Citation Nr: 20005437 Decision Date: 01/24/20 Archive Date: 01/22/20 DOCKET NO. 13-01 857 DATE: January 24, 2020 ORDER Entitlement to special monthly compensation (SMC) based upon the need for aid and attendance, effective May 4, 2010, is granted. FINDING OF FACT The Veteran’s combined service-connected disabilities required the factual need for the aid and attendance of another person, effective May 4, 2010, the date of claim. CONCLUSION OF LAW From May 4, 2010, the criteria for SMC based on the need for aid and attendance are met. 38 U.S.C. §§ 1114(l), 5107 (2012); 38 C.F.R. §§ 3.102, 3.350, 3.352 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is the surviving spouse of the Veteran and has been accepted as the substitute in his appeal. The Veteran served on active duty from August 1955 to July 1978. He died in December 2013. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2010 rating decision by the Oakland, California, Regional Office (RO) of the Department of Veterans Affairs (VA). Rating actions in January 2016 and March 2016 established entitlement to special monthly compensation based upon the need for aid and attendance from May 17, 2013, to the date of the Veteran’s death in December 2013. In August 2017, the Board remanded this issue to the RO for additional development. There has been substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). Special Monthly Compensation Special Monthly Compensation (SMC) is warranted if, as a result of a service-connected disability, a veteran is permanently bedridden or so helpless as to be in need of regular aid and attendance of another person. 38 U.S.C. § 1114(l) 38 C.F.R. § 3.352(a). SMC is warranted if a veteran has a service-connected disability rated as total and has additional service-connected disabilities independently rated as 60 percent or more, or by reason of such service-connected disabilities is permanently housebound. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). A higher level of compensation is payable to eligible veterans who, by reason of service-connected disability, require the regular aid and attendance of another person. The need for aid and attendance means helplessness or being so nearly helpless as to require the regular assistance of another person. In order to establish entitlement to an increased compensation based on the need for regular aid and attendance, a veteran must have an anatomical loss or loss of use of both feet, one hand and one foot, blindness in both eyes of 5/200 or less or have a factual need for regular aid and attendance of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.351(b), (c). Determinations as to need for aid and assistance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to such conditions as: inability of the appellant to dress or undress himself or to keep himself 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 the appellant to feed himself 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 daily environment. 38 C.F.R. § 3.352(a). Performance of the necessary aid and attendance service by a relative of the beneficiary or other member of his household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352(c). VA must consider the enumerated factors under 38 C.F.R. § 3.352(a); that eligibility requires at least one of the enumerated factors to be present; and that, because the regulation provides that the “particular personal function” which a veteran is unable to perform should be considered in connection with his condition as a whole, the “particular personal function” must be one of the enumerated factors. Turco v. Brown, 9 Vet. App. 222 (1996). It is not required that all of the disabling conditions enumerated above (in 38 C.F.R. § 3.352(a) (2018)) be found to exist before a favorable rating may be made. 38 C.F.R. § 3.352(a) (2018) provides that “[i]t 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.” Entitlement to special monthly compensation based upon the need for aid and attendance prior to May 17, 2013 The Veteran submitted a VA Disability Benefits Questionnaire (DBQ) for Aid and Attendance in May 2010 which was accepted as a claim for SMC. Effective May 2010, the Veteran had the following service-connected disabilities: coronary artery disease (100 percent); diabetes mellitus (20 percent); scar (10 percent); and hypertension (10 percent). The Veteran was granted a 60 percent evaluation for renal insufficiency, effective November 2011. February 2010 private treatment records reflect that the Veteran was seen in the emergency room with swollen feet, shortness of breath and weight gain. The Veteran’s spouse reported that the Veteran needed moderate assistance with all activities of daily living and had been non-ambulatory for over a month, requiring maximum assistance with transfers. February 2010 private treatment records also reflect that the Veteran complained of shortness of breath with any exertion and was unable to ambulate. The Veteran’s spouse reported that the Veteran experienced fatigue and shortness of breath when trying to accomplish tasks such as getting dressed. March 2010 private treatment records reveal that the appellant was injured attempting to lift the Veteran. A May 2010 DBQ reported that the Veteran needed assistance with bathing and hygiene, as well as medication management, due to forgetfulness, explaining that the Veteran had mild cognitive decline of aging, and was forgetting daily self-care activities. A March 2011 DBQ for Aid and Attendance reported that the Veteran was unable to prepare his meals or manage his finances and needed assistance with grooming and medication management. The DBQ reported that the Veteran was wheelchair bound due to knee pain but was able to feed and dress himself. The appellant submitted correspondence in May 2011 stating that the Veteran had episodes of shortness of breath which prevented him from walking. She stated that his memory was very poor, and she helped manage his medications. The appellant reported helping the Veteran with bathroom facilities as he was incontinent. She also reported helping the Veteran bathe because of his poor balance. She cited several episodes in which the Veteran’s poor balance and easy fatigue caused him to fall. She noted that the Veteran was receiving some private home health care assistance. September 2011 VA treatment records reflect that the Veteran sought medical attention for his diabetes and resulting foot ulcer and Charcot deformity. The corresponding medical note reflects that the Veteran needed ulcer care and that his spouse was the fulltime caregiver. A December 2011 VA examination reflects that the Veteran’s hypertension and resulting congestive heart failure limited his exertional capacity due to dyspnea on exertion. December 2012 private treatment records reflect that the Veteran needed help with activities of daily living because of his dementia. In January 2013, the appellant reported that the Veteran was in need of constant care due to his dementia. A May 2013 DBQ for Aid and Attendance reflects that the Veteran had pressure ulcers to his buttocks, incontinence, was wheelchair bound and had an increased fall risk. Diagnoses listed were: dementia, TIA, weakness, and diabetes. A March 2016 Rating Decision awarded SMC based on aid and attendance from May 17, 2013, explaining that the May 2013 DBQ reflected a diagnosis of service-connected diabetes. The Veteran had been awarded service connection for diabetes, effective in 1978. The record reflects that the Veteran was in need of aid and attendance from the time he submitted his claim in May 2010. The May 2010 DBQ reflects that the Veteran needed assistance with bathing and hygiene, as well as medication management. This is reinforced in the Veteran’s medical records, which also reflect that the appellant acted as the Veteran’s caregiver during this timeframe. The determining factor in this case is whether the need of aid and attendance was primarily due to his nonservice-connected dementia, or his service-connected disabilities. The Board finds the February 2010 treatment records to be highly probative. At that time, the Veteran’s service-connected disabilities caused swollen feet and shortness of breath, inhibiting his mobility. The appellant was listed as the Veteran’s caretaker and had to be trained on transferring the Veteran, because the Veteran was unable to perform this on his own. The Veteran also experienced shortness of breath trying to dress himself. Shortly thereafter, the Veteran filed his claim for SMC. From that point forward, the Veteran’s medical records reflect that he had regular, severe mobility issues and dyspnea on exertion. There is medical evidence both for and against a finding that the Veteran’s service-connected disabilities required the need of aid and attendance of another person for activities of daily life. Accepting all the medical and lay evidence as having equal probative value, the Veteran is entitled to the benefit of the doubt. The Board acknowledges that the Veteran required aid and attendance because of his nonservice-connected dementia but finds that aid and attendance was also necessary because of the Veteran’s service-connected disabilities. Accordingly, the Board finds that the Veteran is in need of regular aid and attendance due to his service-connected coronary artery disease, renal insufficiency, diabetes mellitus, and hypertension, that result in difficulty with activities of daily living such as dressing, grooming, preparing meals, and medication management. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Fitzgerald, 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.