Citation Nr: 20002867 Decision Date: 01/14/20 Archive Date: 01/13/20 DOCKET NO. 17-14 147 DATE: January 14, 2020 ORDER Special monthly compensation (SMC) based on the need for aid and attendance, is denied. REMANDED Service connection for lung cancer is remanded. FINDING OF FACT The Veteran was not so helpless as to be in need of regular aid and attendance, due to his service-connected posttraumatic stress disorder (PTSD). CONCLUSION OF LAW The criteria for SMC based on the need for aid and attendance have not been met. 38 U.S.C. §§ 1114 (l), 5107; 38 C.F.R. §§ 3.350 (b), 3.352(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1963 to October 1967. The Veteran passed away in January 2014. The Appellant is his surviving spouse. 1. SMC The Veteran seeks SMC based on the need for aid and attendance for his service-connected PTSD. Special monthly compensation provided by 38 U.S.C. § 1114 (l) is payable for being so helpless as to be in need of regular aid and attendance due to a service-connected disability. 38 C.F.R. § 3.350 (b). The following is accorded consideration in determining the need for regular aid and attendance: inability of claimant to dress or undress oneself, or to keep oneself ordinarily clean and presentable; inability to attend to the wants of nature; and 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. It is not required that all of these disabling conditions be found to exist before a favorable rating may be made. The particular personal functions which a Veteran is unable to perform should be considered in connection with his or 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. Determinations that a Veteran is so helpless as to be in need of regular aid and attendance are based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352 (a). Throughout the appeal period, the Veteran has been in receipt of a 100 percent schedular rating for PTSD. He has no other service-connected disabilities. The Veteran submitted a November 2007 examination report for the need for regular aid and attendance, completed by a VA physician. He noted that the Veteran was diagnosed with PTSD. The examiner did not answer questions related to the limitations experienced by the Veteran such as; upper extremity restrictions, lower body restrictions, restrictions of the spine, trunk and neck, or whether he was able to ambulate without help. Instead the examiner noted some of the PTSD symptoms which included; problems with sleep, frequent awakenings, mood swings, nightmares, hating crowds, feeling people were laughing at him, avoiding many social situations, repeatedly getting lost driving, getting anxious in heavy traffic or congested traffic, being hypervigilant while not driving, poor sleep, falling out of bed, occasional sleepwalking, and requiring supervision to take mental health medications. The examiner noted that there was an increased difficulty for the wife, as caregiver. The Veteran submitted an October 2009 examination report for the need for regular aid and attendance, completed by a VA physician. The examiner noted that the restrictions of his upper extremities were limited to fine movements, his lower extremities functioned normally, and that his C3 vertebra was recently fractured but was being treated conservatively by neurosurgery. The examiner also noted that the Veteran’s non-service-connected disability of dementia affected his ability to perform self-care, personal hygiene, and the ability to ambulate or travel. The Veteran was found to be able to walk without the assistance of another person for one block and that he was able to leave the home for doctor’s appointments. The examiner found that the Veteran required daily person health care services of a skilled provider, without which the Veteran would require hospital, nursing home, or other institutional care. The Veteran submitted a May 2013 examination report for the need for regular aid and attendance, completed by a VA physician. The examiner noted that the Veteran was able to feed himself, prepare his own meals (light meals only), he did not need assistance in bathing or tending to other hygiene needs, was not legally blind, did not require nursing home care, did not require medication management, and had the ability to manage his own financial affairs. The examiner also reported that the Veteran had some restrictions of the upper extremities, but was able to tend to basic needs independently, although needing rest periods due to fatigue. The Veteran was also found not to have any restrictions regarding his lower extremities or his spine, trunk, and neck. The Veteran was found to be restricted from strenuous physical activity, but ambulatory and able to carry out light work such as medication preparation and self-care. He was not restricted from leaving the home, but required rest periods due to the fatigue. In a May 2015 statement, the Veteran’s wife reported that his PTSD and dementia affected his thought process. She had to bathe him, make sure he received medications, and that he didn’t forget to eat. She had to operate the stove because of fear of burning himself, helped him to the restroom, and to get dressed and undressed. The Board finds that the evidence weighs against a finding that the Veteran is so helpless as to be in need of regular aid and attendance due to his service-connected disability. Here, the Veteran is only service-connected for PTSD and the evidence does not establish a need for aid and attendance based solely on this disability. The examination in October 2009, suggested a need for aid and attendance, however, it was not related to PTSD; the examiner noted that the Veteran’s dementia affected his ability to perform self-care, personal hygiene, and ambulation or travel. Similarly, the Veteran’s wife made a statement in May 2011 to a VA social worker that, his dementia had worsened, not his PTSD. The May 2013 examination report for the need for regular aid and attendance, which is the latest examination, found that he was able to tend to basic needs independently, but needed rest periods due to fatigue. The examiner did not report that the Veteran required daily personal health care services of a skilled provider as a result of his service connected disability. The Board would like to express that it is extremely sympathetic toward the Appellant’s claim and is deeply appreciative of the Veteran’s military service, including his service during the Vietnam War. Unfortunately, the provisions set forth by VA in SMC cases are rigid, in that the evidence must show that the Veteran is in need of regular aid and attendance due to a service-connected disability. Here, the weight of the evidence is against the finding that the Veteran’s service-connected PTSD warrants the need for SMC. Accordingly, the claim for SMC is denied. REASONS FOR REMAND Service connection for lung cancer is remanded. The Veteran asserted that he was exposed to Agent Orange during his service during the Vietnam War. The Veteran served in the Navy aboard the USS Midway and USS Bon Homme Richard. He was diagnosed with and died of small cell lung carcinoma. Lung cancer is listed among the conditions presumed to be service connected in Veterans that have been exposed to certain herbicide agents. 38 U.S.C. § 1116 (a)(1), (2), (f); 38 C.F.R. §§ 3.307 (a)(6)(iii), 3.309(e). A Joint Services Records Research Center (JSRRC) memorandum was provided in March 2015, stating that the Veteran served aboard the USS Midway, (although not acknowledging his service aboard the USS Bon Homme Richard), but finding that he had not provided information on how he was exposed to herbicides, or whether he went ashore to Vietnam. The memo failed to discuss whether the USS Midway was within 12-nautical miles off the coast of the Republic of Vietnam, as Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019), had not yet been issued. In Procopio, the Federal Circuit Court of Appeals found that the definition of the “Republic of Vietnam” included both its landmass and its 12 nautical mile territorial sea. Based on the Veteran’s military personnel record, he served on the USS Midway from approximately May 1964 until approximately November 1965 (Service personnel records are illegible from November 1965 until September 1966, when the Veteran is first noted to be on the U.S.S. Bon Homme Richard). Additionally, it was noted in the Veteran’s service personnel records that he was authorized to wear the Armed Forces Expeditionary Medal for service on board the U.S.S. Midway in the Vietnam area of operations during the following periods: April 8, 1965 to May 11, 1965, May 19, 1965 to June 28, 1965, July 23, 1965 to August 1965, September 12, 1965 to October 8, 1965 and from October 19, 1965 to November 4, 1965. However, it is unclear whether the U.S.S. Midway was actually in the territorial waters of Vietnam during this time. The Veteran also served on the USS Bon Homme Richard from approximately September 1966 (and perhaps several months earlier) until October 1967, per service personnel records which are illegible in parts. Accordingly, further development is needed to determine whether the USS Midway and/or USS Bon Homme Richard were within 12-nautical miles from the coast of the Republic of Vietnam during the dates the Veteran served aboard the respective ships. The matters are REMANDED for the following action: 1. Determine whether the USS Midway was within 12-nautical miles off the coast of the Republic of Vietnam from May 1964 until approximately November 1965, with particular focus on the time periods he was noted to be in the Vietnam area of operations during the following periods: April 8, 1965 to May 11, 1965, May 19, 1965 to June 28, 1965, July 23, 1965 to August 1965, September 12, 1965 to October 8, 1965 and from October 19, 1965 to November 4, 1965. 2. Determine whether the USS Bon Homme Richard was within 12-nautical miles off the coast of the Republic of Vietnam between September 1966 and October 1967 MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Fu, Associate 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.