Citation Nr: 1801367	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  14-20 374A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to a higher level of special monthly compensation (SMC).


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

Joshua Castillo, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1976 to February 1981.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.  Jurisdiction over the Veteran's file was subsequently been transferred to the RO in St. Petersburg, Florida.  In July 2016, the Board remanded the case for further development.

This appeal has been advanced on the Board's docket.  38 U.S.C.A. § 7107(a)(2).


FINDING OF FACT

The Veteran's service-connected disabilities do not render him so helpless as to be in need of regular aid and attendance of another person.


CONCLUSION OF LAW

The criteria for a higher level of SMC have not been met.  38 U.S.C.A. § 1114 (West 2014); 38 C.F.R. §§ 3.102, 3.350, 3.352 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran seeks SMC at a rate in excess of that currently assigned under 38 U.S.C. 1114(l), (p), and (k).  The next higher rating is under subsection (r)(1), which requires that a veteran be in need of regular aid and attendance and meet the criteria under subsection (o), at 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 threshold requirement for SMC under subsection (r)(1) is the need of regular aid and attendance.

A veteran is considered to be in need of regular aid and attendance if: he/she is blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; or is a patient in a nursing home because of mental or physical incapacity; or establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a).  See also 38 C.F.R. § 3.351(c).

Determinations as to the need for aid and attendance are based on the actual requirements of personal assistance from others.  In determining the need for regular aid and attendance, consideration will be given to the inability of the Veteran and his or her spouse to dress or undress themselves, or to keep clean; frequent need of adjustment of any prosthetic which by reason of the disability cannot be done without aid; inability of the Veteran or his or her spouse to feed themselves; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect themselves from the hazards or dangers of the daily environment.  Bedridden will be that condition which, through its essential character, actually requires that the claimant remain in bed.  38 C.F.R. § 3.352(a).  It is mandatory for VA to consider the enumerated factors within the regulation, and at least one of the enumerated factors be present.  Turco v. Brown, 9 Vet. App. 222 (1996).

The Veteran is currently service-connected for hypertensive cardiomyopathy, cerebrovascular accident (CVA), status post CVA with left upper and lower extremity hemiparesis, hypertension with renal dysfunction, and erectile dysfunction.  As he does not contend and the evidence does not suggest that he is blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; or is a patient in a nursing home because of mental or physical incapacity, this case turns on whether the Veteran establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a).

The Veteran contends that his service-connected disabilities result in loss of use of the upper and lower left extremities, which precludes or makes difficult certain activities of daily living.  Specifically, the Veteran reports that he is only able to walk short distances with the use of a cane and left leg nerve stimulator, without which he cannot walk.  Additionally, the combination of his left-sided disabilities also make it difficult for him to transition from sitting to standing; to bath his entire body, as there are certain areas he has trouble reaching with his right upper extremity only; to eat, as he cannot cut food with a knife; to perform household chores, such as washing dishes; and to make adjustments to the nerve stimulator on his left lower extremity.  See, e.g., Statements from the Veteran and his sisters (December 7, 2016; December 21, 2016).  The evidence also shows that the Veteran is not capable of performing two-handed operations, such as opening cans and folding clothes.  Id.  Notwithstanding the limitations of his service-connected disabilities, the Veteran is able to live alone; leave the premises as he wishes; drive short distances; and feed, dress, and bath himself.  Id.; see also VA treatment record (December 27, 2012) (noting that the Veteran has difficulty preparing meals, but sometimes eats).

In November 2010, November 2014, and September 2016, the Veteran underwent VA examination to assess his need for regular aid and attendance.  He contends that the November 2010 VA examination does not adequately describe the functional impairment caused by his service-connected disabilities.  He also objects to technical aspects of the September 2016 VA examination, such as the type of diagnostic tests and the manner in which the examiner executed the examination.  The Veteran does not, however, attack the September 2016 VA examiner's recitation of his reported functional impairment, to include that he is able to walk with the use of a nerve stimulator on his left lower extremity, drive short distances, and perform grocery shopping.

The Board acknowledges that the Veteran, who practiced as a physician for 41 years, is likely competent to render an opinion regarding technical aspects of the VA examinations, such as the type of diagnostics performed the tools utilized.  However, these purported deficiencies do not disturb the Board's ability to render a decision regarding the need for regular aid and attendance.  In this regard, determinations as to the need for aid and attendance are based on the actual requirements of personal assistance from others.  Indeed, the Board finds that the evidence provided by the Veteran and his sisters provides an adequate basis to decide his claim.  Thus, any asserted deficiency in the VA examinations is not prejudicial to the Veteran's claim.

Based on the evidence of record, the Board finds that the Veteran's service-connected disabilities do not render him so helpless as to be in need of regular aid and attendance of another person.  In this regard, while the Veteran experiences difficulty dressing, cleaning, bathing, and tending to the wants of nature, he is able of perform such activities.  For instance, while the Veteran is not able to prepare food that requires the use of both hands, he is able to prepare food that requires only one hand.  He is also able to feed himself with one hand and even reports that he occasionally drives to eat at a restaurant.  See, e.g., Statements from the Veteran and his sisters (December 7, 2016; December 21, 2016); VA treatment record (December 27, 2012) (noting that the Veteran has difficulty preparing meals, but sometimes eats).  As to bathing and toileting, the Board acknowledges that the Veteran has difficulty balancing, transitioning from sitting to standing positions, and that he has difficulty scrubbing every surface of his body, but finds that he has been able to do of these activities throughout the appeal.  In sum, the Veteran's ability to feed himself, drive short distances, and even do some of his own shopping affirmatively demonstrate that his service-connected disabilities do not render him so helpless as to be in need of regular aid and attendance of another person.  Moreover, the Board finds that the Veteran's current loss of use of the left upper and lower extremities is sufficiently contemplated by the Veterans current SMC under 38 U.S.C. § 114 (l), (p), and (k).  Accordingly, the preponderance of the evidence is against the claim; there is no doubt to be resolved; and a higher level of SMC is not warranted.
 

ORDER

A higher level of SMC is denied.




____________________________________________
STEVEN D. REISS 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs