Citation Nr: 20029263 Decision Date: 04/27/20 Archive Date: 04/27/20 DOCKET NO. 16-42 996 DATE: April 27, 2020 ORDER Special monthly compensation (SMC) based on the need for regular aid and attendance of another person is granted. FINDINGS OF FACT 1. The Veteran is service connected for posttraumatic stress disorder (PTSD) at 100 percent disabling. 2. The service-connected PTSD requires that the aid and assistance of another person on a regular basis. CONCLUSION OF LAW Giving the Veteran the benefit of the doubt, the criteria for SMC based on the need for aid and attendance have been met. 38 U.S.C. §§ 1114, 1502, 5107 (2012); 38 C.F.R. §§ 3.102, 3.350, 3.352 (2018) REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service from August 1973 to August 1976. The instant case is on appeal from a Department of Veterans Affairs (VA) Regional Office (RO) rating decision that denied a claim for SMC based on aid and attendance. The Veteran and his spouse testified via videoconference at a February 2020 Board of Veterans’ Appeals (Board) hearing. The transcript has been associated with the record. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326 (2018). The Board finds that the duties to notify and assist have been met. The Veteran raised concerns about the November 2013 VA examiner. As this decision is a full grant of the benefits sought on appeal, these contentions are moot. SMC Based on the Need for Regular Aid and Attendance Compensation at the aid and attendance rate is payable when a veteran, due to service-connected disability, is 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). Determinations as to the need for regular aid and attendance are factual and must be based upon the actual requirements for personal assistance from others. In making such determinations, consideration is given to such conditions as: the inability of the claimant 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 assistance; the inability of the claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; the 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 a claimant from hazards or dangers incident to one’s daily environment. 38 C.F.R. § 3.352. It is not required that all the disabling conditions enumerated be present before a favorable rating is made. The particular personal functions that the claimant is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the claimant be so helpless as to be in need of regular aid and attendance, not that there is a constant need. 38 C.F.R. § 3.352(a). In Turco v. Brown, 9 Vet. App. 222, 224 (1996), the U.S. Court of Appeals for Veterans Claims (Court) held that eligibility for special monthly compensation by reason of regular need for aid and attendance requires that at least one of the factors set forth in VA regulation is met. In addition, determinations that the claimant is so helpless as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant’s condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others. The Board finds that the evidence is at least in equipoise as to whether the standard for SMC based on a need for aid and attendance is met. In this case, the caregiver role is being handled by the Veteran’s wife. Some of the areas of need for assistance are due to non-service-connected health conditions that will be discussed but that are not part of the Board’s determination of entitlement to SMC. The evidence weighing against the claim includes impairments from non-service-connected disorders. The Veteran has difficulty with buttons and shaving due to non-service-connected arthritic conditions and dizziness. See October 2015 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance (October 2015 Form 21-2680). Regarding a frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without assistance, the Veteran has a lift in his shoe due to one leg being shorter than the other. See October 2015 Form 21-2680. There is a November 2013 VA examination that recommends against a finding of a need for aid and assistance because of a belief that the Veteran’s condition had improved. With regard to the November 2013 VA examiner’s opinion, the Veteran reported that the VA examiner hurried him through the questions that he was asked. See November 11, 2014 Notice of Disagreement. Additionally, the record shows that some of the symptomatology has changed for the worse since the November 2013 examination. One of the major points of the November 2013 examination was that the Veteran no longer displayed delusional paranoia. A July 2017 private biopsychosocial assessment noted paranoia among the symptoms and stated that the Veteran feels as though neighbors are out to hurt him. Overall, the examination is a data point, but it is not determinative. The evidence that weighs in support of the claim shows impairments related to the service-connected PTSD that require the aid of another person, in this case, the Veteran’s spouse. The main area of concern and the need for aid and attendance in this case is the mental incapacity, which requires care or assistance on a regular basis to protect the Veteran from hazards or dangers incident to the daily environment. In the October 2015 Form 21-2680, the primary care provider wrote that the Veteran could not prepare his own food. At the February 2020 Board hearing, the spouse testified that she has to do all the cooking because the Veteran will walk away and leave pans on the stove. The concern is about the Veteran’s ability to keep focus on what he’s doing, which is a struggle related to PTSD. The Veteran is also dependent on his spouse for medication management. The spouse testified that she has to prepare each day’s medication and lay it out for the Veteran to see because otherwise the Veteran will forget to take them or will take them incorrectly. See also October 2015 Form 21-2680 (stating that the spouse is responsible for medication). As of April 2016, the Veteran was taking 15 medications. See April 6, 2016 Endocrinology Note. The ability to handle this medication regimen also relates to the ability to concentrate and juggle multiple tasks, which are difficulties due to PTSD. The spouse testified that she had to take over all responsibility for driving because the Veteran was having road rages where he was driving tailgating cars and because the medication he was taking for the PTSD was causing drowsiness and sleepiness. This includes the spouse driving to and participating in all appointments. The spouse stated that she was responsible for all financial matters. See also October 2015 Form 21-2680 (stating that the financial issues cause the Veteran severe anxiety). The spouse is concerned because the Veteran has a history of giving away property, like clothing. The anxiety related to finances is part of the PTSD symptomatology. Giving the Veteran the benefit of the doubt, the Board finds that the service-connected PTSD causes sufficient impairment in functioning as to necessitate the aid and attendance of another person on a regular basis. The Veteran requires the aid and assistance of someone to protect him from hazards or dangers incident to the daily environment. The Veteran reported that without his spouse’s assistance, he believed he would need a full-time nursing home to manage all the aspects of life that she does to keep him safe. The picture conveyed by the doctor in the October 2015 Form 21-2680, conveyed by the spouse during the February 2020 hearing, and other evidence of record, shows that the criteria for SMC based on aid and assistance have been met. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Smith, 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.