Citation Nr: 18143606 Decision Date: 10/23/18 Archive Date: 10/19/18 DOCKET NO. 15-28 507 DATE: October 23, 2018 ORDER Entitlement to a higher level of special monthly compensation based on the need for regular aid and attendance, under 38 U.S.C. § 1114(t), on account of being service-connected for residuals of traumatic brain injury, is granted from April 29, 2013 to February 6, 2014. Entitlement to a higher level of special monthly compensation based on the need for regular aid and attendance, under 38 U.S.C. § 1114(t), on account of being service-connected for residuals of traumatic brain injury, is denied after February 6, 2014. FINDINGS OF FACT 1. From April 29, 2013 to February 6, 2014, the Veteran’s service-connected traumatic brain injury resulted in the requirement of the aid and attendance of another person without which would require hospitalization, nursing home care, or other residential institutional care. 2. After February 6, 2014, the Veteran’s service-connected traumatic brain injury did not result in the requirement of the aid and attendance of another person without which would require hospitalization, nursing home care, or other residential institutional care. CONCLUSIONS OF LAW 1. From April 29, 2013 to February 6, 2014, the criteria for a higher level of special monthly compensation based on the need for regular aid and attendance, under 38 U.S.C. § 1114(t), on account of being service-connected for residuals of traumatic brain injury have been met. 38 U.S.C. § 1114(t); 38 C.F.R. § 3.352. 2. After February 6, 2014, the criteria for a higher level of special monthly compensation based on the need for regular aid and attendance, under 38 U.S.C. § 1114(t), on account of being service-connected for residuals of traumatic brain injury have not been met. 38 U.S.C. § 1114(t); 38 C.F.R. § 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 2002 to September 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Entitlement to a higher level of special monthly compensation based on the need for regular aid and attendance, under 38 U.S.C. § 1114(t), on account of being service-connected for residuals of traumatic brain injury. In addition to regular levels of compensation for aid and attendance as authorized by 38 U.S.C. § 1114(l), 38 U.S.C. § 1114(r) provides for a higher level of benefit called “special aid and attendance” in certain circumstances. A veteran receiving the maximum rate under 38 U.S.C. § 1114(o), who is 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. 1114(r)(1)-(2). A still higher level aid and attendance allowance is authorized by 38 U.S.C. § 1114(r)(2), and is payable in lieu of the regular aid and attendance allowance authorized by 38 U.S.C. § 1114(r)(1). In addition, this higher level of 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. § 1114(o), or was based on an independent factual determination. Thus, relevant statutory authority provides that if any veteran is in need of regular aid and attendance for a service connected disability, then, in addition to other possible SMC, the Veteran shall be paid a monthly aid and attendance allowance. 38 U.S.C. § 1114(r)(1). This rate of aid and attendance is known as “R1.” In the alternative, a higher rate of aid and attendance benefits is awarded if the Veteran, in addition to such need for regular aid and attendance, is in need of a “higher level of care” or “R2.” The need for a “higher level of care” means that the Veteran requires personal health-care services provided on a daily basis in their 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. 38 C.F.R. § 3.352(b)(2). 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. Id. In addition, 38 C.F.R. §§ 3.350 and 3.352 provide further definitions regarding criteria for when aid and attendance benefits may be granted. These regulations also provide criteria as to when an R1 rate is to be granted and when an R2 rate is to be granted. The following are criteria in determining the need for regular aid and attendance: (1) Inability of the claimant to dress or undress him or herself or to keep him or herself ordinarily clean and presentable; (2) Frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without assistance; (3) Inability of the claimant to feed him or herself through loss of coordination of upper extremities or through extreme weakness; (4) Inability to attend to the wants of nature; or (5) Incapacity, either physical or mental, that requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352(a). If any Veteran, as the result of service-connected disability, is in need of regular aid and attendance for the residuals of TBI and in the absence of such regular aid and attendance would require hospitalization, nursing home care, or other residential institutional care, the Veteran shall be paid, in addition to any other compensation under this section, a monthly aid and attendance allowance equal to the rate described in 38 U.S.C. § 1114(r)(2). 38 U.S.C. § 1114(t). Relevant to this inquiry is the question of whether the Veteran meets the relevant requirements for, and is entitled to, a “higher rate of aid and attendance” under 38 U.S.C. § 1114(r)(2) based on a need for personal health-care services provided on a daily basis in their 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. 38 C.F.R. § 3.352(b)(2). If the Veteran were eligible for such a benefit under 38 U.S.C. § 1114(r)(2), he would not be entitled to SMC under 38 U.S.C. § 1114(t). The evidence demonstrates, however, that the Veteran is not eligible for this benefit under 38 U.S.C. § 1114(r)(2) because he does not meet the criteria of the other lower levels as which are required for the (r)(2) rate. As noted, the RO granted the basic rate for entitlement to SMC based on the need for aid and attendance. However, in light of the evidence of record to include the evidence discussed above, the Board at this time finds that, from April 29, 2013 to February 6, 2014, Veteran’s service-connected TBI (rated with PTSD) resulted in the regular need for the aid and attendance of another person and in the absence of such regular aid and attendance would have required hospitalization, nursing home care, or other residential institutional care. Therefore, the Board finds that special monthly compensation under 38 U.S.C. § 1114(t) based on traumatic brain injury is warranted from April 29, 2013 to February 6, 2014. In support of his claim, the Veteran submitted a November 2013 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, completed by Dr. S.L. The examiner noted that the Veteran’s complete diagnosis was traumatic brain injury, posttraumatic stress disorder, aortic valve replacement, and right knee reconstruction. The Veteran was able to feed himself but he was not able to prepare his own meals. Dr. S.L. indicated that the Veteran did need assistance in bathing and tending to other hygiene needs, as he was unable to reach his back, had dizzy spells and blackouts when closing his eyes to wash. The Veteran was not legally blind. He did require nursing home care, though an explanation was not provided. The Veteran also required medication management due to his memory loss, as he forgot when to take his medication and if it was already taken. The Veteran did not have the ability to manage his own financial affairs due to his memory and set up bills as autopay. Upper extremity restrictions other than those outlined above were that the Veteran had difficulty with fine motor skills. Lower extremity difficulties included dizziness and balance problems. Dr. S.L. stated that the Veteran leaves home only with his caregiver and was always accompanied at VA appointments by his caregiver. The Veteran used assistive devices for locomotion. The Veteran also submitted a February 2014 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, completed by Dr. S.L. The complete diagnosis was late effect intracranial injury. The February 2014 examination differed from the November 2013 examination in that Dr. S.L. noted that the Veteran needed assistance with instrumental activities of daily living due to chronic pain and poor concentration. However, Dr. S.L. specifically noted that the Veteran did not require nursing home care. He was able to manage his own financial affairs with the help of the caregiver. The Veteran was able to leave home as needed for appointments and grocery shopping with his caregiver. The Board finds that SMC under 38 U.S.C. § 1114(t) is not warranted after February 6, 2014. Though the February 2014 examination found that the Veteran still required assistance with activities of daily living, Dr. S.L. specifically noted that the Veteran did not require nursing home care. Dr. S.L.’s opinion is supported by VA treatment records. An in-home caregiver assessment from May 2014 found that the Veteran was able to feed, ambulate, transfer, dress, and toilet himself independently. The Veteran reported that his caregiver assisted with activities of daily living when he had pain flare-ups. The Veteran reportedly experienced difficulty with preparing meals, shopping, transportation and managing medication but was able to do housework, use the telephone, and manage his finances. In July 2014, the Veteran reported that he and his caregiver had separated and that he planned to do some cross-country traveling to visit his brother in Wisconsin. He stated that he did not want to reapply with another caregiver at that time and would rather not depend on others, even though he recognized that he needed support. The Veteran and his caregiver moved back in together in September 2014, when the Veteran “realized that he needs Caregiver’s support and assistance and requested she move back in with him.” See September 2014 VA medical records. At this time the Veteran’s caregiver reported that she assisted him with planning and organization, reminders, mood management, medication and appointment compliance, dressing, and supervised bathing. A caregiver in-home assessment from September 2014 shows that the Veteran was able to feed, ambulate, transfer, and toilet himself independently but that he needed assistance with bathing and personal hygiene and dressing. The Veteran also experienced difficulty preparing meals, housework, shopping, managing medications and finances. A September 2015 caregiver assessment noted that the Veteran was able to feed, ambulate, transfer, bathe, dress, and toilet himself independently. He did, however experience difficulty with housework, shopping, and managing medications and finances. The Veteran’s caregiver reported that the Veteran needed reminders for personal hygiene and to eat, noting that she went out of town for 3 days for a wedding and that, while she was gone, the Veteran only smoked and drank coffee. The Veteran was admitted to the hospital in July 2016 for transient blindness in his right eye. A pre-discharge nursing screening included a functional assessment. The Veteran was able to eat and manage his oral hygiene independently but needed supervision bathing, dressing, ambulating and toileting. The nurse noted that the Veteran did not require assistance with activities of daily living at home. A mental health outpatient note from August 2016 notes the Veteran’s reports of difficulty getting out of the house and that he needs his girlfriend/caregiver’s help with activities of daily living. The Veteran was afforded a VA mental disorders examination in October 2016. The examiner noted that the Veteran was unaccompanied to the appointment and drove to the clinic on his own accord. The examiner also noted that the Veteran was fully capable of dressing and bathing independently and had an active driver’s license. Based on the evidence of record, there is no indication that the Veteran’s caregiver was performing duties that, in the absence of such regular aid and attendance would require hospitalization, nursing home care, or other residential institutional care. Therefore, the Board finds that SMC at the (t) rate is not warranted after February 6, 2014. Moreover, the Board notes that a March 2017 rating decision discontinued entitlement to special monthly compensation at the (l) rate effective June 1, 2017. Accordingly, as entitlement to such lower level of SMC benefits is no longer warranted, his entitlement to a higher level based on TBI residuals is also not warranted. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Thompson, Associate Counsel