Citation Nr: 20019133 Decision Date: 03/12/20 Archive Date: 03/12/20 DOCKET NO. 19-05 042 DATE: March 12, 2020 ORDER Entitlement to special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(t) from March 12, 2015 is granted. FINDING OF FACT From March 12, 2015, the Veteran has been in need of regular aid and attendance for the residuals of traumatic brain injury (TBI), 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. CONCLUSION OF LAW From March 12, 2015, the criteria for SMC at the (t) rate have been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.351, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1974 to September 1976. This matter comes before the Board of Veterans’ Appeals on appeal from rating decisions dated November 2015 and December 2016 of the Department of Veterans Affairs (VA) Regional Office in Chicago, Illinois. The November 2015 rating decision granted entitlement to SMC based upon aid and attendance of another person from March 12, 2015 at the (l) rate. In September 2016, the Veteran’s attorney filed a notice of disagreement (NOD) asserting the Veteran’s entitlement to SMC at the (t) rate. A December 2016 rating decision denied the Veteran’s claim of entitlement to SMC at the (t) rate. He filed another NOD in December 2017; this appeal follows. The Veteran’s attorney recently submitted additional evidence directly to the Board. At that time, he also submitted a written waiver of local consideration of this evidence; this waiver is contained in the VA claims file. See 38 C.F.R. §§ 19.9, 20.1304(c). 1. Entitlement to SMC pursuant to 38 U.S.C. § 1114(t). SMC is authorized in particular circumstances in addition to compensation for service-connected disabilities. See 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352. SMC is authorized under subsections (k) through (s), with the rate amounts increasing the later in the alphabet the letter appears (except for the "s" rate). SMC at the (k) and (l) rates are paid in addition to any other SMC rates, with certain monetary limits. SMC at the (k) rate is provided for loss or loss of use of certain body parts. 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a). SMC at the (l) rate is payable when the veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to be in need of regular aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). See 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). SMC at the (m) rate is warranted if the veteran, as a result of service-connected disability, has suffered the anatomical loss or loss of use of both hands, or of both legs at a level, or with complications, preventing natural knee action with prosthesis in place, or of one arm and one leg at levels, or with complications, preventing natural elbow and knee action with prosthesis in place, or has suffered blindness in both eyes having only light perception, or has suffered blindness in both eyes, rendering such veteran so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114(m); 38 C.F.R. § 3.350(c). SMC at (n) rate is warranted if the veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both arms at levels, or with complications, preventing elbow action with prostheses in place, has suffered the anatomical loss of both legs so near the hip as to prevent the use of prosthetic appliances. 38 U.S.C. § 1114(n); 38 C.F.R. § 3.350(d). SMC at the (n) rate is also warranted if the veteran's service-connected disability has caused him to suffer anatomical loss of one arm and one leg so near the shoulder and hip as to prevent the use of prosthetic appliances, or to suffer blindness without light perception in both eyes. Id. SMC at the (o) rate is warranted if the veteran, as the result of service-connected disability, has suffered disability under conditions which would entitle such veteran to two or more of the rates provided in one or more of § 1114(l) through § 1114(n), no condition being considered twice in the determination, if the veteran has suffered the anatomical loss of both arms so near the shoulder as to prevent the use of prosthetic appliances, or bilateral deafness (and the hearing impairment in either one or both ears in service connected) rated at 60 percent or more disabling with service-connected total blindness with 5/200 visual acuity or less. SMC at the (o) rate is also warranted for total deafness in one ear or bilateral deafness (and the hearing impairment in either one or both ears is service connected) rated at 40 percent or more disabling and the veteran has also suffered service-connected blindness having only light perception or less. 38 U.S.C. § 1114(o); 38 C.F.R. § 3.350(e). Paralysis of both lower extremities together with the loss of anal and bladder sphincter control will entitle a veteran to the (o) rate of SMC, through the combination of loss of use of both legs and helplessness. The requirement of loss of anal and bladder sphincter control is met even though incontinence has been overcome under a strict regimen of rehabilitation of bowel and bladder training and other auxiliary measures. 38 C.F.R. § 3.350(e)(2). Determinations for entitlement to the (o) rate of SMC must be based upon separate and distinct disabilities. That requires, for example, that where a veteran who had suffered the loss or loss of use of two extremities is being considered for the maximum rate on account of helplessness requiring regular aid and attendance, the latter must be based on need resulting from pathology other than that of the extremities. 38 C.F.R. § 3.350(e). If the loss of use of two extremities or being permanently bedridden leaves the person helpless, increase is not in order on account of this helplessness. Under no circumstances will the combination of "being permanently bedridden" and "being so helpless as to require regular aid and attendance" without separate and distinct anatomical loss, or loss of use, of two extremities be taken as entitling the veteran to the maximum benefit. The fact, however, that two separate and distinct entitling disabilities, such as loss of use of both hands and both feet, result from a common etiological agent, for example, one injury or rheumatoid arthritis, will not preclude maximum entitlement. 38 C.F.R. § 3.350(e). 38 U.S.C. § 1114(p) provides for "intermediate" SMC rates between the different subsections based on anatomical loss or loss of use of the extremities or blindness in connection with deafness and/or loss or loss of use of a hand or foot. 38 U.S.C. § 1114(p); 38 C.F.R. § 3.350(f). In addition to the statutory rates payable under 38 U.S.C. § 1114 (l) through (n) and the intermediate or next-higher rate provisions set forth under 38 U.S.C. § 1114(p), additional single permanent disability or combinations of permanent disabilities independently ratable at 50 percent or more will afford entitlement to the next-higher intermediate rate, or if already entitled to the next-higher intermediate rate, then to the next-higher statutory rate under 38 U.S.C. § 1114, but not above the (o) rate. The disability or disabilities independently ratable at 50 percent or more must be separate and distinct and involve different anatomical segments or bodily systems from the conditions establishing entitlement under 38 U.S.C. § 1114 (l) through (n) or the intermediate rate provisions of 38 U.S.C. § 1114(p). 38 C.F.R. § 3.350(f)(3). Also, additional single permanent disability or combinations of permanent disabilities independently ratable at 100 percent apart from any consideration of individual unemployability will afford entitlement to the next-higher intermediate rate, or if already entitled to the next-higher intermediate rate, then to the next-higher statutory rate under 38 U.S.C. § 1114 , but not above the (o) rate. The disability or disabilities independently ratable at 100 percent or more must be separate and distinct and involve different anatomical segments or bodily systems from the conditions establishing entitlement under 38 U.S.C. § 1114 (l) through (n) or the intermediate rate provisions of 38 U.S.C. § 1114(p). 38 C.F.R. § 3.350(f)(4). A veteran receiving SMC at the (o) rate, at the maximum rate under 38 U.S.C. § 1114(p), or at the intermediate rate between (n) and (o) plus SMC at the (k) rate, who is in need of regular aid and attendance or a higher level of care is entitled to an additional allowance during periods that he is not hospitalized at the United States Government's expense. Determination of this need is subject to the criteria of 38 C.F.R. § 3.352. 38 C.F.R. § 3.350(h). The regular or higher-level aid and attendance allowance is payable whether or not the need for regular aid and attendance or a higher level of care was a partial basis for entitlement to the maximum rate under 38 U.S.C. § 1114 (o) or (p), or was based on an independent factual determination. 38 C.F.R. § 3.350(h). The amount of the additional allowance payable to a veteran in need of regular aid and attendance is specified in 38 U.S.C. § 1114(r)(1) ("r1" rate). The amount of the additional allowance payable to a veteran in need of a higher level of care is specified in 38 U.S.C. § 1114(r)(2) ("r2" rate). The higher-level aid and attendance allowance authorized by 38 U.S.C. § 1114 (r)(2) is payable in lieu of the regular aid and attendance allowance authorized by 38 U.S.C. § 1114 (r)(1). 38 C.F.R. § 3.350(h)(3). SMC at the (r)(2) rate requires a showing that the Veteran required daily personal health care services by a medical professional, or under the supervision of such, without which institutional care would be required. 38 C.F.R. § 3.350(h)(2). Special monthly compensation provided by 38 U.S.C. § 1114(t) is payable where a veteran, as the result of service-connected disability, is in need of regular aid and attendance for the residuals of TBI, is not eligible for compensation under subsection (r)(2), and in the absence of such regular aid and attendance would require hospitalization, nursing home care, or other residential institutional care. A Veteran entitled to this benefit shall be paid, in addition to any other compensation under this section, a monthly aid and attendance allowance equal to the rate described in subsection (r)(2). An allowance authorized under this subsection shall be paid in lieu of any allowance authorized by subsection (r)(1). Essentially, this type of special monthly compensation is warranted for veterans who need regular aid and attendance for the service-connected residuals of TBI, but are not eligible for a higher level of aid and attendance, and would require hospitalization, nursing home care, or other residential institutional care in the absence of regular aid and attendance. 38 U.S.C. § 1114(t). As noted above, the Veteran has been granted SMC based on his need for aid and attendance under 38 U.S.C. § 1114(l) effective from March 12, 2015 (the date that he was granted a 100 percent rating for residuals of TBI). See the rating decision dated November 2015. However, he seeks a higher level of SMC from March 12, 2015, under 38 U.S.C. § 1114(t), based on his need for aid and attendance for residuals of TBI. See the written argument of the Veteran’s attorney dated February 2020. For the reasons set forth below, the Board finds that entitlement to SMC under38 U.S.C. § 1114(t) from March 12, 2015 is warranted. The Veteran underwent complete neuropsychological testing at the VA medical center (VAMC) in April 2015. The Veteran reported that he takes multiple medications and is dependent on “a lady who calls” to remind him to take his medications. He is reliant on microwave meals, or meals that do not require cooking due to safety concerns and burn risks. He is followed by community supportive services, a local veterans assistance organization, and a county health department case manager. He has obtained clothing and accessed a food pantry. The examining neuropsychologist stated, “[i]t is unclear how he is paying for his apartment, but that was apparently coordinated by his community case manager and/or parole officer. He is at risk for homelessness or return to prison given his cognitive impairment.” The neuropsychologist reported that impairment of intellect, attention, memory, verbal fluency/language skills, and executive functioning were demonstrated upon testing. She further noted that “severe depressive symptoms and ineffective personality attributes likely detract from neurocognitive abilities.” The neuropsychologist diagnosed the Veteran with major neurocognitive disorder due to TBI without behavioral disturbance. She also diagnosed unspecified depressive disorder. In a June 2015 letter, E.C., a licensed clinical social worker (LCSW), indicated that the Veteran “has a history of multiple head injur[ies], long-standing mood disorder (depression, bipolar) and cognitive problems.” The Veteran was afforded a VA examination in August 2015 at which time it was noted that he is not permanently bedridden or currently hospitalized. He reported that he “mostly stays in the apartment.” The examiner noted that the Veteran’s “answers are VERY slow and [he has] very little recall or memory.” The examiner reported that the Veteran’s “main impairment is his very slow ability to process and use information. [W]ithout his social worker and church help, he would be unable to function.” The examiner indicated that the Veteran struggles to perform self-care functions; although, he is eventually able to perform most of them. However, the examiner stated that the Veteran is having increasing difficulty performing self-care functions. The examiner indicated that the Veteran has severe cognitive impairment and is not capable of handling his financial affairs. The examiner stated that the Veteran’s “functional limitation is related to his mental state, and his capacity to process information or recall,” and his memory is “very poor and in question.” The examiner concluded, “[i]t is his neurological and psychiatric limitations that are most concerning to his ability to function alone at this time, and pose the greatest impairment and need for aid and attendance.” The Veteran was afforded a VA examination to assess the severity of his TBI in August 2015. The examiner noted that the Veteran suffers from residuals of TBI including headaches, memory loss, anxiety, depression, and poor concentration. The examiner stated that the Veteran exhibits “objective evidence on testing of severe impairment of memory, attention, concentration, or executive functions resulting in severe functional impairment.” The Veteran reported that he does not remember daily events and forgets appointments. He stated, “[s]omeone has to look after me because I forget everything.” The examiner indicated that the Veteran’s judgment is severely impaired; “Veteran has been involved in numerous altercations. Difficulty with the law on several occasions.” The Veteran’s social interactions are frequently inappropriate; he is frequently confused and “I get into trouble.” The Veteran is occasionally disoriented; he forgets what day it is. The Veteran exhibited normal motor activity. The examiner confirmed that the Veteran experiences dizziness and insomnia almost every day. The Veteran also exhibits “moodiness, lack of motivation, impulsivity, and [impaired] awareness.” The examiner noted that the Veteran has difficulty understanding verbal requests and, at times, what other people are talking about. The examiner indicated that the Veteran’s residuals of TBI significantly impact his ability to work. The examiner explained, “Veteran cannot follow instructions, remember dates, etc. His ability to focus and maintain attention is limited.” The examiner recommended additional diagnostic neurological testing. An August 2015 VA addendum opinion clarified that the Veteran underwent complete neuropsychological testing in April 2015 at which time he was diagnosed with major neurocognitive disorder due to TBI without behavioral disturbance, and unspecific depressive disorder. The Veteran was afforded a VA psychological examination at which time the examiner confirmed total occupational and social impairment due to major neurocognitive disorder due to TBI. The examiner noted the Veteran’s report that he requires assistance from local mental health support services to grocery shop and pay his bills. He is unable to solve or fix problems and fearful about his future. He reported being overwhelmed when tracking required tasks, remembering his telephone number, his birthdate, or any other personal information. The Veteran indicated that he will become confused when attempting to complete tasks and “experiences frustration due to confusion when unassisted or unaccompanied by others.” He reported that his church organization funds his apartment complex and assists him with grocery shopping and getting to appointments. The church organization provides a supportive living community. He indicated that he is unable to cook on a stove due to an inability to remember the process of doing so. He described being unable to make Jell-O due to the difficulty following directions. He is able to independently complete his daily hygiene, but requires prompting. The examiner explained that the Veteran’s symptoms result in total social impairment “evidenced by his supportive living environment, inability to attend to his daily activities without assistance (i.e., financial, transportation, grocery shopping), reduced ability to complete tasks (i.e., cooking, directions), confusion, disorientation, social isolation and limited establishment of interpersonal relationships.” In September 2015, the RO proposed a finding of incompetency to handle disbursement of VA funds. In a December 2015 statement, the Veteran indicated that he did not object to a finding of incompetency and requested Ms. C.C. be appointed as his fiduciary. A finding of incompetence was made in a December 2015 rating decision. However, in February 2016, the Veteran decided that he wanted the fiduciary removed. He indicated that he has been handling his finances himself and has a system in place for paying his bills. In a February 2016 statement, Ms. C.C. (the Veteran’s fiduciary) indicated that she has known the Veteran for almost a year, and he has “handled all of his finances and every other aspect of his life by himself.” She stated that the Veteran schedules his own appointments and independently uses public transportation. In a December 2017 statement, Dr. C.V. stated that the Veteran “currently lives independently, he has some support in the community, which include[s] a few of his church friends helping him as needed.” Dr. C.V. stated that the Veteran has been handling his own finances and Dr. C.V. agreed that the Veteran no longer required a fiduciary. A finding of competency to handle disbursement of VA funds was made in a January 2018 rating decision. In a December 2019 letter, Ms. L.L. reported that she has been assisting the Veteran “with daily and household functions such as preparing meals, washing clothes/dishes, cleaning and organizing the house and any other task that may arise” with which he requires assistance. She observed the Veteran’s decline in memory and reported that he is unable to remember simple tasks such as how to microwave a meal. In a January 2020 evaluation report, Dr. M.C. explained that the Veteran “suffers multiple residuals from his TBI, including cognitive dysfunction, fatigue, loss of focus and concentration, emotional disarray, and a complete deterioration of his capacity to function independently. He now relies on another individual for every aspect of his day-to-day functioning.” Dr. M.C. stated that the Veteran is “a completely dependent individual, who is unable to function without help from others to provide a safe environment and attend to his basic needs.” Dr. M.C. explained that the Veteran has a “complete inability to function in the most basic of social settings even within the safe environment of his home. [He] has no further capacity for interpersonal interactions outside of his home, gets lost when he leaves his home, and is incapacitated and incapable of reasonable societal functioning.” Dr. M.C. noted that, as a result of his clinical needs, the Veteran would be best served by a licensed medical professional providing daily assistance with his medical management. Nevertheless, the Veteran’s current caregiver is critical to carrying out the Veteran’s “treatment plans and ensuring the Veteran takes his medication as prescribed. Without this help with his daily and health-related needs, there is no doubt that the Veteran would require a long-term institutional setting for those with profound and severe neurologic and behavioral disturbances.” See the January 2020 private evaluation from Dr. M.C.; see also the February 2019 private psychological assessment. Accordingly, the evidence does not reflect that the Veteran requires required daily personal health care services by a medical professional, or under the supervision of such, without which institutional care would be required. 38 C.F.R. § 3.350(r)(2). The evidence has consistently indicated that the Veteran lives on his own and/or with a caregiver, who is not a licensed medical professional or supervised by a licensed medical professional. Therefore, SMC at the (r)(2) rate is not warranted. However, the Board finds that SMC at the (t) rate is warranted for the entire period on appeal. From March 12, 2015, the Veteran has been in need of regular aid and attendance due to the residuals of TBI. The evidence reflects that he has relied on the regular assistance of caregivers, as well as charitable and other supportive organizations to help with self-care, financial assistance, and housing assistance. He requires assistance to administer and manage his medications, prepare meals, and perform daily activities as a result of his significantly impaired memory and concentration. Although the Veteran did assert that he was able to manage his finances on a his own during the appeal period, the evidence demonstrates that he was unable to maintain this independence. The Board affords significant probative value to April 2015 VA neuropsychological testing, the VA examinations dated in August 2015, and the January 2020 private evaluation report, which show that the Veteran relies caregivers and charitable organizations to support his health and well-being, perform personal functions required in everyday living, and ensure that he remained safe from hazards of dangers incident to his daily environment. Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that, from March 12, 2015, the Veteran has been in need of regular aid and attendance due to residuals of TBI and in the absence of such regular aid and attendance would require hospitalization, nursing home care, or other residential institutional care. Entitlement to SMC pursuant to 38 U.S.C. § 1114(t) is therefore warranted from March 12, 2015. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. K. Buckley, 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.