteran contends that the two disabilities should be rated separately, the Board finds that such an action would constitute impermissible pyramiding, and thus, the claim must be denied.

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. The rating schedule generally prohibits pyramiding (evaluating the same disability under different diagnostic codes), and the United States Court of Appeals for Veterans Claims (Court) has held that pyramiding is disfavored "unless the regulation expressly provides otherwise." Cullen v. Shinseki, 24 Vet. App. 74, 84 (2010) and 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 262 (1994) (separate evaluations may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition).

Diagnostic Code 8045 sets forth the rating criteria for TBI. Under Diagnostic Code 8045, there are three main areas of dysfunction listed that may result from TBI and have profound effects on functioning: cognitive (which is common in varying degrees after TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8045.

Pursuant to Diagnostic Code 8045, subjective symptoms with a distinct diagnosis that may be evaluated under another diagnostic code should be separately evaluated, which is not the Veteran's case.

Emotional/behavioral dysfunction is to be evaluated under § 4.130 (Schedule of ratings-mental disorders) when, as is the case here, there is a diagnosis of a mental disorder. Id. Furthermore, under Diagnostic Code 8045, Note 1, if there is an overlap of manifestations of conditions evaluated under the cognitive table with manifestations of a comorbid mental disorder that can be separately evaluated under another diagnostic code, more than one evaluation cannot be assigned based on the same manifestations. Specifically, the criteria state that if the manifestations of two or more conditions cannot be clearly separated, a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions should be assigned. If the manifestations are clearly separable, a separate evaluation for each condition must be assigned. In short, to grant a separate award based on the same manifestations would constitute impermissible pyramiding. 38 C.F.R. § 4.14 (directing that the evaluation of the "same disability" or the "same manifestation" under various diagnoses is to be avoided). The Veteran is to be rated under the diagnostic criteria that would provide the higher rating.

In this case, a June 2016 VA examiner opined that the symptoms of the Veteran's PTSD and TBI overlapped such that it was not possible to differentiate what portion of each symptom is attributable to each diagnosis. In a March 2020 Board decision, a separate 70 percent evaluation was awarded for the Veteran's TBI, based on his cognitive disorder symptoms, which it found, was separate and distinct from PTSD symptoms including nightmares, avoidance of trauma-related memories, self-blame, guilty feelings, diminished interest, feelings of detachment/estrangement from others, irritable behavior, sleep disturbance, and impaired concentration. Since that Board decision, an August 2022 VA examiner and a December 2022 VA examiner have found that there were no TBI residuals and the symptoms attributable to the TBI had resolved. Instead, the August 2022 and the December 2022 VA examiners attributed all symptoms to
is attributable to each diagnosis. In a March 2020 Board decision, a separate 70 percent evaluation was awarded for the Veteran's TBI, based on his cognitive disorder symptoms, which it found, was separate and distinct from PTSD symptoms including nightmares, avoidance of trauma-related memories, self-blame, guilty feelings, diminished interest, feelings of detachment/estrangement from others, irritable behavior, sleep disturbance, and impaired concentration. Since that Board decision, an August 2022 VA examiner and a December 2022 VA examiner have found that there were no TBI residuals and the symptoms attributable to the TBI had resolved. Instead, the August 2022 and the December 2022 VA examiners attributed all symptoms to the Veteran's PTSD.

Accordingly, given the findings of the June 2016, August 2022, and December 2022 VA examiners that the symptoms of the Veteran's service-connected psychiatric disability and his TBI could not be differentiated from each other and/or the residuals of the TBI are no longer present, his TBI and PTSD were evaluated together under Diagnostic Code 9411 in a February 2023 rating decision. The Board finds that this approach allows the better assessment of overall impaired functioning due to both conditions and is most beneficial to the Veteran throughout the claim period. See 38 C.F.R. § 4.124a, DC 8045, Note (1). The Board notes that the record does not otherwise establish TBI symptoms that would entitle him to a higher rating under DC 8045 other than what is available and now assigned under 38 C.F.R. § 4.130. As such a separate evaluation for TBI is not warranted.

As previously noted, the Board acknowledges that the Veteran asserted in argument submitted with his March 2025 Notice of Disagreement that he did not agree with the findings of the December 2022 VA examination. The Veteran asserted that he has symptoms such as memory loss, difficulty making decisions, social impairment, confusion affecting his orientation, and impairment in communication. The Veteran also indicated that he experienced anxiety and depression, and had severe prostrating headaches.

However, those symptoms were documented in the August 2022 VA examination which provided the basis for the 100 percent rating assigned to the Veteran for his PTSD with TBI. Notably, the August 2022 VA examination documented symptoms of depressed mood, anxiety, memory loss, disorientation to time and place, disturbances of motivation and mood, and difficulty in establishing effective work and social relationships, and those symptoms were contemplated in the assignment of the 100 percent rating for PTSD.

Further, the Board notes that the Veteran is currently receiving a 50 percent evaluation for migraine headaches, a 100 percent evaluation for PTSD with TBI, and the Board has awarded SMC for the aid and attendance of another individual in this decision. As such, while the Board has found that a separate evaluation for TBI is not warranted, it notes that even if a separate rating were to be assigned for TBI, a higher monetary benefit would not be awarded. Accordingly, entitlement to a separate evaluation for TBI is not warranted.

Aid and Attendance Benefits

The Veteran contends that he is entitled to SMC based on the need for aid and attendance due to the residuals of his TBI and symptoms of PTSD. See March 2025 VA Form 10182.

Generally, claims for SMC are governed by the provisions set forth at 38 U.S.C. § 1114(k) through (s), and 38 C.F.R. §§ 3.350 and 3.352.

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. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352; see also VAOPGCPREC 5-89 (Mar. 23, 1989) (explaining that SMC is a supplementary statutory benefit based on noneconomic factors such as personal inconvenience, social inadaptability, or the profound nature of a disability). SMC is payable in addition to the basic rate of compensation otherwise payable for the degree of disability.

A veteran may receive SMC either by reason of being housebound or based on the need for regular aid and attendance, but generally may not receive both simultaneously; regular aid and attendance is the greater monetary award. 38 U.S.C. §§ 1114(l), 1114(s).

SMC based on aid and attendance is payable if, as the result of service-connected disability, the veteran has an anatomical loss or loss of use of both feet, or of one hand and one foot; has blindness in both eyes with visual acuity
factors such as personal inconvenience, social inadaptability, or the profound nature of a disability). SMC is payable in addition to the basic rate of compensation otherwise payable for the degree of disability.

SMC based on aid and attendance is payable if, as the result of service-connected disability, the veteran has an anatomical loss or loss of use of both feet, or of one hand and one foot; has blindness in both eyes with visual acuity of 5/200 or less; is permanently bedridden; or is so helpless as to be in need of regular aid and attendance of another person. 38 U.S.C. §§ 1114(l); 38 C.F.R. § 3.350. Aid and attendance means helplessness or being so nearly helpless as to require the regular aid and attendance of another person. See 38 C.F.R. § 3.350(b)(3).

Determinations as to need for aid and attendance must be based on actual requirement of personal assistance from others. In making such determinations, consideration is given to such conditions as: inability to dress or undress himself or keep himself ordinarily clean and presentable, frequent need for adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid, inability to feed himself through loss of coordination of upper extremities or through 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 individual from hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352; see also Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in section 3.352(a) must be present for a grant of special monthly compensation based on need for aid and attendance).

"Bedridden" will be a proper basis for the determination of being so helpless as to require regular aid and attendance of another and is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. Id. It is not required that all of the disabling conditions enumerated above be found to exist before a favorable rating may be made. Id. The particular personal functions which 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 be a constant need. Id. Determinations that the veteran is so helpless, as to be in need of regular aid and attendance will not be based solely on an opinion that the claimant's condition is such that it would require him to be in bed. They must be based on the actual requirements of personal assistance from others. Id.

In considering the evidence of record under the laws and regulations as set for above, the Board finds that the Veteran is entitled to SMC based on the regular need for aid and attendance.

In a February 2023 rating decision, the AOJ granted entitlement to SMC based on housebound criteria being met from August 24, 2022, but denied entitlement to SMC based on the need for aid and attendance. However, the Veteran has claimed that he is entitled to a higher level of SMC based on the need for regular aid and attendance, thus the issue remains on appeal.

During the appeal period, the Veteran was service-connected for posttraumatic stress disorder (PTSD) evaluated at 100 percent from August 24, 2022, and 70 percent prior to that, TBI evaluated at 70 percent prior to August 24, 2022, chronic kidney disease evaluated at 60 percent, sarcoidosis with asthma evaluated at 10 percent from November 1, 2010, 30 percent from June 14, 2016, and 60 percent from August 10, 2022, migraine headaches evaluated at 50 percent, irritable bowel syndrome evaluated at 10 percent prior to July 18, 2019, and 30 percent from July 18, 2019, fibromyalgia, evaluated at 10 percent, and folliculitis barbae and scars evaluated as noncompensable. The Board has also granted service connection for gout in this decision, however, as the Veteran's combined evaluation for compensation is already at 100 percent, the Board may continue with its decision without effectuation of this
evaluated at 10 percent from November 1, 2010, 30 percent from June 14, 2016, and 60 percent from August 10, 2022, migraine headaches evaluated at 50 percent, irritable bowel syndrome evaluated at 10 percent prior to July 18, 2019, and 30 percent from July 18, 2019, fibromyalgia, evaluated at 10 percent, and folliculitis barbae and scars evaluated as noncompensable. The Board has also granted service connection for gout in this decision, however, as the Veteran's combined evaluation for compensation is already at 100 percent, the Board may continue with its decision without effectuation of this grant as it would not prejudice the Veteran.

A review of the medical evidence of record shows that the Veteran was afforded a VA aid and attendance examination in June 2021. At that time, the Veteran reported that he needed assistance due to memory loss and cognitive dysfunction secondary to brain concussion. He was using a cane to help with poor balance throughout the day. He also reported trouble dressing and undressing himself and required assistance with bathing and grooming. The examiner noted that the examination was a telehealth exam and noted that the Veteran's wife had assisted the Veteran in reporting for the exam and evaluation. The Veteran reported that his right and left arm and shoulders were very weak and he had limited mobility due to knee and back pain. The examiner noted that his neck and back pain contributed to his limited mobility. The Veteran reported needing the assistance of a cane and another person to get up and ambulate. He was leaving home 1 to 2 days per week for work only. His wife was assisting him in getting him to work, but he regularly was unable to stay because of his memory problems and joint pain. The examiner then noted that the Veteran's cognitive dysfunction including memory loss was permanent and the Veteran's joint pain and associated mobility issues were chronic and unlikely to resolve. The examiner opined that due to memory loss, the Veteran would be unable to prudently manage his financial affairs.

As a result of this examination, the AOJ proposed a finding of incompetency for the Veteran. In July 2021, his private doctor, Dr. S.K. opined that while the Veteran's disabilities greatly affected his ability to perform his activities of daily living, he did not lack the competency to make decisions.

The Veteran was next afforded an in-person VA examination in connection with his claim in August 2022. At that time, the VA examiner noted a normal gait without use of cane of assistive device. The Veteran reported needing mild to moderate assistance from his wife with dressing and undressing due to chronic joint pain in his neck, back, shoulders, and knees. He did not need assistance with bathing, grooming, toileting, or making and eating his own meals. He required assistance in taking his medication and in managing his financial affairs due to cognitive impairment due to TBI. Upon examination, the examiner found that the Veteran could not reach overhead and had limitation of motion and balancing issues due to knee and joint pain and dizziness. He also had limited motion of the spine, trunk, and neck due to chronic joint pain. The examiner noted that there were no restrictions on the Veteran's ability to grip, perform fine movements, feed himself, button clothing, shave, or attend to the needs of nature, and there was no muscle atrophy, contractures, or other interference. The Veteran had trouble reaching overhead due to bilateral shoulder pain and weakness and weight-bearing due to chronic knee pain. Limitations of motion were attributed to knee pain and balance issues were present with dizziness. The examiner then opined that the Veteran was able to perform self-care, ambulation, or travel beyond the premises of his home.

The Veteran submitted a private opinion regarding the need for aid and attendance of another in October 2022. During that videoconference appointment, the Veteran reported that he was confined to bed for 20 to 22 hours per day. He reported needing assistance with toileting during the night. He was experiencing migraines 4 to 5 times per week wherein he was experiencing photo and phonophobia, nausea, vomiting, and seeing stars. During these headaches he had to lie alone in a dark room and could not perform his activities of daily living. He reported being unable to prepare his own meals due to issues with memory and concentration. For similar reasons, his wife needed to assist the Veteran with medication management and financial affairs. The Veteran and his wife then reported that the Veteran required assistance with bathing, hygiene needs, dressing, toileting, and shaving. The private examiner opined that the Veteran required the aid and attendance of another due to his severe and frequent pro
needing assistance with toileting during the night. He was experiencing migraines 4 to 5 times per week wherein he was experiencing photo and phonophobia, nausea, vomiting, and seeing stars. During these headaches he had to lie alone in a dark room and could not perform his activities of daily living. He reported being unable to prepare his own meals due to issues with memory and concentration. For similar reasons, his wife needed to assist the Veteran with medication management and financial affairs. The Veteran and his wife then reported that the Veteran required assistance with bathing, hygiene needs, dressing, toileting, and shaving. The private examiner opined that the Veteran required the aid and attendance of another due to his severe and frequent prostrating headaches that precluded him from performing activities of daily living. The examiner also opined that his symptomatic PTSD often precluded him from leaving the house, and his difficulties with memory and concentration precluded the completion of everyday tasks such as driving, cooking, cleaning, or leaving the house alone.

The Board finds that the evidence of record demonstrates that the Veteran requires the need of regular aid and attendance of another person. While the Veteran's joint and muscle pains have most often been attributed to other non-service-connected disorders, the Board finds that the combination of frequent, prostrating migraines and PTSD with TBI, which is totally disabling, demonstrates that the Veteran requires aid and assistance with activities of daily living and managing medications and finances such that the aid and attendance of another is required.

Therefore, although the evidence does sometimes show that the Veteran performs activities of daily living independently, the Board notes that overall, the evidence demonstrates that the Veteran has not been able to cook or prepare meals for himself, clean his home, run errands, manage his medications, or finances for the entire relevant period.

Additionally, the Board finds that the need for aid and attendance can be awarded based upon the Veteran's service-connected migraines and PTSD with TBI; thus, further discussion of mobility issues is not necessary.

Accordingly, resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran requires the regular aid and attendance of another person due to his service-connected PTSD with TBI and migraine headaches, and SMC based on the need for regular aid and attendance is granted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

The Board notes that the Veteran is already in receipt of SMC at the housebound rate. Moreover, SMC for aid and attendance is a greater benefit than SMC at the housebound rate, and one cannot have two levels of SMC based upon the same disabilities. Thus, the AOJ must make proper adjustments and implement this grant subject to the laws and regulations governing payment of monetary benefits.

J. SAIKH

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Rideout-Davidson, B.

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.

Analyze in VA Law Explorer