Citation Nr: 1814284 Decision Date: 03/08/18 Archive Date: 03/14/18 DOCKET NO. 10-11 534 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a higher rate of special monthly compensation (SMC) under 38 U.S.C. § 1114. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jeremy J. Olsen, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from September 1980 to September 1984 and in the U.S. Coast Guard from January 1985 to May 1995. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In November 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge, held at the RO. A transcript of that hearing has been associated with the record. In a decision issued in May 2017, the Board granted entitlement to SMC on account of the need of regular aid and attendance. The Veteran appealed that decision and in November 2017, the United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Remand (JMR). In the JMR, the parties agreed that further consideration was necessary as to whether the Veteran's service-connected disabilities could have served as the basis for SMC at a rate greater than the aid and attendance rate, under 38 U.S.C. § 1114 (l). However, the parties agreed that the Board's grant of SMC based on the need for regular aid and attendance should not be disturbed. The Board has thus recharacterized the claim as reflected on the title page of this decision. FINDINGS OF FACT 1. Due to his service-connected bilateral lower extremities, the Veteran requires care or assistance on a regular basis. 2. Due to his service-connected disabilities other than those of his bilateral lower extremities, the Veteran requires care or assistance on a regular basis. 3. The Veteran has incurred disabilities under conditions which would entitle him to two SMC-(l) awards, without consideration of any condition twice. 4. During the current appeal period, the Veteran is entitled to an additional monthly allowance of SMC at the rate under subsection (r-1) of 38 U.S.C. § 1114, based on entitlement to the rate under subsection (o) and the need for regular aid and attendance. 5. The Veteran has not been deemed to be in need of personal health-care services provided on a daily basis in his home by a person who is licensed to provide such services or who provides such services under the regular supervision of a licensed health-care professional. CONCLUSIONS OF LAW 1. The criteria for an award of SMC (o), based on the presence of two SMC (l) awards, have been met. 38 U.S.C. §§ 1114, 5107 (2012); 38 C.F.R.§§ 3.102, 3.350, 3.352(a) (2017). 2. For the entire appeal period, the criteria for entitlement to payment of SMC at the (r-1) level, but no higher, 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 As noted in the Introduction, the Veteran was granted SMC benefits, pursuant to 38 U.S.C. § 1114 (l), in a May 2017 Board decision. He contends that, because of the extent of his service-connected disabilities, he is entitled to two or more of the rates provided in 38 U.S.C. § 1114 (l) through (n). For the reasons explained below, the Board agrees. The Veteran is in receipt of service-connected benefits for headaches; radiculopathy of the left leg; cervical degenerative changes; chronic back pain; synovitis of the right ankle; synovitis of the right hip, with limited extension; synovitis of the bilateral knees, with instability and limitation of extension; chronic gastritis; posttraumatic stress disorder (PTSD) and major depressive disorder (MDD); and right arm neuralgia. SMC is authorized in particular circumstances in addition to compensation for service-connected disabilities. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352. 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 (r) rates are paid in addition to any other special monthly compensation rates, with certain monetary limits. As relevant to the Veteran's claim, SMC at the (l) rate is payable when a 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). The following will be accorded consideration in determining the need for regular aid and attendance: inability of a claimant to dress or undress him or herself, or to keep him or herself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of a claimant to feed him or herself through loss of coordination of the 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 a claimant from the hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352 (a). The Court has determined that it is not required that all of the disabling conditions enumerated in the provisions of 38 C.F.R. § 3.352 (a) be found in order to establish eligibility for aid and attendance, but that such eligibility required at least one of the enumerated factors be present. Turco v. Brown, 9 Vet.App. 222 (1996). 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. Id.; 38 C.F.R. § 3.352. SMC at the (o) rate is warranted, if a veteran, as the result of service-connected disability, has incurred disability under conditions which would entitle such veteran to two or more of the rates provided in one or more subsections (l) through (n), with no condition being considered twice in the determination. 38 U.S.C. § 1114 (o); 38 C.F.R. § 3.350 (e)(1)(ii). To be awarded SMC (r)(1) rate 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); 38 C.F.R. § 3.350 (h), 3.352. Currently, and as noted above, the Veteran is in receipt of SMC, pursuant to 38 U.S.C. § 1114 (l). The Board finds that the Veteran's service-connected disabilities, when considered separately, each meet the criteria for the need for regular aid and attendance under 38 U.S.C. § 1114(l), and separate ratings are warranted. A review of the record shows that, due to his service-connected bilateral lower extremity disabilities, specifically radiculopathy of the left leg, limitation of extension of the left knee, synovitis of the right hip, a right knee condition, synovitis of the right ankle, left knee instability, right knee synovitis, left knee instability, left knee synovitis, right hip synovitis, and right knee synovitis, the Veteran has a physical incapacity which requires care or assistance on a regular basis to protect him from the hazards or dangers incident to his daily environment. Throughout multiple VA Aid and Attendance (A&A) examinations performed over the course of the appeal, the Veteran was consistently found to have trouble with walking and was confined mostly to a wheelchair or his bed. He was unable to drive a car, had an atrophied left leg, and was unable to use the restroom without assistance. Thus, the Board finds that he meets the criteria for regular aid and attendance due solely to the service-connected disabilities of his bilateral lower extremities. Additionally, the same A&A examinations reflect that the Veteran's service-connected disabilities exclusive of those of his lower extremities-specifically cervical degenerative changes; headaches; chronic back pain; chronic gastritis; PTSD and MDD; and right arm neuralgia-cause him to require care or assistance on a regular basis in order to feed himself, keep himself clean and presentable, and protect him from the hazards or dangers inherent in his daily environment. The record shows that the Veteran was unable to prepare meals, bathe himself, remember to take his medication without prompting, or raise his arms above shoulder height. Further, his headaches caused vision problems and he had limited range of motion in his shoulders. At his November 2016 hearing before the Board, the Veteran testified at length about the need of the assistance of his wife and a family friend to help him perform tasks such as purchasing groceries and remembering to take his medications. Thus, the Board finds that the Veteran is twice entitled to 38 U.S.C. § 1114 (l) rate, as his service-connected disabilities distinctly affect separate parts of his body and require care and assistance. As the Veteran is twice entitled under the (l) rate, entitlement to the SMC (o) rate is warranted. 38 U.S.C. § 1114 (o); 38 C.F.R. § 3.350 (e)(1)(ii). In turn, entitlement to the SMC (o) rate meets the threshold requirement for entitlement to the SMC (r)(1) rate. The law states that when a Veteran is entitled to SMC (o), and establishes a factual need for regular 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). Here, the Board finds that a factual need for regular aid and attendance has been established. In a March 2010 A&A examination, it was determined that the Veteran would need the assistance of another person in attending to the "ordinary hazards" of daily living. He was unable at that time to perform self-care such as shaving, brushing his teeth, using the toilet, bathing, dressing, and brushing his hair. His wife assisted him in attending to his needs and safety at all times, as he was unable to leave his home more than once a week. The examiner found that the Veteran was unable to protect himself from the hazards of his daily environment, and depended on an attendant for such tasks as transportation and helping him in and out of his automobile. At a December 2014 A&A examination, the Veteran reported an inability to dress and undres himself. He was not able to get off of the toilet after use and could not bathe without assistance. The examiner concluded that he would benefit from assistance with such tasks. A December 2016 A&A revealed much of the same. The Veteran was unable to prepare meals, and required assistance when bathing and tending to hygiene needs below the waist. He reported peripheral vision problems related to his headaches. The examiner determined that while he did not need nursing home care, he would require medication management, which at that time was provided by his wife. Based on a review of the evidence, the Board finds that entitlement to SMC at the (r)(1) rate is warranted for the entire appeal period, based on a demonstrated factual need for a special level of aid and attendance. However, the Board finds that the Veteran's disabilities do not warrant SMC at the (r)(2) (higher level of care) rate. Although the Veteran is cared for by his wife, the preponderance of the evidence is against a finding that the Veteran requires personal healthcare service provided on a daily basis in the Veteran's home by a person who is licensed to provide such service or who provides such service under the regular supervision of a licensed health-care professional. The evidence does not reflect that his care needs to be skilled. Thus, the record shows that the Veteran is cared for by his family, and there is no indication that he is in need of homecare which requires the services of a licensed healthcare provider or that an unskilled provider under supervision 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. ORDER SMC-(r)(1) benefits, based on the award of SMC (o) and the need for regular aid and attendance, are granted. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs