Citation Nr: 21063645 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 17-16 100 DATE: October 15, 2021 ORDER Entitlement to special monthly compensation (SMC) based on the need for aid and assistance for accrued benefits purposes from August 20, 2011, to May 22, 2013, is granted, subject to the laws and regulations governing monetary benefits. FINDING OF FACT The most probative evidence reflects that the Veteran's service-connected disabilities rendered him in need of regular aid and attendance of another person for certain activities of daily living from August 20, 2011, to May 22, 2013. CONCLUSION OF LAW The criteria for an award of special monthly compensation based on the need for the regular aid and attendance of another person for accrued benefits purposes are met from August 20, 2011, to May 22, 2013. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.350, 3.352, 3.401 (a) (1). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1954 to August 1957 and from March 1958 to February 1975, to include in the Republic of Vietnam. He was in receipt of a Purple Heart Medal. The present appeal stems from a claim seeking SMC based on the need for the regular aid and attendance of another person filed by the Veteran on August 20, 2012. Unfortunately, the Veteran died in May 2013, prior to the Agency of Original Jurisdiction's (AOJ) initial adjudication of this claim. The Veteran's common-law spouse subsequently filed several claims seeking VA death benefits and a statement conveying her wishes to continue any VA claims or appeals that were pending at the time of his demise. In a May 2014 administrative decision, a Pension Management Center (PMC) of the AOJ denied the appellant's claim for accrued benefits, stating that "VA didn't owe the [Veteran] any money." The appellant initiated an appeal of this issue in a timely manner, was provided a Statement of the Case (SOC) in February 2017, and subsequently perfected the appeal to the Board of Veterans' Appeals (Board). While the appellant has been adjudicated to be an appropriate substitute for the Veteran, the present appeal is for accrued benefits purposes only, as the Veteran's initial claim had not been adjudicated prior to his demise. In July 2021, the appellant and her brother presented oral testimony in support of the appeal at a videoconference hearing conducted by the undersigned Veterans Law Judge. A transcript of the July 2021 Board hearing is associated with the record. 1. Entitlement to SMC based on the need for aid and assistance for accrued benefits purposes Awards of SMC at the aid and attendance rate is payable when a veteran is helpless or so nearly helpless as the result of service-connected disability that he/she requires the regular aid and attendance of another person. 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). To establish a need for regular aid and attendance, the veteran must, as a result of service-connected disability, (1) be blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; (2) be a patient in a nursing home because of mental or physical incapacity; or (3) show a factual need for aid and attendance. Id. Determinations as to need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to such conditions as the following: the inability of the claimant to dress or undress himself/herself or to keep himself/herself ordinarily clean and presentable; the frequent need of the adjustment of any special prosthetic or orthopedic appliance which by reason of the particular disability cannot be done without aid; the inability of the claimant to feed himself/herself through loss of coordination of the upper extremities or through extreme weakness; the 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 daily environment. 38 C.F.R. § 3.352(a). "Bedridden" will be a proper basis for the aid and attendance determination and is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that the claimant 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. It is not required that all of the disabling conditions enumerated above be found to exist before a favorable rating may be made. The particular personal functions that the claimant is unable to perform should be considered in connection with his/her condition as a whole. It is only necessary that the evidence establish that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that the veteran is so helpless, as to be in need of regular aid and attendance will not be based solely on an opinion that the claimant's condition is such as would require him/her to be in bed. They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352 (a). The performance of the necessary aid and attendance service by a relative of the claimant or other member of his/her household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352(c). Analysis The appellant asserts that the Veteran's service-connected disabilities restricted his activities throughout the final years of his life, rendering him in the need of the regular aid and attendance of another person. The Veteran initial claim seeking SMC based on the need of aid and attendance was received by VA on August 20, 2012. As claims and appeals seeking awards of SMC are considered to be claim seeking increased evaluations, the appeal period for consideration by the Board in this case is from August 20, 2011, to the date of the Veteran's death in May 2013. 38 C.F.R. § 3.400 (o) (2); Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010); Hurd v. West, 13 Vet. App. 449 (2000). The record reflects that the Veteran experienced severe cardiac, orthopedic, diabetic, psychiatric symptoms consequent to his service-connected disabilities in his final years. His service-connected disabilities and the associated evaluations assigned thereto during the appeal period (from August 20, 2011, to May 22, 2013) were: coronary artery disease with post-operative scarring, rated 60 percent disabling; posttraumatic stress disorder (PTSD), rated 30 percent disabling; traumatic arthritis of the right shoulder, rated 20 percent disabling; peripheral vascular disease of the legs, each rated 20 percent disabling; diabetes mellitus, type II, rated 20 percent disabling; cerebrovascular disease, rated 10 percent disabling; and hemorrhoids, a hiatal hernia, and gastroesophageal reflux disease (GERD), each rated noncompensably (zero percent) disabling. The Veteran's combined evaluation for his service-connected disabilities was 90 percent throughout the entirety of the period under consideration. Additionally, the AOJ established a total evaluation based on individual unemployability due to service-connected disabilities (TDIU), effective November 20, 2000. In support of his claim, the Veteran submitted a "Statement of Attending Physician" completed by a private clinician in August 2012. This record reflects that the Veteran's service-connected disabilities, chiefly his service-connected coronary artery disease and diabetes mellitus, type II, resulted in his inability to be able to leave his home or ambulate within his home without a cane and assistance of another person. Additionally, the physician noted that the Veteran was not bedridden, blind, or unable to protect himself from the hazards of everyday life, he required assistance dressing, undressing, toileting, and attending to hygiene. In a detailed written statement submitted in October 2015 and at the July 2021 Board hearing, the appellant conveyed that these restrictions were present since approximately 2010, and she was the party who assisted the Veteran with the above matters. Moreover, the appellant asserted that the Veteran's service-connected disabilities also rendered him unable to cook, feed himself, and manage his medications and financial affairs, and thus, she also assisted with these functions. The Veteran's restrictions reflected in the August 2020 physician's statement and in the appellant's October 2015 submission and July 2020 testimony are congruent with the Veteran's VA and private treatment record, which outline the steady progression of the manifestations of the Veteran's service-connected disabilities throughout the appeal period. In view of above, the Board concludes the evidence supports special monthly compensation based on a need for regular aid and attendance of another person. 38 U.S.C. § 5107(b). Although the August 2012 private physician's statement includes references to congestive heart failure, a nonservice-connected disability, the record shows that the Veteran's service-connected disabilities, in concert, contributed to his need for assistance with activities of daily living. Furthermore, it is not possible to distinguish the extent to which only the service-connected disabilities contribute need for aid and attendance, especially considering that it is unclear whether the Veteran's chronic congestive heart failure is attributed to his service-connected heart disability and/or diabetes mellitus, type II. Mittleider v. West, 11 Vet. App. 181, 182 (1998). The appellant's appeal is therefore granted. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Scott W. Dale, 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.