Citation Nr: 18149655 Decision Date: 11/14/18 Archive Date: 11/13/18 DOCKET NO. 13-28 188 DATE: November 14, 2018 ORDER Entitlement to a rating in excess of 10 percent for left knee disability is denied. Entitlement to a rating in excess of 20 percent for diabetes mellitus is denied. Entitlement to special monthly compensation based on the need for regular aid and attendance of another person is granted, subject to controlling regulations governing the payment of monetary awards. FINDINGS OF FACT 1. Throughout the appeal period, symptoms of the Veteran’s service-connected left knee disability did not more nearly approximate limitation of flexion to 30 degrees or compensable limitation of extension, to include consideration of flare-ups. 2. The Veteran’s diabetes mellitus did not require the regulation of activities. 3. Due to his service-connected disabilities, the Veteran was so helpless as to be in need of regular aid and attendance of another person. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for service-connected left knee disability have not been met. 8 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 2. The criteria for a rating in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.119, Diagnostic Code 7913; 82 Fed. Reg. 50806 (Nov. 2, 2017) (to be codified at 38 C.F.R. pt. 4). 3. The criteria for special monthly compensation based on the need for the regular aid and attendance have been met. 38 U.S.C. §§ 1114 (l); 5107; 38 C.F.R. §§ 3.350(b); 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1965 to September 1970. This matter came to the Board of Veterans’ Appeals (Board) on appeal from February 2010, February 2012, and October 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2016, the Board remanded the matter for further evidentiary development. In March 2018, while in remand status, the Veteran died. In light of the Veteran’s death, in a May 2018 decision, the Board dismissed the Veteran’s appeal. According to the record on appeal, the Agency of Original Jurisdiction (AOJ) has granted the appellant’s request to be substituted in the Veteran’s appeal pursuant to 38 U.S.C. § 5121A. See e.g. September 21, 2018 VA letter indicating that the AOJ had substituted the Veteran’s surviving spouse as the appellant for this appeal. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where a claimant appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Where VA’s adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or “staged” ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). 1. Entitlement to a rating in excess of 10 percent for left knee disability The appellant seeks a higher rating for the Veteran’s service-connected left knee disability. She contends that the rating assigned did not reflect the severity of the disability. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. When evaluating disabilities of the joints, the Rating Schedule provides for consideration of additional functional impairment due to pain, weakness, fatigue, incoordination, and lack of endurance when assigning evaluations. 38 C.F.R. §§ 4.40, 4.45, 4.59; see DeLuca v. Brown, 8 Vet. App. 202 (1995). In this case, the RO has evaluated the Veteran’s left knee disability under the criteria pertaining limitation of motion. Evaluations for limitation of flexion of a knee are assigned as follows: flexion limited to 60 degrees is noncompensable; flexion limited to 45 degrees is 10 percent; flexion limited to 30 degrees is 20 percent; and flexion limited to 15 degrees is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Evaluations for limitation of extension are assigned as follows: extension limited to 5 degrees is noncompensable; extension limited to 10 degrees is 10 percent; extension limited to 15 degrees is 20 percent; extension limited to 20 degrees is 30 percent. See 38 C.F.R. § 4.71a. In addition, separate ratings may be assigned for compensable limitation of both flexion and extension. See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same knee joint). Normal range of motion of a knee is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Applying the facts in this case to the criteria set forth above, the Board finds that the preponderance of evidence is against the assignment of a rating in excess of 10 percent for the Veteran’s left knee disability based on limitation of flexion and extension. In this case, repeated examinations have shown that the Veteran’s left knee motion is not limited to the extent necessary to meet the criteria for a rating in excess of 10 percent under Diagnostic Code 5260, the code setting forth the criteria for limitation of flexion. Specifically, at the August 2011 VA examination, flexion was to 120 degrees with pain, and extension was normal at zero degrees. At the October 2017 VA examination, flexion was to 120 degrees without pain, and extension was normal at zero degrees. Based on these findings, a rating in excess of 10 percent under Diagnostic Code 5260 or 5261 is not warranted. The Board also finds that the preponderance of the evidence is against the assignment of increased ratings based on functional loss. At the August 2011 VA examination, the Veteran reported flare-ups with prolonged walking, bending, and wet and cold weather. He indicated that both knees hurt, but he was only service-connected for his left knee, and that his left knee was now the good one. He stated that his non-service connected right knee really hurt and swell, and he uses a brace all the time. In a June 2014 private treatment record, the Veteran reported that it was painful to walk and move due to his knee pain. At the October 2017 VA examination, the Veteran reported flare-ups of swelling in the winter time. He indicated that his running was off, as he could not run anymore as a 70-year-old blind man. He noted that he could run on the treadmill as long as he could hold onto the rails. In this case, examinations have shown that the level of additional loss of motion based on functional loss or flare-ups of pain does not rise to the level of higher ratings for limitation of flexion or limitation of extension under Diagnostic Codes 5260 or 5261. Specifically, the August 2011 VA examination report indicates that the Veteran performed repetitive use testing without additional limitation or functional loss. There was tenderness or pain on palpation. The June 2014 clinician noted that the Veteran wore a knee brace on his non-service connected right leg and had surgery on his left knee. The October 2017 VA examination reported shows that there was no additional loss of function or range of motion upon repetitive-use testing which would more nearly approximate loss of motion required for a rating in excess of 10 percent. Although the Veteran reported flare-ups of his knees, there was no indication that the flare-ups were of such severity to result in loss of motion that would more nearly approximate the criteria for the next higher rating. Cf. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) (finding orthopedic examination inadequate where flare-ups were not properly addressed). In addition, the examiner found that the Veteran exhibited no pain with weight bearing and non-weight bearing. Thus, symptoms such as pain, fatigue, weakness, and lack of endurance have not been shown to produce additional functional loss or limitation of motion to support the assignment of higher ratings. The described symptoms are contemplated in the currently assigned 10 percent rating. The most probative evidence does not reflect the functional equivalent of symptoms, supported by adequate pathology, required for the assignment of increased ratings based on functional loss. The Board has considered whether higher ratings could be assigned under an alternative diagnostic code, however, the Board finds that no other diagnostic codes are applicable. For example, the October 2017 VA examiner found no evidence of ankylosis of the left knee. Thus, a rating under Diagnostic Code 5256 is not warranted. The evidence of record shows that the Veteran’s left knee ligaments have been consistently stable upon clinical evaluation, with no indication of subluxation or lateral instability. For example, VA examinations conducted in August 2011 and October 2017 showed that there was no instability or subluxation present. Moreover, the Veteran did not indicate in his statements that he had persistent or recurrent instability. Thus, a rating under Diagnostic Code 5257 is not warranted. Furthermore, a rating under Diagnostic Codes 5258 and 5259 is not applicable. Specifically, the August 2011 and October 2017 VA examiners indicated that the Veteran did not have, nor had he ever had, a meniscal disability. Thus, a rating under Diagnostic Codes 5258 and 5259 is not warranted. As the preponderance of evidence reflects the symptoms of the Veteran’s left knee disability did not more nearly approximate the criteria for a rating higher than 10 percent, the benefit of the doubt doctrine is not for application and a rating higher than 10 percent for left and right knee disability is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 2. Diabetes Mellitus The appellant seeks a higher rating for the Veteran’s service-connected diabetes mellitus. She contends that the rating assigned did not reflect the severity of the disability. The Veteran’s diabetes mellitus type II is rated under Code 7913. Effective December 10, 2017, VA revised the criteria for rating disabilities of the endocrine system (including diabetes mellitus). 82 Fed. Reg. 50806 (Nov. 2, 2017). Because the current increased rating claim for diabetes mellitus type II stems from claim that was filed in December 2009, the Board is required to consider the claim in light of both the former and revised schedular criteria in order to determine whether a higher rating is warranted for that disability. If application of the revised regulation results in a higher rating, the effective date for the higher disability rating can be no earlier than the effective date of the change in the regulation. 38 U.S.C. § 5110 (g). Prior to the effective date of the change in the regulation, the Board can apply only the original version of the regulation. Under the version of Code 7913 in effect prior to December 10, 2017, diabetes mellitus is rated as follows. A 10 percent rating is warranted for diabetes mellitus that is manageable by restricted diet only. A 20 percent rating is warranted for diabetes mellitus requiring insulin and restricted diet; or, oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities). A 60 percent rating is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is warranted for diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. Note (1) states that compensable complications of diabetes are to be evaluated separately, while noncompensable complications are to be considered part of the diabetic process under Code 7913. 38 C.F.R. § 4.119, Code 7913. Under the version of Code 7913 which became effective on December 10, 2017, diabetes mellitus is rated as follows. A 10 percent rating is warranted for diabetes mellitus that is manageable by restricted diet only. A 20 percent rating is warranted for diabetes mellitus requiring one or more daily injection of insulin and restricted diet; or, oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted for diabetes mellitus requiring one or more daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities). A 60 percent rating is warranted for diabetes mellitus requiring one or more daily injection of insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is warranted for diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. Note (1) states that compensable complications of diabetes are to be evaluated separately, while noncompensable complications are to be considered part of the diabetic process under Code 7913. 82 Fed. Reg. 50806 (Nov. 2, 2017). Within the criteria for a 100 percent rating, “regulation of activities” is defined as “avoidance of strenuous occupational and recreational activities.” This definition also applies to the “regulation of activities” criterion for a 40 percent rating under DC 7913. Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007). Moreover, medical evidence is required to support this criterion for a 40 percent rating. Id. at 364. In addition, although VA regulations generally provide that symptoms need only more nearly approximate the criteria for a higher rating in order to warrant such a rating, see 38 C.F.R. §§ 4.7, 4.21, those regulations do not apply where, as here, the conjunction ‘and’ is used and the criteria are successive, with the criteria for the lower ratings encompassed within those for higher ratings. Id. at 366; Tatum v. Shinseki, 23 Vet. App. 152, 155-56 (2009). For the following reasons, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 20 percent for diabetes mellitus type II. In order to warrant a 40 percent rating (notably under both the old and revised regulations) utilization of insulin, restricted diet, and the regulation of activities is required. The evidence of record shows the that Veteran’s diabetes mellitus has not required the collective use of insulin, restrictive diet, and the regulation of activities during the period on appeal. Specifically, a December 2009 private treatment record indicates that the Veteran’s diabetes mellitus required oral medication and not the use of insulin. September 2009 and January 2010 VA examiners reported that that the Veteran’s diabetes mellitus required oral medication and a restricted diet. The examiners noted that the Veteran’s activities were not restricted. An August 2010 VA examination report indicates that the Veteran’s diabetes mellitus was well controlled on oral agents. A September 2011 VA examiner reported that the Veteran’s diabetes mellitus was managed by restricted diet and oral hypoglycemic agent. In October 2012 and November 2012 private treatment records, the Veteran’s diabetes mellitus treatment was noted as insulin and diabetic diet. In a January 2013 statement, the Veteran reported that he was prescribed insulin, since he could not keep his blood sugar under control without them. He further noted that he was on a special restricted diet. An October 2013 VA examination report indicates that the Veteran’s treatment for diabetes mellitus was insulin, oral hypoglycemic agent, and diabetic diet. The Veteran did not require regulation of activities. May 2015 and April 2016 private treatment records show that the Veteran’s diabetes mellitus treatment was insulin and diabetic diet. Furthermore, an October 2017 VA examination report shows that the Veteran’s diabetes mellitus treatment was restricted diet and more than one insulin injection per day. The examiner noted that the Veteran did not require regulation of activities. Thus, a rating in excess of 20 percent under the version of Diagnostic Code 7913 in effect prior to December 10, 2017 and the revised version which became effective on December 10, 2017, is not warranted. As to consideration of referral for an extraschedular rating, the appellant has not contended, and the evidence does not reflect, that the Veteran experienced symptoms outside of those listed in the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (the Board is not obligated to analyze whether remand for referral for extraschedular consideration is warranted if “§ 3.321(b)(1) [is] neither specifically sought by [the claimant] nor reasonably raised by the facts found by the Board” (quoting Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff’d, 226 Fed. Appx. 1004 (Fed. Cir. 2007)). Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 20 percent for diabetes mellitus, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. 3. SMC The appellant seeks an award of SMC benefits based on the Veteran’s need for regular aid and attendance. Special monthly compensation based on the need for aid and attendance of another is payable when the veteran due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). Anatomical loss or loss of use of a hand or a foot will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc., in the case of the hand, or of balance, propulsion, etc., in the case of the foot, could be accomplished equally well by an amputation stump with prosthesis. For example, extremely unfavorable complete ankylosis of the knee, or complete ankylosis of two major joints of an extremity, or shortening of the lower extremity of 31/2 inches or more, will constitute loss of use of the hand or foot involved. Complete paralysis of the external popliteal nerve (common peroneal) and consequent footdrop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve, will be taken as loss of use of the foot. 38 C.F.R. § 3.350 (a)(2). The question concerning loss of use is not whether amputation is warranted but whether the [Veteran] has had effective function remaining other than that which would be equally well served by an amputation with use of a suitable prosthetic appliance. Tucker v. West, 11 Vet. App. 369, 373 (1998). Loss of use or blindness of one eye, having only light perception, will be held to exist when there is inability to recognize test letters at 1 foot and when further examination of the eye reveals that perception of objects, hand movements, or counting fingers cannot be accomplished at 3 feet. Lesser extents of vision, particularly perception of objects, hand movements, or counting fingers at distances less than 3 feet is considered of negligible utility. 38 C.F.R. § 3.350 (a)(4). As directed by 38 C.F.R. § 3.352 (a), the following criteria are to be considered for determining whether a claimant is in need of the regular aid and attendance of another person: (1) the inability of the claimant to dress himself or herself or to keep himself or herself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliance which, by reason of the particular disability, cannot be done without aid (not to include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); (3) the inability of the claimant to feed himself or herself through the loss of coordination of the upper extremities or through extreme weakness; (4) the inability to attend to the wants of nature; or, (5) a physical or mental incapacity that requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his or her daily environment. Bedridden, which is a proper basis for the determination, is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. 38 C.F.R. §§ 3.350 (b)(4), 3.352(a). It is not required that all of the disabling conditions enumerated 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 be a constant need. Determinations that the veteran is so helpless, as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant’s condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352 (a); Turco v. Brown, 9 Vet. App. 222, 224 (1996). Furthermore, the performance of the necessary aid and attendance service by a relative of the beneficiary or other member of his or her household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352 (c). VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b). The Veteran was in receipt of service connection for the following disabilities: 1) Posttraumatic stress disorder, rated 70 percent; 2) diabetic neuropathy associated with diabetes mellitus, type II, with erectile dysfunction, rated 60 percent; 3) diabetes mellitus, type II, with erectile dysfunction, rated 20 percent; 4) peripheral neuropathy right lower extremity associated with diabetes mellitus type II, with erectile dysfunction, rated 20 percent; 5) peripheral neuropathy left lower extremity associated with diabetes mellitus type II, with erectile dysfunction, rated 20 percent; 6) residuals of left knee injury, rated 10 percent; and 7) hepatitis C, rated noncompensable. Applying the facts in this case to the criteria set forth above, the Board finds that entitlement to SMC based on the need for aid and attendance of the Veteran is warranted. In this case, the evidence of record includes an October 2013 VA medical examination report, in which the examiner opined that the Veteran did not need regular assistance of another person to tend to ordinary activities of daily living, assistance of another in protecting self from hazards of daily environment, and was not restricted to home or hospitalized due to any of his service-connected conditions. The examiner noted that the Veteran had vision impairment due to a non-service connected eye conditions, which caused him to need assistance from his wife with cooking, cleaning, and transportation. However, the medical evidence submitted on behalf of the Veteran is consistent with the need for aid and attendance. Specifically, in a June 2014 aid and attendance or housebound examination report, the examiner concluded that the Veteran’s knee pain and decreased muscle strength restricted his activities and functions. The Veteran had poor balance, decreased memory, decreased vision, and wore a knee brace for stability. The examiner indicated that the Veteran was unable to prepare his own meals, needed assistance in bathing and tending to other hygiene needs, and was legally blind. The examiner further noted that the Veteran’s wife manages medication and finances. The Veteran never left the house by himself, but was able to leave for doctor visits, shopping, exercise, and walks. In an April 2015 aid and attendance or housebound examination report, the examiner noted that the Veteran needed care for multiple conditions, and he was legally blind and an insulin dependent diabetic. Diagnoses of hypertension and glaucoma were also noted. The Veteran experienced lower extremity weakness and arthritis. The examiner indicated that the Veteran was unable to prepare his own meals, needed assistance bathing and tending to other hygiene needs. He required medication management and did not have the ability to manage his own financial affairs. In an April 2015 aid and attendance or housebound examination report, the examiner reported that the Veteran’s knee pain and loss of vision restricted his activities and function. The examiner indicated that the Veteran was unable to prepare his own meals, and needed assistance bathing and tending to other hygiene needs, and was legally blind. He required medication management and did not have the ability to manage his own financial affairs. The examiner noted that the Veteran’s loss of vision required assistance from his wife, and that his instability and balance was secondary to his visual loss and knees. He experienced pain on movement of neck and lumbar spine. The Veteran required assistance whenever he left the house. In a July 2015 statement, Dr. Sajid reported that the Veteran was suffering from multiple medical problems that were progressively getting worse. His problems included legal blindness, recent transient ischemic attack (TIA), history of coronary artery disease (CAD), degenerative joint disease, and more. Dr. Sajid stated that the Veteran was getting more dependent on caregiving for activities of daily living (ADL) and doctor’s appointments. He further noted that the Veteran would need more help with ADLs, medical management due to severe medical problems within the last year including TIA, heart stent, and worsening diabetes. In this case, aid and attendance or housebound examination reports and Dr. Sajid’s statement establish that the Veteran required aid and assistance of others. All of the private examiners of record agreed that the Veteran required the assistance of another for his activities of daily living, such as hygiene needs, fixing meals, medication management, and management of his financial affairs. The private examinations of record also reflect that the Veteran required aid and attendance of another due to service-connected disabilities and non-service-connected disabilities; however, none of the examiners differentiated between the Veteran’s impairments caused by service-connected disabilities and non-service connected disabilities. To this end, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. See 38 C.F.R. § 3.102 (2014); Mittleider v. West, 11 Vet App. 181 (1998) citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (holding that the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so.). In sum, the Veteran had the physical incapacity that required care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. Thus, the Veteran’s service-connected disabilities rendered him disabled to the extent that he required the regular aid and assistance of another person. Special monthly compensation based on the need for aid and attendance is therefore warranted. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Walker, Associate Counsel