Citation Nr: 1717880 Decision Date: 05/23/17 Archive Date: 06/05/17 DOCKET NO. 17-04 718 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance. ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran had active duty service from July 1959 to July 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision by Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran is service-connected for schizophrenia, evaluated as 100 percent disabling. 2. The Veteran requires care or assistance on a regular basis due to his service-connected schizophrenia in order to prepare meals, manage his medications, and protect him from the hazards or dangers inherent in his daily environment. CONCLUSION OF LAW The criteria for an award of SMC based on the need for regular aid and attendance have been met. 38 U.S.C.A. §§ 1114, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.350, 3.352(a) (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION As the Board's decision to grant SMC based on the need for regular aid and attendance herein constitutes a complete grant of the benefit sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. Special monthly compensation at the aid and attendance 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. 38 U.S.C.A. § 1114(l). Determinations as to the need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to such conditions as: inability of the claimant to dress or undress himself/herself or to keep himself/herself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which, by reason of the particular disability, cannot be done without aid; inability of the claimant to feed himself/herself through loss of coordination of upper extremities or through extreme weakness; 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 claimant from the hazards or dangers inherent in his/her daily environment. "Bedridden" will be a proper basis for the determination, and is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that the 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. It is not required that all of the disabling conditions enumerated above be found to exist before a favorable rating may be made. The particular personal functions which the claimant is unable to perform should be considered in connection with his/her condition as a whole. It is only necessary that the evidence establish that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. 38 C.F.R. § 3.352(a). Determinations that the Veteran is so helpless, as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant's condition is such as would require him to be in bed. They must be based on the actual requirement of personal assistance from others. Id. The performance of the necessary aid and attendance service by a relative of the claimant or other member of his or her household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352(c). When all the evidence is assembled, the Secretary is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Service connection is currently in effect for schizophrenia, rated as 100 percent disabling, which is the Veteran's sole service-connected disability. Therefore, the Board must consider if the Veteran's schizophrenia on its own renders him in need of regular aid and attendance. The Veteran filed his claim in March 2015. In support of his claim, he submitted a VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance that had been completed in February 2015 by D.L.., PsyD. The examiner diagnosed cognitive disorder and bipolar disorder. This examiner reported that the Veteran could not prepare his own meals because he should not turn on a stove. The Veteran also required medication management and could not handle his financial affairs. The examiner observed that the Veteran had no insight into his mental limitations and was irrationally independent. Significantly, he lacked safety awareness. The examiner also observed that the Veteran had been in a motor vehicle accident because he was driving recklessly. When the Veteran was manic, he acted irrationally and irresponsibly. He required supervision when leaving his home and should not drive independently. A private December 2015 neuropsychological report prepared by L.L, Ph.D., ABPP., showed that the Veteran was residing in a locked memory care unit due to cognitive impairment and inability to manage financial affairs. It was noted that he had a long history of bipolar disorder with excessive spending and increasingly used poor judgment. In December 2014, he stopped taking his medications and got involved in a lottery scam that cost him approximately $40,000.00 as well as an expensive ring and watch. Manic symptoms increased involving speeding, reckless driving and poor self-care (stopped eating and sleeping) prompting involuntary hospitalization. Medications are dispensed to him daily. Medically, he had Parkinsonism that may be a side effect of his medication. He had a shuffling gait, bilateral tremor and had multiple falls. Overall, the examiner found that the Veteran appeared to have greatest difficulty in processing speed, mental flexibility, executive functioning, and aspects of memory. Results were consistent with a mild dementia and functional problems were compounded by his bipolar disorder and poor insight, the latter of which posed the greatest limitation for him at this time. In consideration of his history and current symptoms, the examiner determined that the Veteran was in need of a protective, structured environment for optimal health and well-being. Therefore, his current living situation appeared appropriate for his needs and ensured that he was taking his medications and was not able to engage in self-destructive behaviors. The examiner concluded that it was unlikely that the Veteran's behavioral issues could be appropriately managed in an unstructured home environment and he had poor insight into the negative consequences of his actions. Another VA Form 21-2680 was completed by J.T, in March 2016. In pertinent part, this examiner diagnosed bipolar disorder, mild cognitive impairment and major depression. The examiner was unable to prepare meals due to forgetfulness, unsteady gait and tremor. It was also observed that he needed help bathing and tending to other hygiene needs due to unsteady gait and tremor. Importantly, due to his psychiatric symptoms, the Veteran required medication management and was unable to manage his financial affairs. The Veteran only left his home once every three months for specialist appointments. In the instant case, there is no evidence that the Veteran has suffered the anatomical loss or loss of use of both feet or one hand and one foot, is blind in both eyes, or is permanently bedridden as a result of his schizophrenia. As such, the matter turns on whether such psychiatric disability has rendered him so helpless as to be in need of regular aid and attendance. In this regard, the Veteran has submitted two VA Forms 21-2680 completed by medical professionals that all indicated that the Veteran was unable prepare his meals and required medication management. Significantly, the March 2015 examiner found that the Veteran could not leave the house alone and he lacked safety awareness. Moreover, the December 2015 evaluation determined that given the Veteran's behavior, the Veteran was in need of a protective, structured environment for optimal health and well-being. The evidence clearly shows that, if alone, the Veteran would be unable to protect himself from hazards or dangers incident to his daily environment. The Board acknowledges that the Veteran is service-connected for schizophrenia and the most recent medical evidence shows diagnoses of cognitive disorder, bipolar disorder and major depressive disorder. Nevertheless, although different psychiatric diagnoses have been given over time, the Veteran's psychiatric symptoms have essentially remained the same. Moreover, his symptoms have not been differentiated to a specific diagnosis. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (when it is not possible to separate the effects of the service-connected and non-service-connected disabilities, the benefit-of-the-doubt doctrine described in 38 C.F.R. § 3.102 dictates that such signs and symptoms be attributed to the service-connected disability or disabilities). In this regard, a January 1995 VA hospital report also shows a diagnosis of bipolar disorder, mixed, and organic mental syndrome for withdrawal from Benzodiazepines. The Veteran presented confused, agitated and hostile. Although the diagnoses did not include schizophrenia, based on this examination, the RO awarded a 100 percent disability rating for the Veteran's service-connected disorder as there was evidence of active psychotic manifestations of such extent to produce total social and industrial inadaptability. In other words, there is a long history of treating the Veteran's symptoms attributed to bipolar disorder as part and parcel of the Veteran's service-connected schizophrenia. In light of the above, the Board finds that all of the Veteran's psychiatric symptoms should be attributed to his service-connected schizophrenia. In sum, the preponderance of the evidence shows that the Veteran is unable to care for himself and lacks the ability to protect himself from the hazards or dangers inherent in his daily environment due to his service-connected schizophrenia. Therefore, after considering the totality of the evidence, the Board finds that the Veteran, as a result of his service-connected schizophrenia, is so helpless as to be in need of regular aid and attendance because of his mental incapacity, which requires care or assistance on a regular basis to protect him from the hazards or dangers inherent in his daily environment. Under the circumstances, when resolving all doubt in the Veteran's favor, the Board finds that the criteria for SMC based on the need for regular aid and attendance benefits have been met. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER SMC benefits based on the need for regular aid and attendance is granted, subject to laws and regulation applicable to payment of VA monetary benefits. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs