Citation Nr: A19002711 Decision Date: 11/14/19 Archive Date: 11/12/19 DOCKET NO. 190412-8108 DATE: November 14, 2019 ORDER Special monthly compensation (SMC) benefits under 38 U.S.C. § 1114(r)(1) are granted. SMC benefits under 38 U.S.C. § 1114(o) are granted. The issue of eligibility for assistance in acquiring specially adapted housing is granted. The issue of eligibility for a special home adaptation grant is dismissed. FINDINGS OF FACT 1. Due to his service-connected bilateral upper extremities, the Veteran requires care or assistance on a regular basis. 2. Due to his service-connected disabilities other than bilateral upper extremity disabilities, 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. The Veteran is entitled to SMC benefits under 38 U.S.C. § 1114(o) and has established the need for regular aid and attendance; but he is not 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. 5. The Veteran has service-connected disabilities, rated as permanent and total, due to the loss of use of both lower extremities, such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair. 6. The issue of eligibility for a special home adaptation grant is moot, due to the award of specially adapted housing in the present Board decision. CONCLUSIONS OF LAW 1. The criteria for entitlement to SMC benefits under 38 U.S.C. § 1114(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. The criteria for entitlement to SMC benefits under 38 U.S.C. § 1114(r)(1) are met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352. 3. The criteria for eligibility for assistance in acquiring specially adapted housing are met. 38 U.S.C. §§ 2101, 5107; 38 C.F.R. §§ 3.102, 3.809. 4. The claim for eligibility for a special home adaptation grant is dismissed as moot. 38 U.S.C. §§ 2101(b), 7105; 38 C.F.R. § 3.809a. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1969 to July 1972, to include service in Vietnam. The rating decision on appeal for the issue of entitlement to a higher level of SMC benefits was issued in a December 2017 legacy rating decision. In December 2018, the Veteran elected the modernized review system. 38 C.F.R. § 19.2(d). The Veteran selected the Supplemental Claim lane for the issue of entitlement to a higher level of SMC when he opted into the Appeals Modernization Act (AMA) review system by submitting a Rapid Appeals Modernization Act (RAMP) election form. The Veteran timely appealed this rating decision to the Board and requested direct review of the evidence considered by the Agency of Original Jurisdiction (AOJ). The rating decision on appeal for the remaining issues was issued in an April 2019 AMA rating decision. 1. Entitlement to a higher level of SMC benefits under 38 U.S.C. § 1114(r)(1) is granted. Pertinent Law and Regulations SMC benefits may be authorized 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). 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). SMC is also available at intermediate or higher rates pursuant to 38 U.S.C. § 1114(p). As relevant, a veteran is entitled to a rate of SMC between the (l) and (m) rates if he or she suffers from anatomical loss or loss of use of one foot with anatomical loss or loss of use of one arm at a level, or with complications, preventing natural elbow action with prosthesis in place. To be awarded additional SMC benefits at the (r)(1) rate, the Veteran must be entitled to SMC benefits 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. SMC benefits at the (r)(2) rate requires 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. See 38 U.S.C. § 1114(r). Analysis In the December 2017 legacy rating decision, the RO granted SMC benefits pursuant to 38 U.S.C. § 1114(l). The Veteran contends that SMC benefits at a higher rate is warranted given the extent of his service-connected disabilities. See October 2018 Notice of Disagreement. While the Veteran and his representative have essentially limited their arguments to entitlement to the intermediate rate between 38 U.S.C. § 1114(l) and (m), see December 2018 Statement from the Representative, the Board has considered whether SMC at higher rates are warranted. See Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010); AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran is in receipt of a 100 percent rating for ischemic heart disease; a 70 percent rating for posttraumatic stress disorder (PTSD); 70 percent ratings for right and left hand diabetic neuropathy; a 40 percent rating for degenerative disease of the lumbar spine; a 40 percent for diabetes mellitus, type II; a 30 percent for cervical disc degeneration; a 30 percent rating for right eye blindness, optic neuropathy; 30 percent ratings for right and left foot diabetic neuropathy; a 20 percent rating for multiple facial fractures; 20 percent ratings for right and left leg sciatic radiculopathy; 10 percent ratings for left arm/elbow fracture, facial scarring, facial muscle weakness, loss of teeth, tinnitus, and traumatic brain injury (TBI); and noncompensable ratings for left ear hearing loss and posttraumatic headaches. The Board finds that the Veteran is entitled to SMC benefits payable at the 38 U.S.C. § 1114(r)(1) rate based on his entitlement to two awards of SMC benefits at the (l) rate for separate and distinct disabilities. See 38 U.S.C. §§ 1114(o),(r). In this regard, the evidence demonstrates that the Veteran’s service-connected neurological disabilities affecting his bilateral upper extremities cause him to be in need of regular aid and attendance, as defined in 38 C.F.R. § 3.352(a), to support the award of SMC benefits at the (l) rate. Specifically, in a November 2017 Aid and Attendance examination report, the examiner found that the Veteran was unable to prepare his own meals due to his service-connected bilateral upper extremity neurological disabilities. In addition, his hands “[could] not sense,” suggesting the need for care on a regular basis to protect him from the hazards incident to his daily environment. See C.F.R. § 3.352(a). His hands showed “minimal grip strength and very poor fine motor control,” which precluded him from “button[ing] or secur[ing] clothing... [and from] shav[ing].” The Veteran was also restricted to being “minimally able to attend to the needs of nature” due to the severe impairments from his service-connected bilateral upper extremity disabilities. Additionally, the record reflects that the Veteran’s service-connected disabilities exclusive of those of his upper extremities, including those of the bilateral lower extremities and PTSD, 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. In fact, the November 2017 Aid and Attendance examiner observed that the Veteran could not “take care of the basic activities of daily living” without the aid of his wife, for he required “cane or walker when not using electric wheelchair” to stand. Further, in a July 2018 private neuropsychological evaluation report, the examiner indicated that given the Veteran’s “severe anxiety, high startle response,” daily panic attacks, and “poor social interaction,” the Veteran was ‘housebound’ and could not effectively function independently without the aid and attendance of his wife. Thus, the Board finds that the Veteran is twice entitled to SMC-(l) awards, as his service-connected disabilities distinctly affect separate parts of his body and require care and assistance. As he 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 benefits at the (o) rate meets the threshold requirement for entitlement to the SMC (r)(1) rate. As noted, when a veteran is entitled to SMC (o) rate 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). Based on a review of the evidence, the Board finds that entitlement to SMC at the (r)(1) rate is warranted, based on a demonstrated factual need for a special level of aid and attendance based on his several service-connected disabilities noted above. The Board has also considered whether SMC benefits at the higher (r)(2) rate is warranted. Although the Veteran is cared for by his wife, the preponderance of the evidence is against a finding that he requires daily personal healthcare service provided at his 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, as is required to be eligible for SMC benefits at the (r)(2) rate. The evidence does not reflect that his care needs to be skilled. 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. SMC benefits under the (r)(1) rate, but no higher, based on the award of SMC benefits under the (o) rate and the need for regular aid and attendance, are granted. To the extent that the Veteran argues entitlement to the intermediate rate between 38 U.S.C. § 1114(l) and (m), see December 2018 Statement from the Representative, the Board has granted SMC (o) benefits, which is the maximum rate authorized, see 38 U.S.C. § 1114(p), as well as additional SMC benefits under 38 U.S.C. § 1114(r)(1), and that argument is now moot. Further, the record does not show that he has additional service-connected disabilities separate and distinct from those already considered in his current awards of SMC benefits 2. Entitlement to specially adapted housing is established. Pertinent Law and Regulations Specially adapted housing is available to a veteran who is entitled to compensation for permanent and total disability due to: (1) amyotrophic lateral sclerosis rated as 100 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8017; (2) blindness in both eyes, having only light perception, plus the anatomical loss or loss of use of one lower extremity; (3) full thickness or subdermal burns that have resulted in contractures with limitation of motion of two or more extremities or of at least one extremity and the trunk; or (4) the loss or loss of use of both upper extremities such as to preclude use of the arms at or above the elbows. Specially adapted housing is also available to a veteran with a permanent and total disability that precludes locomotion without the aids of braces, crutches, canes, or a wheelchair due to: (5) the loss, or loss of use, of both lower extremities; (6) the loss or loss of use of one lower extremity, together with residuals of organic disease or injury which affect the functions of balance and propulsion; or, (7) the loss or loss of use of one lower extremity together with the loss or loss of use of one upper extremity which affect the functions of balance or propulsion. 38 U.S.C. § 2101(a); 38 C.F.R. § 3.809(a), (b), (d). The term “preclude locomotion” is defined as the necessity for regular and constant use of a wheelchair, braces, crutches, or canes as a normal mode of locomotion although occasional locomotion by other methods may be possible. 38 C.F.R. § 3.809(d). The Court of Appeals for Veterans Claims found that a “loss of use” exists when there is “deprivation of the ability to avail oneself” of that extremity, and functional impairment caused by pain, weakness, or incoordination should be taken into account when making that determination. See Jensen v. Shulkin, 29 Vet. App. 66, 78-79 (2017). A total disability is considered to exist where there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a). A permanent total disability exists where such impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 3.340(b). Analysis The Veteran generally contends that he is eligible for a specially adapted housing grant due to his service-connected disabilities. As relevant, the Veteran is service connected for right foot and left foot diabetic neuropathy, evaluated as 30 percent disabling for each foot from November 12, 2017; and right leg and left leg sciatic radiculopathy, evaluating as 20 percent for each leg from November 12, 2017. As noted above, he has established service connection for several other disabilities, to result in a combined rating of 100 percent during the appeal period. He was also awarded a total disability rating based upon individual unemployability (TDIU) from September 29, 2006. Clinical evidence of record demonstrates that the Veteran’s bilateral lower extremity neurological symptoms were permanent in nature and will likely continue throughout his lifetime. See November 2017 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance. The Board finds that the Veteran has a permanent and total service-connected disability affecting his lower extremities. 38 C.F.R. § 3.340. Next, the Board finds that the competent evidence of record indicates that the Veteran’s service-connected bilateral lower extremity disabilities cause loss of use of both lower extremities, such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair. In this regard, in the November 2017 examination, the examiner evaluated that the Veteran had “severe neuropathy in all extremities” and assessed that his “[n]europathy . . . preclude[s] use of cooking [his own meals] and to “stand in shower or make effort to bathe [on his own],” indicating significant loss of use for the bilateral lower extremities due to the Veteran’s service-connected bilateral lower extremity disabilities. The examiner also observed that the Veteran “would not be able to take care of the basic activities of daily living” without the aid of his wife or devices like canes or a wheelchair, further demonstrating the loss of use in his bilateral lower extremities that is likely to be permanent and continue throughout his lifetime. Given this evidence, the Board finds that the Veteran does have service-connected bilateral foot diabetic neuropathy and bilateral leg sciatic radiculopathy, which collectively affect the functions of balance and propulsion, so as to effectively preclude independent locomotion and result in loss of use of both lower extremities. Therefore, the claim for eligibility for specially adapted housing is granted. 3. Entitlement to special home adaptation is dismissed. Where entitlement to a certificate of eligibility for specially adapted housing is not established, an applicant may nevertheless qualify for a special home adaptation grant. 38 U.S.C. § 2101(b); 38 C.F.R. § 3.809A. In this case, however, the Veteran is being granted a certificate of eligibility for specially adapted housing, which is a greater benefit. Therefore, any claim for a special home adaptation grant under 38 U.S.C. § 2101(b) is rendered moot, as this benefit is available only if a veteran is not entitled to the more substantial benefit of specially adapted housing under 38 U.S.C. § 2101(a). Thus, the appeal seeking a certificate of eligibility for a special home adaptation grant is dismissed as moot. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Kim, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.