Citation Nr: 21004759 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 16-55 289 DATE: January 28, 2021 ORDER Special monthly compensation (SMC) based on the need for aid and attendance is granted. Eligibility for financial assistance for automobile or other conveyance and adaptive equipment is granted. Eligibility for specially adapted housing is granted. The claim for eligibility for a special home adaptation grant is dismissed. FINDINGS OF FACT 1. The Veteran’s service-connected disabilities have resulted in him being so helpless as to be in need of regular aid and attendance. 2. The Veteran’s service-connected disabilities result in loss of use of the feet. 3. The Veteran has a service-connected permanent and total disability due to a disorder that causes loss of use of both lower extremities so severe that it precludes locomotion without the regular and constant use of an assistive device. CONCLUSIONS OF LAW 1. The criteria for SMC based on the need for regular aid and attendance are met. 38 U.S.C. §§ 1114(l), (s), 5107; 38 C.F.R. §§ 3.350, 3.352(a). 2. The criteria for eligibility for financial assistance for automobile or other conveyance and adaptive equipment are met. 38 U.S.C. §§ 3901, 3902, 5107; 38 C.F.R. §§ 3.808, 3.350(a)(2). 3. The criteria for eligibility for specially adapted housing are met. 38 U.S.C. §§ 2101(a), 5107; 38 C.F.R. § 3.809. 4. The claim of eligibility for a special home adaptation grant is moot. 38 U.S.C. §§ 2101(b), 7105; 38 C.F.R. § 3.809a. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1975 to May 1978. This appeal is before the Board of Veterans’ Appeals (Board) from December 2014 and August 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office. Legal Criteria SMC Special monthly compensation is a monetary benefit that is paid for service-connected disabilities which result in impairment of the senses, loss or loss of use (of the extremities, creative organ, breast, or buttocks), or which render the Veteran housebound or in need of the regular aid and attendance of another person. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352. SMC is authorized under 38 U.S.C. § 1114, 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 “r” rates are paid in addition to any other SMC rates, with certain monetary limits. Id. The rate of SMC “varies according to the nature of the veteran’s service-connected disabilities.” Moreira v. Principi, 3 Vet. App. 522, 524 (1992). While schedular rates of compensation are predicated on the average reduction in earning capacity, special monthly compensation benefits are meant to provide additional compensation based on noneconomic factors such as personal inconvenience, social inadaptability, or the profound nature of the disability. VAOPGPREC 5-89 (Mar. 23, 1989). Special monthly compensation provided by 38 U.S.C. § 1114(l) is payable for anatomical loss or loss of use of both feet or one hand and one foot, blindness in both eyes with visual acuity of 5/200 or less, or being permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 C.F.R. § 3.350(b). The criteria for determining that a veteran is so helpless as to be in need of regular aid and attendance are contained in 38 C.F.R. § 3.352(a). 38 C.F.R. § 3.350(b)(3). Under 38 C.F.R. § 3.352(a), the following is accorded consideration in determining the need for regular aid and attendance: inability of claimant to dress or undress himself (herself), or to keep himself (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 claimant to feed himself (herself) through loss of coordination of 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 the claimant from 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 above disabling conditions be found to exist before a favorable rating may be made. The particular personal functions which a veteran is unable to perform should be considered in connection with his or her 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 be a constant need. Determinations that a veteran is so helpless, as to be in need of regular aid and attendance are based on the actual requirement of personal assistance from others. Automobile/Adaptive Equipment Financial assistance may be provided to an “eligible person” in acquiring an automobile or other conveyance and adaptive equipment, or adaptive equipment only. 38 U.S.C. § 3902(a)(b). Eligibility for assistance to purchase a vehicle and adaptive equipment is warranted where one of the following exists as the result of injury or disease incurred or aggravated during active service: (1) loss or permanent loss of use of one or both feet; (2) loss or permanent loss of use of one or both hands; (3) permanent impairment of vision of both eyes, meaning central visual acuity of 20/200 or less in the better eye, with corrective glasses, or central visual acuity of more than 20/200 if there is a field defect in which the peripheral field has contracted to such an extent that the widest diameter of visual field subtends an angular distance no greater than 20 degrees in the better eye; (4) severe burn injury precluding effective operation of an automobile; (5) amyotrophic lateral sclerosis; or, (6) for adaptive equipment only, ankylosis of one or both knees or one or both hips. 38 U.S.C. § 3901; 38 C.F.R. § 3.808. The term “loss of use of a hand or foot” is defined as existing when “no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the elbow or knee with the use of a suitable prosthetic appliance.” For example: (a) Extremely unfavorable complete ankylosis of the knee, or complete ankylosis of two major joints of an extremity, or shortening of the lower extremity of 3 1/2 inches or more, will constitute loss of use of the hand or foot involved, and; (b) Complete paralysis of the external popliteal nerve (common peroneal) and consequent footdrop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve, will be taken as loss of use of the foot. 38 C.F.R. § 3.350(a)(2). Specially Adapted Housing Requirements for a certificate of eligibility for assistance in acquiring specially adapted housing under 38 U.S.C. § 2101(a) include a service-connected disability rated as permanent and total, which must be due to: (1) The loss or loss of use of both lower extremities, such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; (2) Blindness in both eyes, having only light perception, plus the anatomical loss or loss of use of one lower extremity; (3) The loss or loss of use of one lower extremity together with residuals of organic disease or injury which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; (4) The loss or loss of use of one lower extremity together with the loss or loss of use of one upper extremity which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; (5) The loss or loss of use of both upper extremities such as to preclude use of the arms at or above the elbow; or (6) Full thickness or subdermal burns that have resulted in contractures with limitation of motion of two or more extremities or of at least one extremity and the trunk. 38 C.F.R. § 3.809. The term “preclude locomotion” means the necessity for regular and constant use of a wheelchair, braces, crutches or canes as a normal mode of locomotion although occasional locomotion by other methods may be possible. 38 C.F.R. § 3.809(c). A “loss of use” exists when there is “deprivation of the ability to avail oneself” of that extremity, and functional impairment caused by pain, weakness, or incoordination should be taken into account when making that determination. See Jensen v. Shulkin, 29 Vet. App. 66, 78-79 (2017). For purposes of 38 C.F.R. § 3.809, “locomotion [may be] precluded even if a veteran is capable on occasion of moving about unaided.” Id. at 78. Factual Background The Veteran’s service connected disabilities are as follows: right and left upper extremity radiculopathy, rated 40 percent and 30 percent, respectively; bowel incontinence, rated 30 percent; cervical spine arthritis, rated 20 percent; right and left sciatic radiculopathy, rated 20 percent each; right and left femoral radiculopathy, rated 20 percent each; spine arthritis, rated 10 percent; and urinary incontinence, right and left external cutaneous and ilio-inguinal radiculopathy, each rated noncompensable (0 percent). He has service-connected disability rated permanent and total due to his disorders affecting the lower extremities. VA medical records beginning in 2014 reflect significant functional impairment of the extremities. On April 2014 VA spine examination, it was noted that the Veteran used a cane on a constant basis for regular locomotion, and occasionally a walker. April 2014 and March 2015 private evaluations reflect that the Veteran used a walker and required assistance in bathing and tending to other hygiene needs due to his physical disabilities, primarily his unsteady gait. They also reflect that the Veteran only left his home to come to medical appointments. Also, in an August 2015 statement, the Veteran asserted that he required canes and walkers to move around and frequently fell; he asserted that he could not cook or bathe himself. On November 2015 VA treatment, it was noted that the Veteran lived with his caregiver who assisted him with personal hygiene and dressing; it was noted that he took his trash out and did a one-mile walk with a rolling walker, and denied any myocardial infarction, cardiovascular accident, cardiac catheterization, or problems with blood clots. In May 2017 the Veteran was seen at his house regarding a scooter request for longer distance ambulation. It was noted that he lived in his home with his friend/caregiver. He was noted to have impaired upper and lower extremity strength and motion and poor dynamic standing and used a wheelchair for ambulation. He was also noted to have had modified, rather than complete, independence for activities of functional transfers, ambulation, dressing, bathing, and advanced activities of living, and that he would benefit from use of a scooter. In October 2017, the Veteran reported living at his caregiver’s home, and that his caregiver assisted him with daily needs including bathing, housekeeping, errands, personal care, and meals. July and September 2018 beneficiary travel progress notes reflect that the Veteran was not able to transfer into a private vehicle or medically appropriate common carrier or required additional assistance due to chronic neck and back pain; and was unable to ambulate long distances due to chronic neck and back pain and needed a wheelchair for mobility. In December and January 2018, the Veteran was hospitalized for hypertensive urgency and alcohol withdrawal. The Veteran initially reported a history of cerebrovascular stroke 8 months prior that manifested as left-sided facial droop and incontinence with no extremity weakness or sensory disturbance. He showed severe deconditioning with decreased transfer and inability to walk, and decreased balance in sitting and standing. Subsequently, the Veteran reported having a stroke in December 2017 that had left him with left-sided weakness. On discharge, the Veteran’s principal diagnosis was deconditioning with frequent falls, and secondary diagnosis was chronic hygroma/subdural hematoma. He was noted to have a past medical history that included hypertension and history of cerebrovascular stroke 8 months prior, to have presented to the hospital with frequent falls and generalized weakness, and to have chronic postural instability possibly due to underlying chronic subdural hemorrhage and possible history of cerebrovascular stroke. It was further noted that the Veteran lived with his niece who helped with most of his daily routine activities, but now wanted to go to a nursing home. The Veteran was discharged to a nursing home in January 2019. In its initial January 2019 remand, the Board noted that the evidence demonstrated that the Veteran had significant mobility limitations and physical impairment, but was conflicting as to his ability to perform activities of daily living. It determined that a new VA examination should be afforded to the Veteran to determine the current severity of his service-connected disability and whether he had loss of use of any upper or lower extremity. The examiner was also to determine whether the Veteran, as a result of service-connected disabilities, was permanently bedridden or so helpless as to be in need of regular aid and attendance of another person on a regular basis; in making this determination, the examiner was to discuss the Veteran’s ability for self-care due to service-connected disorders. Pursuant to the Board’s remand, the Veteran was provided VA examinations and opinions in August 2019. However, as the Board noted in its second, March 2020 remand: The Veteran was provided with VA examinations in August 2019, all conducted by the same examiner; unfortunately, the observations recorded by the examiner are inconsistent between the examinations. On the VA thoracolumbar spine examination, strength, deep tendon reflexes, and sensation testing were found to be normal for all lower extremity tests. On the peripheral nerves examination, however, muscle strength was noted to demonstrate active movement against some resistance (4/5), deep tendon reflexes were found to be hypoactive (1+) and sensation to light touch was found to be decreased for all relevant lower extremity tests. Further, the Veteran’s usage of assistive devices was recorded differently on these tests, although they apparently took place on the same day: the back examination report indicates that the Veteran makes use of a wheelchair occasionally, and cane and walker regularly; and the peripheral nerves examination report indicates that the Veteran uses a wheelchair and walker regularly. Given the inconsistency of these reports, an additional examination is found warranted to assess the current severity of, and resulting functional limitations from the Veteran’s service-connected disabilities. Further, the examination report does not respond to all of the questions raised in the Board’s remand, and the opinion that was provided concerning whether the Veteran requires regular aid and attendance due to his service-connected disabilities was not presented with an adequate rationale explaining the bases for such determination… The Board therefore requested another VA examination “to assess the current severity of the Veteran’s service-connected disabilities as they relate to his functional ability to use his upper and lower extremities and hands and feet, and to perform activities of daily living,” addressing a number of questions and issues put forth by the Board. The Veteran was given the additional VA examination in June 2020. At that time, the examiner noted that the Veteran had been admitted to a nursing home in 2019 after a cardiovascular accident (CVA), where he still resided. The examiner assessed that the Veteran required either significant or full assistance in bathing, grooming, keeping self ordinarily clean and presentable, and toileting. It was noted that the Veteran had right and left lower extremity and trunk weakness due to CVA residuals, as well as generalized muscle atrophy due to deconditioning. He ambulated with a wheelchair, and was unable transfer from his wheelchair to his bed or the toilet without assistance. While right and left upper extremity weakness was noted, it was assessed that the Veteran had no restrictions in feeding himself or buttoning clothing. The June 2020 examiner answered the questions of whether the Veteran’s service-connected disabilities “are of such severity as to preclude him from ambulating without the use of an assistive device,” “affect his ability to use his left and right foot and left and right hand,” or “result in functional impairment requiring the regular aid and attendance of another person to assist with any [] activities of daily living,” each in the negative. The explanation for each answer was essentially identical: “The veteran's current deficits that require use of wheelchair are due to CVA residuals,” and “[p]er medical records, prior to CVA veteran was living alone and was independent.” In providing these opinions, the examiner stated that “[t]he Veteran's claim file was not able to be reviewed.” The agency of original jurisdiction (AOJ) did not thereafter provide the claims file to the VA examiner or otherwise seek further clarification of the examiner’s opinions or explanations thereof. 1. SMC based on the need for aid and attendance, eligibility for specially adapted housing, and eligibility for financial assistance for automobile or other conveyance and adaptive equipment are granted. The June 2020 VA examiner, in providing her opinions, indicated that the claims file had not been reviewed; she noted review of “medical records,” but did not indicate what medical records were reviewed. This is particularly problematic because the examiner’s assessments that none that the Veteran’s “current deficits that require use of wheelchair are due to CVA residuals,” and “[p]er medical records, prior to CVA veteran was living alone and was independent”—which constituted the entirety of the explanation of her opinions—plainly contradict the medical record. Prior to his stroke/CVA, noted as first occurring in approximately April 2017, the Veteran had an extensively documented history of significant impairment from his service-connected spine and lower extremity disabilities, which caused him to use a wheelchair or other device to ambulate and compromised his independence, and for which he had a caregiver who assisted him with personal hygiene, bathing, dressing, and other activities of daily living. The June 2020 VA examiner gave no explanation or discussion of this evidence or how her opinions might be consistent with it. In examining the Veteran, the June 2020 VA examiner found that the Veteran resided in a nursing home; required either significant or full assistance in bathing, grooming, keeping himself ordinarily clean and presentable, and toileting; had right and left lower extremity and trunk weakness and generalized muscle atrophy due to deconditioning; and ambulated with a wheelchair and was unable to transfer from his wheelchair to his bed or the toilet without assistance. Contemporaneous 2019 and 2020 VA treatment records are reasonably consistent with these findings, reflecting that the Veteran resided in a nursing home, used a wheelchair and needed assistance with transfer and ambulation, and reported he could not walk due to his spine condition. Given this, and resolving reasonable doubt in the Veteran’s favor, the Board finds that he is so helpless as to be in need of regular aid and attendance under the criteria of C.F.R. §§ 3.350 and 3.352, and has loss of use of the feet under 38 C.F.R. §§ 3.808 and 3.350(a). It also finds that he has service-connected permanent and total disability due to a disorder that causes a loss of use of both lower extremities so severe that it precludes locomotion without the regular and constant use of an assistive device. Furthermore, given these findings of the Veteran’s current disability and resulting impairment, and the VA examiner’s incorrect determination of the Veteran’s level of impairment prior to his stroke—or as to whether the Veteran had any impairment at all—it is unclear from the current medical evidence to what extent such current disability is related to the stroke only, and what might be a progression of his service-connected physical disability. Again, even prior to his stroke, he used a wheelchair or other device to ambulate, and had a caregiver who assisted him with personal hygiene, bathing, dressing, and other activities of daily living. When it is not possible to separate the effects of a service-connected condition and a non-service-connected condition, VA regulations requiring that reasonable doubt on any issue be resolved in the claimant’s favor clearly dictate that such signs and symptoms be attributed to the service-connected condition. Mittleider v. West, 11 Vet. App. 181, 182 (1998). Here, the Board has twice remanded the appeal to obtain adequate VA opinions, but has been unable to do despite giving very specific instructions and asking specific questions. There is, moreover, no indication that the AOJ has made reasonable attempts to ensure the adequacy of such opinions, even as the June 2020 opinion was given with no review of the claims file and with responses clearly inconsistent with the evidence of record. Nor is there reason to assume that an adequate opinion would be obtained if the Board remanded the appeal yet again for an examiner to answer the same questions once more. Under these circumstances, resolving reasonable doubt in the Veteran’s favor, the Board finds that, as a result of his service-connected disabilities, the Veteran is so helpless as to be in need of regular aid and attendance and has loss of use of the feet; and that he has service-connected permanent and total disability due to a disorder that causes a loss of use of both lower extremities so severe that it precludes locomotion without the regular and constant use of an assistive device. Accordingly, his claims for SMC based on the need for aid and attendance, eligibility for specially adapted housing, and eligibility for financial assistance for automobile or other conveyance and adaptive equipment are granted. See 38 U.S.C. § 5107. As a final note, while the Veteran is being found to have lost use of the feet and to be so helpless as to be in need of regular aid and attendance, and SMC under 38 U.S.C. § 1114(l) is payable for each, both are being found as resulting from his spine and related lower extremity disabilities, rather than based upon separate and distinct disabilities. As such, no greater or additional level of SMC is warranted on the basis of this disability than that being granted under 38 U.S.C. § 1114(l). See 38 C.F.R. § 3.350(e)(3). 2. Eligibility for a special home adaptation grant is dismissed. When entitlement to specially adapted housing is not established, a Veteran can qualify for a grant for necessary special home adaptations. See 38 C.F.R. § 3.809a. However, as the Veteran is already being granted the greater benefit of eligibility for specially adapted housing, the claim for eligibility for a special home adaptation grant is now moot and must be dismissed. See 38 U.S.C. § 7105. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Andrew Mack, 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.