Citation Nr: 18116751 Decision Date: 07/06/18 Archive Date: 07/06/18 DOCKET NO. 10-08 266A DATE: July 6, 2018 ORDER The issue of whether a timely substantive appeal was filed in the denial of special monthly compensation based on aid and attendance in a December 2008 rating decision is remanded. Entitlement to an initial evaluation of 100 percent for Alzheimer’s disease is granted. Entitlement to special monthly compensation based on aid and attendance is granted. FINDINGS OF FACT 1. The Veteran’s psychiatric disorder is manifested by serious symptoms more nearly approximating total occupational impairment. 2. The evidence is at least in equipoise that the Veteran has demonstrated a factual need for aid and attendance. CONCLUSIONS OF LAW 1. Since the beginning of the appeal, the schedular criteria for a 100 percent rating for Alzheimer’s disease have been met. 38 U.S.C. § 1155 (2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9312 (2017). 2. The criteria for establishing entitlement to special monthly compensation based on a need of regular aid and attendance have been met since the beginning of the appeal. 38 U.S.C. §§ 1502, 1513, 1521, 5103, 5103A, 5107 (2002); 38 C.F.R. §§ 3.3, 3.23, 3.102, 3.351, 3.352 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1999 to November 2001. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing in August 2012. A copy of the hearing transcript is of record. The matter was then remanded by the Board for additional development in January 2014 and again in December 2015. In a March 2017 decision the Board granted a separate rating for Alzheimer’s disease assigning a 50 percent rating. The Veteran timely appealed the assignment of the 50 percent rating to the Court of Appeals for Veterans Claims (Court). In a December 2017 Joint Motion for Remand (JMR) the Court vacated this issue and remanded it to the Board for further processing. Specifically, the Court found that the Board failed to provide adequate reasons and bases as to the denial of a higher rating for Alzheimer’s disease. The parties also found that the issue of entitlement to special monthly compensation based on aid and attendance had been raised by the record. Finally, the parties directed that the Board consider the issue of whether the Appellant timely appealed the RO’s December 2008 denial of SMC. This issue will be remanded for further development as explained below. The Veteran contends that a higher rating is warranted for Alzheimer’s disease as well as special monthly compensation based on aid and attendance. The Board has reviewed all the evidence in the record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence as appropriate, and the Board’s analysis will focus specifically on what the evidence shows, or fails to show, as to the claim being decided. The record includes VA examination reports dated in March 2007, February 2015, April 2015 and May 2015, June 2016, and August 2016; addendum opinions in August September 2016; Aid and Attendance questionnaire dated in June 2008; VA outpatient records that 2008 to 2016; and testimony of the Veteran and her spouse. Entitlement to a rating in excess of 50 percent for Alzheimer’s disease Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1. Where the Veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the Veteran is entitled to “staged” ratings to compensate her for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disabilities in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Diagnostic Code 9312 evaluates dementia of the Alzheimer’s type under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9312. The General Rating Formula for Mental Disorders includes criteria for rating mental disorders at various levels of disability ranging from 0 to 100. Under this criteria, a 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., the retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing effective work and social relationships. A 70 percent evaluation is assigned when the major depressive disorder causes occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgement, thinking or mood, due to symptoms such as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); or an inability to establish and maintain effective relationships. Finally, a maximum of 100 percent rating is assigned when the major depressive disorder causes total occupational and social impairment, due to symptoms such as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly in appropriate behavior; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. The Board has reviewed all medical evidence of record, as well as all statements submitted by the Veteran and submitted on her behalf by her spouse and representative. She has had significant impairment during this time period. The record shows that she had symptomatology comparable with more serious impairment such as incapacitating psychoneurotic symptoms that bordered on gross repudiation of reality. VA examiners in June 2015 and September 2016 have found her unemployable. The Board notes that a 100 percent evaluation may be assigned under the above rating criteria as long as the Veteran meets one of three listed criteria: total isolation, gross repudiation of reality, or unemployability. See 38 C.F.R. § 4.132, Diagnostic Code 9312; Johnson v. Brown, 7 Vet. App. 95, 96 (1994); see also 38 C.F.R. § 4.21. Therefore, considering the medical evidence of record plus repeated opinions regarding the Veteran’s inability to work, the Board finds that 100 percent schedular rating is warranted for Alzheimer’s disease during this appeal period. Entitlement to special monthly compensation based on aid and attendance The Veteran also contends she is entitled to special monthly compensation based on a need for aid and attendance. Special Monthly Compensation is payable for aid and attendance when a veteran is helpless or so nearly helpless that he or she requires the regular aid and attendance of another person. 38 U.S.C. §§ 1502 (b), 1521; 38 C.F.R. § 3.351 (a), (b). To establish a need for regular aid and attendance, a veteran must (1) be blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; (2) be a patient in a nursing home because of mental or physical incapacity; or (3) show a factual need for aid and attendance. 38 U.S.C. § 1502 (b); 38 C.F.R. § 3.351 (c). The Board finds that the testimony of the Veteran’s spouse that the Veteran cannot feed, cook for, or bathe herself without assistance. Further, she is essentially confined to her wheelchair. Although further medical inquiry could be undertaken towards development of the claim, where there exists “an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter,” the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). The mandate to accord the benefit of the doubt is triggered when the evidence has reached such a stage of balance. Because a state of relative equipoise has been reached in this case, the benefit of the doubt rule will therefore be applied. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Therefore, the Veteran is entitled to special monthly compensation for aid and attendance effective from the beginning of the appeal period. REASONS FOR REMAND As noted, the parties to the JMR directed that the Board consider the issue of whether the Appellant timely appealed the RO’s December 2008 denial of SMC. The RO should adjudicate the issue of whether the June 2010 substantive appeal was timely filed to the December 2008 rating action that denied special monthly compensation based on aid and attendance. This matter is REMANDED for the following action: 1. Send the Veteran a VCAA letter addressing the criteria for filing a timely substantive appeal to a RO decision. 2. The RO should adjudicate the issue of whether the June 2010 substantive appeal was timely filed to the December 2008 rating action that denied special monthly compensation based on aid and attendance. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. D. Jackson, Counsel