Citation Nr: 19153339 Decision Date: 07/16/19 Archive Date: 07/15/19 DOCKET NO. 17-27 442 DATE: July 16, 2019 ORDER Entitlement to SMC based on the need for aid and attendance is granted. FINDING OF FACT The Veteran’s service-connected disabilities have rendered him in need of aid and attendance of another person. CONCLUSION OF LAW The criteria for entitlement to SMC based on the need for aid and attendance have been met. 38 U.S.C. §§ 1114, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.350, 3.352, 4.3, 4.6 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a veteran (the Veteran) who had active duty service from February 1953 to August 1972. This appeal comes before the Board of Veterans’ Appeals (Board) from a March 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In October 2017, the Board remanded this issue for additional evidentiary development. The appeal has since been returned to the Board for further appellate action. The Board also denied service connection for a dental disability, and denied increased ratings for PTSD, heart disease, and hearing loss. The Board’s decision with respect to those claims is final. See 38 C.F.R. § 20.1100 (2018). The Board also remanded a claim of entitlement to service connection for Parkinson’s disease. On remand, that claim was granted in full, resolving the appeal as to that issue. Please note this appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2018). 38 U.S.C.A. § 7107(a)(2) (West 2014). SMC—Law and Regulations Special monthly compensation is payable at a specified rate if a VA claimant, as the result of service-connected disability, 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 visual acuity of 5/200 or less; 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). The criteria for determining that a VA claimant is so helpless as to be in need of “regular aid and attendance” are contained in 38 C.F.R. § 3.352(a). Those criteria include: (1) Inability of the claimant to dress or undress him or herself or to keep him or herself ordinarily clean and presentable; (2) Frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without assistance; (3) Inability of the claimant to feed him or herself through loss of coordination of upper extremities or through extreme weakness; (4) Inability to attend to the wants of nature; or (5) Incapacity, either physical or mental, that requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352(a) Being “bedridden” will also be a proper basis for finding that a VA claimant is in need of regular aid and attendance. The term “bedridden” means a condition which, through its essential character, actually requires that the claimant remain in bed. However, the fact that someone has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure is not sufficient. If the veteran has a service-connected disability rated as total, and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or, (2) by reason of such veteran’s service-connected disability or disabilities, is permanently housebound, then the veteran will be compensated in accordance with the housebound provisions. The requirement of “permanently housebound” will be considered to have been met when the veteran is substantially confined to such veteran’s house (ward or clinical areas, if institutionalized) or immediate premises due to a service-connected disability or disabilities which it is reasonably certain will remain throughout such veteran’s lifetime. 38 U.S.C. § 38 U.S.C. § 1114(s). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2014). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2018). A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert at 54. Entitlement to SMC due to the need of aid and attendance. The current appeal arises from a claim received at VA on August 15, 2015. An intent to file was apparently received on August 13, 2015, although this is not of record. In October 2017, the Board remanded this claim and a claim of entitlement to service connection for Parkinson’s disease, as the record at that time was unclear whether the Veteran actually had Parkinson’s. In June 2018, service connection was granted for Parkinson’s and associated residuals. However, the RO continued the denial of SMC. Service connection is currently in effect for posttraumatic stress disorder (PTSD), rated at 70 percent; bilateral hearing loss, rated at 40 percent; tinnitus, rated at 10 percent; Parkinson’s disease, rated at 40 percent; left upper extremity tremors, rated at 30 percent; left lower extremity tremors, rated at 10 percent, right lower extremity tremors, rated at 10 percent; coronary artery disease, rated at 30 percent; and bradykinesia (stooped posture and balance impairment), rated at 30 percent. The combined rating is 100 percent since August 13, 2015. A TDIU is also assigned since August 13, 2015. In denying SMC in the July 2018 Supplemental Statement of the Case (Record 07/11/2018), the RO only discussed statutory housebound benefits, i.e., the fact that the TDIU rating and the 100 percent schedular rating were based on multiple disabilities, and that no single disability could support either rating. See Bradley v. Peake, 22 Vet. App. 280 (2008). The post-remand decision in the Supplemental Statement of the Case does not even discuss whether the Veteran is actually in need of aid and attendance under the regulations. A December 2015 VA Aid and Attendance Examination reveals that the Veteran required help feeding himself and was not able to prepare his own meals. He did not need help bathing; however, it was noted that he baths using the sink. He needed help with medication management and did not have the ability to manage his own finances. He had his clothes set out for him and had trouble buttoning clothes due to weak hand grip. He could not walk far due to shortness of breath. He would get tired easily and had to lay down. He could only leave the home for physician visits. Ambulatory aids were required (Record 02/16/2016). The March 20, 2018, VA Parkinson’s Disease Examination requested by the Board includes a diagnosis of Parkinson’s. The examiner noted symptoms of a stooped posture, balance impairment and bradykinesia (slowed motion). All extremities were affected. There was muscle rigidity and stiffness in the upper extremities. Handling tools and writing were moderately to severely affected by hand tremors due to Parkinson’s disease (Record 03/20/2018). A May 2019 letter from the Veteran’s daughter notes that the Veteran fell in 2014 and was unable to get up until someone found him. He moved in with his daughter at that time. His limitations have worsened since then. At that time, he could drive, cook, and clean up after himself. Since then, he has become less active and more forgetful. By 2016, he began forgetting to take his medications or taking too much. His daughter assumed control over dispensing medications 6 or 8 months prior to the letter. The Veteran’s physical condition has dwindled due to his Parkinson’s disease. Over the course of the prior year -and-a-half, he had needed assistance in getting dressed, doing laundry, making his bed, picking things up off the floor, cooking, and driving. He required support to shower and get up from the toilet. He had been falling at least 3 times per week due to impaired balance. The Veteran’s daughter left her job in November 2017 to care for him. Her family makes sure that someone is always home with the Veteran. The Veteran’s daughter must manage the Veteran’s finances now (Record 05/31/2019). After a review of all of the evidence, the Board finds that the criteria for SMC based on the need for aid and attendance have been met. The combined effects of the Veteran’s Parkinson’s disease and associated symptoms have clearly affected his ability to physically care for himself without assistance. It is apparent that he has needed assistance with dressing and undressing at least since the 2015 examination and this would appear to meet the criterion of inability of the claimant to dress or undress himself. Moreover, the impact of the Veteran’s memory loss has also rendered him in need of assistance with properly taking his medications. In combination, these issues would appear to meet the criterion of incapacity, either physical or mental, that requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. It is unclear whether the Veteran was actually in need of aid and attendance for the entire period on appeal. Parkinson’s is a progressive condition and the Veteran’s impairment has apparently worsened over the period on appeal, as reflected by the statement by the Veteran’s daughter. While there is some uncertainty regarding the effective date for SMC, there is no staged rating regarding the pertinent disabilities. The RO has found that the Veteran’s Parkinson’s and associated symptoms have been 80 percent disabling (combined ratings) since August 13, 2015, that his PTSD has been 70 percent disabling since August 13, 2015, and that he has been 100 percent disabled due to the combined service-connected disabilities since that August 13, 2015. As this is a favorable finding, the Board will find in accordance with it. Therefore, the Board finds that SMC is warranted for the entire period on appeal. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Cramp