Citation Nr: 21069017 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 15-15 314 DATE: November 17, 2021 ORDER Entitlement to special monthly compensation (SMC) based on SMC(l) for aid and attendance due to service-connected coronary artery disease is granted, subject to laws and regulations applicable to payment of VA monetary benefits. Entitlement to SMC(o) based on the award of two distinct SMC(l) awards is granted, subject to laws and regulations applicable to payment of VA monetary benefits. Entitlement to SMC(r)(1) based on the award of SMC(o) and the need for aid and attendance is granted, subject to the laws and regulations applicable to payment of VA monetary benefits. Entitlement to SMC(r)(2) is denied. FINDINGS OF FACT 1. In an April 2020 rating decision, the Veteran was awarded SMC(l) based on his service-connected posttraumatic stress disorder (PTSD), effective June 4, 2012. 2. The Veteran's service-connected coronary artery disease reasonably results in the need for aid and attendance of another. 3. Resolving all doubt in his favor, the Veteran has suffered disability under conditions which would entitle him to two SMC(l) awards, without consideration of any condition twice. 4. Due to his service-connected coronary artery disease, the Veteran requires care or assistance on a regular basis in order to keep himself clean and presentable; however, a VA physician has not deemed him to be in need of personal healthcare services provided on a daily basis in his home by a person who is licensed to provide such services or who provides such services under the regular supervision of a licensed healthcare professional. CONCLUSIONS OF LAW 1. The criteria for entitlement to SMC(l) based on the need for regular aid and attendance due to service-connected coronary artery disease have been met. 38 U.S.C. §§ 1114, 5107 (2018); 38 C.F.R. §§ 3.102, 3.350, 3.352 (2021). 2. The criteria for an award of SMC(o) based on the presence of two SMC(l) awards have been met. 38 U.S.C. §§ 1114, 5107 (2018); 38 C.F.R. §§ 3.102, 3.350, 3.352 (2021). 3. The criteria for an award of SMC(r)(1) based on the award of SMC(o) and the need for aid and attendance have been met. 38 U.S.C. §§ 1114, 5107 (2018); 38 C.F.R. §§ 3.102, 3.350, 3.352 (2021). 4. The criteria for an award of SMC(r)(2) based on special aid and attendance have not been met. 38 U.S.C. § 1114 (2018); 38 C.F.R. §§ 3.350, 3.352 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1966 to December 1968 and from September 1975 to January 1987. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of the Washington Processing Center in Washington, District of Columbia. Jurisdiction was transferred to the Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Veteran was afforded a personal hearing before the undersigned; the transcript is in the record. In May 2018, this matter was remanded for additional development. At the time of the Board remand, the Veteran was in receipt of SMC at levels K-1 and S-1. In an April 2020 rating decision, the RO granted SMC at levels L-1 and P-2, effective June 4, 2012. In April 2021, this matter was remanded again for additional development. Because higher ratings are assignable during the remainder of the period on appeal and the Veteran is presumed to seek the maximum available benefit, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). 1. Entitlement to SMC(l) based on the need for aid and attendance due to service-connected coronary artery disease is granted. 2. Entitlement to SMC(o) based on the award of two distinct SMC(l) awards is granted. 3. Entitlement to SMC(r)(1) based on the award of SMC(o) and the need for aid and attendance is granted. The Veteran contends that he is entitled to a higher level of SMC, specifically SMC(o) or SMC(r). In an April 2020 rating decision, the RO awarded SMC(l) for aid and attendance based on the Veteran's service-connected PTSD and SMC(p)(2), effective June 4, 2012. SMC is an additional level of compensation to veterans (above the basic levels of compensation payable based on disability ratings of 0 to 100 percent) for various types of anatomical losses or levels of impairment due solely to service-connected disabilities. See 38 U.S.C. § 1114(k-s). SMC(l) (aid and attendance) is payable when, as a result of a service-connected disability, the Veteran has suffered the anatomical loss or loss of use of both feet, or of one hand and one foot, or is blind in both eyes, with 5/200 visual acuity, or is so helpless (due to physical or mental incapacity), that he requires the aid of another person to perform the personal functions required in everyday living. 38 U.S.C. § 1114(l); 38 C.F.R. §§ 3.350(b), 3.351(b), 3.352(a). A veteran will meet the criteria for payment at the aid and attendance rate if any of the following factors are met: (i) he has anatomical loss or loss of use of both feet, or one hand and one foot (38 U.S.C. § 1114(l)); (ii) he is 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 (38 C.F.R. § 3.351(c)(1)); (iii) he is a patient in a nursing home because of mental or physical incapacity (38 C.F.R. § 3.351(c)(2)); (iv) he is permanently bedridden or with such significant disabilities as to be in need of regular aid and attendance (38 C.F.R. §§ 3.350(b), 3.352(a)); or (v) there is a factual need (38 C.F.R. § 3.351(c)(3)). The following factors are considered in determining the need for regular aid and attendance: 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 of a claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, either 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). The above are only factors for consideration, and it is left to the Board to determine whether a veteran is factually in need of regular aid and attendance. The particular personal functions that a veteran is unable to perform are also considered in connection with their 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 be a constant need, however the need must be caused solely by service-connected disabilities. Further, there is no schedular threshold for the award of SMC(l) when granted on the basis of a need for regular aid and attendance. SMC(m), (n), and (o) pertain to disability combinations. SMC(p) provides for "intermediate" special monthly compensation rates between the different subsections based on anatomical loss or loss of use of the extremities, or blindness in connection with deafness and/or loss or loss of use of a hand or foot. SMC(q) pertains to noncompensable tuberculosis. SMC(r)(1) (special aid and attendance) applies where the Veteran is entitled to compensation authorized under SMC(o), at the maximum rate authorized under SMC(p), or at the intermediate rate authorized under subsections (n) and (o) and at the rate authorized under subsection (k) and is in need of regular aid and attendance. SMC(r)(2) (higher special aid and attendance) applies when, as a result of a service-connected disability, a veteran otherwise entitled to SMC at the (l) rate needs in-home personal health-care services provided by either 1) a person who is licensed to provide such services, or 2) a person who provides such services under the regular supervision of a licensed health-care professional. SMC(t) applies where there is a traumatic brain injury (TBI). A veteran may be entitled to multiple SMC ratings provided that: 1) additional (separate and distinct) loss is established, and 2) the combination of disabilities for which the veteran is entitled to SMC would not entitle the veteran to a single rating under SMC(l)-(p) in lieu of multiple SMC ratings. 38 C.F.R. §§ 3.350(e)(3), 3.350(b)-(f). In an October 2012 statement, the Veteran's spouse explained that he would always spend hours at the gym working out but for the two years prior, he was no longer able to do so. The furniture in their house would smell because he sweat profusely; he could not breath while laying down and could not sleep. The slightest exertion would cause chest pains. He had open heart surgery and when he was finally able to return home, they were very careful about what he ate and drank, and what or how much exercise he got. Three months later, he had a heart attack. He has been weaker since then; his wife drives him everywhere due to his fatigue. If she is away from the house, their son comes to stay with the Veteran. She prepares his medications and makes sure that he takes what he is supposed to when he is supposed to. A July 2012 VA treatment record noted the Veteran's worsening shortness of breath and a reduced walking distance; he had shortness of breath at rest and fatigue. A January 2013 VA treatment record noted his complaints of "almost debilitating exhaustion" and extreme problems with balance that may have been related to his hearing problems. During his April 2013 VA heart examination, the Veteran reported being able to walk for one to one and a half miles at the gym (stopping for breaks and taking over 40 minutes to do so); he was still unable to drive due to fatigue related to his heart disability. On a daily basis, he "[felt] fatigued when attempting" any activities of daily living (ADLs). He was able to dress and bathe himself and attend to ADLs without assistance. He was also able to carry a small sack of groceries from his car to the house but had to sit down afterwards. He developed fatigue and dyspnea when engaging in extended conversations. In an August 2013 notice of disagreement, the Veteran reported that he had "unofficial" aid and attendance from his wife. In a March 2014 statement, he described his strength, stamina, and balance as "at best poor" and could do little due to an overpowering weakness. In a separate March 2014 statement, his spouse reported that he has chronic physical weakness and dizziness since his heart surgery. He has limited physical strength to rise from his chair and navigate the five steps to the bedroom or bathroom; she has to assist him. When he is able to, he does household chores and rides the riding lawnmower. He occasionally went to the gym but has to hold onto the rail; upon return, he is extremely tired and normally goes to his easy chair for a nap. However, these days have become "the exception and not the rule." His balance is a major concern, resulting in falls when walking and rising inside and outside of the home. During March 2015 VA treatment, the Veteran reported falling after exercising/walking. During June 2015 VA treatment, he reported that he was independent in ADLs but did not complete any instrumental ADLs independently. In a statement received September 2015, the Veteran reported that his spouse is the reason he remains groomed and his hygiene is acceptable. She orders his medication and gathers and sorts the different pills. She cooks his meals very carefully; he doubted he would even eat if she was not there monitoring him. He relies on her to be his driver because he quickly fatigues. He describes her as his "aid and attendance" because she is his caregiver, even if she is not certified or in the medical field. In June 2016 correspondence, the Veteran's VA treating physician opined that many normal demands and tasks of daily living are every difficult for him. He is able to participate in his own care and social interactions, even at a minimal level, because of significant effort on his part and because of the dedication and support of his wife. While this opinion mainly concerned the Veteran's service-connected PTSD, the physician noted that his medical disabilities are intensified and chronically exacerbated by his PTSD symptoms. In April 2018 correspondence, the Veteran's spouse stated that she has taken care of the Veteran's medications for years. She makes all of his appointments and makes sure he gets to them. She needs to be with him at his appointments because he cannot adequately express his healthcare needs. His driving skills have deteriorated. He is unable to deal with finances, has poor balance, and cannot be left alone because of poor decision-making skills and recurring falls. During April 2018 VA treatment, the Veteran's spouse reported that he is totally dependent on her for food, cleaning, finances, and ambulating. During June 2018 treatment, she explained that he will likely not allow assistance from others at this time. The physician stated that, if the Veteran's goal was to remain at home, he may need to accept assistance from others. His spouse verbalized agreement but declined consult at that time. During his April 2018 Board hearing, the Veteran's representative asserted that if the Veteran did not have family with him, his next option would be a home because he cannot live by himself. The Veteran confirmed that if anything ever happened to his wife, he would have to live with his son. In a May 2018 examination for housebound status or permanent need of regular aid and attendance, it was noted that the Veteran was unable to prepare his own meals and needed assistance in bathing and tending to other hygiene needs. This was due, in part, to his coronary artery disease. The examiner determined that the Veteran is in need of higher level of care and that the absence of such care would require hospitalization, nursing home care, or other residential institutional care. In a May 2018 appellate brief, the Veteran's representative stated that he requires the regular care and assistance of others to protect himself against the dangers in his daily environment due to his service-connected PTSD and physical impairment of hearing loss. During June 2018 VA treatment, the Veteran's spouse reported being married for 44 years, with the Veteran remaining mostly independent in ADLs. She reported increasing concern for the Veteran's safety at home and an increase in falls. He required supervision all hours of the day and night; his son was assisting with supervision as needed. In a December 2019 medical opinion disability benefits questionnaire, an examiner noted that the Veteran was able to dress and undress himself as long as his clothing has been laid out for him, although he does require help with buttons. He did not need assistance with bathing or attending to the wants of nature. He was "totally unable" to protect himself from the ordinary hazards of daily living but, thanks to his spouse, his current situation was safe. He was restricted to his home if no one can take him outside and is unable to drive. The nurse practitioner opined that the Veteran needs aid and assistance to provide respite care to his spouse who is his primary caregiver and, at times, needs help to allow her to keep her own appointments, travel out of town, or take breaks from the responsibilities of being a caregiver. Due to his PTSD and coronary artery disease, the Veteran warrants aid and attendance as he cannot safely care for himself with ADLs or navigate life tasks safely. During July 2020 VA treatment, the Veteran reported one fall within the last month and three within the last year due to loss of balance. He was very concerned since he was regularly walking and now is very limited and has impaired balance. An April 2021 VA treatment record notes that, during the Veteran's hospitalization, he required minimal assist with upper and lower body dressing and toileting. He was independent in eating; had some assistance in brushing his teeth and required assistance with bathing. He was safe to be discharged home from a mobility standpoint, but home health physical therapy was recommended for a home safety evaluation. A June 2021 VA examiner determined that the Veteran, due to his service-connected coronary artery disease, requires regular assistance of another person in ADLs. He is able to dress/undress himself, feed himself, and attend to the wants of nature but is not able to obtain groceries, prepare meals, do laundry, lift/carry objects heavier than a few pounds due to easy fatigability, or stand or walk for more than a few minutes without assistance. He requires the assistance of another person in protecting himself from the ordinary hazards to his home or immediate vicinity thereof due to the inability to walk more than 400 feet at one time, stand more than a few minutes, or lift/carry/hold any objects more than a few pounds. He is prone to falling and unable to avoid hazards such as falling and approaching objects due to an inability to move fast. Based on the evidence above, the Board finds that the Veteran reasonably requires regular aid and attendance of another person due to the function limitations of his service-connected coronary artery disease alone. Specifically, the Board highlights that, while not bedridden, the Veteran requires the regular aid and attendance of another person (mainly his spouse) to keep himself safe from the dangers incident to his daily environment. The Veteran has suffered from weakness, shortness of breath, and fatigue, "almost debilitating exhaustion," and issues with his balance. His spouse has to assist him in navigating areas of their house due to his limited physical strength and his imbalance, and also needs to manage his medications and interact with his medical providers. The Veteran reported that his spouse is the reason he remains groomed and his hygiene is at an acceptable level. His physician stated that the Veteran is only able to participate in his own care and social interactions because of significant effort on his part and because of the support and dedication of his wife. Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds that the has established entitlement to SMC(l) based solely on his need for aid and attendance related to his coronary artery disease. The Veteran's need for aid and attendance is based on a disability different from the basis for the previous award of SMC(l) therefore, he is entitled a single payment at the SMC(o) rate. 38 U.S.C. § 1114(o); 38 C.F.R. § 3.350(e)(1)(ii); Breniser v. Shinseki, 25 Vet. App. 64, 75 (2011). The Board must next consider whether the Veteran is entitled to an even higher rate of SMC. By virtue of this decision, the Veteran has been awarded an SMC(o) award, based in part on his need for aid and attendance. As such, the Board finds that he is also entitled to an award of SMC(r)(1). The criteria for a higher SMC award have not been met. In this regard, 38 U.S.C. § 1114(r)(2) provides that if a veteran in need of aid and attendance is in need of a higher level of care such that in the absence of said care he would require hospitalization, nursing home care, or other residential institutional care, a higher level of compensation should be awarded. Need for a higher level of care shall be considered to be need for personal health-care services provided on a daily basis in a 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 thereof. 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. 38 C.F.R. § 3.352(b)(3). 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. 38 C.F.R. § 3.352(b)(4). Moreover, the provisions of 38 C.F.R. § 3.352(b) are to be strictly construed. The higher level aid-and-attendance allowance is to be granted only when the need is clearly established, and the amount of services required on a daily basis is substantial. 38 C.F.R. § 3.352(b)(5). The performance of the necessary aid and attendance service by a relative of the claimant or other member of his or her household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352(c). After review of the record, the Board finds that the criteria for increased SMC based on the need for a higher level of regular aid and attendance are not met. For the entire rating period, the evidence shows no 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 so as to warrant increased SMC based on the need for a higher level aid and attendance. While the evidence shows that the Veteran needs regular aid and attendance of another person, the regular care is provided by the Veteran's spouse who is not a licensed health care professional and is not under the regular supervision of a licensed health care professional. The Board acknowledges the May 2018 VA examiner's opinion that the Veteran is in need of higher level of care and that the absence of such care would require hospitalization, nursing home care, or other residential institutional care. However, the record shows that the Veteran has been adequately supported by his spouse (and the Board acknowledges the dedication that the Veteran's spouse has shown throughout the years) until now. While not diminishing the amount of aid and attendance the Veteran requires or that his spouse provides, the level of such aid and attendance needed is not so substantial as to require hospitalization, nursing home care, or other residential institutional care but for the daily care provided by the spouse. For these reasons, the Board finds that entitlement to increased SMC based on a higher need for aid and attendance is denied. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Matta, 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.