Citation Nr: 21065873 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 15-44 763 DATE: October 27, 2021 ORDER Special monthly compensation (SMC) based on the need for aid and attendance is granted. FINDING OF FACT The evidence was in equipoise on whether the Veteran's service-connected disability rendered him in need of the regular aid and attendance of another person. CONCLUSION OF LAW The criteria for SMC based on the need for aid and attendance are met. 38 U.S.C. § 1114(l), 5107(b); 38 38 C.F.R. §§ 3.102, 3.350, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1957 to January 1961. The Veteran died in June 2017. See 6/26/2017 Death Certificate. The appellant is the Veteran's surviving spouse. See 8/2/2017 Correspondence. She is continuing the appeal as a substitute for the claimant under the provisions of 38 U.S.C. § 5121A. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has a long procedural history and has been before the Board previously. In February 2019, the Board remanded the issues on appeal of entitlement to compensation under the provisions of 38 U.S.C. § 1151 and SMC for the Agency of Original Jurisdiction (AOJ) to obtain an opinion from an independent medical expert who is a nephrologist or urologist and is not employed by VA. The RO obtained an opinion from an independent medical expert; however, there is no evidence that the examiner had the necessary expertise required to render an opinion involving the long-term care of kidney functioning and urinary tract infections. Therefore, in July 2020, the Board remanded the issues on appeal of entitlement to compensation under the provisions of 38 U.S.C. § 1151 and SMC to obtain an opinion from an independent medical expert who is a nephrologist or urologist. In January 2021 the Board granted the claim for entitlement to compensation under the provisions of 38 U.S.C. § 1151. As such, this matter is no longer on appeal due to the full grant of the benefit sought and it will not be discussed. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). Additionally, in January 2021, the Board remanded the issue on appeal for initial consideration by the AOJ due to it being inextricably intertwined with the grant of the claim for entitlement to compensation under the provisions of 38 U.S.C. § 1151. After an August 2021 supplemental statement of the case considered the record, this matter was returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directive as the AOJ considered the issue of SMC. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). SMC based on the need for aid and attendance. The appellant contends SMC based on the need for aid and attendance for the late Veteran. Specifically, the appellant asserts that the incidents that helped established entitlement to benefits under 38 U.S.C. § 1151 were all mistakes that either caused or aggravated a disability of the legs, to include loss of use, among others. See 7/7/2015 VA 21-0820; see also 10/4/2021 Appellate Brief, at page 3. "SMC is available when, 'as the result of service-connected disability,' a veteran suffers additional hardships above and beyond those contemplated by VA's schedule for rating disabilities." Breniser v. Shinseki, 25 Vet. App. 64, 68 (2011) (citing 38 U.S.C. § 1114(k)-(s)). Section 1114(l) provides five distinct ways for a veteran, "as the result of service-connected disability," to qualify for this rate of SMC: (1) anatomical loss or loss of use of both feet; (2) anatomical loss or loss of use of one hand and one foot; (3) blindness in both eyes with 5/200 visual acuity or less; (4) being permanently bedridden; or (5) having "such significant disabilities as to be in need of regular aid and attendance." 38 U.S.C. § 1114(l). Under 38 U.S.C. § 1114(l), SMC is payable where a veteran has service-connected disability that renders him 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). Determinations as to the need for aid and attendance are based on the actual requirements of personal assistance from others. In determining the need for regular aid and attendance, consideration will be given to the inability of the veteran to dress or undress himself, or to keep himself clean; frequent need of adjustment of any prosthetic which by reason of the disability cannot be done without aid; inability of the veteran to feed himself; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect himself from the hazards or dangers of his daily environment. Bedridden will be that condition which, through its essential character, actually requires that the claimant remain in bed. 38 C.F.R. § 3.352(a); see Turco v. Brown, 9 Vet. App. 222, 224-25 (1996) (stating that 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). It is noted that, in order for the veteran to prevail in his claim, the evidence must show that it is a service-connected disability that has resulted in him being in need of regular aid and attendance or being housebound. See Prejean v. West, 13 Vet. App. 444, 447-48 (2000). Here, the record showed that the Veteran's claim for entitlement to compensation under the provisions of 38 U.S.C. § 1151 for urinary tract infection with urinary incontinence and kidney disorder due to hematoma was granted, and he was assigned a rating of 80 percent, effective March 10, 2015. After careful review of the evidence, the Board finds that SMC is warranted in the present case, as there is evidence that the Veteran was so helpless as to be in need of regular aid and attendance. Turning to the evidence, in August 2021, a VA reviewing clinician examined the entire record and rendered a retrospective opinion. The reviewing clinician stated that the Veteran had been bound to a wheelchair for at least a month or so prior to his death. Additionally, the reviewing clinician stated that the Veteran's immobility was consistent with a multifactorial etiology, to include his poorly controlled diabetes, his neurologic issues, his cardiovascular disease, and his kidney disease. Further, the reviewing clinician opined that the Veteran's urinary tract infection with urinary incontinence and kidney disorder due to hematoma "ALONE" was not of such nature and severity as to cause him to be so helpless as to be permanently bedridden or in need of regular aid and attendance. See 8/5/2021 C&P Examination. In August 2021, the AOJ requested a retrospective VA examination for housebound status or permanent need for regular and aid attendance. The reviewing clinician stated that the Veteran ambulated with a walker and was independent for dressing, undressing, eating, mobility, toileting, light housework, preparing meals, and using the telephone. However, the reviewing clinician also stated that the Veteran had decreased muscle mass and was weak, debilitated, and dependent on assistance for bathing, taking medications, shopping for groceries, and managing money. Furthermore, the reviewing clinician noted that the Veteran's spouse had been assisting the Veteran with the assistance of home health. See 8/16/2021 C&P Examination. Private treatment records showed a letter from Dr. C.S., M.D., which stated that the Veteran experienced difficulty walking secondary to an immobilization syndrome. See 7/20/2015 Medical Treatment Record Non-Government Facility, at page 32. Additionally, private records showed that the Veteran had falls at home after his legs went out. See 7/20/2015 CAPRI, at page 112. Further, a private treatment record from Dr. G.A., M.D., stated that the "nephrotoxic medications used at the VA hospital with the combination of [nonsteroidal anti-inflammatory drugs] and [angiotensin-converting enzyme] inhibitors in a patient with chronic renal failure stage IV was significant in terms of worsening [the Veteran's] condition." See 7/20/2015 Medical Treatment Record Non-Government Facility, at page 22. Based on consideration of the foregoing, the Board finds that the evidence is at least in equipoise on whether, as a result of his service-connected disability, the Veteran required care or assistance on a regular basis due to his inability to maintain basic daily activities. Specifically, the Veteran was noted to require assistance with bathing, taking medications, shopping for groceries, and managing money. Further, the Veteran was weak and debilitated, and had decreased muscle mass, difficulty walking due to an immobilization syndrome, and falls at home after his legs went out. Finally, as mentioned above, the August 2021 reviewing clinician opined that the Veteran's service-connected disability alone was not of such nature and severity as to cause him to be so helpless as to be permanently bedridden or in need of regular aid and attendance. As such, since it was not possible to separate the effects of the Veteran's service-connected disability from non-service-connected disabilities, the Board finds that such signs and symptoms are attributed to the Veteran's service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). The appellant's authorized representative also made this argument. See 10/4/2021 Appellate Brief, at page 5. Importantly, as mentioned above, 38 C.F.R. § 3.352(a) does not require a Veteran to exhibit all of the disabling conditions enumerated in the regulation. Rather, the evidence of record need only "establish that the veteran is so helpless as to need regular aid and attendance, not that there be a constant need." Given the above, the Board finds that, on a "facts found" basis, the evidence is in equipoise as to the facts underlying entitlement to aid and attendance benefits. As such, entitlement to aid and attendance benefits is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.F., 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.