Citation Nr: 21068192 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 15-41 471 DATE: November 9, 2021 ORDER From January 30, 2019 onward entitlement to special monthly compensation (SMC) based on aid and attendance is granted, subject to the laws and regulations governing the award of monetary benefits. REMANDED From July 12, 2011 to January 29, 2019 the issue of entitlement to SMC based on aid and attendance and/or housebound benefits is remanded. Entitlement to special monthly compensation based on aid and attendance (SMC T) for a traumatic brain injury (TBI) is remanded. FINDING OF FACT From January 30, 2019 onward the Veteran is in need of regular aid and attendance of another person due to his service-connected degenerative arthritis and disc disease of the lumbar spine with thoracic syrinx and left lower extremity sciatic radiculopathy associated with degenerative arthritis and disc disease of the lumbar spine. CONCLUSION OF LAW From January 30, 2019 the criteria for entitlement to SMC based on the need for regular aid and attendance have been met. 38 U.S.C. §§ 1521, 5103, 5103A; 38 C.F.R. §§ 3.350, 3.352(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1988 to June 1991. The Board notes that the Veteran has not specifically applied for consideration of a higher level of SMC under 38 U.S.C. § 1114 (t). However, the Veteran's attorney in a statement in October 2021 contends that the Veteran's need for regular aid and attendance is caused at least in part by his now service-connected TBI residuals and thus entitlement to SMC (t) is warranted. Therefore, the Board finds that entitlement to a higher level of SMC under subsection (t) has been reasonably raised by the record. Akles v. Derwinski, 1 Vet. App. 118, 121 (1991). Issues 1: Entitlement to SMC based on aid and attendance and/or housebound benefits from January 30, 2019 onward. SMC is payable if, as the result of service-connected disability, the Veteran has anatomical loss or loss of use of both feet, or of one hand and one foot; has blindness in both eyes with visual acuity of 5/200 or less; is permanently bedridden or is so helpless as to be in need of regular aid and attendance of another person. 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350(b). VA considers the following factors in order to determine whether a veteran is in need of regular aid and attendance of another person: the inability of the veteran to dress himself or to keep himself ordinarily clean and presentable; the frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without such aid; the inability to feed himself because of the loss of coordination of upper extremities or because of extreme weakness; the inability to attend to the wants of nature; or incapacity, physical or mental, that requires care or assistance on a regular basis to protect the veteran from the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). A veteran need not demonstrate all of these conditions in order to obtain SMC based on aid and attendance. Instead, VA considers the particular personal functions that the veteran is unable to perform in connection with his condition as a whole. Rather than meeting all of the above criteria, the veteran need only demonstrate that he is so helpless as to need regular aid and attendance, not that there is a constant need. 38 C.F.R. § 3.352(a); Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that the evidence of record must demonstrate at least one factor for a grant of SMC based on need for aid and attendance). In addition, a "bedridden" veteran also warrants the regular aid and attendance of another person. 38 C.F.R. § 3.352(a). The term "bedridden" means the condition that, through its essential character, actually requires that the veteran remain in bed. The fact that the veteran 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 does not suffice. 38 C.F.R. § 3.352(a). SMC is also payable when the veteran has a single service connected disability rated as 100 percent disabling, without resort to individual unemployability, and, in addition: (1) has a service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability, and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the veteran is substantially confined as a result of his service-connected disabilities to his dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his lifetime. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). Turning to the facts in this case, the Veteran is service-connected for PTSD and major depressive disorder with traumatic brain injury rated 70 percent from January 30, 2019; migraines associated with PTSD and major depressive disorder with TBI rated 30 percent from January 30, 2019; cervical spine degenerative joint disease and intervertebral disc syndrome rated 20 percent from July 12, 2011; degenerative arthritis and disc disease of the lumbar spine with thoracic syrinx rated 20 percent from January 30, 2019; left lower extremity sciatic radiculopathy associated with degenerative arthritis and disc disease of the lumbar spine with thoracic syrinx rated 20 percent from January 30, 2019; radiculopathy of the left upper extremity associated with cervical spine degenerative joint disease and intervertebral disc syndrome rated 20 percent from February 9, 2021; radiculopathy of the right upper extremity associated with cervical spine degenerative joint disease and intervertebral disc syndrome rated 20 percent from February 9, 2021; tinnitus rated 10 percent from January 30, 2019; right lower extremity sciatic radiculopathy associated with degenerative arthritis and disc disease of the lumbar spine with thoracic syrinx rated 10 percent from January 30 2019; right foot second metatarsal fracture rated zero percent from July 12, 2011; left ear hearing loss rated zero percent from January 30, 2019. The Veteran's claim for benefits was received on July 12, 2011. As indicate above, prior to January 30, 2019 the issue of entitlement to SMC based on aid and attendance or housebound benefits is being remanded for further development. On the August 2015 VA examination for aid and attendance, the examiner noted that the Veteran was not permanently bedridden. His daily activities included showering in the morning with a seat in the shower. His wife was present if needed. He was able to independently brush his teeth and attend to the wants of nature. His wife did all the cooking and housework. The Veteran did not drive. He was in a wheelchair due to back problems and left leg numbness. He went to appointments with his wife. The examiner stated that the Veteran's imbalance problems constantly affected his ability to ambulate. Impairment that affected the Veteran's ability to protect himself from the daily environment included his severe back pain and left sided radiculopathy that caused him to be in a wheelchair. He was unable to bathe on his own. The Veteran was able to walk only in his home without the assistance of another person. He needed a cane or a walker for ambulation. He could only leave the home with a family member due to his risk of falling. The examiner also noted that the Veteran may have had some mild incontinence. These findings are not controverted by the other competent evidence of record. Based on a review of the foregoing, the Board finds that the evidence approximates the criteria for SMC for aid and attendance from January 30, 2019, the date the Veteran was granted service connection for degenerative arthritis and disc disease of the lumbar spine with thoracic syrinx and left lower extremity sciatic radiculopathy. Therefore, resolving reasonable doubt in the Veteran's favor, the claim for SMC for aid and attendance from another is granted from January 30, 2019. This is a greater benefit than SMC at the housebound rate and therefore, further inquiry as to housebound benefits from January 30, 2019 is not required. REASONS FOR REMAND Issues 2-3: Entitlement to SMC based on aid and attendance and/or housebound benefits from July 12, 2011 to January 29, 2019; and entitlement to SMC T. As for the issue of entitlement to SMC based on aid and attendance and/or housebound benefits from July 12, 2011 to January 29, 2019 it is intertwined with the issues of entitlement to an earlier effective date for radiculopathy of the upper extremities prior to February 9, 2021. In an August 2021 rating decision service connection for cervical spine degenerative joint disease and intervertebral disc syndrome was granted with an evaluation of 20 percent effective July 12, 2011; service connection for radiculopathy of the right upper extremity and left upper extremity was granted with an evaluation of 20 percent each effective February 9, 2021. In September 2021 under the Appeals Modernization Act (AMA) the Veteran filed VA Form 20-0996 Decision Review Request: Higher Level Review regarding entitlement to an earlier effective date for radiculopathy of the upper extremities prior to February 9, 2021. Thus the issue of entitlement to SMC based on aid and attendance and/or housebound benefits from April 13, 2011 to January 29, 2019 must be deferred. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). Further, the Board notes that during the January 2019 Board hearing, the Veteran and his spouse testified that he was in need of aid and attendance due to his cervical spine disability as the swelling in his spine and the syrinx pushes pressure into his brain causing cognitive problems requiring aid and attendance. In a rating decision in June 2021 service connection for both a TBI and major depressive disorder was granted and included with the evaluation of PTSD effective January 30, 2019 and service connection for migraine headaches associated with the TBI was granted effective January 30, 2019. Thus, on remand, the Veteran should be afforded a VA aid and attendance examination to determine whether he meets the criteria for SMC based on regular aid and attendance prior to January 30, 2019 as well as aid and attendance of another person as a result of his service-connected residuals of TBI alone. By this remand the Board makes no determination, expressed or implied, as to the credibility of any statements on file. The matters are REMANDED for the following action: 1.) Schedule the Veteran for a VA examination to determine whether SMC is warranted based on aid and attendance or housebound status from July 12, 2011 to January 29, 2019 and whether aid and attendance is warranted as a result of the Veteran's service-connected residuals of TBI alone. The claims file must be made available to and reviewed by the examiner in conjunction with the examination. Any necessary testing should be accomplished. The examiner is hereby advised that the Veteran is service connected for PTSD and major depressive disorder with traumatic brain injury rated 70 percent from January 30, 2019; migraines associated with PTSD and major depressive disorder with traumatic brain injury rated 30 percent from January 30, 2019; cervical spine degenerative joint disease and intervertebral disc syndrome rated 20 percent from July 12, 2011; degenerative arthritis and disc disease of the lumbar spine with thoracic syrinx rated 20 percent from January 30, 2019; left lower extremity sciatic radiculopathy associated with degenerative arthritis and disc disease of the lumbar spine with thoracic syrinx rated 20 percent from January 30, 2019; radiculopathy of the left upper extremity associated with cervical spine degenerative joint disease and intervertebral disc syndrome rated 20 percent from February 9, 2021; radiculopathy of the right upper extremity associated with cervical spine degenerative joint disease and intervertebral disc syndrome rated 20 percent from February 9, 2021; tinnitus rated 10 percent from January 30, 2019; right lower extremity sciatic radiculopathy associated with degenerative arthritis and disc disease of the lumbar spine with thoracic syrinx rated 10 percent from January 30 2019; right foot second metatarsal fracture rated zero percent from July 12, 2011; left ear hearing loss rated zero percent from January 30, 2019. a.) The examiner should address whether the Veteran's service-connected disabilities at any time from July 12. 2011 to January 29, 2019, to specifically include cervical spine degenerative joint disease and intervertebral disc syndrome, have resulted in any of the following: a.) An inability to dress or undress himself, or to keep himself ordinarily clean and presentable; b.) Frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; c.) Inability to feed himself through loss of coordination of upper extremities or through extreme weakness; d.) Inability to attend to the wants of nature; e.) 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; f.) The anatomical loss or loss of use of both feet. b.) The examiner also is asked to determine whether the Veteran requires the regular aid and attendance of another person as a result of his service-connected residuals of a TBI alone. In providing the requested information, the examiner should consider and discuss all pertinent medical and lay evidence, to include the Veteran's statements regarding his need for aid and attendance. A full rationale should be provided for all opinions expressed. If the examiner is unable to provide an opinion he or she should explain why. 2. Following the resolution of the Veteran's claims pending under the AMA regarding the earlier effective dates for radiculopathy of the upper extremities, readjudicate the issue of entitlement to SMC based on aid and attendance and/or housebound benefits from July 12, 2011 to January 29, 2019. 3. Adjudicate the issue of entitlement to SMC T. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Mac, 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.