Citation Nr: 21002401 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 15-41 027A DATE: January 13, 2021 ORDER Special monthly compensation (SMC) based on the need for regular aid and attendance is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities left him in need of regular aid and attendance of another person. CONCLUSION OF LAW The criteria for SMC on the basis of the need for regular aid and attendance are met. 38 U.S.C. §§ 1114 (l), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.350 (b), 3.352(a) (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1955 to July 1959. He died in December 2016. The appellant is his surviving spouse and has been properly substituted as the claimant. This matter comes to the Board of Veterans’ Appeals (Board) from a January 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the United States Court of Appeals for Veterans Claims (Court) issued a Joint Motion for Remand (JMR) that remanded the issue of entitlement to SMC based on the need for regular aid and attendance or housebound status to the Board for reconsideration consistent with the terms of the motion. The issue was then remanded by the Board in September 2019 for further development. SMC on the basis of Aid and Attendance Laws and Analysis Under 38 U.S.C. § 1114 (l), special monthly compensation is payable if, as the result of service-connected disability, the Veteran has an anatomical loss or loss of use of both feet, or of one hand and one foot; has blindness in both eyes with visual acuity of 5/200 or less; is permanently bedridden; or is 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. § 3.350 (b). Need for aid and attendance means being so helpless as to require the regular aid and attendance of another person. 38 U.S.C. § 3.350 (b). Under 38 C.F.R. § 3.352 (a), the following factors will considered in determining whether the Veteran is in need of regular aid and attendance of another person: inability of the claimant to dress and undress himself or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliance; inability of the claimant to feed himself through loss of coordination of the upper extremities or through extreme weakness; inability to tend to the wants of nature; or incapacity, physical or mental, which requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his daily environment. All of the disabling conditions enumerated in 38 C.F.R. § 3.352 (a) do not have to exist before a favorable rating may be made. The particular personal functions which the Veteran is unable to perform should be considered in connection with his condition as a whole. The evidence should establish that the Veteran is so helpless as to need regular aid and attendance, not that there is a constant need. 38 C.F.R. § 3.352 (a); see also Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in section 3.352(a) must be present for a grant of special monthly compensation based on need for aid and attendance). Determinations that the veteran is so helpless as to need regular aid and attendance must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352 (a). The appellant in the instant case asserts that the Veteran was entitled to SMC based on need for aid and attendance, as he needed assistance with activities of daily living prior to his death in 2016. The Veteran was service-connected for PTSD, rated as 100 percent disabling; hearing loss, rated as 30 percent disabling; tinnitus, rated as 10 percent disabling; and pleural plaques, rated as noncompensable. As indicated in the September 2019 Board remand, it is undisputed that the Veteran required the regular assistance of another to perform activities of daily living. See October 2015 Statement of the Case. VA examination reports and treatment records prior to the current appeal period show that the Veteran relied on his spouse to assist with bathing, dressing, meal preparation, transportation, and medication administration. However, the record contains conflicting evidence as to whether such impairment was due to a service-connected disability. The May 2019 JMR indicated that in a December 2014 VA opinion, the examiner stated the Veteran’s cognitive disorder was not secondary to his service-connected PTSD, but failed to provide sufficient rationale. Additionally, the December 2014 VA examiner stated that the Veteran’s symptoms between his non-service-connected neurocognitive disorder and his service-connected PTSD could be differentiated, but the VA examiner failed to provide a sufficient rationale for that medical finding. The Board notes that if the conditions cannot be sufficiently distinguished, entitlement to the benefit sought is determined based on the overlapping symptoms, which are attributed in whole to the service-connected disability. 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181 (1998). VA obtained another medical opinion in December 2019. At that time, the examiner opined that, based on a review of the relevant accessible information, it is less likely than not that the Veteran’s attention and concentration problems were secondary to his PTSD disability. It was noted that the December 2014 VA examiner’s statements indicated that the Veteran’s symptoms were above and beyond what would be expected due to PTSD, but she did not provide a specific etiology or further rationale. The 2019 examiner noted that there were no medical records linking the Veteran’s cognitive problems to his PTSD. In fact, a letter of support by a prior social worker specifically stated that his memory problems were not caused by his PTSD. The 2019 examiner did note, however, that it was “possible” that the Veteran’s cognitive problems were impacted by his physical-medical problems and related treatment, but that type of assessment was outside the examiner’s area of expertise. The appellant submitted a December 2020 opinion from Dr. Cesta, a doctor certified in internal medicine, psychiatry and neurology, and addiction medicine. Dr. Cesta indicated that he had reviewed the medical evidence and lay attestations of record. It was then opined that the Veteran developed PTSD from service, long before being diagnosed with dementia. He also suffered from alcohol abuse and later dementia, both of which were “directly related to his PTSD.” It was further explained that cognitive issues could stem from any of these disease processes, but medical literature supported the finding that alcohol abuse and dementia were “clinically correlated to PTSD” and were the case with the Veteran in this case. According to Dr. Cesta, the Veteran’s PTSD was manifested by memory and concentration issues, which required the aid and assistance of another individual. The Veteran’s judgment to engage in even routine and familiar decision-making had become unpredictable, volatile, and at times, potentially dangerous. The Veteran, therefore, required the constant assistance of his wife to perform activities of daily living, including bathing, cooking, driving, decision-making, housekeeping, and paying bills since at least the 1990s “as a result of his PTSD.” The Board finds Dr. Cesta’s report and medical opinion to be of the greatest probative value. The opinion was based on a detailed and thorough review of the evidence of record, both lay and medical. Further, Dr. Cesta discussed peer-reviewed medical literature in detail, to include review of twenty-one articles discussing the relationship between individuals with PTSD and cognitive impairment. A clear rationale was provided for the opinions rendered. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the Board finds that the evidence is at least in equipoise as to whether the Veteran required regular personal assistance due to his psychiatric disability. The Veteran’s PTSD disability (rated as 100 percent disabling) has been shown, at least in part, to have impacted his memory and concentration. In consideration of the foregoing, the Board finds that the evidence is at least in equipoise as to whether the Veteran had a factual need for the regular aid or attendance of another person prior to his death. Resolving reasonable doubt in the appellant’s favor, the criteria for special monthly pension benefits based on the need for regular aid and attendance of another person are met. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Casadei, 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.