Citation Nr: 21061912 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 18-09 432 DATE: October 5, 2021 ORDER Entitlement to eligibility for special monthly compensation (SMC) based on need for aid and attendance/housebound is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran requires regular aid and attendance due to his service-connected PTSD, due to factors such as: an inability to keep himself ordinarily clean and presentable; and mental incapacity which requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment (including medication management). CONCLUSION OF LAW The criteria for SMC for the regular aid and attendance of another individual have been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1961 to February 1965. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In a September 2021 correspondence, the Veteran, through his representative, withdrew his hearing request and canceled a scheduled September 2021 hearing. Thus, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704. The Board notes that the Veteran has submitted several statements as to being exposed to herbicide agents during service, and that he has presumptive conditions from that exposure. His exposure has not yet been conceded, nor has he filed a new claim for his disabilities for service connection, to include as due to herbicide exposure (a January 2013 rating decision denied his claims, but he did not appeal). While he states the RO has ignored his exposure to Agent Orange and his presumptive diseases, the Board wants to clarify that if he wishes to file a formal petition to reopen his claims for consideration for a formal finding of exposure to herbicide agents and for service connection for current illnesses with the new evidence he has submitted, he may do so. However, the Board is unable to discuss his alleged exposure to Agent Orange and his conditions at this time as he would need to first file a claim to reopen. For the current claim on appeal, the Veteran contends that he requires the regular aid and attendance of another individual due to his service-connected PTSD (currently rated as 100 percent disabling from December 16, 2003). Compensation at the aid and attendance rate is payable when a Veteran's service-connected disability or disabilities cause the anatomical loss or loss of use of both feet or one hand and one foot, cause the Veteran to be blind in both eyes, or render him permanently bedridden or so helpless as to be in need of regular aid and attendance. See 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). Further consideration must be given for incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. See 38 C.F.R. § 3.352(a). The personal functions that the veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the veteran be so helpless as to need regular aid and attendance, not that there is a constant need. See 38 C.F.R. § 3.352(a). Further, the Board stresses that 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 was unable to perform should be considered in connection with his former condition as a whole. It is only necessary that the evidence establish that the Veteran was so helpless as to need regular aid and attendance, not that there be a constant need for aid and attendance. See 38 C.F.R. § 3.352(a); Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in 38 C.F.R. § 3.352(a) must be present to grant SMC based on the need for aid and attendance). In this case, the Board finds that the evidence is at least in equipoise as to whether the Veteran requires regular aid and attendance because of his service-connected PTSD due to factors such as: an inability to keep himself ordinarily clean and presentable and mental incapacity which requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment, medication management, and daily functioning. For example, the Veteran has approved daily care providers, who provide care for him, including cooking and driving responsibilities, and help manage his medication. In the June 2017 notice of disagreement, the Veteran stated that he has had on-site house evaluations by VA nurse evaluators who recommended a minimum of two hours a day every day of the week for medical and mental evaluations due to the seriousness of his illnesses. His VA doctor, Dr. T.G., signed off on the statement in July 2017. Per the in-home care company that assists the Veteran, he needs assistance with the shower and bathroom, getting him groceries, cleaning his home, preparing his meals, and that he has concentration and memory impairment. A June 2017 assisted care plan noted that he sleeps in a recliner, and attends AA but only drives when he has to. He has friends go to the grocery store for him. He needs assistance with meal prep, laundry, housekeeping, errands, shopping, and personal care. In a May 2018 statement, the Veteran stated that he requires nurses/aids every day for several hours a day to prepare meals, perform hygiene and assistance in dressing. In November 2016, the Veteran was afforded a VA Examination for Housebound Status or Permanent Need for Regular Aid and Attendance. The Veteran reported that he could feed himself but did not prepare meals, but rather uses prepared frozen meals. The VA examiner stated that the Veteran has memory difficulties, refill confusion, dosage parameters, and appointment confusion, so is in need of medication management. The examiner also noted his memory and abilities are more complex due to, in part, permanent PTSD. The examiner also stated the Veteran only left his house for doctor appointments, DAV meetings, AA meetings, and therapy meetings, and for undergarment shopping once a year. His VA medical records also indicate assistance is necessary for the Veteran, to include for medication management. For example, throughout the records, it was noted that he at times had family stay with him to assist him as a caregiver (see April 2018 note that he denied emergent needs since his sister was still at home as his caregiver, but that he would need support when she left). In a March 2016 record, it was noted that the Veteran was receiving homecare services through the VA, and he reported having fleeting ideation at times with thoughts of overdosing in the past. In March 2018, VA authorized additional home care services for every day of the week. In September 2018, the Veteran complained of not having home nurse assistance with his medications, and October 2019 records indicate that the Veteran is homebound and that he has at home lab appointments through VA. Further, although a mental health evaluation has not been provided recently as the Veteran has been deemed totally and permanently disabled due to his PTSD since 2003, the Board does not wish to remand for potential negative development. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (cautioning against multiple remands for the sole purpose of developing negative evidence against a claim). Rather, the Board notes the December 2002 VA counseling examination which noted the Veteran's inconsistency with taking medication, and in the past, would turn to alcohol (he is now sober and attends AA). The Board also considered the 2004 VA examination for PTSD, which noted at that time 15 years ago that the Veteran required assistance from his then wife, and he was unable to manage his finances, he was unemployed and unable to work due in part to his PTSD, and he had frequent suicidal ideation. As noted above in his VA medical records, since his wife passed away about 10 years ago, he has required at home care assistance. The Board finds it strains credulity that the Veteran's requirement for assistance has diminished in 15 years, especially after the loss of his wife who provided care. Therefore, the Board must resolve all reasonable doubt in favor of the Veteran. See 38 C.F.R. §§ 3.102, 3.303(a). In sum, although many of the Veteran's needs are based on non-service-connected physical illnesses, the evidence is in equipoise that he also requires aid due to his total and permanent PTSD symptoms. Again, it is not required that all 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 former 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 (such as daily assistance with medication management), not that there be a constant need for aid and attendance. See 38 C.F.R. § 3.352(a); Turco, 9 Vet. App. 222, 224. As such, the Board finds that the Veteran requires the regular aid and attendance of another individual and entitlement to eligibility to SMC for aid and attendance/housebound is granted. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.Hoy, Associate 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.