Citation Nr: A24008632 Decision Date: 02/26/24 Archive Date: 02/26/24 DOCKET NO. 190918-110989 DATE: February 26, 2024 ORDER Entitlement to a higher level of special monthly compensation (SMC) (p-2) at the (m) rate, from August 20, 2019, is granted. Entitlement to a higher level of SMC (to include SMC (r-1), (r-2) or (t)) is denied. FINDINGS OF FACT 1. The Veteran warrants SMC (p-2) at the (m) rate for independently ratable disabilities of 100 percent (PTSD/depression/TBI) and entitlement to SMC (l) for his knees, feet, back, and headaches. 2. The Veteran is not in receipt of, nor does he meet the criteria for entitlement to, SMC under 38 U.S.C. § 1114 (o), the maximum rate under 38 U.S.C. § 1114 (p) (SMC (p) at the (o) rate), or at the intermediate rate between (n) and (o) plus SMC at the (k) rate. The Veteran has not been deemed to be in need of personal health-care services provided on a daily basis in his home by a person who is licensed to provide such services or who provides such services under the regular supervision of a licensed health-care professional. 3. The Veteran is not in need of regular aid and attendance for the residuals of traumatic brain injury (TBI), and his TBI residuals would not require his hospitalization, nursing home care, or other residential institutional care without regular aid and attendance. CONCLUSIONS OF LAW 1. The criteria for a higher level of SMC (p-2) at the (m) rate is warranted from August 20, 2019. 38 U.S.C. § 1114; 38 C.F.R. § 3.350. 2. The criteria for a higher level of SMC (to include SMC (r-1), (r-2) or SMC (t)) have not been met. 38 U.S.C. § 1114; 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1981to October 1981, April 1984 to September 1984, and November 1985 to March 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 20, 2019 rating decision. In the September 18, 2019 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on August 30, 2023. A transcript is of record. Therefore, the Board may only consider the evidence of record at the time of the August 2019 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). The Board notes that the VLJ who presided over the August 2023 hearing explained the AMA evidence windows to the Veteran and his then-representative. See Hearing Transcript, P. 2. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. A significant amount of evidence was added to the claims file either during the period between the AOJ decision and the Board hearing (between August 2019 and August 2023) or outside of the 90 days following the August 2023 Board hearing (or that was created by VA and not submitted by the Veteran or his representative during this period). The evidence that was not considered by the Board in this decision because it was submitted outside of an applicable period includes: ongoing VA treatment records, August 2023 PTSD and TBI examinations, July 2023 headache examination, March 2023 VA 21-2680 examination, statements from various medical providers submitted on July 1, 2022, and December and November 2019 PTSD/eye/mental health/audiology/TBI examinations. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider in this decision, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 1. Entitlement to a higher level of special monthly compensation (SMC) (claimed as entitlement to SMC (r-1), (r-2) or SMC (t)) denied. The Veteran contends that he is entitled to a higher level of aid and attendance and has argued specifically for either SMC (r-1), (r-2) or SMC (t). The Veteran has the following service-connected disabilities and ratings (as related to period on appeal): PTSD with major depressive disorder with TBI (70 percent from January 8, 2009 and 100 percent from August 20, 2019), posttraumatic headaches (50 percent from February 1, 2017), right knee injury with instability (40 percent from January 9, 1996), bilateral plantar fasciitis (30 percent from May 20, 1999), left knee instability (20 percent from November 5, 1998), left knee patellofemoral syndrome (20 percent from March 10, 2010), right big toe disability (10 percent from May 1, 2009), low back strain and sprain (20 percent from November 5, 1998), tinnitus (10 percent from February 6, 2017), left foot calcaneal spur (noncompensable from October 15, 1999), erectile dysfunction (noncompensable from January 7, 2004), and TBI (noncompensable from October 19, 2015 to August 23, 2023 at which point it was added to his PTSD rating). A June 2004 rating decision granted entitlement to service connection for posttraumatic headaches, based on service records showing a closed head injury in September 1989 after falling 30 feet from a ladder. A September 2004 rating decision granted entitlement to service connection for depression secondary to the Veteran's service-connected right knee disability. This decision was based on the Veteran's report (during an August 2004 examination) of having been depressed since a 1986 injury to his right knee. A May 2016 rating decision granted entitlement to service connection for traumatic brain injury (TBI), based on the same in-service 1989 fall and head injury. An initial noncompensable rating was assigned. A January 2020 rating decision provided an increased 100 percent rating for his psychiatric conditions, now- listed as PTSD with major depressive disorder. His PTSD was granted based on MST (stressor) and a diagnosis of PTSD from Flourish Mental Health. An October 2023 rating decision provided the 100 percent rating for PTSD with major depressive disorder with TBI, combining the Veteran's psychiatric and TBI ratings as the overlap in symptoms would have violated the rule against pyramiding if VA had provided separate ratings. (When disabilities have duplicative or overlapping symptoms, the rule against pyramiding prohibits the VA from compensating a veteran more than once for the same symptom or impairment. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017), 38 C.F.R. § 4.14). SMC Levels SMC is authorized in particular circumstances in addition to compensation for service-connected disabilities. See 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352. SMC is authorized under subsections (k) through (s), with the rate amounts increasing the later in the alphabet the letter appears (except for the "s" rate). SMC at the (k) and (l) rates are paid in addition to any other SMC rates, with certain monetary limits. The Veteran is in receipt of SMC (s) for certain periods where he was in receipt of temporary total (100 percent) ratings for convalescence following surgery-from March 6, 2001 to April 30, 2001, from February 6, 2009 to March 31, 2009, and from September 4, 2009 to November 30, 2009. SMC at the (k) rate is provided for loss or loss of use of certain body parts. 38 U.S.C. § 1114 (k); 38 C.F.R. § 3.350 (a). The Veteran is in receipt of SMC (k) for loss of use of a creative organ from January 7, 2004. SMC at the (l) rate is payable when the veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to be in need of regular aid and attendance under the criteria set forth in 38 C.F.R. § 3.352 (a). See 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). The Veteran is in receipt of SMC (l) on account of being so helpless as to be in need of regular aid and attendance from January 12, 2011. SMC at the (m), (n), and (o) rates are based on a combination of disabilities related to anatomical loss or loss of use of both hands/arms (at levels), both legs (at levels), one arm and one leg (at levels), blindness (at levels, including anatomical loss of eyes), combinations of visual impairment and hearing impairment (at specific severities). 38 U.S.C. § 1114 (m), (n), (o); 38 C.F.R. § 3.350 (c), (d), (e). Paralysis of both lower extremities together with the loss of anal and bladder sphincter control will entitle a veteran to the (o) rate of SMC, through the combination of loss of use of both legs and helplessness. The requirement of loss of anal and bladder sphincter control is met even though incontinence has been overcome under a strict regimen of rehabilitation of bowel and bladder training and other auxiliary measures. 38 C.F.R. § 3.350 (e)(2). Determinations for entitlement to the (o) rate of SMC must be based upon separate and distinct disabilities. That requires, for example, that where a veteran who had suffered the loss or loss of use of two extremities is being considered for the maximum rate on account of helplessness requiring regular aid and attendance, the latter must be based on need resulting from pathology other than that of the extremities. 38 C.F.R. § 3.350 (e). If the loss of use of two extremities or being permanently bedridden leaves the person helpless, increase is not in order on account of this helplessness. Under no circumstances will the combination of "being permanently bedridden" and "being so helpless as to require regular aid and attendance" without separate and distinct anatomical loss, or loss of use, of two extremities be taken as entitling the veteran to the maximum benefit. The fact, however, that two separate and distinct entitling disabilities, such as loss of use of both hands and both feet, result from a common etiological agent, for example, one injury or rheumatoid arthritis, will not preclude maximum entitlement. 38 C.F.R. § 3.350(e). Additionally, 38 U.S.C. § 1114(p) provides for "intermediate" SMC rates between the different subsections based on anatomical loss or loss of use of the extremities or blindness in connection with deafness and/or loss or loss of use of a hand or foot. 38 U.S.C. § 1114 (p); 38 C.F.R. § 3.350 (f). In addition to the statutory rates payable under 38 U.S.C. § 1114 (l) through (n) and the intermediate or next-higher rate provisions set forth under 38 U.S.C. § 1114 (p), additional single permanent disability or combinations of permanent disabilities independently ratable at 50 percent or more will afford entitlement to the next-higher intermediate rate, or if already entitled to the next-higher intermediate rate, then to the next-higher statutory rate under 38 U.S.C. § 1114, but not above the (o) rate. The disability or disabilities independently ratable at 50 percent or more must be separate and distinct and involve different anatomical segments or bodily systems from the conditions establishing entitlement under 38 U.S.C. § 1114 (l) through (n) or the intermediate rate provisions of 38 U.S.C. § 1114 (p). 38 C.F.R. § 3.350 (f)(3). The Veteran is in receipt of SMC (p-1) at the intermediate rate between subsection (l) and subsection (m) from August 20, 2019. Also, additional single permanent disability or combinations of permanent disabilities independently ratable at 100 percent apart from any consideration of individual unemployability will afford entitlement to the next-higher intermediate rate, or if already entitled to the next-higher intermediate rate, then to the next-higher statutory rate under 38 U.S.C. § 1114, but not above the (o) rate. The disability or disabilities independently ratable at 100 percent or more must be separate and distinct and involve different anatomical segments or bodily systems from the conditions establishing entitlement under 38 U.S.C. § 1114 (l) through (n) or the intermediate rate provisions of 38 U.S.C. § 1114 (p). 38 C.F.R. § 3.350 (f)(4). A veteran receiving SMC at the (o) rate, at the maximum rate under 38 U.S.C. § 1114 (p), or at the intermediate rate between (n) and (o) plus SMC at the (k) rate, and who is in need of regular aid and attendance meet the requirements for entitlement to SMC at the (r-1) rate. SMC at the (r-2) rate requires a higher level of care. 38 U.S.C. § 1114 (r)(1) ("r-1" rate), (r)(2) ("r-2" rate). SMC at the (r-2) rate requires a showing that the Veteran required daily personal health care services by a medical professional, or under the supervision of such, without which institutional care would be required. 38 C.F.R. § 3.350 (h)(2). Special monthly compensation provided by 38 U.S.C. § 1114 (t) is warranted for veterans who need regular aid and attendance for the service-connected residuals of TBI but are not eligible for a higher level of aid and attendance, and would require hospitalization, nursing home care, or other residential institutional care in the absence of regular aid and attendance. 38 U.S.C. § 1114 (t). Date of Claim The Veteran has argued he is entitled to a higher rating of SMC with an effective date in 2011. See May 9, 2022 Correspondence. However, the Board notes that the claim is not on appeal from 2011. On September 26, 2017, the Veteran indicated his request for an increased SMC rate of SMC (t). See Report of General Information (phone call). On October 2, 2017, VA informed the Veteran that claims for benefits had to be submitted on specific forms and provided information on the correct forms to use. On October 16, 2017, the Veteran again called to request an increased SMC to SMC (t). See October 16, 2017 Report of General Information. On March 2, 2018, VA again sent the Veteran a notification letter informing him that claims for benefits needed to be filed on appropriate forms. On April 4, 2018, the Veteran submitted several medical statements, and included the handwritten note that "this appeal is for TBI for SMC(T)." See April 4, 2018 Medical Treatment Records-Non-Governmental Facility. Thereafter, VA received an intent to file on July 9, 2018. The AOJ sent a letter of receipt of the intent to file and notified the Veteran that he needed to submit a claim within one year of July 9, 2018 to reserve this earlier claim date. On July 26, 2019, more than one year from his intent to file notice, the Veteran submitted a VA 21-526EZ Fully Developed Claim form for a higher level of A&A (aid and attendance). As such, the appeal period begins from the date of the Veteran's claim on July 26, 2019. Evidence Although the Veteran's claim for a higher level of SMC was filed in July 2019, the Board will address relevant evidence available to decision makers at the time of the August 2019 decision on appeal. On December 29, 2016, the Veteran was seen by VA occupational therapy due to decreased range of motion of his left knee and decreased balance due to pain in the knee with standing. He was noted to have mild decreased independence with basic ADLs (activities of daily living) due to his knee. He had a shower chair, handheld shower, raised toilet seat with arms, sock aid, "reacher," long-handled shoehorn, and dressing stick provided to increase his independence. A January 2017 TBI examination included the Veteran's complaint of mild memory loss and moderately impaired judgement. The examiner noted the Veteran worked for the Department of Corrections for 7 years (after his TBI) and "ultimately left because of his knees." The examiner found there was no evidence he had difficulty making decisions due to his TBI, even while he was working for Department of Corrections. However, the Veteran subjectively felt he had impaired judgement. His social interaction was occasionally inappropriate, described as avoiding people because he loses his temper. He was always fully oriented. His motor activity was mildly decreased due to his chronic knee pain (not apraxia/TBI). He used crutches to ambulate. He had moderately impaired visual special orientation based on complaint of frequently getting lost. However, the examiner noted that he did not use GPS and came to the office before his appointment time. This statement indicates he may have come to the appointment on his own. He had three or more subjective symptoms-headaches, tinnitus, and sensitivity to light. Regarding neurobehavior effects, the Veteran reported low frustration tolerance, impulsivity, and moodiness. Diagnostic memory testing ("MOCA from 1/18/17") showed the Veteran scored 8 out of 30, which the examiner found to be "exaggerated by his lack of effort." The examiner noted that most of the Veteran's symptoms were due to his PTSD. During a February 2017 headache examination, the Veteran reported weekly headaches lasting "3 to 7 days." He had flashing lights, nausea, vomiting, and tinnitus associated with his headaches, and needed to stay in a dark room. The Veteran reported he retired from work due to his headaches. In May 2017, the Veteran filed an application for an automobile (truck) as adaptive equipment. He also submitted a statement from a Dr. A.D.P. that the Veteran was seeking hand controls for his vehicle as it was difficult to use the foot pedals in his condition. An August 8, 2017 VA social work note included the Veteran's request for a statement from a neurologist that he needed "aid and attendance specifically due to his TBI." He had asked on August 6, 2017 what medications he was taking due to his TBI and had been informed that none of his medications were to treat his TBI. The social worker noted that the Veteran was already receiving SMC A&A and housebound, and service-connected income. The social worker inquired if the Veteran needed assistance at home with ADLs for possible referral to homemaker/home health program. He declined those services. They provided him with information for applying for benefits. The Veteran was "uncompromising and insistent that he is in need of such letter." The social worker suggested that he "write the request with details of what he wants the letter to include so that the Neurologist may review for consideration." The social worker reviewed VA notes which showed that there were multiple notes that indicated "similar challenging approach" from the Veteran and his request for correspondence for VBA claims and appeals. A January 24, 2018 PM&R occupational therapy initial note included the Veteran's complaint of being "tired of dealing with the bathroom." He was ambulatory with axillary crutches and a left knee brace. Using "Functional Independence Measure" scores, the VA provider found that the Veteran was independent with eating, grooming, putting on a shirt, comprehension, expression, social interaction, problem solving, and memory. He had modified independence with bed mobility and toileting. He needed moderate assistance with bathing, putting on/taking off his pants. He needed maximum assistance with putting on/taking off socks and shoes. He had independent balance with sitting, and modified independence with standing using axillary crutches. He had poor endurance. The Veteran was approved for HISA grant use for conversion from bathtub/shower to walk-in shower due to his report of multiple falls and observed difficulty in moving from sit to stand and stand to sit. The therapist expressed concern based on the Veteran's report of staying in his own house 20 percent of the time with bedroom and bathroom upstairs (his wife lives downstairs), and his difficulty climbing stairs. He reported staying with his uncle 80 percent of the time, his uncle had a one-story house. He stated his son assisted with basic ADLs. A January 20, 2018 letter from a Flourish Mental Health provider noted that the Veteran had increased anxiety, insomnia, nightmares, headaches, nausea, memory loss, tinnitus, and vertigo. He "will need aid attendant to help him with his ADLs." A March 26, 2018 Flourish Mental Health record noted that the Veteran's sleep and appetite were improving, but his depression and anxiety symptoms were still present. He ambulated with a cane due to chronic pain and vertigo. The Veteran reported he had difficulty completing ADLs due to headaches, photophobia, gait, coordination problems, memory loss, and tinnitus that he stated were from his TBI. After interview, he was noted to have mild memory loss, moderately severe impaired judgment (no explanation), moderately decreased motor activity, and moderately severe impaired visual spatial orientation as he reported getting lost even in familiar surroundings. A July 16, 2018 VA social work psychosocial assessment for homemaker/home health aide included that the Veteran required some help from another person to put clothing on. He needed help for grooming (this was not further explained). He needed supervision for bathing, help cutting food/buttering bread/arranging food. He endorsed needing help sitting up in bed, and someone to guide him, but he could move in and out of a bed or chair. He was able to walk with the help of a cane or walker. He was able to communicate his needs. He was fully oriented. He reported he needed and received regular staff intervention in the form of redirection because he had episodes of disorientation, hallucinates, wander, is withdrawn, or exhibits similar behaviors (this was not further explained and appears contrary to other findings in the report, such as independent self-preservation). Regarding toileting--he had accidents sometimes, but not more than once a week. His self-preservation was independent. He did not require any special treatments and did not require clinical monitoring. His total number of ADL deficiencies was 7. It was noted that the social worker would request that the Veteran's VA neurologist enter a non-VA care consultation for home maker/home heath aid services. On July 18, 2018, VA Community Care Coordination found that the Veteran could have a home health aide provided 4 times per week and homemaker services 2 times per week for a period from July to September 2018 through a private non-VA company. However, on July 24, 2018 the Veteran refused the services. He also declined further appointments with Community Care. A September 7, 2018 Spine Center note included the Veteran's report of pain all the time. He had a history of multiple bilateral carpal tunnel and cubital tunnel surgeries and had impaired upper extremity sensation. However, the Veteran's upper extremities are not service connected. He ambulated with assistance from a legacy rollator due to knee and low back pain and remained independent with ADLs. At the time of the note, he lived in Texas with his son in a multilevel home with his bed and bathroom on the second floor. January and March 2019 VA urology records noted the Veteran's complaint of difficulty with intercourse and malfunction of an IPP. He had developed trouble with the IPP following a car accident in 2018. In January 2019, the Veteran fell and injured his right hand. A February 5, 2019 VA occupational therapy record noted that the Veteran injured his right middle finger. His level of care was modified independent with ADLs. A June 4, 2019 VA neurology follow-up included the Veteran's report of daily headaches lasting a "couple of hours." He had tried Elavil and Topamax in the past but felt they did not help. He was prescribed Gabapentin but did not take it as he felt he was already on too many medications. He was told to avoid excessive Tylenol/Advil use to avoid medication-overuse headaches. He was not on any prescription headache medications. The Veteran sought another VA neurology appointment, and on June 25, 2019, he again reported almost daily headaches with associated nausea, vomiting, photophobia, and phonophobia. The Veteran reported his wife did the grocery shopping, laundry, cooking, and paid the bills. He stated he needed help with activities of daily living, specifically help with clothing due to his neuropathy and knee issues. He was not being seen for clinical evaluation, but instead to request a letter certifying that he needed assistance with ADLs. He denied any change in symptoms from 3 weeks prior. On evaluation, he had decreased (4/5) motor strength in his knees and ankles. His complaints of memory loss/cognitive issues were noted to be likely related to pseudodementia due to chronic pain, headaches, sleep apnea, and remote TBI. The record included that the Veteran needed help with his ADLs "due to chronic pain from his TBI;" however, it is unclear if this is the Veteran's wording or the neurologists. The neurologist also noted that he signed a letter regarding the ADL information so that the Veteran "could qualify for a home assistance program." Again, the Board notes that the Veteran's upper extremity disabilities and neuropathies are not service connected. On July 26, 2019, the Veteran resubmitted an August 11, 2017 letter from a VA neurologist. The letter included that the Veteran had a TBI in 1989 with residual headaches and tinnitus. It was noted he had been tried on multiple medications for his headaches with persistent symptoms which effected his activities of daily living. The activities of daily living were not listed or specified. An undated letter signed by a VA neurologist included that the Veteran required regular assistance with ADLs "due to chronic pain from his traumatic brain injury." The letter did not specify which part s of the body had chronic pain from his TBI that limited his ADLs. He also submitted VA treatment records, including a June 5, 2019 neurology record with "Memory problems" listed as a diagnosis, but with "MOCA poor effort 19/30." The neurologist noted that the Veteran had declined any medical interventions for his headaches. The record contains a July 25, 2019 Examination for Housebound status or Permanent need for Aid and Attendance, which was submitted with the Veteran's claim for a higher level of A&A. The examination report included that the Veteran had diagnoses of chronic low back pain due to degenerative disc disease, osteoarthritis of the knees, and right shoulder pain (not service connected). His gait was antalgic. He was unable to feed himself due to shoulder and hand pain (not service connected). He was unable to prepare his own meals due to chronic pain. He required assistance in bathing and tending to hygiene needs due to chronic pain. He was not legally blind. He did not require nursing home care. He required medication management due to chronic pain. He had the mental capacity to manage his benefit payments or direct someone else to do it. His posture and appearance were normal. The Veteran leaves the home mostly for doctor's appointments. In the section requesting information on "all other pathology" that affected his ability to perform self-care, ambulate, or travel beyond the home, or if hospitalized, beyond the ward or clinical area, and to describe where the Veteran goes and what he does on a typical day, the physician wrote "Chronic pain in multiple joints, who needs of higher level of aide and attendance." An August 6, 2019 VA prosthetic consultation included that the Veteran needed a knee brace to offload the joint while walking and to be able to have no pain while ambulating. He was fit with a left offloading knee brace. It fit comfortably and he did not have any pain while walking. He also needed a right offloading knee brace, but they did not have any in stock. He requested the braces to help prevent buckling and reduce pain. As noted in the introduction, any evidence added to the record after the August 20, 2019 rating decision and before the August 30, 2023 hearing, and any evidence submitted after November 28, 2023 (90 days from the Board hearing) were not considered in this decision. Additionally, any evidence created by VA (VA treatment records or examinations) during these periods that were not submitted by the Veteran/his representatives were not considered in this decision. During the August 30, 2023 Board hearing, the Veterans Law Judge (VLJ) noted that the Veteran was reclining/laying down for the hearing. He stated that this was the most comfortable position for him. Regarding his care at home, the Veteran stated that his son took him places he could not go, helped to bathe him, or occasionally helped with the toilet. When asked if someone came to do physical therapy with him or came to care, he repeated that his son would bathe him but that he did not have anybody to come over every day. He affirmed that no one caring for him was licensed to do it or was under the supervision of a licensed person. He did not have VA in-home healthcare coming to check on him, just "people that help" him. He testified that VA had told him he could have a home health carer, but that he did not take it because he was not sure if he was going to stay in Texas or move to Louisiana. He declined home health "five years" because he thought he may move to Louisiana, and he indicated he would move in the next several months. When asked if he could use the toilet on his own, he stated "not really." He stated his son helped him if he "need[ed] him" and that it "depend[ed]." He noted that he used a walker and was able to make it to his bathroom, and he had grip bars in his shower/bathroom. However, his son still needed to supervise him. He had a fall 3 weeks prior to the hearing, due to his legs giving out. His house was one-floor and had a bathroom that was "handicapped outfitted." When asked if someone else cooked his food, he stated "his mom," which appeared to refer to the Veteran's son's mom. He noted his son and wife lived in the home and were with him, except when his son went to work. The Veteran testified that his PTSD/TBI did not cause him to act in an unsafe way. He was able to maintain his own safety, but if he needed to go somewhere he had to have someone go with him. He stated that his headaches took away from his ability to care for himself, and stated he may throw up at any time, including when lying down. The VLJ questioned him on the safety aspect of choking if he was lying down, but the Veteran stated that this was not something that had been a concern to him or his family as he would lay on his side with a towel or bag if he was nauseated. The Veteran testified that he did not believe that the help he was getting from his son and wife were enough. He felt he needed "home health care." His son was 24-years old, had just finished college, and needed to get out on his own. When asked about his wife caring for him, he noted that she was "burned out" from caregiving (cooking, cleaning, and "waiting" on him). When asked if someone supervised him when he used his walker to go to the bathroom, the Veteran stated it "depends." He stated his wife was not afraid he was going to fall every time he got up and moved around, but the Veteran himself was afraid he would fall. Analysis A July 2015 Board decision granted entitlement to SMC based on the need for aid and attendance. SMC (l) was granted, in part, based on a February 2015 "Medical Statement for Consideration of Aid & Attendance" by VA which noted the Veteran suffered from chronic back pain, osteoarthritis of the knees, and shoulder pain. The Veteran was unable to walk unaided and used a rollator and a cane. He also needed assistance in bathing and tending to other hygiene needs due to impaired mobility stemming from back and knee pain. He stated he was unable to travel or leave the home without assistance, and he was sometimes housebound. As such, the Board found that his "service-connected disabilities, including his spine, knees, and depression" had rendered him unable to perform many activities of daily living without regular aid and attendance, including bathing and tending to hygiene, and granted entitlement to SMC (l). The January 2020 rating decision, which provided a 100 percent rating for PTSD with major depression from August 20, 2019, also determined that the Veteran met the criteria for SMC based on housebound criteria, from August 20, 2019. A noncompensable rating for TBI was continued, and the Veteran was found competent. His entitlement to SMC (p) at the rate intermediate between (l) and (m) was established due to entitlement to subsection (l) with additional disabilities, with posttraumatic headaches and right knee injury, independently ratable at 50 percent or more from August 20, 2019. As such, the Veteran currently receives SMC (l) for significant disabilities requiring aid and attendance based on his knee, back, and depression/mental health disabilities. And receives SMC (p) at the intermediate step between SMC (l) and SMC (m) due to an additional disability (headaches) independently ratable at 50 percent or more. The evidence does not show that the Veteran is entitled to SMC (l) other than in the need for regular aid and attendance. Although the Veteran has several lower extremity disabilities, the record does not demonstrate that he has loss of use of both feet as he is able to ambulate with braces and crutches. He is not service connected for any of the disabilities impacting his hands or vision. The Board considered if the Veteran may have been entitled to a separate SMC (l) based on his mental health symptoms/TBI but determined that it was not warranted. The available evidence included a January 2017 TBI examination wherein the Veteran reported mild memory loss, moderately impaired judgement, and subjective complaints of headaches, tinnitus, and sensitivity to light. The examiner found that most of his symptoms were due to PTSD, his memory testing was unreliable/exaggerated due to lack of effort, and noted his complaints of impaired judgment and spatial orientation were not shown (based on his ability to work for the Department of Corrections without issue and his ability to make it to his appointment on time without GPS). Additionally, there are limited psychiatric treatment records for the period on appeal. He did not appear for a June 9, 2017 VA mental health note. The record contains two Flourish Mental Health treatment records from January and March 2018. At that time, Flourish provided a psychiatric evaluation with limited information based on a check mark of symptoms without further explanation (e.g., poor insight and moderately severely impaired judgment selected but no explanation provided). Notably, the Veteran has pursued many VA benefits during this period, providing knowledgeable statements and seeking additional statements with wording related to the claims he is seeking, which would indicate good insight and judgment on lay observation. Additionally, the March 2018 record does not include a mental status evaluation, and only lists the Veteran's report of symptoms without elaboration (e.g., "depression and anxiety are still present"). As such, the available evidence for review does not support that the Veteran's psychiatric/TBI disabilities would result in a separate need for regular aid and attendance without consideration of his mobility constraints related to his back, knee, and feet disabilities. The Board has considered if the Veteran is entitled to a higher level of SMC (p) by rearranging how his SMC (l) was addressed. Where the AOJ provided SMC (p) at the intermediate rate between (l) and (m) due to SMC (l) for spine, knees, and depression and an additional 50 percent rating for headaches (and right knee), the Board finds that a higher SMC rating is available when reconsidering the cause of the Veteran's need for aid and attendance (SMC (l)). Based on the available evidence, the Board finds that entitlement to aid and attendance (SMC (l)) was warranted for back, knee, foot, and headache disabilities. Medical records from VA social workers and neurologist included that the Veteran needed help with bathing, occasionally toileting, shopping, cooking, and dressing in part due to his chronic pain from his back, knees, feet, and headaches. [The Board notes that VA treatment records show some of the Veteran's limitations are due to nonservice-connected hand and arm symptoms]. During his Board hearing, the Veteran indicated that his headaches resulted in frequent nausea and vomiting. He again noted that most of the activities of daily living he needed help with were a result of his limited mobility due to his back and lower extremities, and his nausea. By finding that he would be warranted to SMC (l) for his knees, feet, back, and headaches, the Board may provide SMC (p-2) at the rate equal to subsection (m) on account of his separate/independent 100 percent rating for PTSD/depression/TBI (where his headaches are separately rated from TBI). See 38 C.F.R. § 3.350 (f)(4). The Board notes that even with providing SMC (l) for back, knees, feet, and headaches, a separate SMC (l) is not warranted for PTSD/depression/TBI as treatment records do not show that the combination of these overlapping symptoms results in the Veteran being so helpless as to need aid and attendance. The neurology statements regarding the Veteran's need for aid and attendance are that the "chronic pain" results in his need for help with ADLs, and his limitations have specifically been related to his mobility issues and headaches. Indeed, some of his limitations are related to his upper extremities, which are not service connected. As such, two separate SMC (l)s are not warranted, and an increased SMC (o) level is not shown. Furthermore, the Veteran is not entitled to SMC at any other higher level, including at the (o) level. As noted above, the Veteran is not entitled to two or more SMC (l) rates and his current SMC (l) rate encompasses overlapping service- connected disabilities. Moreover, the evidence of record at the time of the AOJ decision on appeal does not demonstrate the Veteran has suffered amputation, anatomical loss of any extremity with factors that prevent the use of prosthetic appliances, combination of blindness or deafness as required to meet the criteria for 38 U.S.C. §§ 1114 (n), and (o). As noted, higher levels of SMC are available based on special aid and attendance (r-1) and a higher level of aid and attendance (r-2), both of which require a threshold requirement of entitlement to SMC at the (o) level, the maximum rate of SMC at the (p) level, or at the (n) 12 plus (k) levels. 38 U.S.C. § 1114 (r); 38 C.F.R. §§ 3.350 (h), 3.352. Here, the Veteran is not rated at the maximum rate under subsection (p) or at the intermediate rating between (n) and (o). The Veteran's highest SMC rating in the appellate period is SMC (p-2) at the (m) rate, which is not the highest rate authorized under subsection (p). (Continued on the next page) ? A higher rate of aid and attendance benefits is awarded if the veteran, in addition to such need for regular aid and attendance, is in need of a "higher level of care." 38 U.S.C. § 1114 (r)(2). "Higher level of care" requires that there is a need for personal healthcare services, provided by a person who is licensed to provide such services or who provides such services under the regular supervision of a licensed-health care professional. The consultation need not be in person; a telephone call will suffice. 38 C.F.R. § 3.352 (b)(4). The higher-level aid and attendance allowance is to be granted only when the veteran's need is clearly established, and the amount of services required by the veteran on a daily basis is substantial. 38 C.F.R. § 3.352 (b)(5). The above cited treatment records show the Veteran's refusal of home health services in 2018 and his Board hearing testimony included that he did not have anyone licensed supervising or providing services, only his son and wife. Indeed, he noted that he only received care from his son when the son was home (not working), and treatment records indicated the Veteran spent 20 percent of the time in his home and 80 percent of the time at his uncle's home. Additionally, the Veteran continued to seek an automobile through VA, his VA physician submitted a statement that he would need a car with hand controls due to his lower extremity problems, and his VA treatment records indicated he was not accompanied to his appointments. Lastly, the Veteran has argued he is entitled to SMC (t), which he described as a higher rate of aid and attendance due to his service connected TBI. Initially, the Board notes that the Veteran's grant of SMC (l) for aid and attendance is provided based on his back, knee, feet, and headache disabilities. His activities of daily living were impacted by his mobility constraints. Again, the Board notes he is not service connected for any upper extremity disabilities although he has provided arguments regarding limitations with shaving, brushing his teeth, and eating due to hand disabilities. The Veteran's need for regular aid and attendance is not due to his residuals of TBI. His head injury occurred in 1989, he receives some help with ADLs from his wife and son. His TBI does not result in his inability to toilet, bathe, or feed himself. To the extent that the Veteran's headaches impact his ADLs, and they are service connected based on his head injury, the criteria for SMC (t) are still not met as the Veteran would not require hospitalization, nursing home care, or residential institutional care without aid and attendance for TBI residuals. 38 U.S.C. § 1114 (t). KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.H. Stubbs 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.