Citation Nr: 1807153 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 08-13 127A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a higher level of special monthly compensation (SMC) under 38 U.S.C. § 1114(o). 2. Entitlement to a higher level of special monthly compensation (SMC) under 38 U.S.C. § 1114(r)(1). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney-at-Law ' ATTORNEY FOR THE BOARD M. Thomas, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1956 to August 1959 and from October 1959 to October 1976. Unfortunately, he died in April 2016. The appellant is his surviving spouse and, as discussed below, has been properly substituted as claimant in the claims addressed herein. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, in pertinent part, denied entitlement to SMC based on the need for aid and attendance. In a March 2010 VA Form 9, the Veteran requested a Board hearing at the local RO, which was scheduled to occur in December 2011. Prior to the scheduled hearing, the Veteran requested that the hearing be canceled and his appeal be forwarded for appellate review. As the Veteran did not subsequently submit a motion for a new hearing, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(e) (2017). In a January 2014 decision, the RO granted entitlement to SMC based on the need for aid and attendance under 38 U.S.C.A. § 1114(l) and 38 C.F.R. § 3.350(b), effective February 28, 2013. In a November 2014 decision, the Board granted entitlement to SMC based on the need for aid and attendance prior to February 28, 2013. The Veteran appealed the November 2014 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2015 Joint Motion for Partial Remand, the Court partially vacated the November 2014 Board decision to the extent that it did not consider entitlement to a higher level of SMC based on the need for aid and attendance, and remanded that portion of the appeal to the Board for adjudication consistent with the Court's order. This appeal was remanded by the Board in September 2015. There has been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998) (finding that a remand by the Board confers on the Veteran the right to compliance with its remand orders). In September 2015, the RO granted entitlement to SMC based on the need for aid and attendance from September 28, 2006. In a November 2017 decision, the RO found that a clear and unmistakable error was made in the September 2015 rating decision and granted entitlement to a higher level of SMC at an intermediate level based on 38 U.S.C. § 1114(p), for an additional single permanent disability or combination of permanent disabilities independently ratable at 50 percent or more, effective September 17, 2007. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran timely appealed the RO's January 2007 denial of the claims for higher rates of SMC. However, he died in April 2016, prior to completion of the appeal. 2. The appellant is the Veteran's surviving spouse, who was properly substituted as the claimant to continue the Veteran's pending claims on appeal to completion. 3. The Veteran is entitled to SMC at the (l) level based on a need for the regular aid and attendance of another due to the service-connected left elbow disability. 4. The Veteran is entitled to SMC at the (l) level based on a need for the regular aid and attendance of another, due to the service-connected cardiac disability. CONCLUSIONS OF LAW 1. The appellant, the Veteran's surviving spouse, is a proper substitute claimant in this case. 38 U.S.C. § 5121A (2012). 2. The criteria for entitlement to payment of SMC at the (o) level are met. 38 U.S.C. §§ 1114, 5107 (2012); 38 C.F.R. §§ 3.102, 3.350, 3.351, 3.352 (2017). 3. The criteria for entitlement to payment of SMC at the (r-1) level are met. 38 U.S.C. §§ 1114, 5107 (2012); 38 C.F.R. §§ 3.102, 3.350, 3.352 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Procedural Duties (a) Appellant as Substitute-Claimant When a Veteran has claims pending at the time of his death, his surviving spouse may be paid periodic monetary benefits, which were due and unpaid, to which he was entitled at the time of his death based on existing ratings or decisions, or other evidence that was on file when he died. 38 U.S.C. § 5121 (2012); 38 C.F.R. § 3.1000 (2017). The statute regarding accrued benefits claims was amended on October 10, 2008. See Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212 (2008). Section 212 created a new statute, which provided that if a claimant died while a claim or appeal for any benefit under a law administered by VA was 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. See 38 U.S.C. § 5121A. The new statute allows a person who could be considered an accrued benefits claimant to substitute for a deceased claimant to continue adjudication of the deceased claimant's claim. The provisions of the new statute apply with respect to the claim of any claimant who dies on or after October 10, 2008. See Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008). Prior to the completion of the Veteran's appeal of the January 2007 rating decisions, the RO received confirmation of his April 2016 death. In May 2016, the appellant submitted VA Form 21-0847, Request for Substitution of Claimant Upon Death of Claimant. In August 2017, the RO allowed for the appellant's substitution in the Veteran's claims that were on appeal. She was notified of this decision in a letter that same month. Therefore, the Board recognizes that the Veteran's surviving spouse has been properly substituted for the Veteran. As the Veteran's death occurred after October 10, 2008, the appellant's claim is not one for accrued benefits, but remains his original claim into which she is substituted in his stead. The issues have been recharacterized to reflect the correct procedural posture. (b) Duties to Notify and Assist In this case, neither the appellant nor her representative has raised any issues with the duty to notify or duty to assist. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Legal Criteria - SMC SMC is authorized in particular circumstances in addition to compensation for service-connected disabilities. See 38 U.S.C. § 1114 (2012); 38 C.F.R. §§ 3.350, 3.352 (2017). SMC is authorized under subsections (k) through (s), with the rate amounts increasing the later in the alphabet the letter appears (except for the "s" rate). SMC at the (k) and (k) rates are paid in addition to any other SMC rates, with certain monetary limits. SMC at the (k) rate is provided for loss or loss of use of certain body parts. 38 U.S.C.A. § 1114(k); 38 C.F.R. § 3.350(a). SMC at the (l) rate 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 under the criteria set forth in 38 C.F.R. § 3.352(a). See 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). 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 claimant to dress or undress himself or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliance which by reason of the particular disability cannot be done without aid; inability of 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). It is not required that all the disabling conditions enumerated in § 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 condition as a whole. 38 C.F.R. § 3.352(a); see also Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in section 3.352(a) must be present for a grant of SMC based on need for aid and attendance). 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 (n) rate 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 elbow action with prostheses in place, has suffered the anatomical loss of both legs so near the hip as to prevent the use of prosthetic appliances. 38 U.S.C. § 1114(n); 38 C.F.R. § 3.350(d). SMC at the (n) rate is also warranted if the veteran's service-connected disability has caused him to suffer anatomical loss of one arm and one leg so near the shoulder and hip as to prevent the use of prosthetic appliances, or to suffer blindness without light perception in both eyes. Id. SMC at the (o) rate is warranted if the veteran, as the result of service-connected disability, has suffered disability under conditions which would entitle such veteran to two or more of the rates provided in one or more of § 1114(l) through § 1114(n), no condition being considered twice in the determination, if the veteran has suffered the anatomical loss of both arms so near the shoulder as to prevent the use of prosthetic appliances, or bilateral deafness (and the hearing impairment in either one or both ears in service connected) rated at 60 percent or more disabling with service-connected total blindness with 5/200 visual acuity or less. SMC at the (o) rate is also warranted for total deafness in one ear or bilateral deafness (and the hearing impairment in either one or both ears is service connected) rated at 40 percent or more disabling and the veteran has also suffered service-connected blindness having only light perception or less. 38 U.S.C. § 1114(o); 38 C.F.R. § 3.350(e). Paralysis of both lower extremities together with the loss of anal and bladder sphincter control will entitle a veteran to the (o) rate of SMC, through the combination of loss of use of both legs and helplessness. The requirement of loss of anal and bladder sphincter control is met even though incontinence has been overcome under a strict regimen of rehabilitation of bowel and bladder training and other auxiliary measures. 38 C.F.R. § 3.350(e)(2). Determinations for entitlement to the (o) rate of SMC must be based upon separate and distinct disabilities. That requires, for example, that where a veteran who had 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. 38 C.F.R. § 3.350(e). If the 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 be taken as entitling the veteran to the maximum benefit. The fact, however, that two separate and distinct entitling disabilities, such as 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). 38 U.S.C. § 1114(p) provides 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). In addition to the statutory rates payable under 38 U.S.C. § 1114(l) through (n) and the intermediate or next-higher rate provisions set forth under 38 U.S.C. § 1114(p), additional single permanent disability or combinations of permanent disabilities independently ratable at 50 percent or more will afford entitlement to the next-higher intermediate rate, or if already entitled to the next-higher intermediate rate, then to the next-higher statutory rate under 38 U.S.C. § 1114, but not above the (o) rate. The disability or disabilities independently ratable at 50 percent or more 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 of 38 U.S.C. § 1114(p). 38 C.F.R. § 3.350(f)(3). Also, additional single permanent disability or combinations of permanent disabilities independently ratable at 100 percent apart from any consideration of individual unemployability will afford entitlement to the next-higher intermediate rate, or if already entitled to the next-higher intermediate rate, then to the next-higher statutory rate under 38 U.S.C. § 1114, but not above the (o) rate. The disability or disabilities independently ratable at 100 percent or more 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 of 38 U.S.C. § 1114(p). 38 C.F.R. § 3.350(f)(4). A veteran receiving SMC at the (o) rate, at the maximum rate under 38 U.S.C. § 1114(p), or at the intermediate rate between (n) and (o) plus SMC at the (k) rate, who is in need of regular aid and attendance or a higher level of care is entitled to an additional allowance during periods that he is not hospitalized at the United States Government's expense. Determination of this need is subject to the criteria of 38 C.F.R. § 3.352. 38 C.F.R. § 3.350(h). 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). The amount of the additional allowance payable to a veteran in need of regular aid and attendance is specified in 38 U.S.C. § 1114(r)(1) ("r1" rate). The amount of the additional allowance payable to a veteran in need of a higher level of care is specified in 38 U.S.C. § 1114(r)(2) ("r2"rate). The higher level aid and attendance allowance authorized by 38 U.S.C. § 1114(r)(2) is payable in lieu of the regular aid and attendance allowance authorized by 38 U.S.C. § 1114(r)(1). 38 C.F.R. § 3.350(h)(3). Entitlement to a Higher Rate of SMC - Analysis In this case, the RO has awarded SMC at the (l) rate from September 28, 2006 based on the Veteran's need for regular aid and attendance and SMC at the intermediate rate between 38 U.S.C. § 1114(l) and (m), pursuant to 38 U.S.C. § 1114(p), based on the additional disability of posttraumatic stress disorder (PTSD) rated 50 percent from September 17, 2007. The Veteran was afforded a VA examination in February 2016. The VA examiner noted that the Veteran had an initial coronary artery bypass graft, related to the service-connected coronary artery disease, in 2005, with a repeat procedure in September 2013. He had numerous complications, including a stroke, and has been bed-bound ever since. At the time of the examination, he was under total care for all activities of daily living. The Veteran's wife was able to take care of the Veteran with help from family members at home prior to his 2013 heart surgery. The VA examiner opined that the Veteran's service-connected cardiac conditions, as a whole and without consideration of any other disabilities, resulted in such impairment that it would require the aid and attendance of another individual to assist the Veteran in his activities of daily living and care. The VA examiner further noted that the Veteran was left handed and unable to move and bend his left elbow due to fusion status. The VA examiner opined that the service-connected left elbow disability, as a whole and without consideration of any other disabilities, resulted in such impairment that it would require the aid and attendance of another individual to assist the Veteran in his activities of daily living and care. In December 2017, the Veteran's representative stated that the Veteran is entitled to two separate and independent awards of SMC at the (l) rate based on the February 2016 VA examiner's opinions that the Veteran's service-connected heart condition and left elbow disability each independently resulted in such impairment that it would require aid and attendance. The Board, in November 2014, awarded entitlement to SMC based on the need for aid and attendance due to a combination of the Veteran's service-connected disabilities. Importantly, in describing the impairments which supported the grant of aid and attendance, the Board cited independent and distinct manifestations of the service-connected left elbow disability and cardiac conditions, such as the loss of memory and marked difficulty with self-feeding and self-bathing. Based on the Board's analysis in the November 2014 decision awarding SMC based on the need for aid and attendance and the opinions of the February 2016 VA examiner, the Board finds that entitlement to SMC at the (l) level based on a need for A&A is therefore independently established for both the service-connected cardiac conditions and left elbow disability, which were separate and distinct disabilities. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). Where a Veteran shows entitlement to two SMCs at levels (l), (m), or (n), entitlement to SMC (o) is established. 38 U.S.C. § 1114(o); 38 C.F.R. § 3.350(e)(1)(iv). The two SMCs must be independent of each other, to avoid consideration of any service-connected condition twice, in violation of the pyramiding prohibition of 38 C.F.R. § 4.14. Here, as discussed above, the Veteran is entitled to SMC (l) based on the need for aid and attendance due to service-connected cardiac conditions and an independent need for aid and attendance due to a service-connected left elbow disability. Entitlement to SMC (o) is therefore established. Entitlement to SMC (o) meets the threshold requirement for entitlement to SMC (r-1). The law states that when a Veteran is entitled to SMC (o) (or payment of an equal rate under SMC (p)), and establishes a factual need for aid and attendance, entitlement to special aid and attendance is demonstrated. 38 U.S.C. § 1114(r); 38 C.F.R. § 3.350(h). The need for aid and attendance need not be independent of the underlying disabilities used to meet the threshold eligibility requirement, as the regulation provides an exception to the pyramiding rule. 38 C.F.R. § 3.350(h)(1). Accordingly, entitlement to SMC at the (r-1) level based on a need for a special level of A&A is warranted. The Board notes that SMC (r) also contemplates A&A with a need for a "higher level of care." This requires a showing that the Veteran required daily personal health care services by a medical professional, or under the supervision of such, without which institutional care would be required. 38 C.F.R. § 3.350(h)(2). The appellant and her representative have not expressly raised the question of entitlement to this level of SMC, and have in fact argued for assignment of SMC at the (r-1) level. The Board notes that the Veteran had been receiving institutional care from 2013 until his death in 2016. ORDER Entitlement to SMC at the (o) level is granted, subject to the laws and regulations governing payment of monetary benefits. Entitlement to SMC at the (r-1) level based on a need for a special level of A&A is granted, subject to the laws and regulations governing payment of monetary benefits. ____________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs