Citation Nr: 21004719 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 15-33 016 DATE: January 28, 2021 ORDER Entitlement to additional special monthly compensation (SMC) based on the need for a higher level of care at the rate specified under 38 U.S.C. § 1114 (r)(1) or (r)(2) is denied. FINDING OF FACT The Veteran during his lifetime was in need of regular aid and attendance due to his service-connected heart disorder, but due to a service-connected disability did not have anatomical loss or the loss of use of both feet, one hand and one foot, buttocks, a creative organ, hands, legs, one arm and one leg, both arms, and both eyes; nor did the Veteran have loss of breast tissue, blindness, deafness, and aphonia. CONCLUSION OF LAW The criteria for entitlement to SMC based on higher level of aid and attendance has not been met. 38 U.S.C. §§ 1114, (r)(1), (2), 5107; 38 C.F.R. §§ 3.102, 3.350(a)(2), 4.63. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1965 to December 1967. He died in March 2016. The appellant is his surviving spouse and has been substituted for the Veteran as the claimant. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2016, the appellant and the Veteran’s son testified during a travel Board hearing before the undersigned. Entitlement to additional SMC based on the need for a higher level of care at the rate specified under 38 U.S.C. § 1114 (r)(1) or (r)(2). SMC is authorized in particular circumstances in addition to compensation for service-connected disabilities. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352. SMC at the “k” and “r” rates are paid in addition to any other special monthly compensation rates, with certain monetary limits. SMC at the “k” rate is warranted for the anatomical loss or loss of use of the following extremities and organs: one foot, one hand, loss of use of both buttocks, one or more creative organs, blindness of one eye, deafness of both ears, complete organic aphonia (loss of voice), loss of 25 percent or more of the tissue from a single breast or both breasts in combination (including loss by mastectomy or partial mastectomy), or when breast tissue has been subjected to radiation treatment. As relevant to the Veteran’s claim, 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. 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). The following will be accorded consideration in determining the need for regular aid and attendance: inability of a claimant to dress or undress him or herself, or to keep him 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 persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of a claimant to feed him or herself through loss of coordination of the upper extremities or through extreme weakness; 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 claimant from the hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352 (a). It is not required that all of the disabling conditions enumerated in 38 C.F.R. § 3.352 (a) be found 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. It is only necessary that the evidence 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). For the purposes of 38 C.F.R. § 3.352 (a), “bedridden” will be a proper basis for the determination of whether the Veteran is in need of regular aid and attendance of another person. “Bedridden” will be that condition which, through its essential character, actually requires that the Veteran remain in bed. The fact that the Veteran has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. 38 C.F.R. § 3.352 (a). SMC at the “m” rate is warranted if the Veteran, as a result of a 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 a level; 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 the “n” rate is warranted if the Veteran, as the result of a service-connected disability, has the anatomical loss or loss of use of both arms with factors preventing natural elbow action with prostheses in place, has anatomical loss of both legs with factors that prevent the use of prosthetic appliances, or has the anatomical loss of both eyes, or has suffered blindness without light perception in both eyes. 38 U.S.C. § 1114 (n). SMC at the “o” rate is warranted, if the Veteran as the result of a service-connected disability, has suffered disability under conditions which would entitle him to two or more of the rates provided in one or more subsections (l) through (n) of this section, no condition being considered twice in the determination, or if the Veteran has bilateral deafness (and the hearing impairment in either one or both ears is service connected) rated at 60 percent or more disabling and the Veteran also has service-connected total blindness with 20/200 visual acuity or less, or if the Veteran has service-connected 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 also has service-connected blindness having only light perception or less, or if the Veteran has the anatomical loss of both arms with factors that prevent the use of prosthetic. The provisions of 38 U.S.C. § 1114 (p) provide 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), an additional single permanent disability independently ratable at 100 percent apart from any consideration of individual unemployability will afford entitlement to the next-higher statutory rate under 38 U.S.C. § 1114 or if already entitled to an intermediate rate to the next higher intermediate rate, but in no event higher than the (o) rate. The single permanent disability independently ratable at 100 percent 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 outlined above. 38 C.F.R. § 3.350 (f)(4). To be awarded SMC (r)(1) rate under 38 U.S.C. § 1114, the Veteran must be entitled to SMC at the rate authorized under subsection (o), the maximum rate authorized under subsection (p), or at the intermediate rate authorized between the rates authorized under subsections (n) and (o) and at the rate authorized under subsection (k). The Veteran must also be in need of regular aid and attendance. See 38 U.S.C. § 1114 (r); 38 C.F.R. § 3.350 (h), 3.352. SMC (r)(2) is subject to the same criteria, plus there must be evidence that the Veteran is in need of a “higher level of care.” 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. 38 C.F.R. § 3.352 (b)(2). The RO in a September 2014 rating decision granted SMC based on the need for aid and attendance, pursuant to 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b), effective March 24, 2014. The RO’s decision was based on the determination that the Veteran needed some assistance in activities of daily living due to his heart disorder. The Veteran during his lifetime was service connected for atherosclerotic coronary artery disease status post myocardial infarction with coronary angioplasty with stent and history of congestive heart failure associated with diabetes mellitus type II rated 100 percent from March 8, 2012, and diabetes mellitus type II rated 20 percent from May 8, 2001. A May 2004 rating decision granted entitlement to a total disability rating based on individual unemployability, which was in effect from May 12, 2003 to March 8, 2012. The pertinent findings show that on VA examination for housebound status or need for regular aid and attendance received in March 2014, the examiner determined that the Veteran was unable to prepare his own meals, manage his own medicine and financial affairs. He needed assistance in bathing and tending to hygiene needs. On VA examination for housebound status or permanent need for regular aid and attendance in March 2015, the examiner determined that the Veteran was unable to prepare his own meals, needed assistance in bathing and tending to other hygiene needs due to exacerbations of congestive heart failure, and required medication management. The Veteran was not legally blind. As for use of upper extremities, the examiner stated that any activity that could go on could be very taxing. As for the lower extremities, congestive heart exacerbation affected the Veteran’s ability to maintain distances without shortness of breath or exertion. The Veteran was able to walk half a block with a cane. On a second VA examination for housebound status or permanent need for regular aid and attendance in March 2015, the examiner found that the Veteran was unable to prepare his own meals and needed assistance in bathing and tending to other hygiene needs as he had increased shortness of breath and needed assistance with activities of daily living secondary to exacerbation of congestive heart failure. The examiner found that the Veteran was not legally blind but required medication management. The examiner stated that the Veteran was able to use his upper extremities to perform activities of daily living but could tire easily secondary to congestive heart failure exacerbation. As for the lower extremities the Veteran could have swelling related to congestive heart failure. The Veteran was on multiple medications that made him tire easily and he needed to walk with assistance. The RO in a September 2014 rating decision granted SMC based on the need for aid and attendance, pursuant to 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b), effective March 24, 2014. The RO’s decision was based on the determination that the Veteran needed some assistance in activities of daily living due to his heart disorder. However, the evidence shows that the Veteran during his lifetime due to a service-connected disability did not have anatomical loss or the loss of use of both feet, one hand and one foot, buttocks, a creative organ, hands, legs, one arm and one leg, both arms, and both eyes; nor did the Veteran have loss of breast tissue, blindness, deafness, and aphonia. Thus, the criteria of 38 U.S.C. § 1114 (m), (n), (o), (p), are not met. As presented above the provisions of 38 U.S.C. § 1114 (p) provide that an additional single permanent disability independently ratable at 100 percent apart from any consideration of individual unemployability will afford entitlement to the next-higher statutory rate under 38 U.S.C. § 1114 or if already entitled to an intermediate rate to the next higher intermediate rate, but in no event higher than the (o) rate. The single permanent disability independently ratable at 100 percent 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 outlined above. 38 C.F.R. § 3.350 (f)(4). While the Veteran’s heart disorder was rated 100 percent disabling it was the basis for his receipt of entitlement under 38 U.S.C. § 1114 (l) and thus the criteria of this provision under 38 U.S.C. § 1114 (p) are not met. The Board acknowledges that VA treatment records in January 2014 show the Veteran had poor vision, however the records do not show blindness as the assessment was diabetic retinopathy, moderate cataracts, choroidal nevus, and refractive error. Private medical records show that in March 2014 the Veteran underwent cataract extraction from the right eye. The postoperative diagnoses were right eye cataract and miosis. During the August 2016 Board hearing the Veteran’s son testified that the Veteran did not have anatomical loss or loss of use of one foot or one hand or both buttocks. He also stated that the Veteran did not have blindness nor aphonia. He did testify that after the Veteran’s stroke he could not hold on to things and his speech was different. Notably, the Veteran during his lifetime was not service connected for a stroke. The appellant testified that the Veteran eventually was unable to speak but that was due to his undetected cancer, which also was not service connected. While the Veteran was hard of hearing, his son’s testimony shows that he did not have deafness. To receive SMC R1 or R2, the Veteran must be entitled to SMC under subsection (o), at the maximum rate under subsection (p), or at the intermediate rate between the rates for subsections (n) and (o) and at the rate under subsection (k). These criteria are not met, as discussed above. Therefore, entitlement to higher level aid and attendance is not warranted. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Mac, 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.