Citation Nr: 23004629
Decision Date: 01/25/23	Archive Date: 01/25/23

DOCKET NO. 18-25 330
DATE: January 25, 2023

ORDER

Entitlement to a compensable rating for service-connected traumatic brain injury (TBI) is denied.

Service connection for benign paroxysmal positional vertigo (BPPV) as secondary to service-connected TBI is granted.

REMANDED

Service connection for hypothyroidism as secondary to service-connected TBI or posttraumatic stress disorder (PTSD) is remanded.

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

FINDINGS OF FACT

1. The extent of the Veteran's claimed TBI symptoms have either resolved, are separately service-connected and rated, or are fully contemplated by his existing 100 percent rating for service-connected PTSD.

2. The Veteran's BPPV is proximately due to or the result of his service-connected TBI. 

CONCLUSIONS OF LAW

1. The criteria for entitlement to a compensable rating for service-connected TBI have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8045.

2. The criteria for service connection for BPPV as secondary to the service-connected TBI have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from January 2006 to May 2009.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of April 2016 and August 2016 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO).

This matter was remanded most recently in December 2019 to obtain an updated VA examination as to the service-connected TBI and an addendum medical opinion addressing whether the Veteran's hypothyroidism was aggravated by his TBI. While in remand status, the RO obtained an adequate VA TBI examination and an addendum medical opinion as to hypothyroidism. Regrettably, the addendum medical opinion was not responsive to the Board's remand directives. Therefore, while the RO completed the requested development and substantially complied with the remand directives as to the TBI claim, it did not substantially comply with remand directives as to the hypothyroidism claim, and further remand is necessary as to the latter claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998).

As a preliminary matter, per his April 2018 VA Form 9, the Veteran expressly raised the issue of entitlement to SMC based on the need for regular aid and attendance. As such is within the scope of the increased rating claim on appeal, the Board has jurisdiction over this issue, and it is remanded for further development, as discussed in more detail below. See Akles v. Derwinski, 1 Vet. App. 118 (1991). 

Furthermore, a claim for service connection for benign paroxysmal positional vertigo (BPPV) as secondary to service-connected TBI was not certified as part of this appeal.  However, in the course of the appeal for a higher rating for TBI, evidence was obtained indicating his complaints of dizziness were due to BPPV, which, in turn, was due to the TBI.  Therefore, the Board has taken jurisdiction over this claim. See Bailey v. Wilkie, 33 Vet. App. 188, 203 (2021) (holding the duty to maximize benefits includes the duty to consider secondary service connection reasonably raised in the context of an increased rating claim); see also Wilson v. McDonough, 35 Vet. App. 103 (2022) (finding VA obligated to develop and adjudicate claims for secondary service connection that are reasonably raised during evaluation of a primary disability and are logically related to the claim on appeal even when no formal claim has been filed). There is no prejudice to the Veteran as the claim can be granted on the record.

Increased Rating

The Veteran's service-connected TBI is currently rated at 0 percent under 38 C.F.R. § 4.124a, Diagnostic Code 8045, which governs TBI residuals. 

Under Diagnostic Code 8045, there are three main areas of dysfunction listed that may result from TBI and have profound effects on functioning: cognitive, emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation.

Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain and is to be rated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" (hereinafter referred to as the "Table."). See 38 C.F.R. § 4.124a, Diagnostic Code 8045.

Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. Subjective symptoms that are residuals of TBI, whether or not they are part of cognitive impairment, should be evaluated under the subjective symptoms facet in the Table. However, any residual with a distinct diagnosis that may be rated under another diagnostic code, such as migraine headaches, is to be separately rated, even if that diagnosis is based on subjective symptoms, rather than under the Table. See id.

Emotional/behavioral dysfunction should be evaluated under 38 C.F.R. § 4.130 (Schedule of Ratings Mental Disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, emotional/behavioral symptoms are to be rated under the criteria under the Table. See id.

Physical (including neurological) dysfunction is to be rated based on the following list, under an appropriate diagnostic code: motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. The preceding list of types of physical dysfunction does not encompass all possible residuals of TBI. Residuals not listed above that are reported on an examination are to be rated under the most appropriate diagnostic code. Each condition is to be rated separately, as long as the same signs and symptoms are not used to support more than one rating and combined under 38 C.F.R. § 4.25. The rating assigned based on the Table will be considered the rating for a single condition for purposes of combining with other disability ratings. See id.

The Table contains 10 important facets of TBI related to cognitive impairment and subjective symptoms and 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." A 100 percent evaluation is assigned if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," the overall percentage evaluation will be based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. Id.

Note (1) states that "[t]here may be an overlap of manifestations of conditions evaluated under the [Table] with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code." When this occurs, the regulation prohibits assigning 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. See id.

Initially, the Board notes that the Veteran has separate ratings for migraine headaches, rated at 30 percent from September 2, 2015 and 50 percent thereafter, and visual impairment, rated at 100 percent from October 20, 2018, associated with his TBI. He has not appealed any rating assigned for his migraine headaches or visual impairment; thus, those ratings will be not addressed herein. He is also in receipt of a 100 percent rating for service-connected PTSD from April 5, 2011. 

The Veteran was afforded VA examinations assessing the severity of his service-connected TBI both shortly prior to and during the appeal period in October 2015, November 2018, and January 2020. He was also afforded VA examinations assessing the severity of his psychiatric condition, with some discussion of his TBI, in September 2015, June 2018, and November 2018.

Per a September 2015 PTSD examination provided three days prior to the October 2015 TBI examination, discussed below, a VA examiner noted that the Veteran's TBI had resolved, for the most part, and it contributed very little to his problems at that point in time. The examiner marked that it was possible to differentiate which symptoms were attributable to each of his diagnoses and stated that the cognitive disorder residual symptoms were periodic migraine headaches, alcohol use was related to excessive drinking on a daily basis, and all other symptoms were related to his PTSD. The examiner determined that he experienced the following symptoms: anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, impaired abstract thinking, disturbances of motivation and mood, inability to establish and maintain effective relationships, suicidal ideation, and impaired impulse control. The examiner also separately marked that he experienced problems with concentration as related to his PTSD. The examiner stated that the Veteran's testing for TBI was mostly within normal limits and he received zero compensation whereas he received a 100 percent rating for PTSD symptoms, and therefore all of his symptoms were related to his formal PTSD diagnosis.

At the October 2015 VA TBI examination, the Veteran complained of headaches, difficulty spelling and putting words together, difficulty concentrating to find words, and having to write down everything. The examiner made the following assessment related to the ten facets of TBI-related cognitive impairment and subjective symptoms: 

	objective evidence of mild impairment of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairmentspecified as difficulty concentrating on the right word that he wants to say; 

	mildly impaired judgmentspecified as being slower to understand and make normal decisions; 

	occasionally inappropriate social interactionspecified as sometimes going off track from the conversation;

	normal orientation to person, place, time, and situation; normal motor activity; 

	motor activity normal most of the time but mildly slowed at times due to apraxiaspecified as difficulty focusing and performing activities that he normally does;

	mildly impaired visual spatial orientationspecified as inability to follow verbal directions;

	subjective symptoms of headaches with anxiety that do not interfere with work, instrumental activities of daily living, or relationships; 

	one or more neurobehavioral effects, including impulsiveness and moodiness, that do not interfere with workplace or social interaction;

	ability to communicate and comprehend spoken and written language; and,

	normal consciousness.

These findings correlate to the following levels of impairment under the Table: memory, attention, concentration, and executive function (2); judgment (1); social interaction (1); orientation (0); motor activity (1); visual spatial orientation (1); subjective symptoms (0); neurobehavioral effects (0); communication (0); and consciousness (0). Thus, the Veteran's highest level of impairment from this examination is 2. 

Per an October 2015 VA central nervous system examination, the Veteran reported having a hard time finding the correct words to say since his in-service blast injury. The examiner diagnosed him with aphasia but assessed his speech as normal. 

Per a June 2018 VA psychiatric examination, a VA examiner marked that the Veteran had dementia and a TBI and determined that it was not possible to differentiate which symptoms were attributable to each diagnosis. The examiner stated that the symptoms of the disorders and their resulting impairment overlapped significantly, and he could not determine their individual impact without resorting to mere speculation. The examiner determined that he experienced the following symptoms: depressed mood, anxiety, panic attacks more than once a week, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; mild memory loss; impairment of short- and long-term memory; flattened affect; speech intermittently illogical, obscure, or irrelevant; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances; neglect of personal appearance and hygiene; and intermittent ability to perform activities of daily living. Per an associated opinion, the examiner stated that the Veteran's dementia began subsequent to the service-connected antecedent condition, the TBI, and is the direct result of efforts to control or cope with, or a direct psychological response to, the antecedent condition. 

Per an August 2018 VA opinion, a VA examiner noted that the Veteran's PTSD impacted memory and concentration and involved impairment of long-term memory, disorientation to time and place, difficulty understanding complex commands, disturbances of motivation and mood, and inability to perform activities of daily living, requiring assistance from his mother and wife. The examiner further noted that he could not perform simple math and appeared helpless in answering some simple questions, frequently turning to his mother for answers, which were the primary reasons for his dementia diagnosis. The examiner recommended that the dementia diagnosis be rescinded, as he still had PTSD, and stated that the signs of dementia were related to his PTSD. 

Per an October 2018 VA opinion, a VA examiner stated that the Veteran's dementia began subsequent to his service-connected antecedent condition, PTSD, and was the direct result of efforts to control or cope with, or a direct psychological response to, the antecedent condition. 

Per a November 2018 VA PTSD examination, a VA examiner marked that the Veteran did not have a diagnosed TBI, with reference to the November 2018 VA TBI examination, but documented that he had a Montreal Cognitive Assessment (MOCA) score of 14/30. The examiner stated that the Veteran now met the criteria for unspecified neurocognitive disorder, which was a progression of his dementia diagnosis and also part of the same syndrome as PTSD and alcohol use disorder. The examiner determined that he experienced the following symptoms: depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, impairment of short- and long-term memory, difficulty in understanding complex commands, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, and impaired impulse control. The examiner also separately marked that he experienced problems with concentration as related to his PTSD.

The Board notes that the same VA examiner provided the June 2018, August 2018, and October 2018 VA examinations and opinions related to dementia and PTSD. As this examiner specifically opined that his initial diagnosis of dementia should be rescinded and the outcome of the June 2018 VA examination should indicate a worsening of PTSD rather than dementia, and the November 2018 VA PTSD examiner stated that the Veteran's unspecified neurocognitive disorder was a progression of the dementia diagnosis and part of the same syndrome as his other mental health disorders, the Board attributes all psychiatric symptoms and impairment previously attributed to dementia to the service-connected PTSD. 

At the November 2018 VA TBI examination, the Veteran complained of worsening memory and concentration since 2009 to 2010; worsening headaches since 2009 to 2010; worsening tinnitus and hearing loss since 2007; worsening neurobehavioral symptoms since 2008 to 2009; and difficulty finding the right words since 2014. He further complained that all symptoms worsened since his October 2015 examination. The examiner marked that the Veteran did not now have, nor had he ever had, a TBI or residuals thereof. The examiner then assessed his condition as related to the ten facets of TBI-related cognitive impairment and subjective symptoms and determined that he exhibited no abnormalities. The examiner noted that he had a significantly impaired MOCA score of 14/30, with limitations in visuoconstructional/visuospatial skills, abstract thinking, delayed recall, and orientation, which showed possible inconsistent effort, as he had good fluency, attention, memory, abstract reasoning, and executive functioning throughout the interview. The examiner opined that the Veteran's current symptoms were not due to his reported in-service blast incident or to TBI but may be related to mental health conditions, chronic pain, reported severe obstructive sleep apnea, medications, reported chronic alcohol abuse/dependence, allergic rhinitis, possible hypertension, hypothyroidism, and/or other factors. 

The Board previously found the November 2018 VA TBI examination inadequate due to the examiner's determination that the Veteran did not currently have, nor had he ever had, a diagnosis of TBI, as such a determination conflicted with earlier VA examinations including such a diagnosis. Accordingly, while the Board has summarized the examination report and the Veteran's statements documented therein above, the Board affords the examiner's determination no probative weight.

At the January 2020 VA TBI examination, the Veteran complained of worsening memory, attention, and concentration since 2012; worsening headaches since 2009 to 2010; worsening tinnitus and hearing loss since 2007 to 2008; and worsening neurobehavioral symptoms since 2008 to 2009. The VA examinerthe same physiatrist who provided the November 2018 VA examinationmarked that the Veteran was diagnosed with an acute TBI, which was now resolved. The examiner then assessed his condition as related to the ten facets of TBI-related cognitive impairment and subjective symptoms and determined that he exhibited no abnormalities. The examiner noted that he had a significantly impaired MOCA score of 23/30, with impaired delayed recall, abstract thinking, sentence repetition, and attention, which showed possible inconsistent effort, as he had good verbal fluency, memory, abstract reasoning, and executive functioning throughout the interview. The examiner also noted that these findings were inconsistent with a St. Louis University Mental Status (SLUMS) screening conducted by a VA psychologist, Dr. R.S., in which he scored 16/30. The examiner stated that possible inconsistent effort, effects of medication, insufficient sleep, pain, anxiety, stress, and/or other factors could account for the discrepancy. The examiner opined that the Veteran's previous mild TBI/concussion was resolved without residuals, and his current symptoms were not due to TBI. The examiner stated the Veteran's current symptoms may be related to his mental health conditions, chronic pain, current/past medications, obstructive sleep apnea, chronic alcohol use disorder with reported "blackouts," reported borderline hypertension, hypothyroidism, and/or other factors. The examiner reasoned that, generally, sequelae following head injury/TBI occur within the first two weeks of the event and improve (or remain the same), but do not worsen/fluctuate with time. 

The Veteran's VA treatment records are associated with the claims file. At no point shortly prior to or during the appeal period did he specifically discuss his TBI, and at no point has any provider discussed possible residuals thereof. In March and April 2018, his providers observed that he had normal speech, psychomotor activity, behavior, memory, thought processes, judgment, and impulse control. See March 2018 Behavioral Health Note; March 2018 Social Work Note. 

The Board has considered the Veteran's lay statements. Per his August 2016 Notice of Disagreement, he reported experiencing memory loss, including forgetting his own birthday and appointments, difficulty reading and writing, and episodes of dizziness three times a week. He further reported that he made judgmental decisions and he could not leave his house without someone helping. Per a February 2018 Correspondence, he reported episodes of dizziness, forgetting where he is going in the car, forgetting what he is doing at the grocery store, forgetting where his kids are, and needing help with everyday situations. 

After review of the lay and medical evidence, the Board finds that a compensable rating is not warranted for the Veteran's service-connected TBI. 

As to cognitive impairment, subjective symptoms, and emotional/behavioral dysfunction, across the several VA examinations conducted either shortly prior to or following the appeal period, only the October 2015 VA TBI examiner determined that the Veteran had any such abnormalities attributable to the TBI. However, apart from BPPV, which is discussed in more detail below, each of the October 2015 VA examiner's findings overlap with symptoms contemplated by the existing 100 percent rating for PTSD. As related to memory, attention, concentration, and executive functions, the October 2015 examiner only specified issues concentrating and listed no complaints related to memory, attention, or executive functioning, but both the September 2015 and November 2018 VA examiners specifically listed problems with concentration as a symptom of the Veteran's PTSD. The October 2015 examiner also included findings of mildly impaired judgment, occasionally inappropriate social interaction, mildly slowed motor activity due to difficulty focusing, mildly impaired visual spatial orientation due to inability to follow verbal rather than written directions, and neurobehavioral effects of impulsiveness and moodiness, but between the June 2018 and November 2018 VA examinations, examiners specifically listed impaired judgment, mild memory loss (such as forgetting directions), difficulty in understanding complex commands, disturbances of motivation and mood, and impaired impulse control as symptoms of his PTSD. 

Further, the January 2020 VA TBI examination affirmatively demonstrates that the Veteran does not have any cognitive impairment, subjective symptoms, or emotional/behavioral dysfunction attributable only to his TBI. As the January 2020 VA examiner, after physically examining and interviewing the Veteran, provided rationale for his opinion that the Veteran's acute TBI resolved and based this opinion on medical principles, the Board finds the opinion highly probative. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 304 (2008).

As to physical dysfunction, neither the October 2015 nor January 2020 VA examiner identified any physical dysfunction separate from disabilities that the Veteran is already service-connected for, such as visual impairment and migraine headaches, and no other physical dysfunction related to the service-connected TBI is reasonably raised by the record. 

The Board recognizes that the October 2015 VA examiner determined that the Veteran has aphasia, and service connection for such was granted in a December 2015 rating decision. The RO noted that, as aphasia is non-compensable, it was evaluated with his TBI. The Board's review of the claims file reveals no examinations or treatment records suggesting that a compensable rating is warranted for aphasia. The October 2015 VA examiner, despite diagnosing the Veteran with aphasia, assessed his speech as normal, and providers have continued to assess his speech as normal since the examination. See March 2018 Behavioral Health Note; May 2020 Nursing Emergency Department Assessment. To the extent that the Veteran's aphasia may be better-categorized as an issue of memory, attention, or concentration, such is contemplated by the Veteran's 100 percent rating for PTSD, as discussed above. As such, the Board finds that a compensable rating is not warranted for aphasia.

Accordingly, as the most probative evidencethe October 2015 and January 2020 VA examinationsthat the Veteran's reported TBI symptoms are entirely attributable to his service-connected PTSD and other disabilities, a compensable rating is not warranted, and the claim is denied. 

As a final note, in reviewing this appeal, the Board has not overlooked the holding of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that claims for higher evaluations also include a claim for a total disability rating based on individual unemployability (TDIU) when the appellant claims he is unable to work due to a service-connected disability). The evidence suggests that the Veteran may be unemployable due to his service-connected disabilities, to include reported symptoms of his TBI. See, e.g., February 2018 Correspondence ("I keep losing jobs because of my injuries"); November 2018 VA PTSD Examination (reporting that he was fired because of memory loss and migraine headaches).

The Veteran is in receipt of a 100 percent rating for service-connected PTSD since May 5, 2011. The Board recognizes that it is not categorically true that the grant of a total schedular disability rating necessarily moots a TDIU claim, particularly as this relates to possible entitlement to special monthly compensation (SMC) at the housebound rate under 38 U.S.C. § 1114(s). See Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008); see also Buie v. Shinseki, 24 Vet. App. 242, 248 (2010). VA has a duty to maximize a veteran's benefits, including consideration of possible entitlement to SMC in addition to a total disability rating. See Akles, 1 Vet. App. at 121. Here, however, the Veteran been in receipt of a 100 percent rating for service-connected PTSD and SMC at the housebound rate under 38 U.S.C. § 1114(s) since March 24, 2016. Accordingly, he is in receipt of the maximum allowable benefits throughout the appeal period, and even with consideration of Rice, there is no case or controversy before the Board as to entitlement to a TDIU. 

1. Service connection for BPPV as secondary to the service-connected TBI is granted.

The Veteran seeks service connection for dizziness, which he contends is related to his service-connected TBI. See April 2016 VA Form 21-526EZ. 

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires competent evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service; and (3) a causal relationship or nexus between the current disability and any injury or disease during service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009).

Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310.

The Veteran was afforded a VA examination as to his claimed dizziness in December 2016. Upon examination of the Veteran and review of his history, an examiner diagnosed him with BPPV. The examiner ultimately opined that the BPPV was proximately due to or the result of his service-connected TBI, reasoning that clinical studies reveal TBI as a common cause of BPPV.

There are no other etiology opinions of record.

After review of the lay and medical evidence, and resolving reasonable doubt in favor of the Veteran, the Board finds that service connection is warranted for BPPV as secondary to the service-connected TBI. Here, the December 2016 VA opinion is adequate and entitled to probative value, as it is based on review of the claims file, reflects consideration of the Veteran's prior medical history, and includes rationale in support of the examiner's conclusion. As there is no opinion, adequate or otherwise, indicating that the Veteran's BPPV is not due to his service-connected TBI, service connection is warranted as secondary to the service-connected TBI, and the claim is granted.

REASONS FOR REMAND

1. Service connection for hypothyroidism as secondary to service-connected TBI or PTSD is remanded.

Per the December 2019 remand, the Board specifically directed the RO to obtain an addendum medical opinion addressing whether the Veteran's hypothyroidism was aggravated by his service-connected TBI, as the existing February 2016 VA opinion did not address aggravation. While the RO obtained an addendum opinion in January 2020, this opinion addresses only causation and not aggravation as directed. 

While the Board sincerely regrets the additional delay, further remand is necessary to afford the Veteran the due process of law and ensure that he is afforded an adequate medical opinion addressing the possibility of aggravation.

2. Entitlement to SMC based on the need for regular aid and attendance is remanded.

The Veteran seeks entitlement to SMC based on the need for regular aid and attendance. He specifically contends that his wife feeds him, helps him with everyday activities, drives him to work, and helps him to the bathroom when he is bedridden from migraine headaches. See April 2018 VA Form 9. 

Following submission of the April 2018 VA Form 9, which raised entitlement to SMC based on the need for regular aid and attendance, the RO denied entitlement to such in a May 2018 rating decision. Despite his reports of needing help with activities of daily living, the RO did not afford him an examination to determine what impairments, if any, affect his ability to care for himself. 

In the months following issuance of the May 2018 rating decision, VA obtained examinations as to other pending claims that partially support the Veteran's contention of needing regular aid and attendance. At a June 2018 VA psychiatric examination, an examiner documented that his driver's license was suspended for causing an accident and he experienced, in part, symptoms of neglect of personal appearance and hygiene and intermittent inability to perform activities of daily living. At a November 2018 VA PTSD examination, an examiner documented that he had difficulty with driving and relied on his mother for help. However, earlier VA examinations and more recent treatment records suggest that the Veteran was previously and is currently able to work various jobs, "work[] hard in the gym," do chores around the house, and care for his child. See, e.g., September 2015 VA PTSD Examination; October 2019 Nutrition Follow-Up. 

In light of the Veteran's specific reports as to needing help with activities of daily living, and with the June 2018 VA psychiatric examination confirming such, but earlier and more recent evidence suggesting otherwise, the Board finds that remand is necessary to obtain a VA aid and attendance examination.

The matters are REMANDED for the following action:

1. Obtain the Veteran's VA treatment records from May 2020 to present.

2. Obtain an addendum medical opinion as to the Veteran's hypothyroidism. After review of the claims file, the examiner should respond to the following:

Is the Veteran's hypothyroidism at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) aggravated beyond normal progression by his service-connected TBI or PTSD?

The examiner must address aggravation. The opinion must be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested.

3. Schedule a VA examination to address whether the Veteran regularly requires aid and attendance of another. After review of the claims file, the examiner should respond to the following:

Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran requires or has required regular aid and attendance of another individual solely on account of his service-connected disabilities? If so, please identify the date from which it was first ascertainable that he needed such aid and attendance, to the extent medically possible.

The examiner must provide a full supporting rationale for the requested opinion.

 

 

MICHELLE L. KANE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Tierno

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.