Citation Nr: 18143706 Decision Date: 10/22/18 Archive Date: 10/19/18 DOCKET NO. 16-10 404 DATE: October 22, 2018 ORDER A higher level of special monthly compensation (SMC) is denied. FINDINGS OF FACT 1. The Veteran had active service from September 1973 to December 1974. 2. The Veteran receives SMC under 38 U.S.C. § 1114(p). 3. For the entire period on appeal, the Veteran has been service-connected for loss of use of the feet at 100 percent, degenerative lumbar disc disease and scoliosis at 40 percent, an anxiety disorder at 30 percent, radiculopathy of the left lower extremity at 10 percent, and a left hip scar at 0 percent. CONCLUSION OF LAW The criteria for a higher level of SMC have not been met. 38 U.S.C. §§ 1114(p) (2012); 38 C.F.R. §§ 3.51, 3.350, 3.352 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION As an initial matter, in a February 2013 decision, the Veteran was granted compensation under 38 U.S.C. § 1151 for loss of use of both feet, SMC for loss of use of the feet, automobile and adaptive equipment, and specially adapted housing, but was denied SMC at a higher level of care. He argued that the rating decision mischaracterized his disabilities and that he was entitled to SMC for loss of use of his bilateral hips. Generally, a higher rate of SMC is warranted if a veteran is entitled to compensation either authorized under 38 U.S.C. § 1114(o), at the maximum rate authorized under 38 U.S.C. § 1114(p), or at the intermediate rate authorized between the rates authorized under 38 U.S.C. §§ 1114 (n) and (o), and at the rate authorized under 38 U.S.C. § 1114(k). The veteran must also meet the requirements for the regular aid and attendance allowance. 38 C.F.R. § 3.352(b)(1)(ii). The veteran finally must require a higher level of care to the extent that its absence would require hospitalization, nursing home care, or other institutional care. 38 C.F.R. § 3.352(b)(1)(iii). Under 38 C.F.R. § 3.352(b)(2), a higher level of care is defined as a need for personal health care services provided on a daily basis in the veteran’s home by a person who is licensed to provide such services or by a person who works under the regular supervision of a licensed health care professional, including but not limited to a doctor of medicine or osteopathy, a registered nurse, a licensed practical nurse, or a licensed physical therapist. 38 C.F.R. § 3.352(b)(2). The term “under the regular supervision of a licensed healthcare professional” means that an unlicensed person performing health care services is following a regimen of personal health care services prescribed by a health care professional, and that the professional consults with the unlicensed person providing the healthcare services at least once a month to monitor the prescribed regimen. 38 C.F.R. § 3.352(b)(3). Family members who provide the veteran with health care services are not exempted from the requirement that they be licensed or provide services under the regular supervision of a health-care professional. 38 C.F.R. § 3.352(b)(4). Ultimately, a higher level of aid and attendance must only be granted when the veteran’s need is clearly established and the amount of services required by the veteran on a daily basis is substantial. 38 C.F.R. § 3.352(b)(5). As an initial matter, the Veteran is entitled to the maximum rate of compensation authorized under 38 U.S.C. § 1114(p). Specifically, in a February 2013 rating decision, he was awarded the maximum rate of compensation authorized under 38 U.S.C. § 1114(p) for the loss of use of his lower extremities. The threshold issue is whether he is entitled to a higher level of care. As to the need for a higher level of care, a September 2012 VA examination revealed that the Veteran was hospitalized in long-term care and required assistance with activities of daily living and protecting himself from ordinary hazards. The examiner noted that the Veteran was unable to stay independently at home, had been hospitalized since 2004, and required an attendant. The Veteran further was permanently wheelchair-bound, unable to transfer independently, ambulate, or bear weight safely. The examiner found that he required assistance with dressing, bathing, shaving, and toileting, noted that his typical day was spent in the chronic care unit, and observed that he was involved in recreation therapy. The examiner diagnosed bilateral femoral neck fractures with a total left hip replacement and opined that the Veteran was in need of aid and attendance and was housebound. In November 2012, the examiner clarified that his loss of use of his lower extremities was severe enough to cause him to be wheelchair-bound. The examiner stated that the Veteran’s functional impairments were as such that he would be equally served with amputation and prosthesis, as he had loss of balance and propulsion from his diagnosed femoral neck fractures and hip replacement. The examiner explained that he was hospital and wheelchair confined since 2004 due to his loss of ability to bear weight or safely transfer to his wheelchair, noting that he could not safely stand or walk. Subsequent medical treatment notes reinforce the 2012 VA examiner’s conclusions. Multiple treatment notes describe the Veteran using a motorized wheelchair for ambulation but being totally dependent on transfer devices such as a Sara-lift and Maxi-lift when transferring into and out of his wheelchair. An October 2015 note further revealed that the Veteran required assistance with dressing, transferring, and bathing, and that his family was unable to care for him in the community and wanted him to remain in the local VA hospital’s community living center. Based on the above, a higher level of SMC is not warranted. Although it is apparent that the Veteran is unable to care for himself, the evidence does not show that he has a 100 percent disability that is separate from his loss of use of his feet. Specifically, unfavorable ankylosis of the spine has not been shown so a 100 percent rating is not warranted for the lumbar spine disability. Moreover, the medical evidence does not show that his psychiatric disability results in gross impairment in thought processes, persistent delusions, grossly inappropriate behavior or any of the other criteria of a 100 percent rating. As to the remaining service-connected disabilities, a 100 percent schedular rating is not available regardless of the level of disability. Based on the above, the evidence does not show a 100 percent disability other than for loss of use of the feet. As such, a higher level of SMC is not warranted. The Board has also considered the Veteran’s lay statements that he is entitled to a higher level of SMC. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, Layno v. Brown, 6 Vet. App. 465, 470 (1994), he is not competent to identify a specific level of disability of his disabilities under the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s impairment has been compared with the provisions of SMC. The medical findings regarding his level of care and the ratings of his disabilities have been taken into account and are found to be more persuasive than his subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable and the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Spigelman, Associate Counsel