Citation Nr: 18157419 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 16-46 700A DATE: December 12, 2018 ORDER Entitlement to special monthly compensation (SMC) at the higher rate under 38 U.S.C. § 1114(r) is denied. FINDINGS OF FACT 1. The Veteran is service connected for arteriovenous malformation, postoperative two times with left hemiplegia and left inferior quadranopsia, major vascular neurocognitive disorder associated with arteriovenous malformation, and invertebral disc syndrome. 2. The Veteran is in need of the regular aid and attendance of another person due to his service-connected disabilities. 3. The Veteran is entitled to SMC at the rate equal to subsection (m) of 38 U.S.C. § 1114 on account of his arteriovenous malformation, postoperative two times with left hemiplegia and left inferior quadranopsia with an additional disability of major vascular neurocognitive disorder, which is independently ratable at 50 percent or more. 4. The Veteran does not meet the threshold criteria for an additional monthly allowance of SMC at the rate under subsection (r)(1) of 38 U.S.C. § 1114. CONCLUSION OF LAW The criteria for an increased level of SMC based on the need for regular aid and attendance as contemplated by 38 U.S.C. § 1114(r)(1) and (r)(2) are not met. 38 U.S.C. § 1114 (2012); 38 C.F.R. §§ 3.350(e), (h), 3.352 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. The Board is honoring the Veteran’s choice to participate in VA’s test program, RAMP, the Rapid Appeals Modernization Program. The Veteran served honorably in the United States Navy from May 1989 to April 1995. The Veteran selected the Higher-Level Review lane when he submitted the RAMP election form in October 2018. Accordingly, the Board will consider the evidence of record as of the date VA received the RAMP election form. 1. Entitlement to special monthly compensation (SMC) at the higher rate under 38 U.S.C. § 1114(r)(1) or (r)(2). The Veteran seeks a higher level of SMC than he is currently receiving. By way of background, the Veteran is in receipt of SMC at the following rate: P-1 under 38 U.S.C. §1114, subsection (p) and 38 C.F.R. § 3.350(f)(3) at the rate equal to subsection (m) due to his major vascular neurocognitive disorder independently ratable at 70 percent from November 19, 2013. 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. 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). SMC provided by 38 U.S.C. § 1114(l) is payable for anatomical loss or loss of use of both feet, one hand and one foot, blindness in both eyes with visual acuity of 5/200 or less or being permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 C.F.R. § 3.350(b). SMC at the (m) rate is warranted if the Veteran, as a result of service-connected disability, has suffered the anatomical loss or loss of use of both hands, or of both legs at a level, or with complications, preventing natural knee action with prosthesis in place, or of one arm and one leg at levels or with complications, preventing natural elbow and knee action with prosthesis in place, or has suffered blindness in both eyes having only light perception, or has suffered blindness in both eyes, rendering such Veteran so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114(m); 38 C.F.R. § 3.350(c). SMC at the (n) level is warranted if the Veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both arms at levels, or with complications, preventing natural elbow action with prosthesis in place, has suffered the anatomical loss of both legs so near the hip as to prevent the use of prosthetic appliances, or has suffered the anatomical loss of one arm and one leg with factors that prevent the use of prosthetic appliances, or has suffered anatomical loss of both eyes, or has suffered blindness without light perception in both eyes. 38 U.S.C. § 1114(n). SMC provided by 38 U.S.C. § 1114(o) is payable for any of the following conditions: (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. 38 C.F.R. § 3.350(e)(1). SMC at the (o) rate is warranted for combinations. Determinations must be based upon separate and distinct disabilities. This requires, for example, that where a veteran who suffered the loss or loss of use of two extremities is being considered for the maximum rate on account of helplessness requiring regular aid and attendance, the latter must be based on need resulting from pathology other than that of the extremities. If the loss or loss of use of two extremities or being permanently bedridden leaves the person helpless, increase is not in order on account of this helplessness. Under no circumstances will the combination of “being permanently bedridden” and “being so helpless as to require regular aid and attendance” without separate and distinct anatomical loss, or loss of use, of two extremities, or blindness, be taken as entitling to the maximum benefit. The fact, however, that two separate and distinct entitling disabilities, such as anatomical loss, or loss of use of both hands and both feet, result from a common etiological agent, for example, one injury or rheumatoid arthritis, will not preclude maximum entitlement. 38 C.F.R. § 3.350(e)(3). The maximum rate, as a result of including helplessness as one of the entitling multiple disabilities, is intended to cover, in addition to obvious losses and blindness, conditions such as the loss of use of two extremities with absolute deafness and nearly total blindness or with severe multiple injuries producing total disability outside the useless extremities, these conditions being construed as loss of use of two extremities and helplessness. 38 C.F.R. § 3.350(e)(4). The provisions of 38 U.S.C. § 1114(p) provide for “intermediate” SMC rates between the different subsections based on anatomical loss or loss of use of the extremities or blindness in connection with deafness and/or loss or loss of use of a hand or foot. 38 U.S.C. § 1114(p); 38 C.F.R. § 3.350(f). There are two parts to SMC (r): there is special aid and attendance that is identified by (r)(1), and a higher level of special aid and attendance that is discussed in (r)(2). See 38 U.S.C. § 1114(r); 38 C.F.R. §§ 3.350(h), 3.352. To be awarded SMC (r)(1), under 38 U.S.C. § 1114, the Veteran must be entitled to SMC at the rate authorized under subsection (o), the maximum rate authorized under subsection (p), or at the intermediate rate authorized between the rates authorized under subsections (n) and (o) and at the rate authorized under subsection (k). The Veteran must also be in need of regular aid and attendance. See 38 U.S.C. § 1114(r). For SMC (r)(2), once the aforementioned threshold is met, the Veteran must show that, in addition to the need for regular aid and attendance, he is in need a higher level of care as specified. See 38 U.S.C. § 1114(r)(2). The regular or higher-level aid and attendance allowance is payable whether or not the need for regular aid and attendance or a higher level of care was a partial basis for entitlement to the maximum rate under 38 U.S.C. § 1114(o) or (p), or was based on an independent factual determination. 38 C.F.R. § 3.350(h)(1). 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 the claimant to dress or undress himself or to keep himself ordinarily clean and presentable; the frequent need of the adjustment of any special prosthetic or orthopedic appliance which by reason of the particular disability cannot be done without aid; the inability of the 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 daily environment. 38 C.F.R. § 3.352(a). “Bedridden” will be a proper basis for the aid and attendance determination and is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that the 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. In Turco v. Brown, 9 Vet. App. 222 (1996), the Court held that it was not required that all of the disabling conditions enumerated in the provisions of 38 C.F.R. § 3.352(a) be found to exist to establish eligibility for aid and attendance, but that such eligibility required at least one of the enumerated factors be present. The Court added that the particular personal function that a veteran is unable to perform should be considered in connection with his or her condition as a whole. Also, it is only necessary that the evidence establish that a veteran is so helpless as to need regular aid and attendance, not that there be a constant need. See Turco, supra; 38 C.F.R. § 3.352. Determinations that the Veteran is so helpless, as to be in need of regular aid and attendance will not be based solely on an opinion that the claimant’s condition is such as would require him to be in bed. They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352(a). Moreover, the provisions of 38 C.F.R. § 3.352(b) are to be strictly construed. The higher-level aid-and-attendance allowance is to be granted only when the need is clearly established and the amount of services required on a daily basis is substantial. 38 C.F.R. § 3.352(b)(5). The performance of the necessary aid and attendance service by a relative of the claimant or other member of his or her household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352(c). As an initial matter, in order for the Veteran to be awarded SMC at a higher rate pursuant to subsection (r), he must be entitlement to SMC pursuant to subsection (n) or (o). Here, the records show the Veteran is service connected for arteriovenous malformation, two times postoperative with left hemiplegia and left inferior quadranopsia rated as 100 percent disabling, major vascular neurocognitive disorder associated with arteriovenous malformation rated as 70 percent disabling, intervertebral disc syndrome rated as 10 percent disabling, and a noncompensable residual scar from craniotomies. The Veteran’s claim for a higher rate of SMC was received by the VA in November 2013. On a December 2013 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, it was noted the Veteran lacked the ability to feed himself, prepare his own meals and manage his financial affairs, as well as needed assistance in bathing. Additionally, the examiner indicated he required medication management. Lastly, the examiner reported the Veteran suffered from memory loss due to the service connected arteriovenous malformation. VA medical center (VAMC) treatment records dated October 2014 show the Veteran was seen for a decrease in independent for cooking tasks and cleaning due to difficulties with his left upper extremity. He also reported difficulties, cooking, cutting food, and with basic hygiene. A Central Nervous System and Neuromuscular Disease Disability Benefits Questionnaire dated June 2016, shows a history of suffering an arteriovenous malformation rupture in 1994 which required multiple surgeries. The Veteran was shown to have muscular weakness in the upper and lower extremity. Physical examination showed the strength in the left upper extremity to be 0/5 at the elbow on flexion and extension; 0/5 at the wrist on flexion and extension; 0/5 for grip; and, 0/5 pinch (thumb to index finger). The examiner further indicated the left upper extremity muscle weakness was complete the Veteran had no remaining function. The Board finds the evidence of record establishes the Veteran’s need for regular aid and attendance. The Veteran is in receipt of SMC at the (m) rate, which is a higher level of SMC than the basic aid and attendance rate, which is paid at the (l) rate. SMC at the (r) rate presumes that SMC is in effect at a level higher than the (m) rate. In order to establish SMC at the (r) rate, it is required for the (o) rate, or the intermediate rate between (n) and (o) with the (k) rate, be in effect prior to an allowance of either the (r)(1) or (r)(2) rate. The Board finds that the Veteran is not entitled to SMC at the (o) rate. The Veteran does not have an anatomical loss of both arms so near to the shoulder as to prevent use of a prosthetic appliance, two conditions or more of the rates provided in 38 U.S.C. § 114 (l) through (n), or bilateral deafness. 38 U.S.C. § 1114 (o). Further, the Board finds the Veteran is also not entitled to an intermediary rating between (n) and (o) with an additional (k) rated disability. 38 U.S.C. § 1114 (r). The Veteran’s service connected arteriovenous malformation and major vascular neurocognitive disorder entitle the Veteran to SMC payable at the (m) rate. The Veteran’s remaining disabilities do not warrant SMC payable at the (k) rate. Accordingly, the Veteran has not established a disability picture warranting an intermediary rating between (n) and (o) with an additional (k) rated disability. Thereby, the threshold requirement for entitlement to SMC at the (r)(1) rate has not been established. As the Veteran is not entitled to SMC at the (o) rate or the intermediary rate between (n) and (o) in addition to a (k) rate, the Veteran is not entitled to aid and attendance as contemplated by 38 U.S.C. § 1114(r)(1). As the preponderance of the evidence is against the claim, there is no question of benefit of the doubt to be resolved. See 38 U.S.C. § 5107(b); see also, Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Further, the Board concludes that the probative evidence weighs against a finding that the Veteran’s disabilities warrant SMC at the (r)(2) (higher level of care) rate. This is so because the weight of the evidence shows that, although the Veteran requires the help of others in his activities of daily living, none of the services meet the definition of personal healthcare services. The December 2013 examination also failed to find that the Veteran requires hospitalization, a nursing home, or care by a licensed professional. As the evidence reflects that the majority of the care provided to the Veteran centers around assisting him with his activities of daily living, rather than providing personal healthcare services on a daily basis, the Board finds that the weight of the evidence is against a finding that the Veteran requires aid and attendance at a higher level of care. Thus, the evidence does not establish that the care provided requires a licensed healthcare provider or an unskilled provider under the supervision of a licensed healthcare provider is needed on a daily basis. As such, entitlement to SMC based on the need for aid and attendance as contemplated by 38 U.S.C. § 1114 (r)(2) is not warranted. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Laura A. Crawford, Associate Counsel