Citation Nr: 19146045 Decision Date: 06/12/19 Archive Date: 06/12/19 DOCKET NO. 18-45 558 DATE: June 12, 2019 ISSUE Entitlement to a higher level of special monthly compensation (SMC). ORDER SMC-L based on the need for aid and attendance is granted, subject to laws and regulations applicable to payment of VA monetary benefits. SMC-M based prevention of natural knee action with prostheses is granted, subject to laws and regulations applicable to payment of VA monetary benefits. SMC-N based additional disabilities rated 50 percent or greater is granted, subject to laws and regulations applicable to payment of VA monetary benefits. SMC-O based on the award of two distinct SMC-L awards is granted, subject to laws and regulations applicable to payment of VA monetary benefits. Entitlement to SMC-R(1) based on the award of SMC-O and the need for aid and attendance is granted, subject to the laws and regulations applicable to payment of VA monetary benefits. Entitlement to SMC-R(2) based on the award of SMC-O and the need for aid and attendance is denied. FINDINGS OF FACT 1. The Veteran is service connected for the following: bilateral lower extremity below the knee amputation, rated as 100 percent disabling; diabetes mellitus, rated as 60 percent disabling; posttraumatic stress disorder (PTSD), rated as 50 percent disabling; right and left upper extremity tremor with muscle rigidity and stiffness (Parkinson’s disease), rated as 40 percent disabling each; ischemic heart disease, rated as 30 percent disabling; bilateral mild nuclear cataracts, rated as 30 percent disabling; right and left lower muscle rigidity and stiffness, rated as 20 percent each; speech changes due to Parkinson’s disease, rated as 10 percent disabling; balance impairment due to Parkinson’s disease, rated as 10 percent disabling; stooped posture due to Parkinson’s disease, rated as 10 percent disabling; residuals of right fifth distal metacarpal; erectile dysfunction; partial loss of sense of smell; loss of automatic movements; difficulty chewing and swallowing and constipation, due to Parkinson’s disease, all rated as noncompensable. His combined rating is 100 percent since September 23, 2014. His residuals of Parkinson’s disease combine to a 90 percent rating. 2. Due to the Veteran’s erectile dysfunction, he has suffered loss of use of a creative organ. He is already in receipt of SMC-K for anatomical loss of a creative organ. 3. Due to the Veteran’s bilateral below the knee amputation, he has suffered the loss of use of both feet. The Veteran is already in receipt of SMC-L for anatomical loss of both feet. 4. Resolving all doubt in his favor, due to his service-connected residuals of Parkinson’s disease, the Veteran requires care or assistance on a regular basis in order to keep himself clean and presentable and protect him from the hazards or dangers inherent in his daily environment; however, there is no competent evidence that he is 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 suffered disability under conditions which would entitle him to two SMC-L awards, without consideration of any condition twice. 6. The Veteran’s below the knee bilateral knee amputation is not improvable by prosthesis controlled by natural knee action. 7. The Veteran’s posttraumatic stress disorder (PTSD) and diabetes mellitus disabilities are each rated at 50 percent or higher. 8. The Veteran is entitled to maximum compensation authorized under subsections 38 U.S.C § 1114 (o) and (p). CONCLUSIONS OF LAW 1. The criteria for an award of SMC-L based on the need for regular aid and attendance have been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352(a). 2. The criteria for an award of SMC-M based on complications preventing natural knee action with prostheses have been met. 38 U.S.C. §§ 1114(m), 5107; 38 C.F.R. §§ 3.102, 3.350. 3. The criteria for an award of SMC-N based additional disabilities rated 50 percent or greater have been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350. 3.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). 4. The criteria for an award of SMC-R(1) based on the award of SMC-O and the need for aid and attendance have been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352(a). 5. The criteria for an award of SMC-R(2) based on the award of SMC-O and the need for aid and attendance have not been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1969 to August 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This matter involves an extensive analysis of compensation benefits derived from various levels of special monthly compensation under 38 U.S.C. § 1114. The Board has provided an overview of the relevant adjudications of the Veteran’s claim. In a December 2017 Board decision, the Board granted the Veteran’s claim for entitlement to service connection for bilateral lower extremity below the knee amputation. In a February 2018 rating decision, the RO implemented the grant of bilateral lower extremity below the knee amputation and assigned a 100 percent rating, effective September 23, 2014. The RO also: (1) granted entitlement to special monthly compensation based on anatomical loss of lower extremities due to below the knee amputations; (2) established special adaptive housing entitlement; and (3) established automobile or other conveyance and adaptive equipment entitlement. The RO explained that SMC was warranted under 38 U.S.C. § 1114 subsection (p) at the rate intermediate between subsection (l) and subsection (m) due to entitlement to the rate equal to subsection (l) with additional disabilities, Parkinson’s disease, heart disease and diabetes independently rated at 50 percent or more, from September 23, 2014. On the Veteran’s February 2018 rating code sheet, it indicated that he was in receipt of SMC K-1 and P-1. The Veteran filed a Notice of Disagreement with the SMC rating, claiming entitlement to a higher level of SMC. The RO issued another rating code sheet in December 2018 which indicated that the Veteran was in receipt of SMC K-1, L-1 and P-1. (The Veteran’s representative disputes whether the Veteran is in fact receiving benefits for SMC P-1 as the monetary amount he receives is not equivalent to the P-1 level of benefits. See December 2018 correspondence) 1. Entitlement to a higher level of SMC The Veteran contends that he is entitled to a higher level of special monthly compensation due to amputation of his bilateral knees; his need for aid and attendance and due to the symptoms of his Parkinson’s disease. See May 2018 supplemental Notice of Disagreement; September 2018 VA Form 9. For the reasons explained below, the Board finds that Veteran is entitled to a higher level of SMC of SMC R(1) based on meeting the requirements of multiple lower SMC levels. Special monthly compensation is an additional level of compensation to Veterans (above the basic levels of compensation payable based on disability ratings of 0 to 100 percent) for various types of anatomical losses or levels of impairment due solely to service-connected disabilities. See U.S.C. § 1114 (k-s). SMC(k) (loss/loss of use) applies where there is loss of, or loss of use of, one foot, one hand, both buttocks, or one or more creative organs. It also applies where there is blindness of one eye, deafness of both ears, complete organic aphonia, a loss of 25 percent or more of the tissue from a single breast or both breasts in combination, or when breast tissue has been subjected to radiation treatment. SMC(k) is stackable,” meaning that a veteran may be eligible for more than one SMC(k) if she meets the criteria for that condition. In Tucker v. West, 11 Vet. App. 369 (1998), the Court held that the relevant inquiry concerning loss of use is whether the clamant has effective functioning remaining other than that which would be equally well served by an amputation with use of a suitable prosthetic appliance. The Veteran’s reports of pain and functional loss must also be considered. SMC(l) (aid and attendance) is payable when, as a result of a service-connected disability, the Veteran has suffered the anatomical loss or loss of use of both feet, or of one hand and one foot, or is blind in both eyes, with 5/200 visual acuity, or is so helpless (due to physical or mental incapacity), that he requires the aid of another person to perform the personal functions required in everyday living. 38 U.S.C.A. § 1114 (l); 38 C.F.R. §§ 3.350 (b), 3.351(b), 3.352(a). A Veteran will meet the criteria for payment at the aid and attendance rate if any of the following factors are met: (i) he has anatomical loss or loss of use of both feet, or one hand and one foot (38 U.S.C. § 1114 (l)); (ii) he is blind or so nearly blind as to have corrected visual acuity of 5/200 or less in both eyes, or concentric contraction of the visual field to 5 degrees or less (38 C.F.R. § 3.351 (c)(1)); (iii) he is a patient in a nursing home because of mental or physical incapacity (38 C.F.R. § 3.351 (c)(2)); (iv) he is permanently bedridden or with such significant disabilities as to be in need of regular aid and attendance (38 C.F.R. §§ 3.350 (b), 3.352(a)); or (v) there is a factual need (38 C.F.R. § 3.351 (c)(3)). The following factors are considered in determining the need for regular aid and attendance: inability of a 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 a 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, either physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to her daily environment. 38 C.F.R. § 3.352 (a). The above are only factors for consideration, and it is left to the Board to determine whether a veteran is factually in need of regular aid and attendance. The particular personal functions that a veteran is unable to perform are also considered in connection with their condition as a whole. 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, however the need must be caused solely by service-connected disabilities. Further, there is no schedular threshold for the award of SMC(l) when granted on the basis of a need for regular aid and attendance. SMC(m)(n) and (o) pertain to disability combinations. SMC(p) provides for “intermediate” special monthly compensation 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. SMC(q) pertains to noncompensable tuberculosis. SMC(r)(1) (special aid and attendance) applies where the Veteran is entitled to compensation authorized under SMC(o), at the maximum rate authorized under SMC (p), or at the intermediate rate authorized under subsections (n) and (o) and at the rate authorized under subsection (k) and is in need of regular aid and attendance. SMC(r)(2) (higher special aid and attendance) applies when, as a result of a service-connected disability, a Veteran otherwise entitled to SMC at the (l) rate needs in-home personal health-care services provided by either 1) a person who is licensed to provide such services, or 2) a person who provides such services under the regular supervision of a licensed health-care professional. SMC(t) applies where there is a traumatic brain injury (TBI). A Veteran may be entitled to multiple SMC ratings provided that: 1) additional (separate and distinct) loss is established, and 2) the combination of disabilities for which the Veteran is entitled to SMC would not entitle the Veteran to a single rating under SMC(l) – (p) in lieu of multiple SMC ratings. 38 C.F.R. §§ 3.350(e)(3); 3.350 (b)-(f). The Veteran is service connected for the following: bilateral lower extremity below the knee amputation, rated as 100 percent disabling; diabetes mellitus, rated as 60 percent disabling; posttraumatic stress disorder (PTSD), rated as 50 percent disabling; right and left upper extremity tremor with muscle rigidity and stiffness (Parkinson’s disease), rated as 40 percent disabling each; ischemic heart disease, rated as 30 percent disabling; bilateral mild nuclear cataracts, rated as 30 percent disabling; right and left lower muscle rigidity and stiffness, rated as 20 percent each; speech changes due to Parkinson’s disease, rated as 10 percent disabling; balance impairment due to Parkinson’s disease, rated as 10 percent disabling; stooped posture due to Parkinson’s disease, rated as 10 percent disabling; residuals of right fifth distal metacarpal; erectile dysfunction; partial loss of sense of smell; loss of automatic movements; difficulty chewing and swallowing and constipation, due to Parkinson’s disease, all rated as noncompensable. His combined rating is 100 percent since September 23, 2014. His disabilities, which are residuals of his Parkinson’s disease, combine to a 90 percent rating. First, the Board finds that the Veteran is already appropriately receiving SMC (k) based on his service-connected erectile dysfunction (loss of use of a creative organ). Second, he is also appropriately receiving SMC (l) based on anatomical loss of both feet based on his service-connected bilateral below the knee amputation. Third, there is evidence that he is also entitled to aid and attendance due to service-connected disabilities other than his bilateral knee amputation (residuals of Parkinson’s disease) under SMC (l). In that regard, there is evidence that the Veteran wife has to help him with everyday hygienic tasks; help transferring to and from his wheelchair and keeping him safe. The Veteran is entitled to aid and attendance due to his residuals of Parkinson’s disease as his upper body extremities are significantly affected by the Parkinson’s disease and preclude him from completing everyday activities that require the use of the hands. i.e. buttoning his shirt, brushing his teeth, bathing, cooking, and eating. The Veteran’s need for aid and attendance is based on a disability different from his basis for the award of SMC (l) for anatomical loss of both feet, therefore, he is entitled to SMC (l) for aid and attendance as well. Because payment, however, may not be authorized for two SMC awards at the (l) rate, he is instead entitled to only a single payment at the SMC(o) rate. 38 U.S.C. § 1114(o); 38 C.F.R. § 3.350(e)(1)(ii); Breniser v. Shinseki, 25 Vet. App. 64, 75 (2011). Fourth, there is evidence that the Veteran’s amputation of both legs prevents natural knee action with prostheses in place, which entitles him to SMC (m). The Veteran was afforded a VA examination in April 2012 – shortly after his 2011 amputation – and the examiner noted that the Veteran’s amputation does not allow the use of suitable prosthetic appliance and was not improvable by prosthesis controlled by natural knee action. The Board also finds that the Veteran is entitled a full step increase because he has additional disabilities rated at 50 percent or more. 38 C.F.R. § 3.350(f)(3)( when entitlement exists under the SMC rate of (l), (l1⁄2), (m), (m1⁄2), (n), or (n1⁄2), additional independent permanent disability or disabilities rated 50 percent or more service connected will entitle the veteran to a “1⁄2 step” increase (e.g., from (n) to (n1⁄2)), but in no event higher than the (o) rate.) In that regard, the Veteran’s residuals from Parkinson’s disease combines to a 90 percent rating; his diabetes mellitus is rated at 60 percent and his posttraumatic stress disorder (PTSD) is rated at 50 percent. See 38 U.S.C. § 1114(p). The Veteran’s residuals of Parkinson’s disease have been considered for entitlement to SMC (l) aid and attendance and therefore do not count as an extra step under SMC (p); however, the Veteran is entitled to a full step increase from SMC (m) to SMC (n) because he has 2 disabilities rated at 50 percent or more that have not already been considered. Based on the foregoing explanations of the Veteran’s entitlement to various levels of SMC, the Board finds that he is also entitled to SMC (r)(1) based on evidence that he is entitled to compensation authorized under subsection (o), at the maximum rate authorized under subsection (p), or at an intermediate rate authorized under subsections (n) and (o) and at the rate authorized under subsection (k), and is in need of regular aid and attendance. However, the criteria for a higher SMC award have not been met. In this regard, 38 U.S.C.A. § 1114 (r)(2) provides that if a veteran in need of aid and attendance is in need of a higher level of care such that in the absence of said care he would require hospitalization, nursing home care, or other residential institutional care, a higher level of compensation in the amount $2,983.00 should be awarded. The 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. The existence of the need for such care shall be determined by a physician employed by VA. Here, a VA physician has not determined that such higher level of care is necessary. Therefore, the Board finds that SMC (r)(1) is the maximum benefit available in this instance. Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Baskerville 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.