Citation Nr: 21071630 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 19-31 547 DATE: December 1, 2021 ORDER Entitlement to special monthly compensation (SMC) based on aid and attendance, effective December 10, 2009, is granted. FINDING OF FACT From December 10, 2009, the Veteran's service-connected disabilities have resulted in a regular need of aid and attendance. CONCLUSION OF LAW Effective December 10, 2009, the criteria for SMC based on aid and attendance rate are met. 38 U.S.C. §§ 1114, 5107(b); 38 C.F.R. §§ 3.102, 3.350, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1975 to August 1978. The case is on appeal from a July 2017 rating decision. In a September 2020 Decision, the Board granted the Veteran's claim for SMC based on aid and attendance, effective February 28, 2016, but no earlier. In June 2021, the Court of Appeals for Veterans Claims (the Court) vacated the September 2020 Board decision to the extent that it denied an effective date prior to February 28, 2016, and remanded the case to the Board for adjudication consistent with the terms of the Joint Motion for Partial Remand (JMPR). Entitlement to special monthly compensation (SMC) based on aid and attendance prior to February 28, 2016. The Veteran contends that SMC based on the need for aid and attendance caused by his essential tremors and memory loss as a result of his service-connected Parkinson's disease. The Veteran was initially granted service connection for essential tremors in a May 2017 rating decision, effective December 10, 2009, evaluated as 100 percent disabling. Accordingly, the Board will examine whether the grant of SMC based on the need for aid and attendance is warranted dating back to December 10, 2009. Relevant to this case, SMC based on the need for aid and attendance is available where the Veteran is so helpless as to be in need of regular aid and attendance due to service-connected disabilities. 38 C.F.R. § 3.350 (b). In making this determination, the Board is to consider the Veteran's ability to dress or undress himself, keep himself ordinarily clean and presentable, inability of the Veteran to feed himself through loss of coordination of upper extremities or through extreme weakness, inability to attend to the wants of nature (use the bathroom); or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the Veteran from hazardous or dangerous incidents to his daily environment. 38 C.F.R. § 3.352(a). See also Turco v. Brown, 9 Vet. App. 222, 224 (1996). In the June 2021 JMPR, the parties agreed that the Board erred when it relied on the Veteran's October 2015 application for a driver's license renewal, along with a doctor's certification indicating that he was medically capable of driving, to determine that he was not in need of regular aid and attendance prior to February 28, 2016. Additionally, the JMPR noted that evidence weighing in favor of an effective date prior to February 28, 2016, included (1) a March 2010 Social Security Administration (SSA) function report that the Veteran cannot drive because his vision blurs and he gets lost, and (2) a January 2010 VA examination report in which he reported that his "inability to drive and difficulties with completing household chores are the result of his physical impairments". The Board also recognizes that there is additional evidence supporting a finding that the Veteran's service-connected disabilities resulted in a regular need of aid and attendance prior to February 28, 2016. In August 2020, the Veteran submitted a June 2020 medical opinion from Dr. M. S., who concluded that the Veteran was in need of regular aid and attendance dating back to December 2009. See Medical Treatment Record Non-Government Facility, submitted August 5, 2020. Specifically, Dr. M. S. noted two instances in August 2009, where the Veteran noted that he was unable to grasp items during a tremor. At that time, he also reported occasional migraine headaches and blurred vision. Id. Dr. M. S. also noted an October 2009 VA treatment note, wherein the Veteran reported that his tremors affect his ability to perform daily activities with his hands and results in cognitive impairment. In the same record, the treating physician opined that the Veteran should be totally and permanently disabled due to the sum total of his medical conditions. Id. The June 2020 medical opinion also cited a May 2010 treatment record, wherein the Veteran reported continued tremors with activities of daily living. He was also noted to have issues with memory impairment and losing track of daily events. Id. It was further noted that a June 2010 treatment record revealed that the Veteran's memory issues were worsening, and that he would forget to take his regular medication at least two times per week. Id. Based on the foregoing, Dr. M. S., who concluded that the Veteran was in need of regular aid and attendance dating back to December 2009. The Board finds that the June 2020 opinion is highly probative, as it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In addition to the June 2020 medical opinion, a February 2020 statement submitted by the Veteran's wife also supports a finding that the Veteran required aid and attendance prior to February 28, 2016. In that statement, she indicated that she has been unable to work since 2013 to provide care for her husband. She further indicated that she was required to do all of the cooking, cleaning, and laundry, due to the Veteran's balance and memory issues. She indicated that she had to constantly remind him to bathe, change his clothes, take his medication, and eat. See Affidavit, submitted May 12, 2020. Collectively, the Board finds that the evidence prior to February 28, 2016, indicates that the Veteran's service-connected Parkinson's disease causes impairment as to his ability to perform motor functions required to perform activities of daily living. This finding is supported by evidence at the time of the August 2009 VA treatment record that the Veteran was unable to grasp items during a tremor, and subsequent treatment records showing continued impairment due to tremors. This undoubtedly affects the Veteran's ability to dress or undress himself, keep himself ordinarily clean and presentable, and feed himself. Additionally, the evidence also supports a finding that the memory impairment related to the Veteran's service-connected Parkinson's disease causes impairment as to the Veteran's ability to independently bathe, change his clothes, take his medication, and eat. Based on the foregoing, the Board finds that the Veteran was so helpless as to be in need of regular aid and attendance due to service-connected disabilities dating back to at least 2009. Accordingly, SMC based on aid and attendance, effective December 10, 2009, is granted. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Marsh II, 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.