Citation Nr: 18156560 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 16-40 717 DATE: December 11, 2018 ORDER Entitlement to Special Monthly Compensation (SMC) for Regular Aid and Attendance is granted. REMANDED Entitlement to a higher rate of special monthly compensation (SMC) is remanded. Entitlement to an earlier effective date for special monthly compensation (SMC) is remanded. FINDING OF FACT The Veteran required regular aid and attendance due to his lower extremity disability. CONCLUSION OF LAW The criteria for an award of SMC under subsection (l) based on the need for regular aid and attendance based on lower extremity service-connected disability have been met. 38 U.S.C. §§ 1114, 5107 (2012); 38 C.F.R. §§ 3.102, 3.352(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 1966 to March 1969. He died in May 2013. The appellant is his surviving spouse and the substitute-claimant in this appeal. This matter came before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, based on claims initiated by the Veteran prior to his death. In February 2015, the appellant withdrew her request for a Board hearing. This matter was remanded by the Board in July 2015 for the issuance of an SOC. The Board has recharacterized the issues and added the issue of earlier effective date for SMC, based on the evidence and contentions of record. 1. Entitlement to SMC for Regular Aid and Attendance is granted. Legal Criteria SMC is available when, as the result of service-connected disability, a veteran suffers additional hardships above and beyond those contemplated by VA’s schedule for rating disabilities. See 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352; see also VA Gen. Coun. Prec. 5-89 (Mar. 23, 1989) (explaining that SMC is a supplementary statutory benefit based on noneconomic factors such as personal inconvenience, social inadaptability, or the profound nature of a disability). The rate of SMC varies according to the nature of the Veteran’s service-connected disabilities. Basic levels of SMC are listed at 38 U.S.C. § 1114 (k). Higher levels of SMC are provided at 38 U.S.C. § 1114 (l), (m), (n), and (o). Subsection (k) for loss of use of a hand or a foot is established when no effective function remains other than that which would be equally well-served by an amputation stump below the elbow or knee with use of a suitable prosthetic appliance. The determination is made on the basis of actual remaining function. A veteran who lacks the ability to grasp or manipulate objects with his or her hand is entitled, and a veteran who is unable to balance or propulse (push off his or her foot) is entitled. The determination is made on the basis of whether or not actions could be accomplished equally well by an amputation and use of a prosthesis. Subsection (l) addresses SMC for veterans with anatomical loss or loss of use of both feet, or of one hand and one foot, or blindness with visual acuity of 5/200 or less, or permanently bedridden, or with such significant disabilities as to be in need or regular aid and attendance. 38 U.S.C. § 1114 (l). Loss of use of a hand or foot is defined 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. 38 C.F.R. § 3.350 (a)(2). The following factors will be considered in determining whether the veteran is entitled to SMC based on need for aid and attendance: inability of claimant to dress or undress without assistance; to keep ordinarily clean and presentable without assistance; inability of claimant to feed himself or herself without assistance; inability to attend to the wants of nature; and incapacity that requires care or assistance on a regular basis to protect the claimant from the hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352(a). Subsection (m) is applicable upon several combinations of loss or loss of use for the lower and upper extremities and vision loss, to include loss or loss of use of leg above knee, plus loss or loss of use of leg above knee. Subsection (o) provides for the highest level of SMC for (i) Anatomical loss of both arms so near the shoulder as to prevent use of a prosthetic appliance; (ii) Conditions entitling to two or more of the rates, no condition being considered twice, provided in 38 U.S.C. § 1114 (l) through (n); (iii) Bilateral deafness rated at 60 percent or more disabling (and the hearing impairment in either one or both ears is service connected) in combination with service-connected blindness with bilateral visual acuity 20/200 or less; (iv) Service-connected total deafness in one ear or bilateral deafness rated at 40 percent or more disabling (and the hearing impairment in either one of both ears is service-connected) in combination with service-connected blindness of both eyes having only light perception or less; (v) paraplegia; or helplessness. 38 U.S.C. § 1114 (o); 38 C.F.R. § 3.350 (e). Subsection (p) provides that if a veteran is entitled to a SMC rate between (l) and (o) and also has additional service-connected disabilities that combine independently to 50 percent or 100 percent, the veteran’s SMC rate would be increased a half step for the combined 50 percent evaluation or one full step for the combined 100 percent evaluation. The additional single permanent disability or combination of permanent disabilities independently ratable at 50 percent or more will afford entitlement to the next higher intermediate rate, but not above the SMC(o) rate. The additional single permanent disability independently ratable at 100 percent apart from any consideration of individual unemployability will afford entitlement to the next higher statutory rate or if already entitled to an intermediate rate to the next higher intermediate rate, but in no event higher than the rate for SMC(o). In the application of these increases in the SMC rating, the disability or disabilities independently ratable at 50 percent or more or 100 percent must be separate and distinct and involve different anatomical segments or bodily systems from the conditions establishing entitlement under 38 U.S.C. § 1114(l) through (n) or the intermediate rate provisions. Facts At the time of his death in May 2013, the Veteran was service-connected for psychiatric disability at 100 percent from January 2004, bilateral, above the knee amputation due to diabetic PVD at 100 percent from March 2011, coronary artery disease at 60 percent from May 2007, nephropathy at 60 percent from February 2011, diabetes mellitus type II at 20 percent from July 2002, scars at 10 percent from August 2002, as well as hearing loss of the left ear, osteomyelitis, and other scars at noncompensable. At the time of the Veteran’s death, the most recent April 2012 rating decision reflects the Veteran was granted entitlement to SMC benefits: The Veteran received S-1 from May 8, 2007 to March 8, 2011, for his rating of 100 percent for psychiatric disorder and 60 percent for coronary artery disease. The Veteran received K-1 for anatomical loss of one foot from October 1, 2010 to March 8, 2011. The Veteran received M-2 for bilateral leg loss from March 8, 2011. The Veteran received P-2, at the rate equal to subsection n, for bilateral, lower extremity amputation, with psychiatric disability independently rated at 100 percent, from March 8, 2011. By September 2012 statement accepted by the RO as clarifying his NOD, the Veteran requested an increased rating for SMC, to include an earlier effective date for SMC. In February 2015 and by December 2016 statement, the Appellant reiterated the request for increased rating and earlier effective date for SMC. Due to service-connected, bilateral PVD, the Veteran’s right leg was amputated in October 2010 and left leg was amputated in March 2011. Both amputations were above the knee. In August 2011, the Veteran’s treating physician indicated he requires nursing home level of care which is expected to continue due to chronic conditions, to include his service-connected disabilities. A private examiner’s opinion, Dr. E.A., was submitted in February 2015. The examiner stated that service-connected bilateral left extremity PVD with ulcers prevented walking and required assistance with daily living to include bathing, dressing, and attending to the wants of nature, and the eventual bilateral above the knee amputation added to his restrictions. The examiner specified that due to feet and leg ulcers and PVD the Veteran was unable to stand starting in June 2010, and the right foot amputated in October 2010 further prevented standing. The examiner opined that the Veteran required regular need for aid and attendance as early as June 2010 as a result of service-connected PVD and diabetes, as the Veteran was hospitalized, immobile and required aggressive treatment for leg ulcers and resulting bone infection. The examiner specified that service-connected PTSD and non-service connected disabilities to include spinal injury with bilateral upper extremity paralysis was not included in the analysis and opinion rendered. The record reflects that the Veteran was hospitalized and partially bedridden in June 2010. It was noted he does not ambulate due to bedrest and is turned and repositioned every 2 hours by staff. He was receiving treatment for leg ulcers and diagnosed with osteomyelitis, which led to amputation of the right lower extremity approximately five months later. Analysis The Board finds SMC for Regular Aid and Attendance is warranted. The Appellant contends, and the Board finds evidence to support, that the Veteran was in need of regular aid and attendance consistent with the provisions of 38 C.F.R. § 3.352. The Appellant contends and the record establishes that the Veteran was partially bedridden, receiving constant care from nurses in part for conditions that led to amputation of his right lower extremity, at least from June 2010. In support of this determination, the Board gives probative weight to the February 2015 private examiner’s opinion as well as VA treatment records. The February 2015 examiner stated that service-connected bilateral left extremity PVD with ulcers prevented walking and required assistance with daily living to include bathing, dressing, and attending to the wants of nature, and the eventual bilateral above the knee amputation added to his restrictions. The examiner specified that due to feet and leg ulcers and PVD the Veteran was unable to stand starting in June 2010, and the right foot amputated in October 2010 further prevented standing. As the Veteran is determined to have been in need of Regular Aid and Attendance, SMC under 38 U.S.C. § 1114(l) is warranted. REASONS FOR REMAND 1. Entitlement to a higher rate of special monthly compensation (SMC) is remanded. 2. Entitlement to an earlier effective date for special monthly compensation (SMC) is remanded. Additional evidentiary development is required for consideration of a higher rate of SMC, to determine the extent of impairment the Veteran required regular aid and attendance due to his service-connected disabilities other than his lower extremity disabilities that led to amputation. Again, subsection (o) provides for the highest level of SMC for conditions entitling to two or more of the rates, no condition being considered twice, provided in 38 U.S.C. § 1114 (l) through (n). A rating of SMC under subsection (o) may also establish a base for higher SMC ratings, under for example (r-1). The Veteran was heavily impaired due to his service-connected psychiatric disorder rated at 100 percent, but an addendum VA opinion is required to opine whether the Veteran required regular aid and attendance due to his service-connected psychiatric disorder alone. 38 U.S.C. § 1114 (l). Notably, the February 2015 private opinion specified that PTSD was not considered in the medical opinion stating that the Veteran required regular aid and attendance due to his lower extremity disability. The examiner will also be requested to opine whether another disability distinct from his lower extremity disabilities required regular aid and attendance, for example, the Veteran’s coronary artery disease, rated at 60 percent. By April 2011 statement the Veteran’s spouse indicates the Veteran was hospitalized around June 2010 as well for placement of a stent, and the VA treatment records support this fact. Intertwined with this issue, and so deferred for adjudication, is the issue of earlier effective date for SMC. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s service-connected disabilities, other than the disabilities of his lower extremities leading to his amputations, rendered him in need of regular aid and attendance from another to perform the personal functions of daily living. Particularly, please consider whether the Veteran’s service-connected psychiatric disability and/or coronary artery disease disability rendered him in need of regular aid and attendance from another to perform the personal functions of daily living. Please specify the date this impairment occurred, if applicable. Please consider the following factors in determining whether the veteran required aid and attendance due to psychiatric disorder: inability of claimant to dress or undress without assistance; to keep ordinarily clean and presentable without assistance; inability of claimant to feed himself or herself without assistance; inability to attend to the wants of nature; and incapacity that requires care or assistance on a regular basis to protect the claimant from the hazards or dangers incident to his or her daily environment. (Continued on the next page)   2. After the above is complete, readjudicate the Veteran’s claims, to include consideration of earlier effective date for SMC. If a complete grant of the benefits requested is not granted, issue a supplemental statement of the case (SSOC) to the Appellant and her attorney to afford them the opportunity to respond. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. M. Georgiev