Citation Nr: 1746942 Decision Date: 10/20/17 Archive Date: 10/31/17 DOCKET NO. 14-24 008 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to special monthly compensation (SMC) at the higher rate under 38 U.S.C.A. § 1114(r)(2). REPRESENTATION Veteran represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran's spouse ATTORNEY FOR THE BOARD M. C. Wilson, Associate Counsel INTRODUCTION The Veteran had active military service from December 1968 to December 1970 that included combat service in the Republic of Vietnam. His decorations and medals include the Combat Medical Badge. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In October 2017, the Veteran's spouse testified during a hearing before the undersigned Veterans Law Judge. 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's service-connected disabilities render him non-verbal, incontinent, and without the ability to read or write; and are manifested by an inability to make conscious use of his extremities. 2. VA has already granted regular aid and attendance of another person due to the Veteran's service-connected posttraumatic stress disorder (PTSD) with dementia of Alzheimer's type. 3. The Veteran is entitled to an additional monthly allowance of SMC at the rate under subsection (r)(2) of 38 U.S.C.A. § 1114 based on a need for aid and attendance requiring a higher level of care. CONCLUSION OF LAW The criteria for an increased level of SMC based on the need for regular aid and attendance as contemplated by 38 U.S.C.A. § 1114(r)(2) are met. 38 U.S.C.A. § 1114 (West 2014); 38 C.F.R. §§ 3.350(e), (h), 3.352 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Relevant Legal Criteria SMC is available when, as the result of service-connected disability, a veteran suffers additional hardships above and beyond those contemplated by VA's schedule for rating disabilities. See 38 U.S.C.A. § 1114; 38 C.F.R. §§ 3.350, 3.352. The rate of SMC varies according to the nature of the Veteran's service-connected disabilities. Basic levels of SMC are listed at 38 U.S.C.A. § 1114(k). Higher levels of SMC are provided at 38 U.S.C.A. § 1114(l), (m), (n), and (o). SMC provided by 38 U.S.C.A. § 1114(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. 38 C.F.R. § 3.350(b). SMC at the "m" rate is warranted if the Veteran, as a result of service-connected disability, has suffered the anatomical loss or loss of use of both hands, or of both legs at a level, or with complications, preventing natural knee action with prosthesis in place, or of one arm and one leg at levels or with complications, preventing natural elbow and knee action with prosthesis in place, or has suffered blindness in both eyes having only light perception, or has suffered blindness in both eyes, rendering such Veteran so helpless as to be in need of regular aid and attendance. 38 U.S.C.A. § 1114(m); 38 C.F.R. § 3.350(c). SMC at the "n" level is warranted if the Veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both arms at levels, or with complications, preventing natural elbow action with prosthesis in place, has suffered the anatomical loss of both legs so near the hip as to prevent the use of prosthetic appliances, or has suffered the anatomical loss of one arm and one leg with factors that prevent the use of prosthetic appliances, or has suffered anatomical loss of both eyes, or has suffered blindness without light perception in both eyes. 38 U.S.C.A. § 1114(n). SMC provided by 38 U.S.C.A. § 1114(o) is payable for any of the following conditions: (i) Anatomical loss of both arms so near the shoulder as to prevent use of a prosthetic appliance; (ii) Conditions entitling to two or more of the rates (no condition being considered twice) provided in 38 U.S.C.A. § 1114(l) through (n); (iii) Bilateral deafness rated at 60 percent or more disabling (and the hearing impairment in either one or both ears is service connected) in combination with service-connected blindness with bilateral visual acuity 20/200 or less; (iv) service-connected total deafness in one ear or bilateral deafness rated at 40 percent or more disabling (and the hearing impairment in either one of both ears is service-connected) in combination with service-connected blindness of both eyes having only light perception or less. 38 C.F.R. § 3.350(e)(1). Paralysis of both lower extremities together with loss of anal and bladder sphincter control will entitle (a veteran) to the maximum rate under 38 U.S.C.A. § 1114(o), 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). SMC at the (o) rate is warranted for combinations. Determinations must be based upon separate and distinct disabilities. This requires, for example, that where a veteran who 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. If the loss or 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, or blindness, be taken as entitling to the maximum benefit. The fact, however, that two separate and distinct entitling disabilities, such as anatomical loss, or 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)(3). The maximum rate, as a result of including helplessness as one of the entitling multiple disabilities, is intended to cover, in addition to obvious losses and blindness, conditions such as the loss of use of two extremities with absolute deafness and nearly total blindness or with severe multiple injuries producing total disability outside the useless extremities, these conditions being construed as loss of use of two extremities and helplessness. 38 C.F.R. § 3.350(e)(4). The provisions of 38 U.S.C.A. § 1114(p) provide 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.A. § 1114(p); 38 C.F.R. § 3.350(f). There are two parts to SMC (r)-there is special aid and attendance that is identified by (r)(1), and a higher level of special aid and attendance that is discussed in (r)(2). See 38 USCA § 1114(r); 38 CFR §§ 3.350(h), 3.352. To be awarded SMC (r)(1), under 38 U.S.C.A. § 1114, the Veteran must be entitled to SMC at the rate authorized under subsection (o), the maximum rate authorized under subsection (p), or at the intermediate rate authorized between the rates authorized under subsections (n) and (o) and at the rate authorized under subsection (k). The Veteran must also be in need of regular aid and attendance. See 38 U.S.C.A. § 1114(r). For SMC (r)(2), once the aforementioned threshold is met, the Veteran must show that, in addition to the need for regular aid and attendance, he is in need a higher level of care as specified. See 38 U.S.C.A. § 1114(r)(2). The regular or higher level aid and attendance allowance is payable whether or not the need for regular aid and attendance or a higher level of care was a partial basis for entitlement to the maximum rate under 38 U.S.C.A. § 1114(o) or (p), or was based on an independent factual determination. 38 C.F.R. § 3.350(h)(1). Determinations as to 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 the following: Inability of the claimant to dress or undress himself or to keep himself ordinarily clean and presentable; the frequent need of the adjustment of any special prosthetic or orthopedic appliance which by reason of the particular disability cannot be done without aid; the inability of the claimant to feed himself 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 hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). "Bedridden" will be a proper basis for the aid and attendance 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. In Turco v. Brown, 9 Vet. App. 222 (1996), the Court held that it was not required that all of the disabling conditions enumerated in the provisions of 38 C.F.R. § 3.352(a) be found to exist to establish eligibility for aid and attendance, but that such eligibility required at least one of the enumerated factors be present. The Court added that the particular personal function that a veteran is unable to perform should be considered in connection with his or her condition as a whole. Also, it is only necessary that the evidence establish that a veteran is so helpless as to need regular aid and attendance, not that there be a constant need. See Turco, supra; 38 C.F.R. § 3.352. Determinations that the Veteran is so helpless, as to be in need of regular aid and attendance will not be based solely on 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. 38 C.F.R. § 3.352(a). Need for a higher level of care shall be considered to be need for personal health-care services provided on a daily basis in the Veteran's 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. Personal health-care services include (but are not limited to) such services as physical therapy, administration of injections, placement of indwelling catheters, and the changing of sterile dressings, or like functions which require professional health-care training or the regular supervision of a trained health-care professional to perform. A licensed health-care professional includes (but is not limited to) a doctor of medicine or osteopathy, a registered nurse, a licensed practical nurse, or a physical therapist licensed to practice by a State or political subdivision thereof. 38 C.F.R. § 3.352(b)(2). The term "under the regular supervision of a licensed health-care professional" means that an unlicensed person performing personal health-care services is following a regimen of personal health-care services prescribed by a health-care professional, and that the health-care professional consults with the unlicensed person providing the health-care services at least once each month to monitor the prescribed regimen. The consultation need not be in person; a telephone call will suffice. 38 C.F.R. § 3.352(b)(3). A person performing personal health-care services who is a relative or other member of the Veteran's household is not exempted from the requirement that he or she be a licensed health-care professional or be providing such care under the regular supervision of a licensed health-care professional. 38 C.F.R. § 3.352(b)(4). Moreover, the provisions of 38 C.F.R. § 3.352(b) are to be strictly construed. The higher level aid-and-attendance allowance is to be granted only when the need is clearly established and the amount of services required on a daily basis is substantial. 38 C.F.R. § 3.352(b)(5). 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). Facts and Analysis Service connection is currently in effect for PTSD with dementia of Alzheimer's type, evaluated as 100 percent disabling since May 2008; lumbar compression fracture associated with PTSD with dementia of Alzheimer's type, evaluated as 10 percent disabling since March 2013; and a seizure disorder associated with PTSD with dementia of Alzheimer's type, evaluated as 10 percent disabling since March 2013. The Veteran has been in receipt of SMC at the (l) level on account of being so helpless as to be in need of regular aid and attendance with regard to his service-connected PTSD with dementia since June 24, 2008. See 38 U.S.C.A. § 1114(l); see also 38 C.F.R. § 3.350(b)(3). In September 2012, VA received the Veteran's claim for a rate of SMC greater than the Veteran's currently assigned rate. During the October 2017 Board hearing, the Veteran's spouse reported that the Veteran is in hospice care and has been for almost two years. She testified that caring for the Veteran is like taking care of an infant in a grown man's body, as he cannot feed himself, dress himself, bathe, shave, or do anything for himself. He is also incontinent, has been non-verbal for over 10 years, and has not been able to read or write since his 2004 Alzheimer's diagnosis. Additionally, he has had multiple seizures and transient ischemic attacks, and he was hospitalized for one month when he had his first grand seizure in September of 2012. Thereafter, he was admitted to an Alzheimer's care facility where he was treated for seventeen months, at which time the Veteran's spouse filed a claim for SMC at the higher rate on the Veteran's behalf. The Veteran's spouse testified that she could not afford a monthly rate increase at the Alzheimer's care facility, and thus, the Veteran has resided at home for the past three years under his spouse's care and the care of sitters, as he cannot be left alone. The Veteran's spouse's reports are consistent with findings noted in a VA Form 21-2680 (Examination for Housebound Status or Permanent Need for Regular Aid and Attendance) that VA received in June 2015 and private treatment records dated in September 2012 also indicate that the Veteran is nonverbal and has advanced Alzheimer's-type dementia that is progressive in nature. In February 2013, private physician Dr. M. Kodsi reported that although the Veteran still has his hands and feet, his dementia has robbed him of the ability to control them and to use them in a meaningful manner, which the Board finds is tantamount to a loss of use of his extremities under 38 U.S.C.A. § 1114(o). Additionally, private nurse D. Hazelwood reported in February 2013 that the Veteran "requires 24-hour care in a locked facility with an awake, trained caregiver at all times." Overall, the competent and credible evidence shows that the Veteran's disabilities warrant SMC at the (r)(2) (higher level of care) rate because the Veteran has suffered from loss of use of his extremities and his spouse's support meets the definition of personal healthcare services. She provides support for all of the Veteran's personal care on a daily basis and, in the absence of such care, he would require residential institutional care as noted above. As such, entitlement to SMC based on the need for aid and attendance as contemplated by 38 U.S.C.A. § 1114(r)(2) is warranted. ORDER Entitlement to a higher special monthly compensation based on the need for aid and attendance as contemplated by 38 U.S.C.A. § 1114(r)(2) is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs