POSTTRAUMATIC STRESS DISORDER (PTSD)

Summary

The veteran, who served in the U.S. Navy and U.S. Army between 1989 and 2012, including deployments to Afghanistan and Iraq, appeals the denial of separate ratings for her service-connected Post-Traumatic Stress Disorder (PTSD) and Traumatic Brain Injury (TBI), and the denial of Special Monthly Compensation (SMC) for aid and attendance. The Board found that the Veteran's PTSD and TBI symptoms, while overlapping, were sufficiently differentiated by a VA examiner, warranting separate ratings. The examiner noted that while TBI affected cognitive functions like memory and attention, PTSD symptoms included mood fluctuations, hypervigilance, and social isolation, with the examiner concluding that PTSD played the predominant role in the Veteran's functional impairment. The Board found the lay and medical evidence competent and credible, particularly the Veteran's testimony about memory issues affecting daily tasks and the VA examiner's opinion differentiating the conditions. Applying the benefit of the doubt, the Board granted separate ratings: 70% for PTSD and 40% for TBI. Furthermore, the Board granted SMC for aid and attendance, finding that the Veteran's service-connected PTSD and TBI rendered her so helpless that she requires regular assistance with daily living activities, such as medication management and meal preparation, based on her testimony and medical records.

Rationale

Separate ratings warranted due to differentiated symptomology; PTSD symptoms include mood fluctuations, hypervigilance, social isolation; 70 percent rating granted for occupational and social impairment

Full Decision Text

Citation Nr: A26038557
Decision Date: 04/24/26	Archive Date: 04/24/26

DOCKET NO. 210609-165004
DATE: April 24, 2026

ORDER

Entitlement to a separate rating for service-connected PTSD is granted.

Entitlement to a separate rating for service-connected TBI is granted.

Entitlement to Special Monthly Compensation (SMC) based on the need for regular aid and attendance is granted.

FINDINGS OF FACT

1. The evidence of record indicates that the Veteran's PTSD more closely approximates occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking or mood.  The VA examiner noted that the Veteran's PTSD symptomology was differentiable from the TBI symptomology.

2. The evidence of record indicates that the Veteran's TBI more closely approximates, at its highest, level 2 facet impairment.  The VA examiner noted that the Veteran's PTSD symptomology was differentiable from the TBI symptomology.

3. Affording the Veteran the benefit of the doubt, her service-connected disabilities, specifically her separate service-connected PTSD and TBI disabilities, render her so helpless as to be in need of regular aid and attendance of another person for certain activities of daily living.

CONCLUSIONS OF LAW

1. For the period from October 8, 2018, the criteria for entitlement to a separate rating of 70 percent, but no greater, for service-connected PTSD have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.104, 4.1, 4.3, 4.14, 4.25, 4.27, 4.124a, 4.130, Diagnostic Code (DC) 9411.

2. For the period from January 6, 2017, the criteria for entitlement to a separate rating of 40 percent, but no greater, for service-connected TBI have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.104, 4.1, 4.3, 4.14, 4.25, 4.27, 4.124a, 4.130, DC 8045.

3. The criteria for an award of SMC based on the need for the regular aid and attendance of another person have been met.  38 U.S.C. §§ 1114, 5107, 7104; 38 C.F.R. §§ 3.102, 3.350, 3.352, 4.3.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Navy from January 1989 to February 1989 and the United States Army from October 2005 to March 2007 and from May 2011 to February 2012.  She was awarded the Afghanistan Campaign Medal, the Iraq Campaign Medal, and the NATO Medal, among others.

Evidentiary Window

The higher-level review rating decision on appeal was issued in June 2020; therefore, the modernized review system, known as the Appeals Modernization Act (AMA), applies.  In the June 2021 VA Form 10182, Decision Review Request: Board Appeal Notice of Disagreement (NOD), the Veteran elected the Hearing docket before a Veterans Law Judge.  A Board hearing was held in January 2025 with the undersigned Veterans Law Judge.  A transcript is of record.  Under the hearing docket, the Board is authorized to review the evidence considered by the Agency of Original Jurisdiction (AOJ) at the time of the May 2019 rating decision, which was the subject of the June 2020 higher level review rating decision on appeal, as well as evidence submitted at the Board hearing and within 90 days of the Board hearing, here until April 6, 2025.  38 C.F.R. § 20.302(a).

Evidence provided during the hearing evidence submission window must be relevant to the period on appeal identified above.  Evidence submitted either 1) during the period after the AOJ issued the May 2019 rating decision and prior to the date the Board received the VA Form 10182 or 2) more than 90 days following the Board hearing was not considered by the Board in its decision.  38 C.F.R. §§ 20.300, 20.302(a), 20.801.

If the Veteran wishes to have the Board consider evidence submitted outside of the review window, a supplemental claim should be submitted
, here until April 6, 2025.  38 C.F.R. § 20.302(a).

Evidence provided during the hearing evidence submission window must be relevant to the period on appeal identified above.  Evidence submitted either 1) during the period after the AOJ issued the May 2019 rating decision and prior to the date the Board received the VA Form 10182 or 2) more than 90 days following the Board hearing was not considered by the Board in its decision.  38 C.F.R. §§ 20.300, 20.302(a), 20.801.

If the Veteran wishes to have the Board consider evidence submitted outside of the review window, a supplemental claim should be submitted identifying such evidence.  Cook v. McDonough, 36 Vet. App. 175 (2023); 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.

As a final initial matter, the Board notes that during the Veteran's January 2025 hearing, the Veteran's attorney indicated that he was requesting an earlier effective date for the 70 percent PTSD rating to January 2018.  See Hearing Tr. at 5.  The Veteran's 70 percent rating for PTSD is currently effective October 8, 2018.  See June 2020 Codesheet.  The Board notes that neither the May 2019 rating decision nor the June 2020 higher-level review rating decision adjudicated a claim for an earlier effective date for PTSD.  VA has no authority to adjudicate a freestanding earlier-effective-date claim in an attempt to overcome the finality of an unappealed rating decision.  Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006).  Only a request for revision based on clear and unmistakable error (CUE) can result in the assignment of an effective date earlier than the date assign in a final decision.  As such, an earlier effective date for the award of a 70 percent rating for service-connected PTSD is not before the Board.

1. Entitlement to a separate rating for service-connected PTSD is granted.

2. Entitlement to a separate rating for service-connected TBI is granted.

The Veteran contends that her combined service-connected PTSD and TBI disabilities warrant separate, individual ratings.  See June 2021 VA Form 10182.  In a February 2018 rating decision, the Veteran was provided service connection for TBI and assigned a 40 percent rating effective January 6, 2017.  A May 2019 rating decision granted service connection for PTSD and combined PTSD with TBI awarding a combined 70 percent rating effective October 8, 2018.  The Board will treat these determinations as favorable findings.  38 C.F.R. § 3.104.

Neither the Veteran nor the Veteran's attorney have argued that the currently assigned rating for either disability are inaccurate.  They merely assert that each disability should be individually rated.  As such, the Board will not address the propriety of the assigned rating decisions here.

Legal Criteria

Separate Rating Criteria

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R., Part 4.  Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized.  38 C.F.R. § 4.1.

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.  Pyramiding, the evaluation 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 disabilities.  38 C.F.R. § 4.14.  Notwithstanding the above, VA is required to provide separate evaluations for separate manifestations of the same disability that are not duplicative or overlapping.

Benefit of the Doubt

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3.  When a Veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails.  Gilbert v
 a Veteran's service-connected disabilities.  38 C.F.R. § 4.14.  Notwithstanding the above, VA is required to provide separate evaluations for separate manifestations of the same disability that are not duplicative or overlapping.

Benefit of the Doubt

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3.  When a Veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The benefit-of-the-doubt rule does not apply when the evidence persuasively favors one side or the other.  Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021).

Rating Criteria

The Veteran was assigned a rating under Diagnostic Code (DC) 8045-9411 which indicates that the predominant disability is PTSD.  38 C.F.R. §§ 4.124a; 4.130.  Hyphenated diagnostic codes are used when an unlisted disability is at issue.  38 C.F.R. § 4.27.  The second diagnostic code provides further detail regarding the origins of the unlisted disability, the bodily functions affected, the symptomatology, and anatomical location.  Thus, the diagnostic code following the hyphen is the diagnostic code by which the disability is evaluated by analogy.  In this case, the hyphenated DC may be read to indicate that TBI (DC 8045) and PTSD (DC 9411) is rated as if the predominant condition is PTSD.  The Veteran does not contend within the June 2021 VA Form 10182 or at the January 2025 Board Hearing that either diagnostic code is incorrect or that the assigned ratings are incorrect.  See January 2025 Hearing Transcript.

TBI

The 10 important facets in the table of "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" are as follows: (1) Memory, attention, concentration, executive functions; (2) Judgment; (3) Social interaction; (4) Orientation; (5) Motor activity; (6) Visual spatial orientation; (7) Subjective symptoms; (8) Neurobehavioral effects; (9) Communication; and (10) Consciousness.  Id at Evaluation of Cognitive Impairment and Other Residuals of TBI not otherwise classified.

DC 8045 provides that emotional/behavioral dysfunction is to be evaluated under 38 C.F.R. § 4.130 (schedule of ratings for mental disorders) when there is a diagnosis of a mental disorder.  Id at paragraph 4.

Note (1) to DC 8045 explains that there may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code.  In such cases, do not assign more than one evaluation based on the same manifestations.  If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions.  However, if the manifestations are clearly separable, assign a separate evaluation for each condition.  Id.

Note (2) to DC 8045 explains that symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation.

Note (3) to DC 8045 explains that "Instrumental activities of daily living" refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one's own medications, and using a telephone.  These activities are distinguished from "Activities of daily living," which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet.

Note (4) to DC 8045 explains that the terms "mild," "moderate," and "severe" TBI, which may appear in medical records, refer to a classification of TBI made at, or close to, the time of injury rather than to the current level of functioning.  This classification does not affect the rating assigned.

For residuals of TBI that do not clearly warrant
 other chores, shopping, traveling, doing laundry, being responsible for one's own medications, and using a telephone.  These activities are distinguished from "Activities of daily living," which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet.

Note (4) to DC 8045 explains that the terms "mild," "moderate," and "severe" TBI, which may appear in medical records, refer to a classification of TBI made at, or close to, the time of injury rather than to the current level of functioning.  This classification does not affect the rating assigned.

For residuals of TBI that do not clearly warrant separate ratings under the rating schedule, the criteria for disability ratings for TBI are broken down by a table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" and contains 10 important facets of TBI related to cognitive impairment and subjective symptoms.  The table provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled "total."  Not every facet, however, has every level of severity.  The Consciousness facet, for example, does not provide for an impairment level other than "total," since any level of impaired consciousness would be totally disabling.  A 100-percent evaluation should be assigned if "total" is the level of evaluation for one or more facets.  If no facet is evaluated as "total," assign the overall percentage evaluation based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent.  For example, assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet.  Id.

PTSD

Under DC 9411, a 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and the inability to establish and maintain effective relationships.

A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name. 38 C.F.R. § 4.130.

Evidence and Analysis

At the January 2025 Board hearing, the Veteran's attorney provided argument that the Veteran's VA PTSD and TBI examinations showed that the symptomology between the two disabilities were independent and could be separately ratable.  See Hearing Tr. at 4-7.  The Veteran did not offer testimony on this claim and the Veteran's attorney stated that he was "not going to offer any testimony today with regard to the TBI and PTSD" but only wanted to present evidence and arguments.  See Hearing Tr. at 5.

The evidence indicates that throughout the appeal, the AOJ determined that the Veteran's psychiatric symptoms were not differentiable from the symptoms of TBI.  Additionally, the AOJ found that the Veteran's PTSD was ratable at 70 percent and the Veteran's TBI ratable at 40 percent.  Based on the AOJ determination of non-differentiable symptomology, the Veteran was entitled to the greater of the two ratings but not both.  Therefore, in this case, emotional/behavioral dysfunction was rated under Diagnostic Code 9411 as the predominant disability due to the higher rating assigned, and a single evaluation has been assigned.  The Veteran has asserted that these conditions are clearly separate.

Here, for the reasons below, the Board finds that the conditions of PTSD and TBI can be assigned separate ratings.

During the pendency of the claim, the Veteran was provided a November 2017 VA TBI examination.  This examiner noted diagnoses of TBI based on the Veteran's exposure to a blast during service.  The examiner found level 0 impairment as it relates to the facets of judgement, social interaction, orientation, motor activity, visual spatial orientation, communication, and consciousness.  However, level 2 impairment
/behavioral dysfunction was rated under Diagnostic Code 9411 as the predominant disability due to the higher rating assigned, and a single evaluation has been assigned.  The Veteran has asserted that these conditions are clearly separate.

Here, for the reasons below, the Board finds that the conditions of PTSD and TBI can be assigned separate ratings.

During the pendency of the claim, the Veteran was provided a November 2017 VA TBI examination.  This examiner noted diagnoses of TBI based on the Veteran's exposure to a blast during service.  The examiner found level 0 impairment as it relates to the facets of judgement, social interaction, orientation, motor activity, visual spatial orientation, communication, and consciousness.  However, level 2 impairment was noted with the facet of memory, attention, concentration, and executive functions.  Level 1 impairment was found with the facets of subjective symptoms and neurobehavioral effects.  Additionally, the examiner noted that significant diagnostic testing indicated deficiencies in the areas of immediate and delayed recall, language and abstraction, and mildly impaired attention.  This determination indicates that a 40 percent rating for service-connected TBI is warranted and the AOJ made such a determination in the February 2018 rating decision.  The Veteran has not disputed that this determination is appropriate.

The Veteran was also provided with a January 2019 VA PTSD examination.  The examiner noted a diagnosis of PTSD chronic moderate-severe and alcohol use disorder moderate in partial remission.  The examiner noted the additional diagnosis of TBI and that it was possible to differentiate symptoms between TBI and PTSD.  Symptoms attributable to PTSD were intrusive and distressing memories; mood fluctuations; night terrors; hypervigilance; exaggerated startle response; anxiety in public contexts; avoidance of media depictions of military activity; some difficulty driving; high concern for safety at home; frequent periods of social isolation; discomfort on holidays with fireworks; some feelings of detachment from others; and diminished motivation and initiative.  Symptoms attributable to TBI included: the need to make lists to remember daily activities, slow problem solving, and slow decision making.  The examiner further noted that most the Veteran's impairment is due to PTSD; however, TBI does play a minor role through the impairment of cognitive functions.  The AOJ determined that the symptomology present in the January 2019 VA PTSD examination was sufficient to award a 70 percent initial rating in the May 2019 rating decision.

Based on the above, the Board finds not only that the Veteran's PTSD and TBI symptomology can be differentiated, but that they have been differentiated by a competent VA psychologist/mental health examiner.  This determination is afforded probative value by the Board.  Notably, the VA psychologist offered a definitive opinion supported by a detailed rationale which directly contemplates the Veteran's diagnosed conditions, symptomology severity, and the relationship between the Veteran's PTSD and TBI symptomology.  There is no evidence that the VA examiner misstated any relevant fact in providing the symptom differentiation opinion.  As such, a separate rating for each condition is warranted on this basis.

In reaching this determination, the Board has considered the Veteran's contentions regarding the separate PTSD and TBI disabilities and has found those contentions credible as they are not contradicted by the evidence of record.  However, the Board must point out that the Veteran's competence and credibility are limited to the symptoms that she experiences through her personal knowledge and senses.  There is no evidence in the record that the Veteran is qualified or has the medical training necessary to be competent to opine on the severity of her service-connected PTSD and TBI symptomology.  This is a complex question of nature and medical severity that falls outside the realm of the common knowledge of a lay person.  Layno v. Brown, 6. Vet. App. 465, 469 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).

The Board is mindful that there is some risk in separating the various diagnoses into their appropriate diagnostic codes.  However, here, there is no reduction in rating or severance of service connection from a change in the diagnostic code because of the Board's action.  Murray v. Shinseki, 24 Vet. App. 420, 428 (2011).  Significantly, the Board has an obligation to maximize the benefit to the Veteran and, in separating the various conditions into their individual diagnostic codes, the Board has more appropriately compensated the Veteran for the functional impact of her separate PTSD and TBI disabilities.  Read v. Shinseki, 651 F. 3d 1296, 1302 (Fed. Cir. 2011) (It is permissible to switch Diagnostic Codes to reflect more accurately a Veteran's current symptoms).

Based on the above
 no reduction in rating or severance of service connection from a change in the diagnostic code because of the Board's action.  Murray v. Shinseki, 24 Vet. App. 420, 428 (2011).  Significantly, the Board has an obligation to maximize the benefit to the Veteran and, in separating the various conditions into their individual diagnostic codes, the Board has more appropriately compensated the Veteran for the functional impact of her separate PTSD and TBI disabilities.  Read v. Shinseki, 651 F. 3d 1296, 1302 (Fed. Cir. 2011) (It is permissible to switch Diagnostic Codes to reflect more accurately a Veteran's current symptoms).

Based on the above, the Board finds that, under the unique facts and circumstances of this particular claim, separate ratings are warranted for the Veteran's service-connected PTSD and TBI disabilities.  As such, for the period from January 6, 2017, a separate TBI disability rating of 40 percent, but no greater, is warranted.  For the period from October 8, 2018, a separate PTSD disability rating of 70 percent, but no greater, is warranted.  The Board finds that the evidence of record persuasively weighs in favor of separate disability ratings.  As such, the appeal is granted.  38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021).

3. Entitlement to SMC based on the need for regular aid and attendance is granted.

The Veteran and her attorney contend that the Veteran requires regular aid and attendance due to the Veteran's service-connected PTSD and TBI disabilities.  See June 2021 VA Form 10182.

Legal Criteria

Special monthly compensation 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.

Special monthly compensation based on the need for aid and attendance is payable if, as the result of service-connected disability, the Veteran has suffered: (1) anatomical loss or loss of use of both feet; (2) anatomical loss or loss of use of one hand and one foot; (3) blindness in both eyes with visual acuity of 5/200 or less; (4) being permanently bedridden; or (5) being 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).

Increased compensation at the aid and attendance rate is payable when a Veteran is helpless or so nearly helpless as the result of service-connected disability that she requires the regular aid and attendance of another person.  38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b).  To establish a need for regular aid and attendance, the Veteran must, as a result of service-connected disability, 1) be 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; 2) be a patient in a nursing home because of mental or physical incapacity; or 3) show a factual need for aid and attendance.  Id.

Determinations as to the need for aid and attendance are based on the actual requirements of personal assistance from others.  As directed by 38 C.F.R. § 3.352(a), the following criteria are to be considered for determining whether a claimant is in need of the regular aid and attendance of another person: 1) the inability of the claimant to dress himself or herself or to keep himself or herself ordinarily clean and presentable; 2) frequent need of adjustment of any special prosthetic or orthopedic appliance which, by reason of the particular disability, cannot be done without aid (not to 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 claimant to feed himself or herself through the loss of coordination of the upper extremities or through extreme weakness; 4) the inability to attend to the wants of nature; or, 5) a physical or mental incapacity that requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his or her daily environment.

The Board notes that the requirements of aid and attendance are disjunctive.  This means that when the word "or" is used in a
, cannot be done without aid (not to 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 claimant to feed himself or herself through the loss of coordination of the upper extremities or through extreme weakness; 4) the inability to attend to the wants of nature; or, 5) a physical or mental incapacity that requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his or her daily environment.

The Board notes that the requirements of aid and attendance are disjunctive.  This means that when the word "or" is used in a regulation, only one requirement must be met in order for aid and attendance to be assigned.  Johnson v. Brown, 7 Vet. App. 95 (1994).

In other words, it is not required that all the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made.  The particular personal functions which the Veteran is unable to perform should be considered in connection with his or her 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 the 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.  38 C.F.R. § 3.352(a); Turco v. Brown, 9 Vet. App. 222, 224 (1996) (it is logical to infer there is a threshold requirement that "at least one of the enumerated factors be present").

Being bedridden is a proper basis for the determination.  "Bedridden" will be that condition which, through its essential character, actually requires that the Veteran remain in bed.  38 C.F.R. § 3.352.  The fact that he or she has voluntarily taken to bed or that a doctor has prescribed rest in bed for a greater or lesser part of the day to promote convalescence or cure is insufficient.  38 C.F.R. § 3.352(a).  It is mandatory for VA to consider the enumerated factors within the regulation; at least one of the enumerated factors must be present.  Turco v. Brown, 9 Vet. App. 222 (1996).

Importantly, in order for the Veteran to prevail in this claim, the evidence must show that it is a service-connected disability that has resulted in needing regular aid and attendance.  Prejean v. West, 13 Vet. App. 444 (2000).

If a Veteran does not qualify for increased benefits for aid and attendance, increased compensation may still be payable if the Veteran is able to establish entitlement to special monthly compensation based on housebound status.  38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i).  SMC provides additional compensation on the basis of being housebound where the Veteran (1) has, in addition to a single, permanent service-connected disability rated 100 percent disabling, additional service-connected disability or disabilities independently evaluated as 60 percent or more disabling which are separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities.  38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i).  Under each alternative basis, the Veteran must first have a single service-connected disability rated as 100 percent disabling.  38 C.F.R. § 3.350(i).

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his or her current symptomatology.  Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if 1) the layperson is competent to identify the medical condition, 2) the layperson is reporting a contemporaneous medical diagnosis, or 3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3
.  Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if 1) the layperson is competent to identify the medical condition, 2) the layperson is reporting a contemporaneous medical diagnosis, or 3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau, 492 F.3d at 1376-77.

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit Court, citing its decision in Madden, recognized that the Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C. § 7104(a).  Further, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).

Benefit of the Doubt

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3.  When a Veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The benefit-of-the-doubt rule does not apply when the evidence persuasively favors one side or the other.  Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021).

Evidence and Analysis

In the January 2025 Board hearing, the Veteran testified that she forgets to take showers, forgets to turn off the stove, and has overflowed the kitchen with water due to memory issues.  See Hearing Tr. at 9.  The Veteran also testified that she has burned food and set off smoke detectors because she forgot that she was cooking food.  Id. at 13.  The Veteran testified that her daughter has had to come to her house and set up a marker board in the house to remind the Veteran to complete basic tasks such as brushing her teeth, taking a shower, and turning the stove off which the Veteran sees to help remind her to do those things.  The Veteran's daughter comes over to her house once per week, at least, to update the marker board.  Id. at 9.  The Veteran testified that she has forgotten medical appointments and forgotten to take medications.  Id. at 10-11.  The Veteran testified that she could drive herself if she is having a good day but overall, does not drive herself even to the store and prefers to order things online or have her family and friends bring her places.  Id. at 25-27.

Turning to the evidence, the Board notes, as a threshold matter, that neither the Veteran nor her attorney have contended that the Veteran is blind, has suffered anatomical loss of the hands or feet, or that she is bedridden or functionally bedridden.  Id. at 24.  Therefore, the Board will determine whether the Veteran is so helpless as to need regular aid and attendance because of her service-connected disabilities.

At the time of the May 
10-11.  The Veteran testified that she could drive herself if she is having a good day but overall, does not drive herself even to the store and prefers to order things online or have her family and friends bring her places.  Id. at 25-27.

Turning to the evidence, the Board notes, as a threshold matter, that neither the Veteran nor her attorney have contended that the Veteran is blind, has suffered anatomical loss of the hands or feet, or that she is bedridden or functionally bedridden.  Id. at 24.  Therefore, the Board will determine whether the Veteran is so helpless as to need regular aid and attendance because of her service-connected disabilities.

At the time of the May 2019 rating decision and June 2020 higher-level review, the Veteran had the following service-connected disabilities: PTSD rated at 70 percent effective October 2018; TBI rated at 40 percent effective January 2017; migraines rated at 30 percent effective January 2017; right foot hallux valgus rated at 10 percent effective January 2017; tinnitus rated at 10 percent effective January 2017; right foot residuals rated at 10 percent from January 2017; and right foot scar rated at 0 percent effective January 2017.  See June 2020 Codesheet.

Turning to the record, the Veteran did not submit VA Form 21-2680 which is an application for permanent need for regular aid and attendance within the record either prior to the rating decision on appeal or during the hearing evidence submission window.

The testimony provided at the January 2025 Board hearing has a basis in the record.  The Veteran's VA treatment record indicates that the Veteran was seen in April 2019 and notes that the Veteran's mood had improved to the point that she was able to do chores.  She denied active suicidal or homicidal intent, but the provider noted chronic passive suicidal ideation which is less frequent and which is reduced with medication and motivation to get out of the house.  The provider noted that the Veteran may benefit from cognitive screening, but she opted not to do it that day and the provider did not include rationale as to why cognitive screening may be necessary.  See April 2019 CAPRI record.  A March 2019 medical record indicates that the Veteran missed a medical appointment and had to complete it over the phone because she forgot about the appointment, reported sleeping in, had no energy over the past week, and was falling more into depression.  Id.

Additionally, the Veteran's January 2019 VA PTSD examination indicated that some of her symptomology included disturbances in motivation and mood, difficulty in adapting to stressful circumstances, suicidal ideation, and intermittent inability to perform activities of daily living.  In an additional question section at the bottom of the examination, the examiner noted that the Veteran's hypervigilance would make it effectively impossible for her to deal with the public in a face-to-face occupational capacity.  She also is distractable in company to the point that she loses track of what she is doing.  The examiner indicated that regular attendance at functions would be problematic for her and she does almost nothing most days due to dips in mood and lack of motivation and initiative.  Her problems with memory also make it difficult to carry out complex tasks.  Ultimately, she would have problems sustaining effort even on simple tasks in an unpressured environment without interference from her emotional, behavioral, and cognitive limitations.

Based on the above, the Board finds the lay and medical evidence of record to be competent as it is based on observable symptomology that the Veteran has experienced firsthand, and which could not be obtained from any other source.  There is no contradictory evidence of record and is corroborated by medical evidence.  As such, probative value is afforded to the Veteran's hearing testimony.  Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 470 (1994).

Viewing the lay and medical evidence as a whole and resolving the benefit of the doubt in favor of the Veteran, the Board finds that the applicable evidence establishes a factual need for regular aid and attendance.  During the period on appeal, the Veteran's service-connected disabilities, particularly PTSD and TBI, have interfered with her ability to keep herself clean and presentable, prepare meals, perform household chores, attend to the wants of nature, and manage both medical appointments and medication.  As such, while the Board notes that neither the Veteran's testimony nor the medical record have indicated the need for constant assistance, the Board finds that the evidence of record does indicate that the Veteran requires care or assistance at least on a regular basis for medication management and to protect her from the hazards or dangers
 as a whole and resolving the benefit of the doubt in favor of the Veteran, the Board finds that the applicable evidence establishes a factual need for regular aid and attendance.  During the period on appeal, the Veteran's service-connected disabilities, particularly PTSD and TBI, have interfered with her ability to keep herself clean and presentable, prepare meals, perform household chores, attend to the wants of nature, and manage both medical appointments and medication.  As such, while the Board notes that neither the Veteran's testimony nor the medical record have indicated the need for constant assistance, the Board finds that the evidence of record does indicate that the Veteran requires care or assistance at least on a regular basis for medication management and to protect her from the hazards or dangers of her daily environment.

As indicated above, it is not required that all the disabling factors be found to exist before a favorable determination is made for regular need for aid and attendance of another person.  38 C.F.R. § 3.352(a).  The Board finds that both the competent lay evidence and the probative medical evidence of record supports that the Veteran's service-connected disabilities, specifically the service-connected PTSD and TBI disabilities, render her so helpless that she has significant difficulty performing daily activities of living without the assistance of another.

Resolving doubt in the Veteran's favor, the Board concludes that, under the unique facts and circumstances of this particular claim, the evidence supports special monthly compensation based on a need for regular aid and attendance of another person.  As such, the appeal is granted.  38 U.S.C. § 5107; 38 C.F.R. § 3.102, 4.3; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (providing that only when the evidence persuasively favors one side, or another is the benefit of the doubt doctrine not for application).

 

 

Colleen M. Glaser-Allen

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Daniel Stephens, 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.