Citation Nr: A23002398 Decision Date: 02/07/23 Archive Date: 02/07/23 DOCKET NO. 221019-287254 DATE: February 7, 2023 ORDER Entitlement to an initial compensable rating for traumatic brain injury (TBI) is denied. Entitlement to an initial compensable rating prior to July 12, 2022, and in excess of 30 percent thereafter for posttraumatic headaches is denied. The appeal pertaining to entitlement to an effective date prior to September 20, 2022, for the award of a 100 percent rating for epilepsy is dismissed. As of August 2, 2022, entitlement to special monthly compensation (SMC) based on the need for the regular aid and attendance of another person is granted, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to an effective date prior to September 20, 2022, for the award of a higher rating of SMC pursuant to 38 U.S.C. § 1114(p) is remanded. FINDINGS OF FACT 1. The probative, competent evidence shows the Veteran's TBI has resolved, and the Veteran's current symptomatology is related to his service-connected headaches. 2. Prior to July 12, 2022, the Veteran's posttraumatic headaches were manifested by frequent headache pain but without migraines with characteristic prostrating attacks. 3. As of July 12, 2022, the Veteran's posttraumatic headaches were manifested by characteristic prostrating attacks occurring on an average of once per month, without more severe manifestations that more nearly approximate frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 4. A January 2023 Board of Veterans' Appeals (Board) decision increased the initial ratings assigned for epilepsy to 80 percent prior to June 6, 2019, and 100 percent thereafter. 5. As of August 2, 2022, but no earlier, the Veteran's service-connected disabilities rendered him in need of the regular aid and attendance of another person. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for a TBI have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124A, Diagnostic Code (DC) 8045. 2. The criteria for an initial compensable rating prior to July 12, 2022, and in excess of 30 percent thereafter, for posttraumatic headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.16, 4.20, 4.124a, DC 8100. 3. As a January 2023 Board decision decided the matter of the effective date assigned for the award of a 100 percent rating for epilepsy, the matter is res judicata, and the Board has no jurisdiction to further consider an appeal in the matter. 38 U.S.C. § 7104(b); 38 C.F.R. § 20.1100. 4. As of August 2, 2022, the criteria for the award of SMC based on the need for regular aid and attendance of another person have been met. 38 U.S.C. §§ 1114(l), 5110; 38 C.F.R. §§ 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1967 to February 1970. By way of background, a Department of Veterans Affairs (VA) Regional Office (RO) awarded service connection for a TBI and posttraumatic headaches in a July 2022 rating decision, entitlement to SMC in an August 2022 rating decision, and entitlement to a higher rating of SMC in an October 2022 rating decision under the modernized appeals process, known as the Appeals Modernization Act (AMA). In October 2022, the Veteran timely appealed such decisions to the Board of Veterans' Appeals (Board) by submitting a Decision Review Request: Board Appeal (Notice of Disagreement) (VA Form 10182), electing a direct review of the evidence. Consequently, the Board's review regarding the Veteran's increased rating claims for his TBI and posttraumatic headaches is limited to the evidence of record at the time of the issuance of the July 15, 2022, rating decision, limited to August 23, 2022, for his claim for an earlier effective date for entitlement to SMC, and limited to October 14, 2022, for the claim of entitlement to a higher rating of SMC. 38 C.F.R. § 3.2400(c)(2). As it pertains to the Veteran's claim for a higher initial rating for his service-connected epilepsy, the Veteran withdrew his legacy appeal and opted into the modernized appeals system in his October 2022 VA Form 10182. In such election, he requested Direct Review of the evidence considered by the AOJ. Consequently, the Board's review is limited to the evidence of record at the time of the issuance of the rating decision and supplemental statement of the case on October 14, 2022. 38 C.F.R. § 3.2400(c)(2). The Board notes that evidence was added to the record during a period of time when new evidence was not allowed. For those issues the Board is deciding herein, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Increased Ratings 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. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. 1. Entitlement to an initial compensable rating for TBI. The Veteran is in receipt of a noncompensable rating as of May 2, 2013, the date of service connection, for his TBI pursuant to DC 8045. 38 C.F.R. § 4.124a. The Veteran contends that he is entitled to a compensable rating for his service-connected TBI. The Veteran's TBI is rated under 38 C.F.R. § 4.124A, DC 8045. DC 8045 states that there are three main areas of dysfunction that may result from a TBI and have profound effects on functioning: cognitive (which is common in varying degrees after a traumatic brain injury), emotional / behavioral, and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124A, DC 8045. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions include goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. VA is to evaluate cognitive impairment under the table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified." Subjective symptoms may be the only residual of a TBI or may be associated with cognitive impairment or other areas of dysfunction. Subjective symptoms that are residuals of a TBI, whether or not they are part of cognitive impairment, should be evaluated under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified." However, VA is to separately evaluate any residual with a distinct diagnosis that may be evaluated under another Diagnostic Code, such as migraine headache or Meniere's disease, even if that diagnosis is based on subjective symptoms, rather than under the "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" table. In the instant case, the Veteran's subjective symptoms of posttraumatic headaches have been assigned separate ratings, and will be discussed below. VA is to evaluate emotional/behavioral dysfunction 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, evaluate emotional/ behavioral symptoms under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of Traumatic Brain Injury Not Otherwise Classified." Here, the Veteran's acquired psychiatric disorder, posttraumatic stress disorder, has been determined to be unrelated to his service-connected TBI. VA is to evaluate physical (including neurological) dysfunction 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 a TBI. For residuals not listed in 38 C.F.R. § 4.124a, Diagnostic Code 8045, that are reported on an examination, VA is to evaluate under the most appropriate Diagnostic Code. Each condition is to be evaluated separately, as long as the same signs and symptoms are not used to support more than one evaluation and combine under 38 C.F.R. § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. VA should consider the need for special monthly compensation for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc. The table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" addresses 10 facets of a TBI related to cognitive impairment and subjective symptoms. It 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 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 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 is assigned 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, a 70 percent evaluation is assigned if 3 is the highest level of evaluation for any facet. Diagnostic Code 8045 contains the following notes: Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury 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. Note (2): 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): "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): The terms "mild," "moderate," and "severe" traumatic brain injury, which may appear in medical records, refer to a classification of a traumatic brain injury 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 under Diagnostic Code 8045. Note (5): A veteran whose residuals of a TBI are rated under a version of 38 C.F.R. § 4.124a, Diagnostic Code 8045, in effect before October 23, 2008, may request review under Diagnostic Code 8045, irrespective of whether his disability has worsened since the last review. VA will review that Veteran's disability rating to determine whether the Veteran may be entitled to a higher disability rating under Diagnostic Code 8045. A request for review pursuant to this note will be treated as a claim for an increased rating for purposes of determining the effective date of an increased rating awarded as a result of such review; however, in no case will the award be effective before October 23, 2008. For the purposes of determining the effective date of an increased rating awarded as a result of such review, VA will apply 38 C.F.R. § 3.114, if applicable. 38 C.F.R. § 4.124a, Diagnostic Code 8045. Turning to the evidence of record in this case, the Veteran underwent a VA examination in September 2016. At such time, the examiner found that the Veteran did not have a current diagnosis of a TBI. Moreover, the Veteran reported that, to date, the condition has not been formally diagnosed; however, he experiences symptoms of recurrent seizures, both gran mal and absence, bitemporal headaches during walking hours, and joint pain. The examiner noted a complaint of mild memory loss, attention, concentration, or executive functions, but without objective evidence on testing and three or more subjective symptoms that mildly interfere with work, instrumental activities of daily living, or work, family or other close relationships. Moreover, the examiner found it unlikely that the Veteran's reports of being hit by a piece of shrapnel from 75 yards away resulted in a TBI. Rather, central nervous system findings were more consistent with nontraumatic seizure disorder and vascular dementia. The Veteran underwent another VA examination in February 2018, at which time a VA examiner found that the Veteran does not have a currently diagnosed TBI and that his reports regarding the injury were vague and unclear. The VA examiner reported that the Veteran had a complaint of mild memory loss. In February 2021, the Veteran underwent an additional VA examination, at which time the examiner determined that there was no medical evidence to support a diagnosis of traumatic brain injury. Upon examination, the examiner noted that all 10 facets of TBI-related cognitive impairment and subjective symptoms were normal. Moreover, the Veteran has no documentation of any temporary or permanent neurological deficits, disorientation, confusion, loss of consciousness or additional diagnoses due to an index neurotrauma event that is medically consistent with a mechanism of a TBI. Thereafter, an October 2021 VA examination report indicates that the Veteran does not have a traumatic brain injury. In this regard, the examiner noted that the Veteran did not have any index neurotrauma event while on active duty and while he reported "blackout spells," such are not related to his claim for a TBI. Moreover, absent any documentation of any relevant signs, symptoms, or physical examination findings supportive a TBI, the Veteran's account is not medically consistent with a diagnosis of TBI. Again, the examiner found each of the facets of TBI-related cognitive impairment and subjective symptoms to be normal. However, at a July 2022 VA examination, the examiner found that it can be conceded that the Veteran has a TBI as related to his in-service combat. In this regard, she found that his TBI resulted in three or more subjective symptoms that moderately interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Moreover, his TBI resulted in residuals to include posttraumatic headaches, the severity of which will be discussed below. Finally, the examiner provided that the Veteran's currently diagnosed epilepsy and PTSD is less likely than not a residual of his in-service TBI. Based on the foregoing, the Board finds that a compensable rating for the Veteran's TBI is not warranted at any time during the pendency of the appeal. In this regard, the September 2016, February 2018, and February 2021 VA examiners found that there was no evidence of a TBI or any residual effects that could be attributed to a TBI. With the exception of his service-connected headaches, which will be addressed below, there is no additional symptomatology for which to compensate the Veteran related to a TBI. Rather, the Veteran's symptomatology is adequately compensated by his current ratings for posttraumatic headaches. To assign the Veteran an increased rating for a TBI based on the symptomatology described above would be assigning him additional ratings for the same symptoms for which he is rated for posttraumatic headaches, and this would constitute impermissible pyramiding. Therefore, the Board finds that an initial compensable rating for the Veteran's TBI is not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the weight of the probative evidence is against the Veteran's claim, that doctrine is not applicable, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to an initial compensable rating prior to July 12, 2022, and in excess of 30 percent thereafter for posttraumatic headaches. The Veteran has been awarded a separate rating for his posttraumatic headaches associated with his TBI. Such is rated as noncompensable as of May 2, 2013, the date of service connection, and 30 percent disabling, as of July 12, 2022, pursuant to DC 8100. Diagnostic Code 8100 provides that migraine headaches with less frequent attacks than those contemplated for the next higher rating are rated at zero percent, while migraine headaches with characteristic prostrating attacks averaging one in two months over the last several months are rated at 10 percent. Migraine headaches with characteristic prostrating attacks occurring on an average once a month over the last several months are rated at 30 percent and those with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated at 50 percent. 38 C.F.R. § 4.124a. The rating criteria do not define "prostrating;" nor has the United States Court of Appeals for Veterans Claims (Court). Cf. Fenderson, supra (in which the Court quotes Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack). By way of reference, the Board notes that, according to Webster's New World Dictionary of American English, Third College Edition (1986), p.1080, "prostration" is defined as "utter physical exhaustion or helplessness." A very similar definition is found in Dorland's Illustrated Medical Dictionary 1367 (28th Ed. 1994), in which "prostration" is defined as "extreme exhaustion or powerlessness." Additionally, the term "productive of severe economic adaptability" has not been clearly defined by regulations. The Court has, however, explained that "productive of" for purposes of Diagnostic Code 8100 can either mean producing, or capable of producing. See Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Thus, migraine headaches need not actually produce severe economic inadaptability to warrant a 50 percent rating under Diagnostic Code 8100. Id. at 445-46. Similarly, "economic inadaptability" does not equate to unemployability, as such would undermine the purpose of regulations pertaining to a total disability rating based on individual unemployability. Id. at 446; 38 C.F.R. § 4.16. The Board notes, however, that the migraine headaches must be, at a minimum, capable of producing severe economic inadaptability in order to meet the 50 percent criteria. VA treatment records from July 2013 and January 2014 indicate that a change of epilepsy medication improved his headaches. At his September 2016 VA examination for his TBI, the Veteran reported bitemporal headaches over all waking hours. In June 2020, he reported headaches following seizures. The Veteran underwent an initial VA examination in February 2018. At such time, he reported that he wakes up with headaches every day, and if he experiences a seizure, the headaches worsen. Moreover, he reported pain which varies from aching to throbbing and lasts 2 to 4 hours in duration. The Veteran also experiences symptoms of nausea, sensitivity to light, changes in vision and blurred vision and dizziness associated with his headaches. The headaches last less than one day and are located on both sides of the head. Overall, the examiner determined that the veteran does not have characteristic prostrating attacks of migraine/non-migraine headache pain. Additionally, the Veteran reported difficulty performing tasks and duties while experiencing a headache due to nausea, light, and sound sensitivity, and inability to focus and/or concentrate. Thereafter, the Veteran underwent an additional VA examination in July 2022, at which time he reported that his headaches have worsened-to-stabilized with time. Current headache symptoms were described as daily, lasting approximately 5 hours, located at the bifrontal-bitemporal are of the head, worse with activity and with prostration. Additionally, the Veteran experiences nausea, sensitivity to light and sound, changes in vision and diplopia. The examiner determined that the Veteran experiences a prostrating headache pain once a month. Based on the foregoing, the Board finds that an initial compensable rating is not warranted for the Veteran's posttraumatic headaches prior to July 12, 2022. In this regard, the Board acknowledges that he has a history of headaches that manifested in head pain with nausea, sensitivity to light, and changes in vision; however, there is no indication that he has migraines with characteristic prostrating attacks, which is required for a compensable rating. In this regard, while the Veteran reported he has difficulty performing tasks and duties while experiencing a headache, there is nothing in the record that suggests he experienced "utter physical exhaustion or helplessness" or "extreme exhaustion or powerlessness" such that his migraines may be considered to be prostrating. Furthermore, the aforementioned medical evidence does not reflect the presence of characteristic prostrating attacks to warrant an initial compensable rating. As of July 12, 2022, the Veteran is in receipt of a 30 percent rating for his posttraumatic headaches associated with his TBI; however, there is no indication that he has migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, which is required for a higher rating. In this regard, the July 2022 VA examiner determined that the Veteran's headaches resulted in characteristic prostrating attacks occurring on an average of once a month. However, as such did not result in more severe manifestations that more nearly approximate frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, a rating in excess of 30 percent is not warranted. Other Considerations In reaching its conclusions in the instant case, the Board acknowledges the Veteran's beliefs that his TBI and posttraumatic headaches are more severe than as reflected by the currently assigned disability ratings. As discussed above, the Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to describe his symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Ultimately, the Board finds the medical evidence in which professionals with specialized expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disabilities in light of the rating criteria to be more persuasive than his own reports regarding the severity of his TBI and posttraumatic headaches. The Board has also considered whether additional staged ratings under Hart, supra, are appropriate for the Veteran's service-connected TBI and posttraumatic headaches; however, the Board finds that his symptomatology was stable throughout each period on appeal. Therefore, assigning additional staged ratings is not warranted. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the increased rating claims addressed herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). In reaching the decision in this case, the Board has considered the applicability of the benefit of the doubt doctrine. However, the weight of the probative evidence is against the Veteran's claims for initial increased ratings for his TBI and posttraumatic headaches. Thus, the benefit of the doubt doctrine is not applicable, and such claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Earlier Effective Dates The law pertaining to the effective date of a VA claim for increase in disability mandates that, unless specifically provided otherwise, the effective date for the increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the claim for increase. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. However, such specifically provides that the effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if any application is received within one year from such date. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o). If the increase became ascertainable more than one year prior to the date of receipt of the claim, then the proper effective date would be the date of claim. In a case where the increase became ascertainable after the filing of the claim, then the effective date would be the date of increase. See generally Harper v. Brown, 10 Vet. App. 125 (1997). The Court has indicated that it is axiomatic that the fact that must be found, in order for entitlement to an increase in disability compensation to arise, is that the service-connected disability must have increased in severity to a degree warranting an increase in compensation. See Hazan v. Gober, 10 Vet. App. 511, 519 (1992) (noting that, under section 5110(b)(2), which provides that the effective date of an award of increased compensation shall be the earliest date of which it is ascertainable that an increase in disability had occurred, "the only cognizable 'increase' for this purpose is one the next disability level" provided by law for the particular disability). Thus, determining whether an effective date assigned for an increase rating is correct or proper under the law requires (1) a determination of the date of the receipt of the claim for the increased rating as well as (2) a review of all the evidence of record to determine when an increase in disability was "ascertainable." Id. at 521. 3. Entitlement to an effective date prior to September 20, 2022, for the award of a 100 percent rating for epilepsy. In a January 2023 decision, the Board addressed the issue of entitlement to an effective date prior to September 20, 2022, for the award of a 100 percent rating for epilepsy. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105(d)(3). By way of background, the Board remanded the Veteran's claim for an increased initial rating in August 2022 for additional development. As noted above, while on remand, in an October 2022 rating decision, the AOJ increased the rating assigned for epilepsy to 100 percent as of September 20, 2022, and in an October 2022 supplemental statement of the case, denied an initial rating in excess of 40 percent prior to September 20, 2022. The Veteran subsequently submitted a Decision Review Request: Board Appeal (Notice of Disagreement) (VA Form 10182) with respect to the propriety of the assigned effective date for the award of the 100 percent rating on October 19, 2022 In a rating decision issued on October 20, 2022, the AOJ denied entitlement to an earlier effective date for the award of service connection for epilepsy and continued the ratings assigned. In a VA Form 10182 dated one day later, the Veteran disagreed with all issues decided therein. In January 2023, the Board awarded an initial rating of 80 percent prior to June 6, 2019, and a 100 percent rating thereafter for epilepsy pursuant to the Veteran's October 21, 2022, VA Form 10182. The Board also denied entitlement to an earlier effective date for the award of service connection based on clear and unmistakable error in a June 1977 rating decision. With few exceptions, Board decisions are final when issued. 38 C.F.R. § 20.1100. As such, the January 2023 Board decision granting increased ratings for the Veteran's service-connected epilepsy became final on January 18, 2023, the date of issuance of the Board decision. Id. The Veteran has yet to appeal the Board's January 2023 decision to the Court. As noted by the Federal Circuit in Cook v. Principi, "principles of finality and res judicata apply to agency decisions that have not been appealed and have become final." Cook v. Principi, 318 F.3d 1334, 1336 (2002). In DiCarlo v. Nicholson, 20 Vet. App. 52, 55-56 (2006), the Court explained the concept of res judicata as requiring that there be only one valid decision on any adjudicated issue or claim; that decision is the only appropriate target for any future collateral attack on that issue or claim. Cf. Hazan v. Gober, 10 Vet. App. 511, 520-21 (1997) (holding that where an unappealed final decision is determinative of an issue, an appellant is collaterally estopped from "relitigating the same issue based upon the same evidence, albeit for a different purpose"). As noted above, in the January 2023 decision, the Board granted an 80 percent initial rating prior to June 6, 2019, and a 100 percent rating thereafter for the Veteran's service-connected epilepsy, which addresses the entire pendency of the initial claim. Therefore, there is no error of fact or law before the Board at this time concerning the effective date assigned for the partial allowance of the Veteran's earlier appeal for an increased rating. Accordingly, the Board does not have jurisdiction to review the appeal, and it is dismissed. Entitlement to an effective date prior to September 20, 2022, for the award of SMC pursuant to 38 U.S.C. § 1114(l). SMC is a special statutory award in addition to awards based on the schedular evaluations provided in VA's rating schedule and provides a higher rate of compensation for service-connected disabilities. Therefore, for the purpose of assigning an effective date, a claim for SMC is considered akin to a claim for an increased rating. By way of background, VA received the Veteran's initial claim for SMC in November 2012. In a January 2014 rating decision, the AOJ denied the award of SMC based on a December 2013 VA examination, which indicated that he was independent in all activities of daily living and would be able to protect himself from the hazards of his daily environment. The Veteran timely appealed such decision, and the Board remanded the claim in December 2017, April 2020, May 2021, September 2021, and March 2022 for additional development. While on remand, in an August 2022 rating decision, the AOJ awarded SMC based on the need for aid and attendance, effective August 2, 2022. However, the AOJ later corrected the effective date to September 20, 2022. Claims for SMC, other than those pertaining to one-time awards and an annual clothing allowance, are governed by 38 U.S.C. §§ 1114(k)-(s) and 38 C.F.R. §§ 3.350 and 3.352. In this regard, the rate amounts increase the later in the alphabet the letter appears (except for the (s) rate). SMC under subsections (k) through (r) are rates that are paid in addition to any other SMC rates, with certain monetary limits. In pertinent part, SMC under subsection (l) is payable for anatomical loss or loss of use of both feet, one hand and one foot, blindness in both eyes with visual acuity of 5/200 or less or being permanently bedridden or so helpless as to be in need of regular aid and attendance (A&A). Throughout the appeal period, the Veteran asserted that he is in need of aid and attendance due to his seizure disorder, anxiety, and degenerative joint disease. In this regard, the Veteran reported that he is unable to drive due to his seizures and is, therefore, housebound, as he depends on his friends and relatives to complete everyday driving tasks. Turning to the medical evidence of record, in a November 2012 Medical Statement for Consideration of Aid & Attendance, the Veteran's treatment provider, Dr. R.B., noted that he is disoriented after seizures and needs assistance when walking to prevent falling, needs assistance with eating at times due to his hands trembling, and needs assistance with bathing and hygiene. Additionally, while he is not confined to a bed and is able to sit up, following a seizure he is weak for a couple of days. It was also noted that the Veteran is able to travel short distances and does not require nursing home care; however, he is unable to drive anymore and requires assistance to leave his home. Finally, Dr. R.B. determined that the Veteran sometimes misses medicine and is disabled due to rheumatoid arthritis and constant pain. In a December 2013 VA examination for Aid and Attendance, it was noted that the Veteran does not experience dizziness, memory loss, or imbalance affecting the ability to ambulate. Overall, the examiner found that the Veteran is independent in activities of daily living and with instrumental activities of daily living, and while he is unable to drive due to his seizure disorder, he would be able to protect himself from hazards of his daily environment. An August 2015 mental health progress note reveals that the Veteran has about one to two panic attacks a week and seizures at least once every three months. He is unable to drive due to his seizures, which interferes with his life, and does not go into public due to seizures and the embarrassment of urinating on himself. However, he noted that he goes fishing with his brother and sometimes works in his yard. At a June 2017 Board hearing, the Veteran testified that he is unable to drive due to his seizures. However, he also testified that he is able to dress himself, brush his teeth, and prepare his own food. In a statement received in December 2018, the Veteran's spouse indicated that his seizures diminished his quality of life, and he has gone from a very independent man to one who depends on the help and assistance of others to perform personal functions required in every day. Here, the Board notes that the Veteran's spouse did not describe with specificity the personal functions that the Veteran's requires help with. Finally, the Veteran underwent a VA examination in August 2022, which is the basis for his award for SMC. The examiner noted that he the Veteran has unstable/antalgic gait, walks with a cane, is very unsteady, and requires assistance to ambulate. Additionally, his history of seizures and falls have left him with a lot of lower extremity pain and right shoulder pain, and he has weakness throughout his upper and lower extremities that further cause unsteadiness in his gait. The Veteran is not confined to his bed, and he is able to feed himself. He is unable to prepare his own meals as he is unable to stand for prolonged periods of time, and he requires assistance in bathing and tending to other hygiene needs due to decreased strength in his extremities. The examiner also noted that the Veteran requires medication management due to impaired memory as a result of his TBI and epilepsy. The Veteran is not legally blind, does not require nursing home care, and has the mental capacity to manage his own finances. The examination also reports that the Veteran typically stays home; however, he is able to be escorted to church, bible study, visits with family, the barber, and healthcare visits, with the help of family members. The Veteran has impairment of fine motor movement which cause difficulty with buttons, zippers, and opening cans and jars. Overall, the August 2022 VA examiner opined that the Veteran requires the need of aid and attendance on a daily basis. Upon review, the Board finds the evidence demonstrate the Veteran's need for regular aid and attendance as of August 2, 2022, but no earlier. In this regard, prior to such date, the record indicates that the Veteran needed assistance driving due to his epilepsy and seizures. However, there is no evidence that he was confined to his bed or required assistance with hygiene, eating, or medication management. Likewise, the record does not reflect an inability to attend to the wants of nature. Moreover, although the Veteran was unable to drive a car on his own due to the fear of him suffering a seizure, the evidence of record indicate that he was still able to leave the house to attend church, bible studies, visit with family, and go to the barber. Moreover, the Veteran reported attending to yard work and going fishing with his brother. Thus, the Board finds such evidence does not reflect an incapacity to the extent that the Veteran required care or assistance on a regular basis to protect himself from hazards or dangers incident to his daily environment prior to August 2, 2022. For the foregoing reasons, the Board finds the weight of the probative evidence demonstrates a need for regular A&A sufficient to meet the criteria for SMC under 38 U.S.C. § 1114 (l) as of August 2, 2022, but no earlier. REASONS FOR REMAND Entitlement to an effective date prior to September 20, 2022, for the award of a higher rating of SMC pursuant to 38 U.S.C. § 1114(p). In the January 2023 decision, the Board awarded increased ratings for the Veteran's epilepsy during the appeal period, which the AOJ has yet to implement. As the implementation of such awards could impact the Veteran's eligibility for a higher rating of SMC, the Board finds re-adjudication of this issue must be deferred. Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matter is REMANDED for the following action: Following the implementation of the recent Board awards, re-adjudicate the issue of entitlement to an effective date prior to September 20, 2022, for the award of a higher rating of SMC pursuant to 38 U.S.C. § 1114(p). M. M. Celli Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Waite 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.