Citation Nr: 1752323 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 13-11 369 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to special monthly compensation (SMC) on account of loss of use of the feet under 38 U.S.C.A. § 1114(l). 2. Entitlement to SMC on account of the need for regular aid and attendance under 38 U.S.C.A. § 1114(l). 3. Entitlement to a higher rate of SMC under 38 U.S.C.A. § 1114(o) and (r)(1). REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and his daughter ATTORNEY FOR THE BOARD P.S. Rubin, Counsel INTRODUCTION The Veteran had active duty service from September 1967 to October 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In December 2015, the Veteran and his daughter presented testimony at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is included in the claims file. In a March 2016 Board decision, the Board granted the Veteran's claim for entitlement to a certificate of eligibility for specially adapted housing. The Board at that particular time did not address the current SMC issues on appeal. The Veteran appealed the Board's March 2016 decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2017 Order, the Court partially vacated and remanded the Board's decision for proceedings consistent with a Joint Motion for Partial Remand (Joint Motion). The February 2017 Joint Motion concluded the Board had failed to recognize an inferred claim for SMC based on the loss of use of both lower extremities. The Court remanded this issue for further adjudication by the Board. However, the parties to the February 2017 Joint Motion requested that the Court not disturb the part of the Board's decision which granted the Veteran a certificate of eligibility for assistance in acquiring specially adapted housing. See Medrano v. Nicholson, 21 Vet. App. 165, 170 (2007) ("The Court is not permitted to reverse findings of fact favorable to a claimant made by the Board pursuant to its statutory authority."). Thus, the specially adapted housing issue is no longer on appeal. Upon return from the Court, the Board sent a letter to the Veteran in March 2017 informing him that he had 90 days to submit additional evidence with an indication as to whether he desired a remand for the RO to consider the evidence or whether he waived this right. See generally 38 C.F.R. § 20.1304 (2016). In June 2017, the Board granted the Veteran a further extension of time to submit additional argument or evidence. In response, in July 2017, the Veteran's attorney submitted an additional affidavit from the Veteran's daughter and an attorney brief, with a waiver of RO consideration. Therefore, the Board accepts this evidence for inclusion in the record and consideration by the Board at this time. Finally, the Board sees that, according to the Veterans Benefits Management System (VBMS) and the VA's Veterans Appeals Control and Locator System (VACOLS), the issue of entitlement to SMC on account of the need for regular aid and attendance for a spouse has been perfected to the Board (in December 2015) and certified to the Board (in April 2016). Certification of an issue on appeal by the Agency of Original Jurisdiction (AOJ) is used for administrative purposes and neither confers nor deprives the Board of jurisdiction over appeals. 38 C.F.R. § 19.35 (2016). Regardless, the Board also sees that in the December 2015 VA Form 9, the Veteran requested a Travel Board hearing for this issue. VACOLS further indicates that the AOJ has already acknowledged the Veteran's hearing request and has placed the Veteran in line to schedule him for his Travel Board hearing for this issue. Therefore, although this issue has been certified to the Board, it is not ripe for appellate review, and rather will be processed after the Travel Board hearing occurs. In short, this issue remains under the jurisdiction of the AOJ at this time. FINDINGS OF FACT 1. The Veteran's service-connected bilateral knee and bilateral lower extremity peripheral neuropathy disabilities are productive of loss of use of both feet. That is, balance and propulsion of the Veteran's feet could be accomplished equally well by an amputation stump with prosthesis. 2. The collective impact of the Veteran's service-connected disabilities (heart disease, PTSD, diabetes mellitus, hypertension, renal dysfunction, and others) -excluding his service-connected bilateral knee and lower extremity disabilities, demonstrate the necessity for the regular aid and attendance of another person and bedridden status. 3. The Veteran's need for aid and attendance and his loss of use of both feet are based on separate service-connected disabilities. As such, the Veteran has suffered disability under conditions which would entitle him to two SMC awards under the L-rate, without consideration of any condition twice. Therefore, the Veteran meets the criteria for additional SMC under 38 U.S.C.A. § 1114 (o) and (r)(1). CONCLUSIONS OF LAW 1. The criteria are met for entitlement to SMC benefits on account of loss of use of both feet. 38 U.S.C.A. §§ 1114(l), 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.350(a)(2), (b)(1), 4.63 (2016). 2. The criteria are met for entitlement to SMC benefits by reason of being in need of aid and attendance of another person. 38 U.S.C.A. §§ 1114(l), 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.350(b), 3.352(a) (2016). 3. The criteria are met for a higher rate of SMC under the 38 U.S.C.A. § 1114(o) and (r)(1) levels. 38 U.S.C.A. §§ 1114(o), (r)(1), 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.102, 3.159, 3.350, 3.352 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duty to Notify and Assist In the decision below, the SMC benefits sought on appeal have been granted in full, as requested by the Veteran's attorney in the July 2017 attorney brief. Accordingly, regardless of whether the notice and assistance requirements have been met with regard to the SMC issues, no harm or prejudice to the Veteran has resulted. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. II. SMC - Loss of Use of Feet As alluded to above, the February 2017 Joint Motion by both parties concluded that a claim for SMC based on loss of use of the Veteran's lower extremities was reasonably inferred from the evidence of record. See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991) (holding that VA was obliged to infer a claim for SMC where it "may be applicable and the veteran does not place his eligibility at issue"). The Board was instructed to consider an SMC claim. In fact, recently, VA expressly adopted the Akles rule for all complete claims, stating "VA will adjudicate as part of [a] claim entitlement to any ancillary benefits that arise as a result of the adjudication decision (e.g., . . . entitlement to [SMC] under 38 C.F.R. § 3.350 . . . )." 38 C.F.R. § 3.155(d)(2) (2016) (applicable to claims filed on and after March 24, 2015). 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; see also VA Gen. Coun. Prec. 5-89 (Mar. 23, 1989) (explaining that SMC is a supplementary statutory benefit based on noneconomic factors such as personal inconvenience, social inadaptability, or the profound nature of a disability). 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 is payable in addition to the basic rate of compensation otherwise payable for the degree of disability. The RO has already awarded the Veteran SMC under 38 U.S.C.A. § 1114(k) and 38 C.F.R. § 3.350(a) for loss of use of a creative organ, effective from August 28, 2002. In addition, the RO has already awarded the Veteran SMC under 38 U.S.C.A. § 1114(s) and 38 C.F.R. § 3.350(i) on account of being housebound, effective from November 24, 2014. However, the Veteran seeks an award of SMC based on both the loss of use of the feet, as well as the need for regular aid and attendance, at the higher rates as set forth under 38 U.S.C.A. § 1114(l). See July 2017 attorney brief; June 2008 Veteran statement; September 2012 Notice of Disagreement (NOD). Initially, it is noted that the Veteran has been in receipt of a 100 percent total rating for his service-connected disabilities, effective from September 22, 2005. In any event, there is no statutory or regulatory threshold requirement for a total 100 percent rating, in order to be eligible for entitlement to SMC based on the loss and use of the feet, or the need for regular aid and attendance. See 38 U.S.C.A. § 1114(l); 38 C.F.R. §§ 3.350(b), 3.351(b), 3.352(a). SMC on a higher level under 38 U.S.C.A. § 1114(l) and 38 C.F.R. § 3.350(b) is payable as the result of service-connected disability if a veteran has an anatomical loss or loss of use of both feet, or of one hand and one foot; has blindness in both eyes with visual acuity of 5/200 or less (or concentric contraction of the field of vision beyond 5 degrees in both eyes); is permanently bedridden; or is so helpless as to be in need of regular aid and attendance of another person. "Loss of use of a hand or foot" is defined as no effective function remaining other than that which would be equally well served by an amputation stump at the site of election below the elbow or knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc., in the case of the hand, or of balance, propulsion, etc., in the case of a foot, could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. §§ 3.350(a)(2)(i), 4.63. Examples under 38 C.F.R. § 3.350(a)(2) which constitute loss of use of a foot include extremely unfavorable ankylosis of the knee, complete ankylosis of two major joints of an extremity, shortening of the lower extremity of 3 1/2 inches or more, and complete paralysis of the external popliteal (common peroneal) nerve and consequent foot-drop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of that nerve. See also 38 C.F.R. § 4.63. In Tucker v. West, 11 Vet. App. 369, 373 (1999), the Court stated that the relevant inquiry concerning loss of use is not whether amputation is warranted, but whether the claimant has had effective function remaining other than that which would be equally well served by an amputation with use of a suitable prosthetic appliance. The Court also stated that in accordance with 38 C.F.R. § 4.40, the Board is required to consider the impact of pain in making its decision and to articulate how pain on use was factored into its decision. Id. The responsibility for determining whether there is loss of use rests with the adjudicator; the Board may not ask a clinician to determine whether there is "loss of use." See VBA Live Manual M21-1, IV.ii.2.H.1.b. In this case, the veteran has the following service-connected disabilities: renal dysfunction, rated as 60 percent disabling; hypertensive heart disease, rated as 60 percent disabling; post-traumatic stress disorder (PTSD), rated as 50 percent disabling; type II diabetes mellitus, rated as 20 percent disabling; right knee instability, rated as 20 percent disabling; left and right lower extremity peripheral neuropathy, each rated as 20 percent disabling; left and right upper extremity peripheral neuropathy, each rated as 10 percent disabling; right knee sprain, rated as 10 percent disabling; left knee sprain, rated as 10 percent disabling; hypertension, rated as 10 percent disabling, hearing loss, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; and erectile dysfunction and facial fragment wounds, each rated as 0 percent disabling. The combined service-connected disability rating is 100 percent, with consideration of the bilateral factor. See 38 C.F.R. §§ 4.25 (combined ratings table); 4.26. The Veteran has been awarded a permanent and total (P&T) rating due to his service-connected disabilities, effective from May 10, 2003. Initially, with regard to loss of use of the feet, the Board acknowledges the following are not demonstrated by the evidence of record: extremely unfavorable ankylosis of the knee, complete ankylosis of two major joints of an extremity, shortening of the lower extremity of 3 1/2 inches or more, or complete paralysis of the external popliteal nerve and consequent foot drop. See 38 C.F.R. §§ 3.350(a)(2), 4.63. VA treatment records dated from 2003 to 2014 and VA examinations fail to reveal ankylosis of the knees or lower extremities, shortening of the lower extremities, complete paralysis, or foot drop. However, these criteria are mere examples of what could serve as loss of use of the feet. They are not absolute or limiting. Upon review of the evidence, SMC on account of loss of use of the feet under 38 U.S.C.A. § 1114(l) is warranted. In making this determination, the Board has considered both the lay and medical evidence of record. This evidence of record establishes that the Veteran's service-connected lower extremity disabilities cause a level of impairment, such that no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. 38 C.F.R. §§ 3.350(a)(2)(i), 4.63. In particular, the following evidence of records supports entitlement to SMC on account of loss of use of the feet, based upon meeting the above criteria: The Veteran is presently 58 years of age. At an October 2007 VA examination, the Veteran report constant symptoms in the lower extremities - weakness when weight-bearing, stiffness when bending or weight-bearing, swelling when standing too long, heat when walking, giving way when walking, lack of endurance when standing or walking a few feet, and locking constantly with fatigability all the time. He requires a scooter and sometimes a walker for ambulation. Upon examination, regarding the lower extremities, he has difficulty with performing weight bearing on the right because of "severe" knee pain and weakness in the knee. He has difficulty performing balancing with the lower extremities on the right because of "severe" knee pain and weakness in the knee. There is difficulty performing ambulation with the lower extremities on the right side because of "severe" knee pain and weakness in the knee. It was noted "he is unable to walk without the assistance of another person." He can only leave his home with the assistance of his wife. An October 2007 VA cardiology consult reflected the Veteran is wheelchair bound because of "severe" osteoarthritis of the right knee and can walk only 10-15 feet before having to stop. A January 2008 VA cardiology fellow clinic note stated due to his lower extremity problems, the Veteran is wheelchair bound, and cannot walk more than 10 feet. A March 2008 VA nursing outpatient note observed the Veteran arrived via an electric wheelchair. A May 2008 VA primary care note recorded that instability in the Veteran's knees causes frequent falls when he arises out of his wheelchair, despite knee braces. An August 2008 VA knee examination documented that as the result of the Veteran's lower extremity disabilities, he uses an electric wheelchair. When he stands up, he cannot walk more than 15 feet or stand for prolonged periods of time. His impairments are due to pain, weakness, stiffness, swelling, heat, grinding, giving way, lack of endurance, and locking and dislocation in the knees. A December 2011 VA orthotics prosthetics consult mentioned the Veteran wears diabetic socks and uses an electric scooter to get around. A July 2012 VA knee examination remarked the Veteran has the regular use of a wheelchair, crutches, and walker, due to his knees and lower extremity neuropathy. A July 2012 VA peripheral nerves examiner stated the Veteran has to wear braces and cannot walk or stand for any length of time. He must use a wheelchair. He exhibits numbness in the legs and feet stinging and burning sensation in the legs and feet from his lower extremity peripheral neuropathy. The functional impact is that he depends on an electric wheelchair for transportation. His muscle strength in the knees was diminished at 3/5. In a September 2012 NOD, the Veteran asserted he was unable to walk or ambulate without the assistance of a walker, crutches, or a wheelchair. He has to wear braces for both knees to give them any support to sit down in his wheelchair or arise from his wheelchair. He also uses a walker and/or crutches for brief periods and short distances in his home. It was the Veteran's opinion that he has lost the use of his legs because of the bilateral instability of his knees, sprains of both knees, and peripheral neuropathy of both lower extremities. In addition, at the December 2015 video hearing, the Veteran credibly testified that he has fallen around 20 or 30 times due to lower extremity pain and weakness. He's knocked holes in the wall by falling. He simply loses his balance, whether or not he is wearing his knee braces. The Board finds the Veteran's lay assertions to be credible, as they are supported by the clinical evidence of record. A November 2014 VA aid and attendance examination found lower extremity restrictions to include poor balance, decreased weight bearing, and decreased propulsion of legs. He requires assistive devices to ambulate or the assistance of another person. A June 2017 affidavit from the Veteran's daughter indicated the Veteran's bilateral lower extremity disabilities profoundly limit his ability to walk, so he primarily uses the wheelchair to ambulate, as well as crutches. He trips and falls frequently. She stands behind him to make sure he maintains his balance when he uses crutches. She asserted the Veteran has effectively lost the use of his legs due to his service-connected bilateral lower extremity disabilities. The Board finds her observations to be credible and supported by the clinical evidence of record. In reaching this decision, the Board notes that the question involved in a loss of use analysis is whether there is any remaining function of the legs and feet that is more than would be provided by a suitable prosthetic device. See Tucker, 11 Vet. App. 369. When viewed from this perspective, the Board finds that the Veteran's nearly constant use of a wheelchair and minimal ability to walk 10-15 feet (with crutches or a walker) due to his service-connected bilateral knee and lower extremity peripheral neuropathy disabilities is no better than what would be experienced with suitable prosthetics. In so finding, the Board recognizes that no physician has specifically stated that no "effective function remains [in the feet] other than that which would be equally well served by an amputation stump at the site." However, the regulation defining "loss of use" clearly leaves the question open to some interpretation to the extent that it includes an intentionally non-exhaustive list of "example" situations which may reflect loss of use. Thus, the Board exercises its authority to interpret the immediate facts as being sufficiently similar to those examples presented as demonstrative of the regulatory definition of loss of use. It is important to note the Court recently emphasized that loss of use under § 3.350(a)(2)(i) contemplates "balance and propulsion" equivalent to that provided by a prosthetic devise. The Court added that SMC due to loss of use of the feet is not limited to those veterans who have "no" remaining effective functioning of the feet. See Jensen v. Shulkin, No. 15-4788 (U.S. Vet. App. Sept.12, 2017). Moreover, the definition of "loss of use" of the feet in § 3.350(a)(2)(i), for purposes of entitlement to SMC, is not the same as the definition of "loss of use" of the lower extremities listed in section 2101(a)(2)(B)(i) and § 3.809(b)(1), for purposes of entitlement to specially adapted housing. Id. The facts of this case demonstrate the Veteran has no effective function of both feet, as his ability to balance and propulse (push off his feet) is severely limited. Accordingly, resolving doubt in the Veteran's favor, the Board finds that the combined effects of the Veteran's service-connected lower extremity disabilities have resulted in the equivalent of permanent loss of use of both feet. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Veteran is therefore entitled SMC on account of loss of use of the feet under 38 U.S.C.A. § 1114(l). III. SMC - Aid and Attendance Special monthly compensation on a higher level under 38 U.S.C.A. § 1114(l) and 38 C.F.R. § 3.350(b) is also payable as the result of service-connected disability if the Veteran has blindness in both eyes with visual acuity of 5/200 or less (or concentric contraction of the field of vision beyond 5 degrees in both eyes); is permanently bedridden; or is so helpless as to be in need of regular aid and attendance of another person. In the present decision, it has already been established that the Veteran is entitled to SMC at the L-rate based on the loss of use of his lower extremities, due solely to his service-connected bilateral knee and lower extremity disabilities. However, the Veteran through his attorney also requests a separate award of SMC at the L-rate based on the need for regular aid and attendance due to his other service-connected disabilities, independent and without consideration of his service-connected bilateral knee and lower extremity disabilities. This would entail consideration for aid and attendance purposes of his service-connected renal dysfunction, hypertensive heart disease, bilateral upper extremity neuropathy, PTSD, hypertension, hearing loss, tinnitus, and several other disabilities. In turn, based on the award of these two levels of SMC (both loss of use of the feet and aid and attendance), the Veteran believes he is entitled to a higher level of SMC, namely at the R-1 rate. See July 2017 attorney brief. In determining the need for regular aid and attendance of another person, the following will be accorded consideration: Inability of a claimant to dress or undress him or herself, or to keep him or 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 (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of a claimant to feed him or herself through loss of coordination of the 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 a claimant from the hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352(a). Bedridden, i.e., the Veteran is actually required to remain in bed, will be a proper basis for the determination. The fact that a Veteran 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). It is not required that all of the disabling conditions enumerated be found to exist before a favorable rating may be made. See Turco v. Brown, 9 Vet. App. 222, 224 (1996) (providing that eligibility for special monthly compensation by reason of regular need for aid and attendance requires that at least one of the factors set forth in VA regulation is met, but not all). The particular personal functions that the Veteran is unable to perform should be considered in connection with his or her 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 be a constant need. 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 Veteran's condition is such as would require him or her to be in bed. They must be based on the actual requirements of personal assistance from others. 38 C.F.R. § 3.352(a). The performance of the necessary aid and attendance service by a relative of the beneficiary or other member of his or her household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352(c). Upon review of the evidence, SMC on account of the need for regular aid and attendance is warranted. See 38 U.S.C.A. § 1114(l), 38 C.F.R. §§ 3.350(b), 3.352(a). This award is based on the collective impact of the Veteran's remaining service-connected disabilities, especially his renal dysfunction, hypertensive heart disease, bilateral upper extremity neuropathy, PTSD, and hypertension - without consideration of his service-connected bilateral knee and lower extremity disabilities. At the outset, the medical and lay evidence of record does not reveal blindness in both eyes with visual acuity of 5/200 or less (or concentric contraction of the field of vision beyond 5 degrees in both eyes). See 38 U.S.C.A. § 1114(l), 38 C.F.R. § 3.350(b). In any event, with regard to the factors of aid and attendance, the Veteran meets the criteria for the need of the aid and attendance of another person and bedridden status, due to his remaining service-connected disabilities. 38 C.F.R. § 3.352(a). The following evidence is supportive of the claim: The Veteran is currently 58 years old. He lives with his wife and daughter in a small home. VA treatment records and VA examinations and lay evidence show that his medical condition has slowly deteriorated since 2005. With regard to lay evidence, the Veteran and his family have credibly stated and testified he needed the aid and attendance of another person due to his service-connected heart, hypertension, PTSD, diabetes mellitus, upper extremity peripheral neuropathy, and renal dysfunction disabilities. For example, in a June 2008 statement, the Veteran related that he was housebound due to heart disease. He cannot bend over to put on socks or shoes or to get dressed. He experiences constant pain every day. He lives in a double wide mobile home, but cannot use his wheelchair in certain parts because the home is not handicap accessible. He cannot take a shower because he cannot stand very long, and getting in and out of bathtub is difficult, such that he credibly reports "I need help." At the December 2015 video hearing, the Veteran credibly testified that he has fallen 20-30 times stepping in and out of the shower. He cannot enter the bathtub or shower alone. With regard to lay evidence, in a June 2017 affidavit from the Veteran's daughter, she credibly commented that the Veteran's service-connected upper extremity peripheral neuropathy greatly limits his ability to complete typical activities of daily life. He struggles to grasp items and frequently complains about losing feeling in his dominant left hand. He cannot carry more than a gallon of milk, and even then he still occasionally drops one. He struggles to write his own name, and frequently needs someone to write his name for him so that it is legible. He cannot tie his own shoes and so he is only able to wear Velcro shoes. His arm disabilities limit his ability to ambulate with his crutches. His daughter stated she has to assist the Veteran in a majority of his day-to-day activities. She prepares two to three meals per day for her father, as he cannot cook his own meals. She also prepares his medications and divides them up throughout the week because he tends to be forgetful and would go days without taking his medications without someone to remind him. She lives close by specifically to help take care of him and drive him to his doctor's appointments. She credibly believes that the Veteran could not survive if there were not someone available to provide him with regular aid and attendance. At an October 2006 VA aid and attendance examination, it was noted the Veteran's diabetes mellitus causes dizziness, while his upper extremity neuropathy causes weakness. He also started having problems with his heart, so he has not been able to walk or do too much with this disability. He has dizziness from sudden changes in posture. His wife also has to help him in and out of the shower because it is a small shower and it is hard for him to get in and out of the shower. He frequently feels fatigued due to his heart and hypertension and diabetes disabilities. Due to his heart disability, the Veteran reports that he still gets chest pain if he exerts too much. He reports that what he means by exertion too much is that if he walks or stresses himself for more than 15-20 minutes he says that he gets chest pain at least two times a week. He also reports shortness of breath due to his heart with walking about 15-30 feet. At an October 2007 VA examination, the VA examiner reflected that the Veteran had progressive loss of strength in the arms and all over his body. His heart disease complications include shortness of breath, dizziness, chest pain, and easy fatigue. He loses his balance and becomes dizzy when he stands out of his wheelchair. He is unable to walk without the assistance of another. He can only leave his home with the assistance of his wife or daughter. For his heart, the VA examiner opined the effect of this disability on the Veteran's daily activities is "severe." At a November 2007 VA psychological examination, for his PTSD, the VA examiner concluded the Veteran has some interference in performing activities of daily living because his wife has to help him. At a November 2014 VA aid and attendance examination, the VA examiner described the Veteran as mostly confined to bed from 9am to 9pm. Due to his service-connected PTSD, heart disease, and diabetes mellitus, he is not able to manage financial affairs, he requires medication management, he needs assistance with bathing and hygiene, and he cannot prepare own meals. Due to his upper extremity neuropathy, he needs help to go to the bathroom. He requires help or assistance for self-care, ambulation, and driving. He needs assistive devices to ambulate or the assistance of another person. The VA examiner specified that the Veteran's service-connected diabetes mellitus, renal impairments, heart disease / coronary artery disease, diabetic neuropathy, hypertension, and PTSD all restrict his functions and activities. The VA examiner also mentioned the Veteran's service-connected knees and lower extremity neuropathy. In summary, in light of the above evidence, the Veteran meets nearly all of the factors of aid and attendance. See Turco, 9 Vet. App. 224 (eligibility for special monthly compensation by reason of regular need for aid and attendance requires that at least one of the factors set forth in VA regulation is met, but not all). The above evidence reflects the necessity of the regular aid and attendance of another family member or person, due to his remaining service-connected disabilities, apart from his lower extremities. 38 C.F.R. § 3.352(a). Simply stated, it does not appear the Veteran would be able to take care of himself without the regular assistance of another. And although the Veteran is diagnosed with various nonservice-connected disorders such as low back arthritis and right hip pain, VA treatment records and VA examinations and lay evidence corroborate that the severity of the Veteran's service-connected heart, hypertension, diabetes, PTSD, upper extremity neuropathy, and renal dysfunction disorders, standing alone, would necessitate the regular aid and attendance of another for many activities of daily living. Consequently, it is apparent from the medical and lay evidence above that the basic requirements for SMC on the account of regular aid and attendance and bedridden status have been met - without considering his service-connected bilateral knee and lower extremity disabilities. 38 U.S.C.A. § 1114(l); 38 C.F.R. §§ 3.350, 3.352. Therefore, resolving any doubt in the Veteran's favor, the Board finds the evidence supports SMC for regular aid and attendance. 38 U.S.C.A. § 5107(b). IV. SMC - Higher Rate In addition to seeking entitlement to SMC at the L-rate based on the loss of use of his lower extremities and aid and attendance pursuant to 38 U.S.C.A. § 1114(1), the Veteran also contends that he is entitled to an even higher level of SMC, namely SMC at the R-1 rate, at the level designated under 38 U.S.C.A. § 1114(r)(1). The Veteran asserts this is supported by both the law and the evidence of record. See July 2017 attorney brief. The Board is required "to maximize benefits," which includes a requirement to consider whether a claimant is entitled to SMC. Cf. Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2011) ("VA's duty to maximize benefits requires VA to assess all of the claimant's disabilities without regard to the order in which they were service connected to determine whether any combination of the disabilities establishes entitlement to special monthly compensation under section 1114(s)"). See also AB v. Brown, 6 Vet. App. 35, 38 (1993) ("the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded"). 38 U.S.C.A. § 1114(r) provides for a higher level of benefit called "special aid and attendance" in certain circumstances. That is, a veteran receiving the maximum rate under 38 U.S.C.A. § 1114(o), who is also in need of regular aid and attendance or a higher level of care, is entitled to an additional allowance during periods he or she is not hospitalized at United States Government expense. 38 U.S.C.A. § 1114(r)(1)-(2) (West 2014). A still higher level aid and attendance allowance is authorized by 38 U.S.C.A. § 1114(r)(2), and is payable in lieu of the regular aid and attendance allowance authorized by 38 U.S.C.A. § 1114(r)(1). (Neither the Veteran nor his attorney has asserted the Veteran's entitlement to SMC at the R-2 rate, such that the Board will only consider the R-1 rate here). SMC at the threshold O-rate is warranted, if the veteran as the result of service-connected disability, has suffered disability under conditions which would entitle such veteran to two or more of the rates provided in one or more subsections (l) through (n), no condition being considered twice in the determination. 38 U.S.C.A. § 1114(o); 38 C.F.R. § 3.350(e)(1)(ii). The amount payable is $4,667. In other words, determinations for entitlement to the O-rate of SMC must be based upon separate and distinct disabilities. 38 C.F.R. § 3.350(e)(1)(ii). The Court has further held that a veteran who is in receipt of SMC at a rate under 38 U.S.C.A. § 1114 (l) through (n) cannot establish entitlement to a second rate under subsection (l) based on the need for aid and attendance, which would result in a higher payment of SMC at the rate under 38 U.S.C. § 1114(o), unless the need for aid and attendance arises from a disability other than that for which the veteran is already in receipt of SMC. The Court explained that such payment is prohibited because section 1114(o) prohibits a "condition from being considered twice" in subsections (l) through (n) when determining whether a veteran is entitled to a higher rate of SMC under subsection (o). Breniser v. Shinseki, 25 Vet. App. 64, 65 (2011). See also 38 C.F.R. § 3.350(e)(1)(ii). Simply stated, a higher payment of SMC at the rate under 38 U.S.C.A. § 1114(o) is assigned when a veteran to entitled to two SMC rates under 38 U.S.C.A. § 1114 (l), (m), or (n). However, each SMC entitlement under (l), (m), or (n), must be totally separate from the other. Applied to the facts of the present case, the same service-connected disability(ies) cannot support both SMC entitlements under 38 U.S.C.A. § 1114(l) for loss of use of the feet and aid and attendance. Fortunately, here, as explained above, the Veteran is entitled to SMC at the L-rate due to the loss of use of his lower extremities as a result of his bilateral knee and lower extremity disabilities alone. Additionally, he is entitled to SMC at the L-rate for the separate and distinct need for regular A&A due to his other service-connected disabilities, including his heart disease, diabetes mellitus, upper extremity neuropathy, and PTSD. Again, determinations for entitlement to the O-rate of SMC must be based upon separate and distinct disabilities. Thus, SMC at the O-rate is warranted here, because the Veteran has separate and distinct service-connected disabilities which would entitle him to two or more of the SMC rates listed in subsections (l) through (n). See 38 C.F.R. § 3.350(e)(1)(ii). That is, the Veteran has been awarded two SMC awards at the L-rate without consideration of the same disability twice. 38 U.S.C.A. § 1114(r)(1) provides that if a veteran is entitled to SMC at the O-rate and is also need in aid and attendance, he shall be paid an additional amount of SMC in the amount of $2,002.00. Because the Veteran here is entitled to SMC at the level designated under 38 U.S.C.A. § 1114(o), he qualifies for SMC at the R-1 rate-at the level designated under 38 U.S.C.A. § 1114(r)(1)-if the evidence establishes the need for regular aid and attendance. As discussed in detail above, the Veteran is in need of regular aid and attendance due to his service-connected disabilities. See 38 C.F.R. § 3.350(e)(1)(ii), (h); 38 C.F.R. § 3.352(a). In fact, SMC at the R-1 rate is virtually automatic for those veterans who are already rated under 38 U.S.C.A. § 1114(o), such as the Veteran in the present case. Therefore, resolving any doubt in the Veteran's favor, the Board finds the evidence supports an increased level of SMC at the R-1 rate - at the level designated under 38 U.S.C.A. § 1114(r)(1). See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to SMC on account of loss of use of both feet under 38 U.S.C.A. § 1114(l) is granted. Entitlement to SMC by reason of being in need of aid and attendance of another person and bedridden status under 38 U.S.C.A. § 1114(l) is granted. Entitlement to a higher rate of SMC under 38 U.S.C.A. § 1114(o) and (r)(1) is granted. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs