Citation Nr: 1615464 Decision Date: 04/15/16 Archive Date: 04/26/16 DOCKET NO. 10-42 445 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to special monthly compensation (SMC) on the basis of aid and attendance. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran had active duty from January 1943 to December 1946. This matter comes to Board of Veterans' Appeals (Board) from April and May 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO), in Muskogee, Oklahoma. In pertinent part, the April 2010 rating decision granted SMC at the housebound rate, but denied SMC at the aid and attendance rate. A May 2010 rating decision continued the denial of special monthly compensation at the aid and attendance rate. In April 2011, October 2011, and September 2012, the Board remanded this case. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT The Veteran's service-connected disabilities are productive of an inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect him from the hazards or dangers incident to his daily environment. CONCLUSION OF LAW The criteria for entitlement to SMC based on the need for the regular aid and attendance of another person are met. 38 U.S.C.A. § 1114 (West 2014); 38 C.F.R. § 3.350 (2015) REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) There has been a significant change in the law with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. The Veteran's claim is being granted. As such, any deficiencies with regard to the VCAA are harmless and nonprejudicial. SMC on the Basis of Aid and Attendance SMC is payable if, as the result of service-connected disability, the Veteran is so helpless as to be in need of regular aid and attendance of another person. 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b). Under 38 C.F.R. § 3.352(a), the following factors will be accorded consideration in determining whether the Veteran is in need of regular aid and attendance of another person: (1) the inability of the Veteran to dress or undress himself, or to keep himself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without such aid; (3) inability of the Veteran to feed himself because of the loss of coordination of upper extremities or because of extreme weakness; (4) inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the veteran from the hazards or dangers incident to his daily environment. It is not required that all the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found to exist before a favorable rating may be made. The particular personal functions which the Veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance, not that there is a constant need. 38 C.F.R. § 3.352(a); see also Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in section 3.352(a) must be present for a grant of SMC based on need for aid and attendance). For the purposes of 38 C.F.R. § 3.352(a), "bedridden" will be a proper basis for the determination of whether the veteran is in need of regular aid and attendance of another person. "Bedridden" will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. 38 C.F.R. § 3.352(a). In a May 2003 rating decision, the RO increased the disability rating for PTSD to 100 percent. The grant of the higher rating was based primarily on a May 2003 VA examination. The RO noted that on the examination, the Veteran reported hearing the voice of God and having visions. He saw witches and devils in the night. He had episodes of feeling trapped and paralyzed. He had nightmares, flashbacks, and difficulty with sleep. He had difficulty concentrating and an exaggerated startle response. He was hypervigilant and had panic attacks when under stress. The examiner noted that the Veteran's thinking was logical, but he had some mild looseness of association and delusional thinking. He stated he would never kill anybody, but he had suicidal ideation. He was able to maintain minimal personal hygiene and other activities of daily living with the assistance of a caretaker. There were considerable gaps in long-term memory. The Veteran was noted to have probable Alzheimer's disease at that time. The GAF on examination was 36. A GAF rating is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994). Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school). The 100 percent rating was assigned under Diagnostic Code 9411. A 100 percent rating is provided for total occupational and social impairment, due to such symptoms as: Gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. §§ 4.125-4.130. Thus, the RO accepted that the symptoms shown on the May 2003 examination were due to the service-connected PTSD and/or that they could not be dissociated with the PTSD. See Mittleider v. West, 11 Vet. App. 181 (1998) (when the effects of a service-connected disability have not been clinically disassociated from those of a nonservice-connected disorder, all relevant signs and symptoms must be attributed to the service-connected disability). In conjunction with the current claim, the Veteran has been examined several times. A February 2010 report from a private physician's assistant, T.B.H., dated indicated that the Veteran has significant limitations, but it did not clearly attribute these limitations to any specific service-connected disabilities. In this regard, the Veteran was shown to have a medical history that includes coronary artery disease, with coronary artery bypass grafting and a pacemaker, as well as transient ischemic attacks and a cerebrovascular accident. In May 2011, a VA Aid and Attendance examiner concluded that the Veteran did not require aid and attendance due to service-connected disabilities. However, as previously noted by the Board, it was unclear that the examiner considered all service-connected disabilities. Moreover, since that time, additional disabilities were service-connected. In addition, and significantly, the 100 percent service-connected PTSD was not addressed even though the Veteran's memory loss was repeatedly referenced. Rather, the examiner opined that the memory loss was not due to the cold injury. The Veteran was afforded a VA examination in November 2011. The examiner opined that the summation of all service-connected disabilities, including the residuals of cold injury with hypertrophied toenails "would less likely render" the Veteran in need of aid and attendance. However, he further concluded that the Veteran's service-connected PTSD "might render him in need of aid and attendance." Subsequent to the most recent September 2012 remand, in an August 2013 rating decision, service connection was granted for peripheral vascular disease (PVD) of the right lower extremity, rated as 40 percent disabling; PVD of the left lower extremity, rated as 30 percent disabling; peripheral neuropathy of the right lower extremity, rated as 10 percent disabling; and peripheral neuropathy of the left lower extremity, rated as 10 percent disabling. The overall disability remained at 100 percent disabling. In addition, service connection is also in effect for PTSD, rated as 100 percent disabling; residuals, cold weather injury, right lower extremity, rated as 30 percent disabling; and residuals, cold weather injury, and left lower extremity, rated as 30 percent disabling. In addition, SMC on the basis of housebound criteria was granted. An April 2014 Housebound/Aid and Attendance examination reflected that the Veteran had a TBI and dementia. It was noted that the Veteran needed assistance with the activities of daily living due to dementia, instability, and confusion. In sum, the Veteran required constant assistance. The Board notes that a May 2014 VA examination indicated that the Veteran had a traumatic brain injury (TBI), in part based on the Veteran's reported history. Nonetheless, the clinical findings included objective findings of moderate impairment of memory, attention, concentration; severely impaired judgment including being unable to judge dangerous situations or activities; the Veteran was easily confused and had to rely on his wife to make decisions; severely impaired spatial disorientation; an inability to communicate at least half of the time. The examiner basically indicated that the PTSD (noted to be severe) was intertwined with the TBI as the examiner felt that the PTSD was due to the TBI. The Veteran was then scheduled for further examinations, but did not report. The RO noted that a December 2015 examination was cancelled by the Veteran's children as they reported he was unable to attend an examination. Recent clinical records show that the Veteran has Alzheimer's and dementia such that additional examination would not be productive. In an August 2014 rating decision, the RO continued denials of service connection for TBI and schizophrenic reaction. In pertinent part, with regard to a TBI, the RO indicated that the Veteran indicated he suffered a concussion during World War II when a large shell hit near him; however, a review of the service treatment records showed no evidence of this incident. In sum, service connection is not in effect for TBI even though VA examiners indicated that his TBI and PTSD are related and PTSD is service-connected. Service connection is also not in effect for schizophrenia/schizophrenic reaction or any psychotic disorder. However, the Board cannot disassociate the symptoms between any existing TBI and/or psychiatric disorder and his PTSD; likewise, the RO rated the PTSD based on all symptoms. Mittleider. The Veteran has also been diagnosed as having Alzheimer's disease and dementia. It appears clear that the Veteran meets criterion (4) for aid and attendance benefits: an inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the veteran from the hazards or dangers incident to his daily environment. While the Veteran's mental cognitive functioning appears to have deteriorated over the past several years, based on the limited functioning during the appeal period, the already present low GAF score for over a decade before the appeal period, the Board's inability to separate the Veteran's PTSD symptoms from any other symptoms from nonservice-connected mental impairment disabilities, and the opinion that suggests that PTSD plays a role in the need for aid and attendance, the Board finds that in affording all reasonable doubt, the criteria for entitlement to SMC based on the need for the regular aid and attendance of another person are met. ORDER Entitlement to SMC based on aid and attendance is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs