Citation Nr: 18149619 Decision Date: 11/14/18 Archive Date: 11/13/18 DOCKET NO. 16-39 484 DATE: November 14, 2018 ORDER Entitlement to special monthly compensation (SMC) based on aid and attendance and/or housebound status for accrued purposes is granted subject to the controlling regulations applicable to the payment of monetary benefits. FINDING OF FACT During the appeal period in question, the Veteran’s service-connected disabilities had rendered him in need for regular aid and attendance of another person. CONCLUSION OF LAW The criteria for entitlement to SMC based on aid and attendance for accrued purposes have been met. 38 U.S.C. § 1114(l) (2012); 38 C.F.R. §§ 3.350, 3.352 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service in the U.S. Army from September 1962 to December 1978, and from December 1990 to July 1991. The Veteran died in December 2014, and the appellant is his surviving spouse. 1. Entitlement to SMC based on aid and attendance and/or housebound status for accrued purposes The appellant appeals the denial of entitlement to SMC based on the need for aid and attendance or on account of being housebound. Under 38 U.S.C. § 1114(l), special monthly compensation is payable if, as the result of service-connected disability, the Veteran has an anatomical loss or loss of use of both feet, or of one hand and one foot; has blindness in both eyes with visual acuity of 5/200 or less; is permanently bedridden; or is so helpless as to be in need of regular aid and attendance of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). The following will be accorded consideration in determining the need for regular aid and attendance: Inability of a claimant to dress or undress him or herself, or to keep him or herself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of a claimant to feed him or herself through loss of coordination of the 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 a claimant from the hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352(a). It is not required that all of the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found to exist before a favorable rating may be made. The particular personal functions which the 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 is a constant need. See Turco v. Brown, 9 Vet. App. 222 (1996). Accrued benefits are periodic monetary benefits to which a payee was entitled at his death under existing ratings or decisions, or those based on evidence of record at the date of death and due and unpaid. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. For a claimant to prevail on an accrued benefits claim, the record must show that (i) the appellant has standing to file a claim for accrued benefits, e.g., the Veteran’s surviving spouse or child; (ii) the Veteran had a claim pending at the time of death; (iii) the Veteran would have prevailed on the claim if he/she had not died; and (iv) the claim for accrued benefits was filed within one year of the Veteran’s death. 38 U.S.C. §§ 5121, 5101(a); 38 C.F.R. § 3.1000; Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998). Typically, only the evidence of record at the time of the Veteran’s death is considered in adjudicating a claim for accrued benefits. 38 C.F.R. § 3.1000. However, the law regarding accrued benefits claims was amended on October 10, 2008. Veterans’ Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145 (2008). Section 212 created a new statute which provides that, if a claimant dies while a claim or appeal for any benefit under a law administered by VA is 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. 38 U.S.C. § 5121A (2012). In addition, the new statute permitted the submission of additional evidence in support of the claim. Based on the evidence presented, the Board finds that the criteria for entitlement to SMC based on aid and attendance had been met for the appeal period in question. In this regard, the evidence shows that the Veteran died in 2014. At the time of his death, he was service-connected for posttraumatic stress disorder (PTSD), coronary artery disease, and tinnitus. A December 2012 aid and attendance examination disclosed that the Veteran manifested non service-connected traumatic brain injury (TBI) with extensive motor deficits and worsening cognitive and behavioral deficits, and ischemic stroke with residual left sided hemiparesis and memory problems. The Veteran was on a dental soft diet, and largely dependent on his wife for activities of daily living including medication management and assistance with ambulation as caused by his use of a wheelchair. Moreover, the examiner stated that the Veteran was able to leave his house one to two times per week with assistance from his wife, though it was difficult to leave, and he was largely homebound with little access to assistive devices. Moreover, the Veteran submitted a statement in December 2012, which described that he was confined to a wheelchair and unable to put his own clothes on or bathe himself. He stated that he got tired from all the doctor and therapy appointments that he had to attend, and he was seeking a new car to accommodate his wheelchair to make leaving his home and easier experience. Similarly, the appellant submitted a statement reflecting that she prepared the Veteran’s medication, cooked meals, washed and maintained his clothes and talked him through daily tasks due to his memory issues. The Veteran underwent an additional aid and attendance examination in June 2014, which noted his conditions of COPD, respiratory failure, pulmonary thromboembolism, PTSD, and delirium in relation to his need for assistance. The examiner stated the Veteran was unable to feed himself, prepare his own meals, and required assistance in bathing and tending to hygienic needs. The Veteran was unable to manage his financial affairs as he had a physical and mental limitations and required someone to have power of attorney over decision-making. With regards to the Veteran’s posture and general appearance, the examiner described the Veteran as being bed to chair bound, with tracheostomy and feeding tube, with limited strength and control over his upper extremities. There is also an October 2014 VA examination of record for the Veteran’s psychiatric disability which also encompassed a diagnosis of unspecified dementia, in additional to his previously noted PTSD diagnosis. The examiner stated that the symptoms of each condition including memory loss, impaired abstract thinking, and neglect of personal hygiene were unable to be differentiated. The examiner failed to provide any opinion relevant to whether the Veteran’s non-service-connected TBI had any bearing on the aforementioned symptoms. Lastly, of note, the examination was conducted via telephone interview with the wife as the Veteran was confined to a bed in a respiratory hospital in Georgia at the time, and he was unable to talk as he was bound to a tracheostomy tube. The Board finds that the Veteran’s psychiatric disability, inclusive of dementia, alone caused such severe mental incapacity that the Veteran possessed an inability to maintain hygiene, manage medication, finances, or feedings, and required care and assistance on a regular basis to protect the Veteran from the hazards or dangers incident to his daily environment - particularly as his irritability severely increased subject to his psychiatric and physical disabilities limiting his ability to care for himself. While the record shows that the Veteran’s psychiatric impairment was partly due to nonservice-connected residuals of TBI and ischemic stroke, the Board notes that his service-connected PTSD was also shown to contribute to his inability to protect himself from the hazards of daily living. To the extent that the evidence reflects that nonservice connected and service-connected disabilities rendered the Veteran in need for regular aid and attendance of another person, where it is not possible to distinguish the effects of nonservice-connected conditions from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to the Veteran’s service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). The October 2014 VA examiner was unable to differentiate the causes of the Veteran’s psychiatric impairment. In resolving reasonable doubt in his favor, the Board finds that the evidence of record supports a grant of SMC based on aid and attendance. 38 C.F.R. § 3.352(a). As this represents a complete grant of the benefit sought on appeal, no discussion of SMC based on being housebound (which is a lesser benefit) is necessary. Therefore, aid and attendance for accrued purposes, is granted subject to the laws which govern the payment of monetary benefits. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.L. Reid, Associate Counsel