Citation Nr: 1640710 Decision Date: 10/14/16 Archive Date: 10/27/16 DOCKET NO. 09-20 723 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to special monthly compensation (SMC) based on the need for the regular aid and attendance of another person. REPRESENTATION Appellant represented by: Robert W. Gillikin II, attorney WITNESSES AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Haddock, Counsel INTRODUCTION The Veteran had active service from September 1967 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Roanoke, Virginia Department of Veterans Affairs Regional Office (RO). In July 2011, the Veteran appeared and provided testimony at a Board hearing before the undersigned. A transcript of that hearing is associated with the record. This matter was previously before the Board in October 2011, when it was remanded for additional development. The Board notes that during the pendency of this appeal, in a July 9, 2013 rating decision, the Veteran was granted entitlement to a combined disability rating of 100 percent and in an October 2015 rating decision, the RO found that that the Veteran's service-connected disabilities rendered him permanently and totally disabled. FINDINGS OF FACT 1. Service connection is in effect for peripheral vascular disease of the left lower extremity evaluated as 60 percent disabling; peripheral vascular disease of the right lower extremity evaluated as 60 percent disabling; post traumatic stress disorder evaluated as 30 percent disabling; peripheral neuropathy of the right upper extremity evaluated as 30 percent disabling; peripheral neuropathy of the left upper extremity evaluated as 20 percent disabling; diabetes mellitus type II evaluated as 20 percent disabling; hypertension evaluated as 10 percent disabling; peripheral neuropathy of the right lower extremity evaluated as 10 percent disabling; peripheral neuropathy of the left lower extremity evaluated as 10 percent disabling; cataracts evaluated as noncompensable; and prostate cancer evaluated as noncompensable, and the Veteran has been in receipt of a total combined 100 percent disability rating as of January 31, 2012. 2. Resolving all doubt in his favor, due to the service-connected peripheral neuropathy of the right upper extremity (dominant), the Veteran requires care or assistance on a regular basis in order to bath and dress himself, prepare meals, keep himself clean and presentable, and protect him from the hazards or dangers inherent in his daily environment. CONCLUSION OF LAW The criteria for entitlement to SMC based on the need for regular aid and attendance of another person have been met. 38 U.S.C.A. §§ 1114, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.350, 3.352 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Special monthly compensation is payable to a person who is permanently bedridden or so helpless as a result of service-connected disability that he is in need of the regular aid and attendance of another person. 38 U.S.C.A. § 1114(l) (West 2014); 38 C.F.R. § 3.350(b) (2015). Factors to be considered in determining whether a Veteran requires the aid and attendance of another person are the inability to perform activities of daily living (dressing, cooking, eating, attending to the wants of nature, cleaning, and personal hygiene), a need for assistance in adjusting orthopedic or prosthetic devices, and requiring care or assistance on a regular basis to protect oneself from the hazards or dangers of the daily environment. 38 C.F.R. § 3.352(a) (2015). When there is an approximate balance of positive and negative evidence on an issue material to a determination, VA resolves reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2015); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran has asserted that he requires the aid and attendance of another person to perform the basic activities of daily living as a result of complications of his service-connected diabetes mellitus. Specifically, at his July 2011 Board hearing, he reported that numbness in his hands and feet resulted in the need for aid and attendance. The Veteran testified that he has been receiving aid and attendance from a private medical company (Griswold) since October 2010. The Veteran believed that VA was paying for these services. The Veteran argued that he requires aid and attendance due to service-connected diabetes and related peripheral neuropathy of the lower extremities. The Board finds that the Veteran is competent to report observable symptoms. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran's lay statements regarding the numbness in his extremities are found to be credible as they have been consistent and are confirmed by the medical evidence of record. The Board acknowledges that the Veteran sustained a post-service spinal cord injury that resulted in partial quadriplegia; service connection is not in effect for this disability. However, service connection is in effect for numerous disabilities to the upper and lower extremities, including peripheral vascular disease of the bilateral lower extremities, peripheral neuropathy of the bilateral lower extremities, and peripheral neuropathy of the bilateral upper extremities. Service connection is in effect for diabetes mellitus. Therefore, the Board finds the Veterans statements concerning numbness in the hands and feet related to his service-connected disabilities to be credible. The Veteran was afforded a VA Aid and Attendance examination in October 2015. The examiner noted that the Veteran's nonservice-connected C5-7 spinal cord injury and right arm paresis caused him to require assistance with bathing, tending to other hygiene needs, and with medication management; as well as restricted his ability to prepare his own meals. As a result of his right arm paresis, as well as a lack of fine motor movements in his left upper extremity, it was noted that the Veteran was unable to dress himself and shave. The examiner noted that the Veteran's spouse acted as his primary caretaker, with visits from a home health aide 3 to 4 times a week. The Board notes that service connection is in effect for peripheral neuropathy of the right upper extremity and a 30 percent rating is assigned from August 12, 2011 for moderate incomplete paralysis of the dominant upper extremity. See 38 C.F.R. § 4.124a, Diagnostic Code 8715 (2015). VA treatment records indicate that in February 2016 on exam, there were findings of right hand paresis, slightly palmer flexed. In August 2015, the Veteran had complaints of chronic right upper extremity diminished range of motion, weakness and intermittent pain. VA treatment records indicate that the Veteran had right ulnar weakness and clawing. A March 2015 VA occupational therapy record notes that the Veteran had a history of paralysis and he had complaints of right 4th and 5th fingers developing contractures. The consult record indicates that the bilateral hand sensory loss was from the neck injury and cervical compression. It was noted that the Veteran had limited active range of motion of the bilateral upper extremities due to quadriparesis. A July 2013 VA occupational health treatment record indicates that the Veteran reported becoming left handed due to significant right hand weakness due to ulnar neuropathy. A January 2012 nerve conduction study report shows an impression of right median neuropathy with reduced sensory and motor amplitudes and slowed forearm conductions and bilateral tardy ulnar palsies, right greater than left. Examination revealed that the right hand had obvious ulnar weakness, very tight pronators, and also slight clawing of the ring and small fingers with lack of distal extension. There was overall weak grasp of the right hand and the Veteran was only able to get to neutral with supination. The Board notes that the March 2012 VA medical opinion indicates that the VA examiner concluded that the findings of the January 2012 nerve conduction studies revealed an abnormal electromyogram for both upper extremities with evidence that there is peripheral neuropathy of bilateral upper extremities consistent with Diabetes Mellitus. Service connection is not in effect for the spinal cord injury that resulted in partial quadriplegia. Service connection is in effect for right and left upper extremity peripheral neuropathy. The Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998). In the present case, the Board cannot disassociate the symptoms between the existing spinal cord injury and the service-connected peripheral neuropathy of the upper extremities. It appears clear that the Veteran meets the criteria for aid and attendance benefits due to an inability to bath and dress himself, prepare meals, keep himself clean and presentable, and protect him from the hazards or dangers inherent in his daily environment. The Board is unable to separate the Veteran's upper extremity peripheral neuropathy symptoms from the symptoms from nonservice-connected spinal cord injury, and the aid and attendance examination suggests that right arm paresis plays a role in the need for aid and attendance. Thus, affording the Veteran all reasonable doubt, 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. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to SMC based on the need for regular aid and attendance of another person is granted. ____________________________________________ C. L. KRASINSKI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs