Citation Nr: 18143659 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 14-17 114A DATE: October 19, 2018 ORDER Special monthly compensation (SMC) at the (l) level based on the need for regular aid and attendance of another is granted. FINDINGS OF FACT 1. Prior to the Veteran’s death in April 2014, the Veteran timely appealed the RO’s February 2013 denial of the claim for SMC at the (l) level based on his need for regular aid and attendance of another and the appeal had not been completed. 2. The appellant is the Veteran’s surviving spouse, who was properly substituted as the claimant to continue the Veteran’s pending claim on appeal to completion. 3. For the entire period on appeal, the Veteran had a factual need for the regular aid and attendance of another due to service-connected disabilities CONCLUSIONS OF LAW 1. The appellant, the Veteran’s surviving spouse, is a proper substitute claimant in this case. 38 U.S.C. § 5121A (2012). 2. The criteria for SMC at the (l) level based on the Veteran’s need for aid and attendance of another are met. 38 U.S.C. §§ 1114, 5107 (2012); 38 C.F.R. §§ 3.102, 3.350, 3.352 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1954 to June 1974. Unfortunately, he died in April 2014. The appellant is his surviving spouse and, as discussed below, has been properly substituted as claimant in the claims addressed herein. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Appellant as Substitute-Claimant When a Veteran has claims pending at the time of his death, his surviving spouse may be paid periodic monetary benefits, which were due and unpaid, to which he was entitled at the time of his death based on existing ratings or decisions, or other evidence that was on file when he died. 38 U.S.C. § 5121 (2012); 38 C.F.R. § 3.1000 (2017). The statute regarding accrued benefits claims was amended on October 10, 2008. See Veterans’ Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212 (2008). Section 212 created a new statute, which provided that if a claimant died while a claim or appeal for any benefit under a law administered by VA was pending, a living person who would be eligible to receive accrued benefits due to the claimant may, not later than one year after the date of the death of the claimant, request to be substituted as the claimant for the purposes of processing the claim to completion. See 38 U.S.C. § 5121A. The new statute allows a person who could be considered an accrued benefits claimant to substitute for a deceased claimant to continue adjudication of the deceased claimant’s claim. The provisions of the new statute apply with respect to the claim of any claimant who dies on or after October 10, 2008. See Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008). Prior to the completion of the Veteran’s appeal of the February 2013 rating decision, the RO received confirmation of his April 2014 death. In May 2014, the appellant submitted VA Form 21-534, Application for Dependency and Indemnity Compensation, Death Pension, and Accrued Benefits by a Surviving Spouse or Child, which was also considered a request for substitution with regard to the Veteran’s pending claim. See 38 U.S.C. § 5121A. In February 2018, the RO allowed for the appellant’s substitution in the Veteran’s claim that was on appeal. She was notified of this decision in a letter that same month. Therefore, the Board recognizes that the Veteran’s surviving spouse has been properly substituted for the Veteran. As the Veteran’s death occurred after October 10, 2008, the appellant’s claim is not one for accrued benefits, but remains his original claim into which she is substituted in his stead. 1. Entitlement to SMC based on the Veteran’s need for regular aid and attendance. SMC is authorized in particular circumstances in addition to compensation for service-connected disabilities. See 38 U.S.C. § 1114 (2012); 38 C.F.R. §§ 3.350, 3.352 (2017). Section 1114(l) provides five distinct ways for a veteran, "as the result of service-connected disability," to qualify for this rate of SMC: (1) anatomical loss or loss of use of both feet; (2) anatomical loss or loss of use of one hand and one foot; (3) blindness in both eyes with 5/200 visual acuity or less; (4) being permanently bedridden; or (5) having "such significant disabilities as to be in need of regular aid and attendance of another person under the criteria set forth in 38 C.F.R. § 3.352(a). See 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). Determinations as to need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to such conditions as the following: Inability of claimant to dress or undress himself or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliance which by reason of the particular disability cannot be done without aid; inability of claimant to feed himself through loss of coordination of 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 the claimant from hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352(a). It is not required that all the disabling conditions enumerated in § 3.352(a) be found to exist before a favorable rating may be made. The particular personal functions that the veteran is unable to perform should be considered in connection with his or her condition as a whole. 38 C.F.R. § 3.352(a); see also Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in section 3.352(a) must be present for a grant of SMC based on need for aid and attendance). As an initial matter, the Board notes that the Veteran was in receipt of service connection for a right hip disability (rated 50 percent disabling from December 1, 1992), a left hip disability (rated 30 percent from May 1, 1987), psoriasis (rated 30 percent from September 25, 1978), a duodenal ulcer (rated 20 percent from June 1, 1974), tinnitus (rated 10 percent from September 25, 1977), residuals of fractures of the right index finger, right fifth metacarpal, left distal fifth metacarpal, and right fifth toe (rated 0 percent from June 1, 1974), bilateral hearing loss (rated 0 percent from June 1, 1974), hemorrhoids (rated 0 percent from June 1, 1974), anxiety reaction with compulsive features (rated 0 percent from June 1, 1974), and back strain (rated 0 percent from December 6, 1975). His combined rating was 90 percent. He was also in receipt of a total rating based on individual unemployability (TDIU). On review, the evidence establishes that the Veteran requires regular personal assistance due to his service-connected disabilities. Specifically, throughout the period on appeal, the evidence indicates that the Veteran required care or assistance on a regular basis with dressing and undressing himself and to protect him from the hazards or dangers incident to his daily environment. A May 2012 private treatment note indicated that the Veteran was having progressively increased problems with functional status because of chronic arthritic pain and difficulty with mobility. He could not stand for very long, no longer cooked or prepared his own meals, needed some assistance with bathing and managing his own daily medications. He could not bend over to put on his socks and shoes and had difficulty sleeping because of pain in his hip affecting positioning. A July 2012 private treatment note indicated that the Veteran stood at attention for 75 minutes at a funeral, but had problems with right foot pain shortly thereafter. An October 2012 private treatment record indicated that the Veteran had an active lifestyle and walked for fitness. A January 2013 private treatment record indicated that the Veteran walked with an antalgic gait on the right. A separate January 2013 private treatment record indicated that the Veteran had severe pain with any activity and sometimes at rest; mothing alleviated the pain. Another separate January 2013 private treatment record indicated that the Veteran had been advised to avoid all contact or impact activities, as well as pivots or had steps due to a loosening of the total hip. In the February 2013 notice of disagreement, the Veteran stated that he had chronic pain and limited mobility due to his hip disabilities. He stated that he could not stand longer than 30 minutes. He remained at home and in bed for more than 80 percent of the day. He indicated that he could only leave his home with the assistance of a cane and use of a mobile transport. An April 2013 private treatment record indicated that the Veteran experienced very severe right leg pain that was worse with activity and when he stood from lying or sitting. A separate April 2013 private treatment record indicated that the Veteran had some limitations of mobility related to his arthritis. His wife had to assist him in putting on his socks. However, he could ambulate independently, cooked all of their meals, and generally enjoyed life despite his pain. An April 2014 A treatment record indicated that the Veteran reported needing a toilet seat with bars on both sides. A separate April 2014 VA treatment record indicated that the Veteran requested an electric scooter. He stated that he was not steady on his feet and it was getting harder for him to move around. The Veteran reported having fallen three times in the past month. (Continued on next page) Based on the foregoing, and resolving all reasonable doubt in the Veteran’s favor, the Board concludes that the Veteran had a factual need for the regular aid and attendance of another person due to his service-connected disabilities for the entire period on appeal; therefore, the criteria for SMC at the (l) level based on the need for regular aid and attendance of another person due to service-connected disabilities have been met for the entire period on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Thomas, Associate Counsel