Citation Nr: 19125607 Decision Date: 04/04/19 Archive Date: 04/04/19 DOCKET NO. 15-34 644 DATE: April 4, 2019 ORDER Special monthly compensation (SMC) payable at the higher 38 U.S.C. § 1114(r)(1) rate is granted, effective December 5, 2016. FINDINGS OF FACT 1. The Veteran has been in receipt of a 100 percent rating for seizure disorder, status post herpes encephalitis, since November 17, 1982. The evidence of record demonstrates that the Veteran’s seizure disorder, on its own, creates the need for aid and attendance. 2. The Veteran has been in receipt of a 100 percent rating for dysthymia with mood disorder since December 5, 2016. The evidence of record demonstrates that the Veteran’s dysthymia with mood disorder, on its own, creates the need for aid and attendance. 3. Effective December 5, 2016, the combination of the Veteran’s seizure disorder and dysthymia with mood disorder causes the need for aid and attendance. CONCLUSION OF LAW The criteria for SMC at the level payable at 38 U.S.C. § 1114(r)(1) are met, effective December 5, 2016. 38 U.S.C. §§ 1114(r)(1), 5103A; 38 C.F.R. §§ 3.102, 3.159, 3.350(b), 3.350(e), 3.350(h), 3.352(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1978 to November 1982. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California which denied SMC in excess of the level payable at 38 U.S.C. § 1114(l). Thereafter, in a November 2017 rating decision, the RO granted service connection for dysthymia with mood disorder and assigned an initial rating of 100 percent, effective December 5, 2016. In October 2018, the Veteran; her sister, conservator, and VA fiduciary S.N.; her brother-in-law R.N.; and her caregiver S.L. testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Higher Level of SMC Pursuant to the most recent rating decision codesheet from November 2017, the Veteran is currently in receipt of SMC at the rate pursuant to 38 U.S.C. § 1114(l) and 38 C.F.R. § 3.350(b) on account of being so helpless as to be in need of regular aid and attendance. The codesheet indicates that this level of SMC has been in effect since June 20, 1994. Throughout the course of the appeal, S.N.—the Veteran’s sister, VA fiduciary, and court-appointed conservator—has contended that the Veteran is entitled to a higher rate of SMC—including rates payable pursuant to 38 U.S.C. §§ 1114(o), (r)(1), and (t). In the instant case, after reviewing the evidence of record, the Board finds that the Veteran is entitled to SMC payable at the 38 U.S.C. § 1114(r)(1) rate, effective December 5, 2016. Accordingly, to this extent, the Veteran’s appeal is granted. In support of this determination, the Board first notes that SMC is available when, as the result of service-connected disability, a veteran suffers additional hardships above and beyond those contemplated by VA’s schedule for rating disabilities. See 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350 and 3.352. The rate of SMC varies according to the nature of a veteran’s service-connected disabilities. Relevant to this case, 38 C.F.R. § 3.350(e) provides that SMC at the 38 U.S.C. § 1114(o) rate is payable when a veteran has service-connected conditions entitling him or her to 2 or more of the rates provided in 38 U.S.C. §§ 1114(l) through (n), provided that no condition is considered twice. Under 38 C.F.R. § 3.350(b), SMC provided by 38 U.S.C. § 1114(l) is payable when a veteran is permanently bedridden or so helpless as to be in need of regular aid and attendance, with “permanently bedridden” and “need for aid and attendance” defined by 38 C.F.R. § 3.352(a). Here, the evidence demonstrates that the Veteran’s 100-percent-rated seizure disorder and dysthymia with mood disorder both, in isolation, cause her to be in need of regular aid and attendance, as defined in 38 C.F.R. § 3.352(a). Specifically, in November 2017, a VA seizure disorders examiner indicated that the Veteran still had frequent seizures. Additionally, the examiner stated that the Veteran required continuous medication for seizure control. Lastly, the examiner reported that the Veteran needed supervision in all of her activities of daily living, could not be left alone, and needed supervision in the bathroom. Separate from the November 2017 VA examination, a December 2015 disability benefits questionnaire (DBQ) completed by Dr. Baca indicated that the Veteran required other persons to manage her medication. With this evidence in mind, the Board concludes that the Veteran’s service-connected seizure disorder itself rendered the Veteran in need of regular aid and attendance. See 38 C.F.R. § 3.350(b). Moving to the Veteran’s service-connected dysthymic disorder, the evidence indicates that it too, in isolation, renders the Veteran in need of regular aid and attendance. Specifically, the November 2017 VA examiner stated that the Veteran’s seizures had caused cognitive decline as the Veteran would often get lost. Additionally, in March 2016 correspondence, Dr. Baca indicated that the Veteran had severe short-term memory impairment and cognitive dysfunction, rendering the Veteran unable to care for herself and, if left alone, unsafe. Dr. Baca opined that the Veteran would need hospitalization, nursing home care, or other residential institutional care in the absence of regular in-home aid and attendance. Lastly, Dr. Baca stated that the Veteran was one of her most severely-disabled patients. Thus, when considering that the Veteran has 2 service-connected disabilities that each require the need for regular aid and attendance, 38 C.F.R. § 3.350(e) requires that SMC be provided at the level authorized by 38 U.S.C. § 1114(o). However, that is not the end of the inquiry. The Board also finds 38 C.F.R. § 3.350(h) to applicable as the Veteran’s seizure disorder and dysthymia with mood disorder also, in combination, create the need for regular aid and attendance. When such criteria are satisfied, 38 C.F.R. § 3.350(h) provides that SMC is payable at the level authorized by 38 U.S.C. § 1114(r)(1). In this case, the Board concludes that the Veteran is entitled to SMC payable at the level authorized by 38 U.S.C. § 1114(r)(1) rate, effective December 5, 2016. The Board notes that it assigns December 5, 2016 as the effective date as this was the date the RO assigned for the award of service connection for dysthymia with mood disorder. Without the grant of service connection for dysthymia with mood disorder, SMC payable at a rate greater than that authorized by 38 U.S.C. § 1114(l) would not be permitted. Related to this determination, is S.N.’s contention, noted previously, that the Veteran is entitled to SMC at the rate authorized by 38 U.S.C. § 1114(t). 38 C.F.R. § 3.350(j) states that [SMC] provided by 38 U.S.C. § 1114(t) is payable to a veteran who, as the result of service-connected disability, is in need of regular aid and attendance for the residuals of traumatic brain injury, is not eligible for compensation under 38 U.S.C. § 1114(r)(2), and in the absence of such regular aid and attendance would require hospitalization, nursing home care, or other residential institutional care. However, 38 C.F.R. § 3.350(j) is inapplicable in the instant case as the Veteran is not service-connected for the residuals of a traumatic brain injury (TBI). A TBI is defined as a “physical injury to brain tissue that temporarily or permanently impairs brain function.” James E. Wilberger & Gordon Mao, Traumatic Brain Injury (TBI), Merck Manual, Nov. 2017, available at https://www.merckmanuals.com/professional/injuries-poisoning/traumatic-brain-injury-tbi/traumatic-brain-injury-tbi. Although the Veteran’s seizure disorder was a result of herpes encephalitis impacting the brain, it was not the product of a physical injury to brain tissue such that it may be categorized as a TBI. As such, entitlement to SMC payable at the rate authorized by 38 U.S.C. § 1114(t) is not warranted. (Signature on Next Page) S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N.S. Pettine, Associate Counsel