Citation Nr: 21003034 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 20-19 981 DATE: January 19, 2021 ORDER Entitlement to special monthly compensation based on the need for aid and attendance is denied. FINDING OF FACT The Veteran is not able to dress himself, keep himself ordinarily clean and presentable, feed himself, attend to the wants of nature, or protect himself from the hazards incident to his environment without assistance due to a cerebrovascular accident (CVA); however, the CVA is not service-connected. CONCLUSION OF LAW The criteria for entitlement to special monthly compensation (SMC) based on the need for aid and attendance have not been met. 38 U.S.C. § 1141(l); 38 C.F.R. §§ 3.350, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1961 to April 1964 and from July 1964 to June 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran’s spouse testified at a November 2020 virtual hearing before the Board; a transcript of the hearing is associated with the claims file. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). These duties have been satisfied in this case. Appropriate notice was provided in May 2017. The RO associated the Veteran’s service and VA and private outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. Appropriate and necessary examinations were afforded the Veteran, and are adequate for evaluation, as they include needed findings to permit application of the rating schedule and identification of current disability. As such, VA has satisfied its duty to assist with the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Entitlement to special monthly compensation based on the need for aid and attendance The Veteran contends that SMC is warranted based on the need for regular aid and attendance. SMC is payable at a specified rate if a veteran, as the result of service-connected disability, is permanently bedridden or 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). Aid and attendance is appropriate if the record establishes a factual need for the benefit under the criteria set forth in 38 C.F.R. § 3.352(a). Under 38 C.F.R. § 3.352(a), aid and attendance is warranted if the following criteria are met: a claimant is unable to dress or undress himself, or to keep himself ordinarily clean and presentable; a claimant needs frequent 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 persons would be unable to adjust without such aid, such as supports, belts, lacing at the back, etc.); a claimant is unable to feed himself through loss of coordination of upper extremities or through extreme weakness; a claimant is unable to attend to the wants of nature; or a claimant experiences incapacity, physical or mental, which requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. It is undisputed that the Veteran suffered a massive CVA in June 2011 which has left him in need of the regular aid and attendance of another. Due to the stroke, the Veteran needs help to feed himself; cannot prepare his own meals; needs assistance managing his medications; needs assistance with bathing and other hygiene requirements; is unable to manage his financial affairs; and requires a swing and assistance to “stand [and] transfer” (January 2015 private examination). The January 2015 private examination also indicated that the Veteran was “dependent upon family for assist [with] ALL ADL’s.” The October 2015 private examination found that the Veteran could not “dress, feed himself, … [or] manipulate objects” because of right-sided hemiparesis associated with his CVA. His cardiac condition, however, is not identified as playing any role in the stroke. One VA examiner, in January 2016, diagnosed the Veteran with cardiomyopathy and determined that the CVA was “a result of his cardiomyopathy.” The Board observes, though, that although such was listed as a diagnosis, the examiner went on to say that there was actually no evidence of dead cardiac tissue to warrant such diagnosis. A June 2020 VA medical opinion determined that the Veteran did not have cardiomyopathy in an extensive discussion based on examination and review of the claims file. She stressed her training in a cardiac unit and specialized knowledge of cardiac medicine. Moreover, the examiner indicated that the service-connected heart condition did not cause or aggravate the stroke; at the time of the stroke, cardiac functioning was shown to be good. The Veteran had even just returned from an exercise walk when he had the stroke, and records show repeated denials of cardiac symptoms over the years. Finally, the June 2020 examiner stated that the Veteran’s heart condition was stable with treatment and had been for decades. It did not cause the stroke, or result in the documented functional impairments rendering the Veteran in need of SMC. The CVA has been adjudicated as nonservice-connected, and that denial is final. The evidence of record overwhelmingly relates the need for SMC to that CVA, and not any cardiac condition. The highly credible and competent June 2020 examiner went to great lengths to explain and support her opinions on that point. As the great preponderance of the evidence is against the claim, entitlement to SMC based on a need for regular aid and attendance is not warranted. Nothing in this decision shall be construed as preventing the Veteran from seeking to reopen his claim of service connection for the CVA, or predicting any possible outcome of such claim. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. Ripplinger, 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.