Citation Nr: 18140861 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 16-11 216 DATE: ORDER Entitlement to special monthly compensation (SMC) based on the need for regular aid and assistance from August 1, 2010, through August 31, 2011, is granted. Entitlement to SMC based on the need for regular aid and assistance prior to August 1, 2010, is denied. Entitlement to SMC based on the need for regular aid and assistance after August 31, 2011, is denied. FINDINGS OF FACT 1. The evidence of record establishes that the Veteran required the regular aid and attendance of another due to his service-connected leukemia from August 1, 2010, through August 31, 2011. 2. The evidence of record does not establish that the Veteran required the regular aid and attendance of another due to his service connected leukemia prior to August 1, 2010, or after August 31, 2011. CONCLUSIONS OF LAW 1. For the time-period of August 1, 2010, through August 31, 2011, the criteria for SMC based on the need for aid and attendance or housebound status, have been met. 38 U.S.C. §§ 1110, 1114(l), (s), 5121 (2012); 38 C.F.R. §§ 3.350, 3.352, 3.1000 (2017). 2. For the time-period prior to August 1, 2010 and after August 31, 2011, the criteria for SMC based on the need for aid and attendance or housebound status, have not been met. 38 U.S.C. §§ 1110, 1114(l), (s), 5121 (2012); 38 C.F.R. §§ 3.350, 3.352, 3.1000 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from March 1964 to December 1968. 1. Entitlement to special monthly compensation based on the need for regular aid and assistance According to 38 U.S.C. 1114 (l), SMC is payable for being so helpless as to be in need of regular the regular aid and attendance of another. 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 found in 38 U.S.C. § 3.352 (a). Under 38 U.S.C. § 3.352 (a), the following is accorded consideration in determining the need for regular aid and attendance: inability of claimant to dress or undress, or to keep 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 U.S.C. § 3.352 (a). The Veteran’s representative contends that he is entitled to SMC based on the need for aid and attendance due to his service connected chronic acute myelogenous leukemia (leukemia) as of his date of claim for an increased rating for leukemia, October 6, 2008. A. SMC Aid and Attendance for August 1, 2010 through August 31, 2011 The Veteran and his spouse provided affidavits stating that, from August 2010 through December 2010, the Veteran required constant care due to his stem cell transplant, which included assistance with basic activities of daily living, such as dressing, bathing, eating, and toileting. The medical evidence of record confirms that the Veteran underwent a stem cell transplant and was advised that he would require a 24-hour caregiver for 100 days. Additionally, the Veteran and his spouse reported that, from December 2010 through August 2011, his spouse provided transportation to medical appointments, prepared meals, and provided daily medications. According to the Veteran, he went to the hospital every two or three weeks for treatment, which resulted in severe side effects requiring constant care for approximately 24 to 48 hours. Review of the medical record reflects that in January 2011, the Veteran was admitted to the hospital due to a month-long history of nausea and diarrhea and in June 2011, the Veteran was again admitted to the hospital due to an altered mental status resulting in confusion, impairment of speech and headaches. The Board finds the affidavits of the Veteran and his spouse credible and consistent with the medical evidence of record. The record clearly establishes that the Veteran required constant care for the 100-day period following his stem cell transplant. Furthermore, the Veteran continued to have difficulties beyond the 100-day period, as the record shows hospitalizations due to nausea, headaches and confusion. Therefore, the Board finds that for the time-period of August 1, 2010 through August 31, 2011 the Veteran required the assistance of another with activities of daily living and to protect him from the hazards incident to his daily environment. B. SMC Aid and Attendance Prior to August 2010 The Board finds that for the period prior to August 2010 the Veteran did meet the criteria for aid and attendance. The medical treatment records reference that, in December 2008 and January 2009, the Veteran felt well and was active and able to exercise without difficulty. The following year, in February 2010 the Veteran reported chronic shortness of breath when going uphill but was still exercising without significant difficulty. The treatment records specifically noted at a March 2010 evaluation that the Veteran moved to the examination table without much difficulty and ascended without any problems. Additionally, the Veteran maintained employment until 2010 when he retired due to his service connected leukemia. As the evidence establishes that the Veteran was employed until 2010 and physically active, the criteria for the need of regular aid and attendance of another is not met. Therefore, aid and attendance prior to August 2010 is denied. C. SMC Aid and Attendance After August 2011 The Board finds the evidence is insufficient to establish that the Veteran continued to require regular aid and assistance of another after August 2011. The record reflects that the Veteran improved after his stem cell transplant. The Veteran attended a general medical VA examination in December 2011. The examiner found that the Veteran was not impaired for sedentary employment; however, his lack of stamina was an impairment for physical employment. In October 2012, the Veteran underwent a VA examination for his service connected leukemia. The Veteran displayed symptoms of weakness, fatigability, light-headedness and shortness of breath going up and down stairs. The examiner concluded that the Veteran had a moderate impairment for physical and sedentary employment. The medical records also reveal continued improvement following the Veteran’s stem cell transplant. According to treatment notes from June 2013 to May 2015, the Veteran was ambulatory and able to carry out light or sedentary work; however, he was not capable of strenuous physical activity. In August 2012, the Veteran reported exercising regularly, which is consistent with the Veteran’s affidavit stating that during the two years after the transplant he worked on rebuilding his strength. Furthermore, the Veteran stated that, after the first year, he was able to walk without a cane and, as of his April 9, 2013 statement, he was able to carry 25 pounds. In December 2016, the Veteran provided another statement, reporting that, due to his treatments for his service connected leukemia, he is required to undergo gamma globulin infusions, which requires the assistance of his spouse or daughter. The Veteran explained that while he is able to ambulate independently, he has brittle bones, which causes bruises and bleeding easily and increases the risk of internal bleeding. The Veteran stated that he has fallen periodically over the last several years and his daughter takes care of most of the yardwork and chores around the house due to the Veteran's need for rest, especially after treatments. Furthermore, the Veteran expressed the ability to take short trips to familiar places but stated he requires assistance when going somewhere new due to his disorientation. The Veteran’s spouse also provided an additional statement reporting that she continues to take care of daily medications and transportation. She stated that she feels the Veteran is unable to be alone due to his increased risk of falling and his brittle bones, as well as his memory problems. The Board has considered all the evidence of record, to include the lay statements of the Veteran and his spouse and note they are competent and credible to describe the Veteran’s observable symptoms. See Barr v. Nicholson, 21 Vet. App. 303 (2007); 38 U.S.C. § § 5107(b), 7104(a); 38 C.F.R. § 3.303(a). However, neither the lay nor the medical evidence of record demonstrates that the assistance of another person is required for self-care, dressing, feeding, attending to the wants of nature, or to protect the Veteran from the hazards or dangers incident to his daily environment during the period at issue. Rather, the record reflects that the Veteran is capable of light or sedentary work, which is equivalent to light housework, able to walk without a cane, and carry approximately 25 pounds without losing his balance. The Board acknowledges that the Veteran’s service connected leukemia causes difficulties and he may require extra care and assistance at times; however, the evidence does not establish the level of severity required for regular aid and attendance. As such, for the period after August 2011, SMC aid and attendance is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against these claims, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. A. Prinsen, Associate Counsel