Citation Nr: 21064443 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 10-08 093 DATE: October 20, 2021 ORDER Entitlement to an increased level of special monthly compensation (SMC) under 38 U.S.C. § 1114(p) is granted, subject to the regulations governing the payment of monetary awards. FINDINGS OF FACT 1. The Veteran is currently entitled to SMC under 38 U.S.C. § 1114(l) based on the need for regular aid and attendance of another person due to his service-connected paranoid schizophrenia. 2. A July 2020 VA examiner found in the absence of a "higher level of care" (as defined in 38 C.F.R. § 3.352(b)(2)) the Veteran would require hospitalization, nursing home care, or other residential institutional care. 3. The preponderance of the evidence is against finding that the Veteran qualifies for an even higher level of SMC under 38 U.S.C. § 1114(m)-(t). CONCLUSION OF LAW The criteria for entitlement to an intermediate rate between 38 U.S.C. § 1114 (l) and 38 U.S.C. § 1114(m) (but no higher) are met. 38 U.S.C. § 1114(p) ; 38 C.F.R. §§ 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1982 to March 1983. This matter is before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (Court) in October 2015, which granted a Joint Motion for Partial Remand (JMR) vacating the Board's April 2014 decision, and remanding the case to the Board for compliance with the JMR and readjudication consistent with its order. The JMR did not disturb that portion of the Board's decision that dismissed the Veteran's claim of entitlement to an effective date prior to November 20, 2000, for the grant of service connection for paranoid schizophrenia. In April 2016 and June 2018, the Board remanded the matter for further development. In December 2013, the Veteran testified during a Board hearing before a retired Veterans Law Judge (VLJ). A transcript of the hearing is of record. The Veteran was later informed that the VLJ who had presided over the December 2013 hearing was no longer employed by the Board and, that he had a right to another hearing conducted by a VLJ who would ultimately decide his appeal. See 38 C.F.R. § 20.707. In June 2021, a virtual Board hearing was held before the undersigned VLJ and a transcript is of record. The June 2021 hearing transcript includes some mention of the issue of entitlement to an effective date earlier than November 20, 2000, for the award of service connection for paranoid schizophrenia based on clear and unmistakable error (CUE). This issue is not currently before the Board and was previously referred to the agency of original jurisdiction (AOJ) for adjudication. No action has been taken to date. The issue of entitlement to an effective date earlier than November 20, 2000, for the award of service connection for paranoid schizophrenia based on CUE is once again referred to the AOJ for appropriate action. Higher Rate of SMC The Veteran is currently service connected for paranoid schizophrenia (rated 100 percent disabling, effective November 20, 2000) and impotence (rated 0 percent disabling, effective April 3, 2013). He was awarded SMC at the "k" rate on account of loss of use of a creative organ, effective April 3, 3013, and SMC at the "l" rate on account of being so helpless as to be in the need of regular aid and attendance, effective November 20, 2000. SMC is a special statutory award in addition to awards based on the schedular evaluations provided in VA's rating schedule. Claims for SMC, other than those pertaining to one-time awards and an annual clothing allowance, are governed by 38 U.S.C. §§ 1114 (k)-(t) and 38 C.F.R. §§ 3.350 and 3.352. The Veteran asserts entitlement to a higher level of SMC based on the need for a higher level of care (38 U.S.C. § 1114(r)(2)). Specifically, he and his wife have reported he needs "100% supervision" and needs assistance to eat, dress himself, walk, bathe, use the bathroom, take his medication, and go outside. See December 2008 claim, statement attached to December 2009 VA Form 9, and December 2013 and June 2021 hearing transcripts. The SMC rate payable under 38 U.S.C. § 1114(m) is warranted if the veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both hands, or of both legs with factors preventing natural knee action with prostheses in place, or of one arm and one leg with factors preventing natural elbow and knee action with prostheses in place, or has suffered blindness in both eyes having only light perception, or has suffered blindness in both eyes, rendering such veteran so significantly disabled as to be in need of regular aid and attendance. The SMC rate payable under 38 U.S.C. § 1114(n) is warranted if the veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both arms with factors preventing natural elbow action with prostheses in place, has suffered the anatomical loss of both legs with factors that prevent the use of prosthetic appliances, or has suffered the anatomical loss of one arm and one leg with factors that prevent the use of prosthetic appliances, or has suffered the anatomical loss of both eyes, or has suffered blindness without light perception in both eyes. The SMC rate payable under 38 U.S.C. § 1114(o) is warranted for combinations. Determinations must be based upon separate and distinct disabilities. This requires, for example, that where a Veteran who had suffered the loss or loss of use of two extremities is being considered for the maximum rate on account of helplessness requiring regular aid and attendance, the latter must be based on need resulting from pathology other than that of the extremities. If the loss, or loss of use, of two extremities or being permanently bedridden leaves the person helpless, increase is not in order on account of this helplessness. Under no circumstances will the combination of "being permanently bedridden" and "being so helpless as to require regular aid and attendance" without separate and distinct anatomical loss, or loss of use, of two extremities, or blindness, be taken as entitling to the maximum benefit. The fact, however, that two separate and distinct entitling disabilities, such as anatomical loss, or loss of use of both hands and both feet, result from a common etiological agent, for example, one injury or rheumatoid arthritis, will not preclude maximum entitlement. 38 C.F.R. § 3.350(e)(3). The maximum rate, as a result of including helplessness as one of the entitling multiple disabilities, is intended to cover, in addition to obvious losses and blindness, conditions such as the loss of use of two extremities with absolute deafness and nearly total blindness or with severe multiple injuries producing total disability outside the useless extremities, these conditions being construed as loss of use of two extremities and helplessness. 38 C.F.R. § 3.350(e)(4). SMC under 38 U.S.C. § 1114(p) is provides for "intermediate" rates between the different subsections based on anatomical loss or loss of use of the extremities or blindness in connection with deafness and/or anatomical loss or loss of use of a hand or foot. 38 U.S.C. § 1114(p); 38 C.F.R. § 3.350(f). Moreover, as is relevant here, the section states, "in the event the veteran's service-connected disabilities exceed the requirements for any of the rates prescribed in this section, the Secretary may allow the next higher rate or an intermediate rate . . . ." 38 U.S.C. § 1114(p). SMC rate payable under 38 U.S.C. § 1114(r) is warranted where the Veteran is 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 or regular aid and attendance with a need for a higher level of care. See 38 U.S.C. § 1114(r)(1) and (2). SMC under 38 U.S.C. § 1114(s) is payable if the veteran is permanently housebound or has a service-connected disability rated as total and has an additional service-connected disability or disabilities independently ratable at 60 percent or more. Under 38 U.S.C. § 1114(t), if any Veteran, as the result of service-connected disability, is in need of regular aid and attendance for the residuals of traumatic brain injury (TBI), is not eligible for compensation under § 1114(r)(2), and in the absence of such regular aid and attendance would require hospitalization, nursing home care, or other residential institutional care, the Veteran shall be paid a monthly aid and attendance allowance equal to the rate described in 38 U.S.C. § 1114(r)(2). In determining the need for regular aid and attendance, the following will be accorded consideration: inability of a claimant to dress or undress himself, or to keep himself 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; inability to feed himself through the 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 him from hazards or dangers incident to his daily environment. 38 C.F.R. §§ 3.350(b), 3.352(a). The need for a "higher level of care" shall be considered to be a 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. See 38 C.F.R. § 3.352(b)(2). The term "under the regular supervision of a licensed health-care professional," means that an unlicensed person performing personal health-care services is following a regimen of personal health-care services prescribed by a health-care professional, and that the health-care professional consults with the unlicensed person providing the health-care services at least once each month to monitor the prescribed regimen. The consultation need not be in person; a telephone call will suffice. A person performing personal health-care services who is a relative or other member of the Veteran's household is not exempted from the requirement that he or she be a licensed health-care professional or be providing such care under the regular supervision of a licensed health-care professional. The performance of the necessary aid and attendance service by a relative of the beneficiary or other member of his or her household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352(b)(2)-(4)(c). 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 that a 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 a veteran is so helpless as to need regular aid and attendance, not that there is a constant need. Determinations that a veteran is so helpless as to be in need of regular aid and attendance will not be based solely upon an opinion that his condition is such as would require him to be in bed. They must be based on the actual requirement of personal assistance from others. See 38 C.F.R. § 3.352(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). The claim for a higher level of SMC was received in January 2009. The Veteran underwent an Examination for Housebound Status or Permanent Need for Regular Aid and Attendance in November 2008. It was noted the Veteran was sleepy but arousable, in no apparent distress, and walked with a cane or a walker. The Veteran was described as having upper extremity restrictions of paranoid type and cyclothymic disorder. The Veteran used incontinence liners. The Veteran's wife stated he was unable to feed or dress himself. He was unable to bathe himself, see adequately (without glasses), get out of bed, get outdoors, travel, or exercise without assistance. He also required assistance with his bowel and bladder function. An August 2009 VA Examination for Housebound Status or Permanent Need for Regular Aid and Attendance notes the Veteran was unable to feed himself, prepare his own meals, or manage his own financial affairs. He needed assistance in bathing and attending to other hygiene needs and required medication management. He was not legally blind and did not require nursing home case. The examiner noted the Veteran needed constant supervision for his care and safety. The Veteran's wife testified in December 2013, and reported in several written statements received from 2009 to 2012, that the Veteran completely relied on her for all basic activities of daily life, including feeding and hygiene maintenance. She stated she was unable to leave the Veteran unattended and he was not capable of walking without assistive devices, such as a cane or a wheelchair. In December 2013, she testified that the Veteran used a cane, walker, or wheelchair, and had lost much of the sensation in his legs. A September 2016 VA examination report notes the Veteran was able to walk up to a few hundred yards without the assistance of another person. The function of his upper extremities was normal. After examining the Veteran, the examiner opined the Veteran "[did] not require hospitalization, nursing home care, or other residential institutional care at this time. He [needed] help with attending to his ADL's (activities of daily living)." A December 2016 VA medical opinion likewise found the Veteran needed help with basic ADL's. Private treatment records show the Veteran was hospitalized in July 2017 and again in August 2017 for decompensated paranoid schizophrenia; his symptoms included erratic behavior, hallucinations and delusions. He was noted to have been noncompliant with recommended treatment. In February 2018, the Veteran underwent a VA examination. During the course of the examination, the examiner repeatedly deferred a determination of the level of impact on the Veteran's activities of daily living to a qualified psychiatrist. The Veteran was provided an addendum opinion by a psychiatrist in March 2018. This examiner stated the Veteran's service-connected mental disorder did not cause a requirement for aid and attendance. The examiner also noted the Veteran's leg weakness was not related to his service-connected schizophrenia, and he did not have loss of use of his legs or feet. In a May 2018 statement, the Veteran's wife reported the Veteran had been arrested in January 2018. He refused to take his medication and became violent. She stated he was not violent while under treatment. An April 2018 VA treatment record notes the Veteran was able to ambulate. Private treatment records show the Veteran was hospitalized in September 2018 for paranoid schizophrenia with symptoms including psychomotor agitation, persecutory delirious and material prejudice ideation, impulsive behavior, verbal aggressiveness and absent insight. He was discharged because he was not able to adjust to the sanatorium and refused antipsychotic medication. Commitment to a psychiatric ward under permanent supervision was recommended. A July 2020 Medical Opinion Disability Benefits Questionnaire (DBQ) notes the examiner reviewed the claims file and concluded that in the absence of a "higher level of care" as defined in 38 C.F.R. § 3.352(b)(2), the Veteran would likely require hospitalization, nursing home care, or other residential institutional care. In support of this conclusion, the examiner noted the Veteran's symptoms of debilitating and persistent visual and auditory hallucinations, suspiciousness, confusion, amotivation, and impaired judgment due to his service-connected schizophrenia. He also noted medical evidence (including July 2017, August 2017 and September 2018 hospitalization records) that showed the Veteran was unable to engage in the activities of daily living and was a danger to himself and others when not adequately medicated for service-connected schizophrenia. The examiner also cited statements from the Veteran and his wife describing his need for constant, individualized supervision 24 hours a day to ensure he takes his psychiatric medication properly, dresses, bathes, feeds, and otherwise engage in the normal activities of daily living. During the June 2021 Board hearing, the Veteran's wife testified that as the spouse and caregiver, she had to give up her career to take care of him. She stated she had to bathe and shave him, dress him, cook for him, and change his diaper. On occasion, she had to feed him because he did not want to eat. The only things he did independently were smoke and drink his coffee. He could move with a walker in the house; however, he could not walk much outside his home because he was very weak and tired. The Veteran's wife stated she would get to a point where she had to put the Veteran in a nursing home because of his psychiatric symptoms. She described him as a safety hazard who could be left unsupervised, otherwise he would disappear, burn the house down, or hurt himself. In this case, the evidence shows that Veteran is currently entitled to SMC under 38 U.S.C. § 1114(l) based on the need for aid and attendance of another person due specifically to his service-connected paranoid schizophrenia. See October 2005 rating decision. The evidence also shows that the Veteran currently would require hospitalization, nursing home care, or other residential institutional care in the absence of a "higher level of care" (as defined in 38 C.F.R. § 3.352(b)(2)). See July 2020 VA Medical Opinion DBQ. Based on the entitlement to SMC under 38 U.S.C. § 1114(l) and the finding that the Veteran's service-connected disabilities exceed the requirements for any of the rates prescribed in this section (namely, the additional need for hospitalization, nursing home care, or other residential institutional care in the absence of a "higher level of care"), the Board finds the Veteran is entitled to an intermediate, or half step, rate above his current SMC rate under 38 U.S.C. § 1114(l). See 38 U.S.C. § 1114(p); see also Breniser v. Shinseki, 25 Vet. App. 64, 78-79 (2011) (holding the Board erred when it did not consider whether the appellant was entitled to a higher level of SMC based on § 1114(p) when it was clear his condition exceeded the requirements for SMC at the (l) level, and that consideration was not limited to enumerated instances in 38 C.F.R. § 3.350(f). The Board has considered whether the evidence supports an even higher level of SMC based on evidence above. However, the Veteran does not meet the criteria for a higher rate of SMC under 38 U.S.C. § 1114(m)-(t). In this regard, the evidence does not show the Veteran has suffered blindness in both eyes or the anatomical loss or loss of use of both hands, or of both legs, or of one arm and one leg as a result of service-connected schizophrenia or impotence. See 38 U.S.C. § 1114(m), (n). The Veteran also is not entitled to SMC under § 1114(o). He is not service-connected for, has not asserted service connection for, and the medical evidence does not otherwise establish that the Veteran has the anatomical loss or loss of use of any extremity at any level. He is not service-connected for or asserted service connection for blindness in both eyes or visual acuity of 5/200 or less bilaterally; or total deafness in one ear or bilateral deafness rated at 40 percent or more. By the same reasoning, while the Veteran is entitled to compensation under § 1114(l), he does not qualify for two or more of the rates in §§ 1114(l) through (n). The Veteran is not entitled to the maximum rate authorized by 38 U.S.C. § 1114(p). The maximum allowable rate under § 1114(p) is the same rate allowable under § 1114(o). And, as discussed above, the Veteran does not qualify for any of the rates provided in §§ 1114(m) through (o), and therefore cannot be entitled to the maximum rate authorized by § 1114(p). While the Veteran is clearly severely disabled due to his service-connected schizophrenia, the additional requisite criteria for SMC under 38 U.S.C. §§ 1114(r)(1) and (r)(2) are specific and the medical evidence does not show the Veteran meets them. He is not 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). Therefore, entitlement to SMC under 38 U.S.C. §§ 1114(r)(1) or (r)(2) is not warranted. The Veteran is not permanently housebound and does not have service-connected disability or disabilities independently ratable at 60 percent or more in addition to his total rating for schizophrenia. The evidence does not show the Veteran has residuals of a TBI. See 38 U.S.C. § 1114(s), (t). The Board, therefore, finds that a higher SMC rate at the intermediate, half-step, rate between 38 U.S.C. § 1114(1) and 38 U.S.C. § 1114(m), but no higher, is warranted under 38 U.S.C. § 1114(p). A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Fletcher, Kathleen 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.