Citation Nr: 19118790 Decision Date: 03/15/19 Archive Date: 03/14/19 DOCKET NO. 17-36 210A DATE: March 15, 2019 ORDER Entitlement to a higher rate of special monthly compensation (SMC) based on the need for aid and attendance as contemplated by 38 U.S.C. § 1114(r)(1), and no higher, is granted. FINDINGS OF FACT 1. Due to service-connected cardiomyopathy with coronary artery disease, status post myocardial infarction, the Veteran was so helpless as to be in the need of regular aid and attendance of another person. 2. Due to service-connected residuals of cerebrovascular accident, the Veteran was so helpless as to be in the need of regular aid and attendance of another person. 3. The Veteran did not require the services of a licensed or skilled home health care professional; he was not permanently housebound; and he was not in need of a higher level of care than that of regular aid and attendance due to service-connected disabilities. CONCLUSION OF LAW The criteria for an increased level of SMC based on the need for regular aid and attendance as contemplated by 38 U.S.C. § 1114(r)(1), and no higher, are met. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1967 to July 1970. The Veteran passed away in December 2015 and the appellant is his surviving spouse. In May 2017, the RO granted the appellant’s request for substitution in the Veteran’s appeal. The Board has considered the appellant’s claim and decided entitlement based on the evidence or record. The appellant has not raised any other issues, nor have any other issues been reasonably raised by the record, with respect to her claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Entitlement to a higher rate of special monthly compensation (SMC) as contemplated by 38 U.S.C. § 1114(o) and (r)(1) Special monthly compensation (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 the 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). Here, in an April 2013 rating decision, the RO granted the Veteran’s claim of entitlement to SMC based on the need for regular aid and attendance in accordance with 38 U.S.C. § 1114(l) based on the assignment of a 100 percent disability rating for cardiomyopathy with coronary artery disease status post myocardial infarction, effective April 9, 2002. That rating decision also awarded SMC in accordance with 38 U.S.C. § 1114 at the rate intermediate between subsection (l) and subsection (m) on account of cardiomyopathy with coronary artery disease with the additional disabilities of tinnitus and posttraumatic stress disorder, effective November 28, 2007. The appellant seeks a rate of SMC in excess of this amount. As set forth under 38 U.S.C. § 1114(m), SMC 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. SMC at the 38 U.S.C. § 1114(n) level is warranted if the Veteran, as the result of service-connected disability, has suffered the anatomical 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). SMC at the 38 U.S.C. § 1114(n) level 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. SMC at 38 U.S.C. § 1114(o) level is warranted if the Veteran has suffered disability under conditions which would entitle him to two or more of the rates (no condition being considered twice) provided in 38 U.S.C. § 1114(l) through (n). 38 U.S.C. § 1114(o); 38 C.F.R. § 3.350(e)(1)(ii). For combinations, determinations for entitlement under § 1114(o) 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)(3). If the loss of use of two extremities or being permanently bedridden leaves the person helpless, increase is not in order on account of this helplessness. Under no circumstances will the combination of “being permanently bedridden” and “being so helpless as to require regular aid and attendance” without separate and distinct anatomical loss, or loss of use, of two extremities be taken as entitling the Veteran to the maximum benefit. The fact, however, that two separate and distinct entitling disabilities, such as loss of use of both hands and both feet, result from a common etiological agent, for example, one injury or rheumatoid arthritis, will not preclude maximum entitlement. 38 C.F.R. § 3.350(e). Next, 38 U.S.C. § 1114(p) provides for “intermediate” SMC rates between the different subsections, with the maximum SMC not exceeding that prescribed at the 38 U.S.C. § 1114(o) rate. 38 U.S.C. § 1114(p); 38 C.F.R. § 3.350(f). Under 38 U.S.C. § 1114(r)(1), a Veteran receiving the maximum rate under 38 U.S.C. § 1114(o) or (p) 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 or she is not hospitalized at the United States Government’s expense. 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)(1). 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). Determinations as to need for aid and attendance must be based on actual requirement of personal assistance from others. In making such determinations, consideration is given to such conditions as: inability of claimant to dress or undress herself or to keep 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; inability of claimant to feed herself 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 or her daily environment. “Bedridden” will be a proper basis for the determination and is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. It is not required that all of the disabling conditions enumerated above 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/her condition as a whole. It is only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance, not that there be a constant need. 38 C.F.R. § 3.352. A Veteran is entitled to the higher level aid and attendance allowance authorized by 38 U.S.C. § 1114(r)(2) and 38 C.F.R. § 3.350(h) in lieu of the regular aid and attendance allowance when all of the following conditions are met: (i) the Veteran is entitled to the compensation authorized under 38 U.S.C. 1114(o), or the maximum rate of compensation authorized under 38 U.S.C. 1114(p); (ii) the Veteran meets the requirements for entitlement to the regular aid and attendance allowance § 3.352(a); (iii) the Veteran needs a “higher level of care” (as defined in § 3.352(b)(2)) than is required to establish entitlement to the regular aid and attendance allowance, and in the absence of the provision of such higher level of care the Veteran would require hospitalization, nursing home care, or other residential institutional care. 38 C.F.R. § 3.352(b)(1)(i-iii). 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. 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. 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. The performance of the necessary aid and attendance service by a relative of the beneficiary or other member of his or her household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352(b)(2-4), (c). The requirements for establishing the need for a higher level of care are to be strictly construed. The higher-level aid and attendance allowance is to be granted only when the Veteran’s need is clearly established and the amount of services required by the Veteran on a daily basis is substantial. 38 C.F.R. § 3.352(b)(5). A Veteran who has a service-connected disability rated as 100 percent disabling and (1) has an additional service-connected disability or disabilities independently rated at 60 percent or more, or (2) by reason of such service-connected disability or disabilities is permanently housebound, shall receive SMC under the provisions of 38 U.S.C. § 1114(s). 38 C.F.R. § 3.350(h)(3)(i). Service connection is in effect for 10 disabilities. These include: 1) cardiomyopathy with coronary artery disease, status post myocardial infarction, rated as 100 percent disabling; 2) posttraumatic stress disorder, rated as 70 percent disabling; 3) voiding dysfunction with urinary tract infections associated with residuals of cerebrovascular accident, rated as 60 percent disabling; 4) residuals of cerebrovascular accident, rated as 60 percent disabling; 5) left arm impairment associated with residuals of cerebrovascular accident, rated as 30 percent disabling; 6) left leg with ataxia associated with residuals of cerebrovascular accident, rated as 20 percent disabling; 7) tinnitus, rated as 10 percent disabling; 8) slurred speech associated with residuals of cerebrovascular accident, rated as 10 percent disabling; 9) right ear hearing loss, rated as noncompensable; and 10) erectile dysfunction associated with residuals of cerebrovascular accident, rated as noncompensable. The Veteran’s representative specifically argues for the award of SMC at the 38 U.S.C. § 1114(r)(1) rate. He contends that the service-connected residuals of a cerebrovascular accident support the award of SMC at the 38 U.S.C. § 1114(l) rate based on the factual need for regular aid and attendance, distinct from cardiomyopathy, which he asserts separately supports the award of the need for aid and attendance at the “l” rate. Such findings would entitle the Veteran to SMC at the 38 U.S.C. § 1114(o) rate. Further with the need for aid and attendance demonstrated, the Veteran would be entitled to increased SMC at the 38 U.S.C. § 1114(r)(1) rate. As noted above, the Veteran is already in receipt of SMC benefits at the (l) rate for cardiomyopathy with coronary artery disease, status post myocardial infarction, as awarded in the April 2013 rating decision. Accordingly, the Board’s analysis will focus on whether he also met the criteria for SMC benefits at the (l) rate based on being so helpless as to be in need of regular aid and attendance due solely to residuals of a cerebrovascular accident. Review of the claims file shows that the Veteran was awarded special monthly pension benefits in a July 1994 rating decision based on the need for regular aid and attendance due, in part, to his left-sided cerebrovascular accident. At that time, service connection was not in effect for the cerebrovascular accident. The special monthly pension benefits were terminated in June 2008 when service connection for posttraumatic stress disorder, tinnitus, and right ear hearing loss were granted and the disability compensation benefits were greater than the benefit received for the pension benefits. The July 1994 rating decision found that the Veteran was in need of aid and attendance due to his requirement for assistance with all activities of daily living due to his severe physical disabilities of cerebrovascular accident, left shoulder injury which required hospitalization and nursing home care, and history myocardial infarction in 1989. VA treatment records since 2013 reflect that the Veteran was wheelchair bound due to a cerebellar stroke which occurred 17 years before. The medical records confirm that the Veteran’s wife assisted him with his activities of daily living. An October 2014 record notes that the Veteran received help from his wife for most activities of daily living. He reported that he still drove and took care of finances, but that his wife gave him medications. In an April 2014 statement, the appellant reported that she regularly assisted the Veteran with bathing and dressing, preparing his meals, assisting him in eating, giving him daily medication, assisting him in getting into the car, traveling with him, keeping his daily calendar for appointments, washing his clothes, pushing his wheelchair, putting his wheelchair in the trunk, and assisting him in going to the bathroom. A February 2015 VA examination diagnosed cerebrovascular accident, and noted that the Veteran experienced left-sided weakness and was confined to a wheelchair and scooter due to frequent falls. The cerebrovascular accident caused weakness in the extremities, functional bowel impairment, voiding dysfunction, erectile dysfunction, slurred speech, ataxic gait, reduced strength in the extremities, and decreased reflexes in the left upper and lower extremities. The Veteran required constant use of a wheelchair or scooter. The examiner noted that the Veteran was unemployable due to his stroke and heart conditions. A July 2015 VA examination diagnosed residuals of a cerebrovascular accident. The examiner noted that the Veteran experienced weakness on the left side, intermittent pain in the lower extremities, and numbness in both lower extremities and the left upper extremities associated with a stroke in 1994. There was reduced strength and decreased sensation with abnormal gait. The examiner noted that the Veteran used a motorized scooter on a constant basis. The examiner reported that the Veteran’s peripheral nerve condition resulted in the Veteran not being able to walk or stand for a few minutes due to leg weakness. Here, the Veteran was entitled to entitlement to SMC at the 38 U.S.C. § 1114(l) rate for the service-connected cardiomyopathy. The Veteran’s attorney asserts that he was also entitled to a separate evaluation at this rate for service-connected connected residuals of a stroke, and thus the assignment of SMC at the 38 U.S.C. § 1114(o) rate. Based upon the foregoing VA treatment records, VA examinations, and lay evidence from the appellant, the Board concludes that, with consideration of the benefit of the doubt, the Veteran was separately entitled to SMC at the 38 U.S.C. § 1114(l) rate as the result of service-connected residuals of a stroke. The evidence demonstrates that the service-connected residuals of a stroke rendered the Veteran wheelchair bound on a constant basis and caused weakness in the extremities resulting in his inability to walk or stand for more than a few minutes. The appellant submitted lay evidence explaining that she was required to assist the Veteran with various activities of daily living due to his immobility, including bathing and dressing, preparing his meals, assisting him in eating, giving him daily medication, assisting him in getting into the car, traveling with him, keeping his daily calendar for appointments, washing his clothes, pushing his wheelchair, putting his wheelchair in the trunk, and assisting him in going to the bathroom. With consideration of the benefit of the doubt, the Board concludes that this evidence shows that the Veteran required regular aid and attendance due to his residuals of a stroke. Accordingly, he was entitled to SMC at the 38 U.S.C. § 1114(l) rate for his residuals of a stroke. Accordingly, as the Veteran suffered disability under conditions that would entitle him to two or more of the rates provided for in 38 U.S.C. § 1114(l)-(n), he was entitled to SMC at the 38 U.S.C. § 1114(o) rate. As noted, 38 U.S.C. § 1114(r)(1) provides for increased SMC if a Veteran is entitled to SMC at the 38 U.S.C. § 1114(o) rate and is in the need of regular aid and attendance. Here, the Veteran has been found entitled to SMC at the “o” rate, and also as having been in need of regular aid and attendance. Accordingly, entitlement to increased SMC at the 38 U.S.C. § 1114(r)(1) is granted. 38 U.S.C. § 1114(r)(2) provides for a higher level of SMC if, in addition to the need for regular aid and attendance, a Veteran needs a higher level of care. “Higher level of care” requires, inter alia, that there is a need for personal healthcare services on a daily basis, provided the person is licensed to provide such services or which provides the services under the supervision of a licensed-health care professional. Personal healthcare services include services such as physical therapy, administration of injections, placement of catheters, the changing of dressings, or “like functions which require professional healthcare training or the regular supervision of a trained healthcare professional to perform.” 38 C.F.R. § 3.352(b)(2). (Continued on the next page)   Here, there is no indication that personal healthcare services have been provided by a licensed professional, or under the supervision of a licensed professional, or that such services were clearly needed. The Board acknowledges the appellant’s significant contributions to the Veteran’s care, which were certainly considered in in the award of increased SMC granted at the 38 U.S.C. § 1114(r)(1) rate. However, she is not a licensed healthcare professional, and this care was not apparently given under the supervision of a licensed professional, as defined above. 38 C.F.R. § 3.352. The Board finds that the appellant is not entitled to a higher level of monthly aid and attendance under the provisions of 38 U.S.C. § 1114(r)(2). 38 C.F.R. § 3.350(h). ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Katz, Counsel