Citation Nr: 18125531 Decision Date: 08/10/18 Archive Date: 08/09/18 DOCKET NO. 15-19 362 DATE: August 10, 2018 ORDER Entitlement to special monthly compensation (SMC) (r)(1) benefits, based on the award of SMC (o) and the need for regular aid and attendance, is granted. Whether the Veteran has been in receipt of the correct payment for his combined disability rating is denied. FINDINGS OF FACT 1. Due to the service-connected low back disability, chronic renal failure, and heart disease, the Veteran requires care or assistance on a regular basis. 2. Due to the service-connected peripheral neuropathy of the bilateral lower extremities, pulmonary sarcoidosis, and eye disability, 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. 6. The Veteran has been in receipt of the correct payment for his combined disability rating since August 2005. 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; 38 C.F.R.§§ 3.102, 3.350, 3.352(a). 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; 38 C.F.R. §§ 3.102, 3.350, 3.352. 3. Inasmuch as the record reflects the Veteran received the correct amount of payment for his combined disability rating since August 2005, the claim is denied. 38 U.S.C. §§ 1114, 5110, 5120; 38 C.F.R. §§ 3.350, 3.352, 3.400, 3.500. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1963 to July 1989. In June 2017, the Veteran testified at a Board hearing over which the undersigned presided. 1. Entitlement to a higher level of SMC based on aid and attendance. During the June 2017 Board hearing, the Veteran asserted that he is entitled to a higher level of SMC based on the need for aid and attendance under Title 38 U.S.C. § 1114 (r). He added that his condition his many service-connected disabilities required a higher level of care for his daily needs. Service connection has been established for hypertension with renal insufficiency, rated at 100 percent; sarcoidosis, rated at 100 percent; dysthymia and dementia, rated at 50 percent; pigmentary retinopathy and anterior uveitis, rated at 50 percent; varicose veins of the right and left lower extremity, each rated at 20 percent; low back strain, rated at 20 percent; diabetes mellitus, rated at 10 percent; peripheral neuropathy of the right and left lower extremity, each rated at 10 percent; anemia, rated at 10 percent; and Baker’s cyst of the right knee, right herniorrhaphy, appendectomy scar, and vascular headaches, each rated as noncompensable. The Veteran’s combined disability rating is 100 percent since March 3, 2004. He is also in receipt of SMC benefits, pursuant to 38 U.S.C. § 1114 (k-1), (s-1), (l-1) and (p-2). 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 SMC 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). 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 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. In this regard, a Statement of Attending Physician dated in September 2010 shows that the Veteran was said to be in need of the aid or attendance of someone else in the ordinary activities of daily living, and also was housebound, as a result of severe osteoarthritis of the lumbar spine, chronic renal failure, and heart disease. As such, as a result of his service-connected low back, renal, and heart disabilities, he requires care or assistance on a regular basis to protect him from the hazards or dangers incident to his daily environment. Thus, the Board finds that he meets the criteria for regular aid and attendance due solely to those service-connected disabilities. Additionally, an August 2011 VA examination report shows that the Veteran was in need of the regular aid and attendance of another as a result of his sarcoidosis, retinitis, diabetes mellitus, psychiatric disorder, lower extremity peripheral neuropathy, as well as, the low back disability. A December 2016 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance (VA Form 21-2680), shows that the Veteran was said to have a decreased ability to do activities of daily living due to peripheral neuropathy. A January 2017 VA examination report shows that the Veteran was diagnosed as legally blind, being blind in the right eye and having poor vision in the left eye. A March 2018 VA examination report shows that the Veteran’s ability to protect himself from daily hazards or dangers was impacted by his lower extremity peripheral neuropathy and his pulmonary sarcoidosis. 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 one 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. 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. The need for a higher level of care which necessitates the payment of (r)(2) means that the Veteran requires personal health-care services provided on a daily basis in their 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. 38 C.F.R. § 3.352 (b)(2). Personal health-care services include (but are not limited to) such services as physical therapy, administration of injections, placement of catheters, and the changing of sterile dressings, or similar functions which require professional health-care training or the regular supervision of a trained health-care professional to perform. A licensed health-care professional includes (but is not limited to) a doctor of medicine or osteopathy, a registered nurse, a licensed practical nurse, or a licensed physical therapist. Id. In this regard, the March 2018 VA examination report shows that the Veteran does not require physical therapy, administration of injections, placement of indwelling catheters, or changing of sterile dressing. Thus, based on the definition of “personal health care services” he does not qualify since he does not require any of the listed services. While the Veteran requires the assistance of his wife or other family members, the evidence does not reflect that his care needs to be skilled. 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. 2. Whether the Veteran has been in receipt of the correct payments for his combined disability rating. During the June 2017 Board hearing, the Veteran suggested that he had not been receiving the correct disability payment amount since August 2005. He asserted that he had not been paid schedular disability payments that he was due, but rather had only been paid special monthly compensation. As a review of his claims file did not reveal a record verifying the amounts paid to the Veteran based upon his awards, the Board directed that an audit be conducted. In a June 2018 Supplemental Statement of the Case, the agency of original jurisdiction set forth the results of a complete audit of the compensation benefits paid to the Veteran since August 2005. In this regard, prior to the implementation of the findings set forth hereinabove, the Veteran was entitled to Individual unemployability (TDIU), effective April 7, 1995; TDIU plus SMC based on loss of use of a creative organ, effective March 18, 2002, (SMC K-1, code 01); 100 percent schedular effective plus SMC K-1, effective March 3, 2004, (SMC K-1, code 01); 100 percent with SMC based on statutory housebound criteria plus SMC K-1, effective August 2, 2005, (SMC S+K, code 49); and 100 percent with SMC based on aid and attendance elevated to the SMC M rate plus a SMC K-1, effective July 28, 2006, (SMC M+K, code 25). The review of your record found that the Veteran had not been entitled to the SMC P rate. In addition, he was not entitled to SMC M until July 28, 2006. There was no separate entitlement to any SMC rate. The SMC payment, with inclusion of any additional rate for qualifying dependents, was the correct entitlement. The current (as of December 1, 2017) entitlement to the 100 percent payment rate with aid and attendance at the SMC M and a spouse rate plus SMC K-1 was correctly calculated as follows: Entitlement to SMC M with spouse ($4,249.60) plus SMC K ($105.61) totaled $4,355.21. A complete review of the Veteran’s VA entitlement from August 1, 2005, to the present (notwithstanding the additional award as a result of this decision), was shown to be as follows: From August 1, 2005, the payment amount was $2,607.00, with no change on this date (SMC code 01) (100 percent with spouse and one helpless child, plus SMC K-1 for loss of use of a creative organ). From September 1, 2005, the payment amount was $2,881.00, with a SMC adjustment (SMC code 49) (100 percent with spouse and one helpless child with SMC S, Statutory Housebound, plus SMC K-1). From December 1, 2005, there was a cost of living adjustment brining the payment amount to $2,998.00. From August 1, 2006, the payment amount was $3,604.00, with a SMC adjustment (SMC code 25) (100 percent with spouse and one helpless child with SMC M, Aid and Attendance, elevated to rate equal to M plus SMC K-1). There were cost of living adjustments made thereafter as follows: from December 1, 2006, to $3,721.00; from December 1, 2007, to $3,806.00; from December 1, 2008, to $4,026.00; from December 1, 2011, to $4,170.00; from December 1, 2012, to $4,239.00; from December 1, 2013, to $4,302.59; and from December 1, 2014, to $4,375.74. From July 1, 2015, the payment amount was $4,257.74, with the removal of a dependent from the award due to the loss of a child (100 percent with spouse with SMC M plus SMC K-1). There were cost of living adjustments made thereafter as follows: from December 1, 2016, to $4,269.81; and December 1, 2017, to $4,355.21. A copy of these findings was sent to the Veteran and his representative on June 25, 2018. Neither the Veteran nor his representative have provided evidence to rebut the findings of the audit or otherwise diminish their probative weight. There is a presumption of regularity that holds that government officials are presumed to have properly discharged their official duties. Unless rebutted by clear evidence to the contrary, VA is entitled to the benefit of this presumption. Ashley v. Derwinski, 2 Vet. App. 307 (1992). A review of the record does not reflect the Veteran has contested the accuracy of the calculations made pursuant to the Board’s September 2017 remand, and which was discussed in June 2018 Supplemental Statement of the Case. The record does not indicate the Veteran has alleged any other procedural errors or omissions in this appeal. Accordingly, the Board need not search for, or address, any such argument. See Scott v. McDonald, 789 F. 3d 1375 (Fed. Cir. 2015). As such, the Board finds that the Veteran has been in receipt of the correct payment for his combined disability rating since August 2005. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel