Citation Nr: 1753425 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 10-23 465 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to special monthly compensation based on the need for regular aid and attendance of another person. REPRESENTATION Veteran represented by: Margaret Costello, Attorney-at-Law ATTORNEY FOR THE BOARD M. Giaquinto, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 1994 to September 1994 and May 1999 to June 2008, to include service in Kosovo and Iraq. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina in which the RO denied the Veteran's claim for an initial rating in excess of 30 percent disabled for service-connected bipolar disorder. In a memorandum supporting the Veteran's notice of disagreement with the July 2008 rating decision, the Veteran's representative requested that the Veteran be evaluated for special monthly compensation (SMC) due to the need for aid and attendance of another person, in addition to an increased schedular rating. At the Veteran's request, this case has since been transferred to the RO in Seattle, Washington. In August 2015, the Board remanded the claim for SMC in order to afford the Veteran an examination, and to allow the Veteran an opportunity to submit any additional medical evidence in his possession. The Board finds there has been substantial compliance with its August 2015 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) FINDING OF FACT The preponderance of the evidence shows that the Veteran's service-connected disabilities have not affected the Veteran in such a way as to require the care and assistance of another person on a regular basis. CONCLUSION OF LAW The criteria for special monthly compensation benefits based on the need for aid and attendance of another person have not been met. 38 U.S.C. §§ 1114, 5100, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326, 3.350, 3.351, 3.352 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Entitlement to Special Monthly Compensation based on a need for Aid and Attendance Pertinent Law and Regulations Special monthly compensation (SMC) provided by 38 U.S.C. § 1114(l) is payable when the recipient is considered to be so helpless as to be in need of regular aid and attendance due to service-connected disability or disabilities. 38 C.F.R. § 3.350(b). The criteria for determining whether a Veteran is so helpless as to be in need of regular aid and attendance are listed in 38 C.F.R. § 3.352. 38 C.F.R. § 3.350(b)(3). Under 38 C.F.R. § 3.352(a), the following is accorded consideration in determining the need for regular aid and attendance: inability of claimant to dress or undress himself or herself, or to keep himself or herself ordinarily clean and presentable; inability to attend to the wants of nature; and incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. It is not required that all of these disabling conditions be found to exist before a favorable rating may be made. The particular personal functions which a 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 a veteran is so helpless as to be in need of regular aid and attendance are based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352(a). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Analysis The Veteran retired from military service due to permanent disability, specifically the bipolar disorder for which he is currently service connected. The bipolar disorder was initially evaluated as 30 percent disabling and that evaluation has since been increased to 100 percent disabling. A VA examination from April 2008 shows that, at the time, the Veteran was living in a house with his mother after separating from his wife. The examiner noted that the Veteran was able to bathe, dress, and feed himself and could take care of his activities of daily living. His mother did most of the cooking and cleaning, but the Veteran tried to help out. The Veteran exercised a little bit and would go out of the house occasionally, but limited his time going out due to anxiety. In February 2009, the Veteran sought treatment at the Austin, Texas VA Clinic. He received an intake counseling session, where he discussed finding a new apartment, working with vocational rehabilitation, and planning to take online courses. He was documented as being neat and clean in appearance, dressed in casual attire, and pleasant and cooperative. In July 2009, the Veteran was arrested after assaulting someone in a crowd and getting into an altercation with police officers. He was hospitalized and deemed incompetent at the time. He was ultimately incarcerated until November 2009, when he was deemed competent after receiving appropriate medication and treatment. Mental Health Clinic notes from May 2010 show that the Veteran discussed that he had been working to better himself by studying to try to get into law school and by getting back into physical workouts. He arrived to the appointment unaccompanied and was able to move independently. He was judged not to be at significant risk for self-harm. In 2012, the Veteran moved to Washington State and in March 2012 he actively sought mental health treatment from VA for his bipolar disorder. Mental health notes show that, at the time, he was well-groomed, casually dressed, and had no suicidal or homicidal thoughts. In June 2012, the Veteran was hospitalized after becoming manic and delusional. He was placed in a 72-hour involuntary psychiatric hold. Upon discharge, he was living with his cousin who was a certified nursing assistant and had become a caregiver for him. VA Caregiver Program Eligibility Assessment records from November 2012 show that the Veteran had some difficulty with management and organization, including maintaining his medication schedule, as well as difficulty with self-regulation of agitation, moods, and aggression when not on medication. Assessment of the Veteran showed that he had no issues with average daily life skills, such as personal hygiene, dressing himself, or mobility. He had some physical difficulty cooking, due to periodic tremors associated with his medication. He was evaluated on a dependency scoring guide in which a score from 1 - 12 indicated Low Dependence, 13 - 20 indicated Moderate Dependence, and 21 - 28 indicated High Dependence. The Veteran's total score was 11. In a follow-up assessment in December 2012, the evaluator stated that the Veteran appeared to receive significant support from his caregiver. At an in-home assessment in April 2013, the Veteran was shown to answer questions appropriately and he denied depression, anxiety, or hallucinations. He was able to discuss his medications and explain what each one was for. The evaluating nurse noted that the Veteran had put his sweatpants on inside out, but his caregiver pointed this fact out to him and told him that he would need to change his clothes before he left the house. The Veteran went back to his room and changed his clothes. By July 2013, the Veteran was living with his girlfriend, with whom he had a child, and showed significant improvement. At a caregiver assessment home visit, the evaluating nurse noted that the Veteran greeted her and shook her hand, was appropriately dressed and groomed, was responsive to questions and interacted well with his daughter. The Veteran reported that his hand tremors had decreased and that he was able to handle cups and utensils without issue. At a November 2013 mental health visit, the Veteran discussed being concerned about weight gain from his medication. He reported that he had been exercising on a treadmill at home for at least an hour per week. He was looking into volunteer work and also further vocational rehabilitation. He was focusing on paying back student loans and hoping to purchase a house. The social worker noted that the Veteran had demonstrated emotionally stable visits for several months at that point and recommended that the behavioral flag be removed from his medical file. More recent medical records from February through April 2017 indicate that the Veteran has not only been able to provide for himself on a daily basis, but also to help take care of his daughter and his ailing mother. He is helping his mother with her medical care by bringing her to doctors' appointments and providing physical support. Despite experiencing a fair amount of stress, he has reported that he is functioning well. See, e.g., a December 16, 2016 Psychiatry Note (indicating that the Veteran was seen with his young daughter; has been stable since last visit; was busy taking care of his daughter, financial issues and his ill mother; was expecting another child in six months; and exhibited good sleep and mood and no hypomanic or significant depressive symptoms). The Veteran underwent a VA examination for aid and attendance assessment in May 2017. The examiner reported that the Veteran is not permanently bedridden, he does not use an orthopedic or prosthetic appliance, and there are no self-care skills that the Veteran is unable to perform, including dressing or undressing himself, keeping clean and presentable, attending to the wants of nature, and protecting himself physically and mentally from hazards or dangers. He cares for his four-year-old daughter by preparing breakfast for her every morning and bringing her to school. He also continues to help care for his mother. He leaves the home daily, with errands, and does not demonstrate physical impairments. He is capable of handling his own finances. Considering the totality of the information above, the preponderance of the evidence is against the Veteran's claim for SMC based on the need for regular aid and attendance of another person. As was previously stated, this type of compensation is considered for recipients considered to be so helpless as to be in need of regular assistance with basic daily activities, as listed in 38 C.F.R. § 3.352(a). Although the record shows that there have been periods of time during which the Veteran either was briefly incapacitated, or greatly benefitted from the assistance of a caregiver, those periods were temporary and do not reflect a regular need throughout the period of appeal. Even at times when the Veteran benefitted from a caregiver, he has not been bedridden and has been able to perform basic daily functions such as dressing himself, keeping himself ordinarily clean and presentable, and attending to biological needs. Currently, the Veteran is not only able to care for himself, but is also helping to care for his young daughter and elderly mother. As a result, he does not show a need for regular aid and attendance and his disability picture does not meet the criteria for eligibility for special monthly compensation. The Board adds that the Veteran is not housebound. Although he has one disability rated at 100 percent disabling, his other service-connected disabilities are noncompensable. Thus a lesser award of SMC based on the housebound rate is also not warranted. As the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not applicable and the Board must deny the claim. See 38. U.S.C.A. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to special monthly compensation based on the need for regular aid and attendance of another person is denied. ____________________________________________ V. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs