Citation Nr: 18126101 Decision Date: 08/14/18 Archive Date: 08/14/18 DOCKET NO. 15-24 616 DATE: August 14, 2018 ORDER Entitlement to a higher level of special monthly compensation (SMC) under 38 U.S.C. § 1114(o) is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a higher level of special monthly compensation (SMC) under 38 U.S.C. § 1114(r)(1), is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. The Veteran was entitled to SMC at the (l) level based on a need for the regular aid and attendance of another due to his service-connected diabetes mellitus and resulting decreased visual acuity with decreased visual fields, peripheral neuropathy, and diabetic nephropathy. 2. 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 coronary artery disease with hypertension. CONCLUSIONS OF LAW 1. The criteria for entitlement to payment of SMC at the (o) level are met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.351, 3.352. 2. The criteria for entitlement to payment of SMC at the (r)(1) level are met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1959 to July 1970. The Veteran died in January 2016. The appellant is his surviving spouse who has been properly substituted as the claimant for the purpose of processing this claim to completion. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. This case was previously before the Board in September 2016 when it was remanded for additional development. Specifically, the RO was directed to request additional treatment records from the appellant. Although the RO requested access to the records in a January 2018 correspondence, the appellant did not respond. Accordingly, the Board finds that there has been substantial compliance with the remand directives and adjudication may proceed. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to a higher level of special monthly compensation (SMC) Prior to his death, the Veteran was in receipt of SMC at the (l) rate. The appellant asserts that a higher rate of SMC is warranted. SMC is available when, as the result of service-connected disability, a Veteran suffers additional hardships above and beyond those contemplated under the Rating Schedule. 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). 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). 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). 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). 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). 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). Need for a higher level of care shall be considered to be need for personal health-care services provided on a daily basis in the veteran’s 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. Personal health-care services include (but are not limited to) such services as physical therapy, administration of injections, placement of indwelling catheters, and the changing of sterile dressings, or like 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 physical therapist licensed to practice by a State or political subdivision thereof. 38 C.F.R. § 3.352(b)(2). The term “under the regular supervision of a licensed health-care professional” means that an unlicensed person performing personal health-care services is following a regimen of personal health-care services prescribed by a health-care professional, and that the health-care professional consults with the unlicensed person providing the health-care services at least once each month to monitor the prescribed regimen. The consultation need not be in person; a telephone call will suffice. 38 C.F.R. § 3.352(b)(3). A person performing personal health-care services who is a relative or other member of the veteran’s household is not exempted from the requirement that he or she be a licensed health-care professional or be providing such care under the regular supervision of a licensed health-care professional. 38 C.F.R. § 3.352(b)(4). 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). Analysis For the relevant appeal period, the Veteran was service connected for coronary artery disease with hypertension, rated 100 percent disabling; decreased visual acuity with decreased visual fields, rated 80 percent disabling; diabetes mellitus, rated 60 percent disabling; peripheral neuropathy of the left hand, rated 40 percent disabling; peripheral neuropathy of the right hand, rated 30 percent disabling; diabetic nephropathy, rated 30 percent disabling; autonomic neuropathy of the stomach, rated 20 percent disabling; peripheral neuropathy of the left leg, rated 20 percent disabling; peripheral neuropathy of the right leg, rated 20 percent disabling; residuals of a head injury, rated noncompensably; and residuals of a finger fracture, rated noncompensably. His total disability rating was 100 percent. He was later awarded service connection for chronic obstructive pulmonary disease (COPD), which was awarded a separate 100 percent disability rating from January 2015. After a review of the evidence of record, the Board finds that the Veteran experienced disability under conditions that entitled him to two SMC awards at the (l) rate, without consideration of any disability twice, which, in turn, entitled him to SMC at the (o) rate. The Board further finds that the evidence reflects that the Veteran was in need of a higher level of aid and attendance, and entitled to SMC at the (r)(2) rate. The Veteran’s March 1999 heart examination reflected that his cardiac condition caused flu-like symptoms and weight loss. His hypertension also caused dizziness and his peripheral neuropathy caused fatigue, weakness, poor endurance, and pain. During an October 2011 endocrinology consult, the appellant was given written instructions to reduce his dose of simvastatin. It was also noted that the Veteran’s feet were completely numb below his knees. The appellant was counseled on the use of the Veteran’s insulin pump and other diabetic treatments. During an April 2012 VA kidney examination, the examiner noted that the anti-transplant rejection medicine caused side-effects of weakness and dropping objects. During an August 2012 VA eye examination, the examiner indicated that the Veteran did not have anatomical loss, light perception only, or blindness or either eye. His corrected vision was 5/200 in the right eye and 20/40 or better in the left eye. However, the Veteran’s treatment scars due to diabetic retinopathy caused a visual field defect. Accordingly, he was more likely to miss things in his periphery. During an August 2014 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, the examiner noted that the Veteran had right eye blindness, diabetic retinopathy, neuropathy, COPD, renal failure, atrial fibrillation, and congestive heart failure. The examiner noted that the Veteran is not bedridden and he is able to feed himself. Although indicating that the Veteran can prepare his own meals, the examiner further noted that he cannot do any preparation work or make a meal from scratch. Additionally, the examiner found that the Veteran needed assistance in bathing and tending to other hygiene needs, explaining that the Veteran was unable to reach all parts of his body and had a vision limitation. The examiner found that the Veteran was legally blind, with corrected vision of 20/200 in the left eye and indicating he cannot see at all out of the right eye. The examiner stated that without the appellant’s help, the Veteran would require nursing home care. The Veteran required medication management because he was unable to see the names of the medications or open the bottles. The examiner noted that the Veteran was unable to button clothes and had lost most of the muscle mass from his hands, arms, and feet. He was unable to open a bottle of water due to neuropathy. The examiner noted that the Veteran had very poor balance and was unable to care for himself, needing 24-hour care from his wife. The Veteran was unable to drive and did not go anywhere. In a statement received in April 2016, the appellant noted that she was the sole caretaker of the Veteran. She indicated that she had to manage his diabetes by checking his blood sugar levels every 4 hours and changing his insulin pump every 3 days, administering insulin injections when needed. Additionally, she had to help him bathe and get dressed because his peripheral neuropathy rendered him unable to button his shirts. She noted that she assisted him in the shower to ensure he would not fall. The appellant stated that she would assist him in and out of the house and vehicles as he was a high fall risk whenever standing. She managed his medications and transported him to doctor’s appointments, regularly taking him to 3 appointments per week. She also assisted him with eating and drinking because he had difficulty with pain and shaking in his hands due to peripheral neuropathy. Based on the above, the Board finds that the Veteran’s diabetes mellitus and resulting decreased visual acuity with decreased visual fields, peripheral neuropathy, and diabetic nephropathy, without consideration of any other disabilities, resulted in such impairment that it would require the aid and attendance of another to assist the Veteran in his activities of daily living and care. These disabilities are shown to have interfered with his ability to dress and undress himself and limited his personal hygiene. Accordingly, entitlement to SMC at the (l) rate based solely on the need for aid and attendance related to his decreased visual fields and peripheral neuropathy is warranted. Further, the Board finds that the Veteran’s coronary artery disease with hypertension, without consideration of any other disabilities, resulted in such impairment that it required care or assistance on a regular basis to protect the Veteran from hazards or dangers incident to his daily environment. The Veteran’s treatment records show that his hypertension made him dizzy and his coronary artery disease made him weak. As noted by the Veteran’s spouse (the appellant), he was a fall risk and she regularly had to help him stand, including assisting him in and out of the house and vehicles and loading and unloading him from the walker, wheel chair, and scooter. Accordingly, entitlement to SMC at the (l) rate based solely on the need for aid and attendance related to his cardiac disability is warranted. As such, the Board finds that the Veteran experienced disability under conditions which entitled him to two SMC awards at the (l) rate, without consideration of any disability twice, which, in turn, establishes entitlement to SMC at the (o) rate. 38 U.S.C. § 1114(o). Having found that the Veteran met the SMC (o) rate, and given that he was already in receipt of SMC for “regular aid and attendance,” the requirements for the (r)(1) rate have been met. As indicated above, SMC (r) also contemplates aid and attendance with a need for a “higher level of care.” Although the Board recognizes the VA examiner’s opinion that the Veteran would require nursing home care without the appellant’s assistance, the appellant and her representative have not expressly raised the question of entitlement to this level of SMC, and have not provided documentation showing the appellant received monthly guidance and supervision from licensed professional care providers. Indeed, although asked for the Veteran’s terminal medical records, the appellant failed to respond. The regulations state that the provisions are to be strictly construed. 38 C.F.R. § 3.352(b)(5). While it is clear that the appellant assisted the Veteran in bathing, dressing, feeding, and avoiding hazards in his daily environment, there is no evidence that the appellant provided substantial daily personal health-care services such as physical therapy, administration of injections, placement of indwelling catheters, or changing of sterile dressings. See 38 C.F.R. § 3.352(b)(2). Accordingly, the Board finds that the requirements for SMC at the (r)(1) rate, but no higher, have been met. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Lindsey Connor