Citation Nr: 20002466 Decision Date: 01/10/20 Archive Date: 01/10/20 DOCKET NO. 15-38 567 DATE: January 10, 2020 ORDER Special monthly compensation (SMC) based on aid and attendance is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, the evidence demonstrates that he has a factual need for regular aid and attendance. CONCLUSION OF LAW The criteria for SMC based on aid and attendance have been met. 38 U.S.C. §§ 1114(l); 38 C.F.R. §§ 3.350, 3.352(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1976 to May 1976 and from June 2006 to August 2007 in the U.S. Army, from August 1976 to September 1980 in the U.S. Marines, and from September 1981 to September 1983 and from February 1985 to January 1988 in the U.S. Navy. This matter comes before the Board of Veterans’ Appeals (Board) from a May 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Veteran was scheduled for a hearing before the Board in December 2018. However, he failed to report to this hearing and has not asked to reschedule. This matter was previously before the Board in January 2019, at which time the Board remanded the case for an aid and attendance examination and readjudication by the RO. This case has now been returned to the Board for further appellate action. The Veteran contends that he is eligible for SMC based on his claimed need for aid and attendance and/or housebound status. SMC is payable for regular aid and attendance when a veteran is helpless or so nearly helpless that he or she requires the regular aid and attendance of another person. 38 U.S.C. § 1114; 38 C.F.R. § 3.351(a), (b). To establish a need for regular aid and attendance a veteran must (1) be 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; (2) be a patient in a nursing home because of mental or physical incapacity; or (3) show a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). 38 C.F.R. § 3.351(c). The Veteran is service-connected for post-traumatic stress disorder (PTSD), bilateral pes planus, traumatic brain injury (TBI) with post concussive vertigo, chronic thoracolumbar spine condition, bilateral radiculopathy of lower extremities, chronic maxillary sinusitis, skin rash, bilateral hip piriformis muscle strain, right shoulder bicipital tendinitis, left foot Morton’s neuroma, post concussive vertigo associated with PTSD, tinnitus, bilateral foot hallux valgus, and bilateral hearing loss. The Veteran has a combined disability rating of 100 percent, effective October 29, 2015 and was granted a total rating based on individual unemployability from November 24, 2008 to October 29, 2015. There is no evidence in the claims file that the Veteran is blind or nearly blind, and he is not in a nursing home. The Veteran may establish aid and attendance through factual need. Factual need for aid and attendance is based on the following criteria: the inability of the veteran to dress or undress himself or herself, or to keep himself or 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 (this will not include the adjustment of appliances which normal person would be unable to adjust without aid, such as support, belts, lacing at the back, etc.); the inability of a veteran to feed himself or herself through the loss of coordination of upper extremities or through extreme weakness; the inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect a veteran from the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). The Board finds that there is enough evidence to establish a factual need for aid and attendance. The Veteran’s medical records show that he has been living with other people, including his sister in law and a caregiver, because he needs help with cooking, household chores, managing his medications, transportation, and remembering to do certain tasks. See August 2009 Medical Treatment Record; April 2013 VA Treatment Record; May 2013 VA Treatment Record. The evidence also shows that the Veteran often gets lost, has trouble handling money, and cannot drive. See October 2015 Buddy Statement; August 2009 Medical Treatment Record; December 2015 C&P Exam. The Veteran’s medical records show that he suffers from short-term memory loss, has trouble multitasking, and often loses his keys, forgets to shampoo, and burns food while cooking. See December 2015 VA Treatment Record. The Veteran also suffers from dizzy spells and loss of balance. See November 2015 C&P Exam. He attends therapy to help with his memory issues and PTSD. See August 2009 Medical Treatment Record; see also May 2014 CAPRI Records. The Veteran attended an Aid and Attendance and Housebound Examination in May 2019. The Veteran was assisted by his friend during the VA examination. The VA examiner opined that it is less likely than not that the Veteran’s service-connected disabilities render him so helpless as to require the regular aid and attendance of another person or results in the Veteran being confined to his house. The VA examiner stated that the Veteran is able to perform all activities of daily living (ADLs), his service-connected disabilities do not affect his ADLs, and his symptoms are not severe enough to necessitate an elevated level of care. The VA examiner noted that the Veteran’s PTSD symptoms include depressed mood, anxiety, sleep impairment, memory loss including forgetting names, directions, or recent events. The VA examiner noted that the Veteran’s TBI symptoms include the same symptoms as his PTSD. The record also consists of a February 2013 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance. The examiner stated that the Veteran is able to feed himself and manage his own finances, however, due to the Veteran’s PTSD and TBI, he is not able to prepare his own meals, needs assistance in bathing and tending to other hygiene needs, and requires medication management. The examiner stated that the Veteran loses focus and is a danger to himself and others with cooking, needs prompting to bathe, and the Veteran often does not remember to take his medications due to his short-term memory issues. Additionally, the examiner stated that the Veteran has difficulty following through with tasks and sometimes wanders and is at risk if he is alone. Based on the above, there is evidence both for and against a finding that the Veteran needs regular aid and attendance due to his service-connected disabilities. As such, the Board finds that the evidence is at least in equipoise and resolves all reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Therefore, the Board finds that an SMC at the “l” level due to the Veteran’s service-connected disabilities is warranted. See 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). As SMC based on aid and attendance is a greater benefit than SMC at the housebound rate, and there are no additional service-connected disabilities rated totally disabling that are separate and distinct from those forming the basis of the grant for SMC based on aid and attendance, the issue of entitlement to SMC at the housebound rate is moot. 38 U.S.C. § 1114(l), (s); 38 C.F.R. § 3.350(i). The Board has also considered whether the Veteran is entitled to SMC based on aid and attendance for residuals of TBI (SMC T), however the evidence is against finding entitlement to SMC T. The SMC provided by 38 U.S.C. § 1114(t) is payable to a veteran who, as the result of service-connected disability, is in need of regular aid and attendance for the residuals of traumatic brain injury, is not eligible for compensation under 38 U.S.C. § 1114(r)(2), and in the absence of such regular aid and attendance would require hospitalization, nursing home care, or other residential institutional care. Determination of this need is subject to the criteria of § 3.352. 38 C.F.R. § 3.350(j). Section 3.352(b)(2) provides that a veteran is entitled to the higher level aid and attendance allowance authorized by § 3.350(j) in lieu of the regular aid and attendance allowance when all of the following conditions are met: (i) As a result of service-connected residuals of traumatic brain injury, the veteran meets the requirements for entitlement to the regular aid and attendance allowance in paragraph (a) of this section; (ii) As a result of service-connected residuals of traumatic brain injury, the veteran needs a ‘higher level of care’ (as defined in paragraph (b)(3) of this section) than is required to establish entitlement to the regular aid and attendance allowance, and in the absence of the provision of such higher level of care the veteran would require hospitalization, nursing home care, or other residential institutional care. Section (b)(3) provides that 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. Personal health-care services include (but are not limited to) such services as physical therapy, administration of injections, placement of indwelling catheters, and the changing of sterile dressings, or like functions which require professional health-care training or the regular supervision of a trained health-care professional to perform. A licensed health-care professional includes (but is not limited to) a doctor of medicine or osteopathy, a registered nurse, a licensed practical nurse, or a physical therapist licensed to practice by a State or political subdivision thereof. Because qualifying for SMC T requires both a showing of aid and attendance under 38 C.F.R. § 3.352(a) and the need for higher level care under 38 C.F.R. § 3.352(b)(3), if either condition is not met, SMC T cannot be awarded. Here, the evidence does not support that the Veteran’s TBI results in the need for higher level care. The Veteran’s condition does not require that he be provided health-care services on a daily basis that are performed by a health-care professional or the supervision of a health-care professional. Based on the examples of the health-care services provided in 38 C.F.R. § 3.352(b)(2), these are not the type of services that the Veteran requires as a result of his TBI. Instead, the Veteran requires services that do not require a health-care professional or the supervision thereof. Food preparation, reminders to bathe, and reminders to take medication are services that can and, in practice, are being performed by people without health-care training. The provisions of 38 C.F.R. § 3.352(b) provide that it must be strictly construed, and that SMC T may only be granted when the Veteran’s need is clearly established. 38 C.F.R. § 3.352(b)(6). The weight of the evidence is against establishing that need. Therefore, entitlement to SMC T has not been established. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Kernen, 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.