Citation Nr: 21071702 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 18-33 654 DATE: December 1, 2021 ORDER An earlier effective date of August 22, 2016, for special monthly compensation aid and attendance is granted. REMANDED Entitlement to service connection for a left knee condition to include under 38 U.S.C. § 1151 and/or secondary to service-connected left knee instability or left knee anterior cruciate ligament tear and meniscal tear, status post reconstruction failure is remanded. FINDING OF FACT From August 22, 2016, the evidence demonstrates that the Veteran has a factual need for regular aid and attendance. CONCLUSION OF LAW From August 22, 2016, the criteria for special monthly compensation based on regular aid and attendance are met. 38 U.S.C. §§ 1144, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.351, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 2009 to July 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2017 and March 2018 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Board remanded this matter for further development. In July 2019, the Board granted special monthly compensation based on regular aid and attendance effective December 27, 2016. In an April 2021 Memorandum Decision, the Court of Appeals for Veterans Claims vacated the Board's July 2019 decision and remanded the claim for readjudication consistent with its decision. Special Monthly Compensation The Veteran contends that he should be granted an earlier effective date of special monthly compensation (SMC) for regular aid and attendance. For the following reasons, the Board finds that an earlier effective date is warranted. SMC is payable for regular aid and attendance when a veteran is helpless or so nearly helpless that he or she requires the regular aid and attendance of another person. 38 U.S.C. § 1114; 38 C.F.R. § 3.351(a), (b). To establish a need for regular aid and attendance a veteran must (1) be 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; (2) be a patient in a nursing home because of mental or physical incapacity; or (3) show a factual need for regular aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). 38 C.F.R. § 3.351(c). From August 22, 2016, the Veteran was service connected for adjustment disorder with anxiety and depressed mood, lumbar spine myofascial syndrome, asthma, right shoulder impairment syndrome with rotator cuff tear and acromioclavicular joint osteoarthritis, left knee instability, left shoulder impingement syndrome, left elbow impairment of supination and pronation, right elbow impairment of supination and pronation, left knee anterior ligament tear and meniscal tear, right elbow tendonitis, left elbow tendonitis, cervical spine myofascial syndrome, right knee strain, left wrist tendonitis, right hip myofascial syndrome, residual surgical scars of the left knee, tension headaches, and right wrist tendonitis. The Veteran may establish aid and attendance through factual need. Factual need for aid and attendance is based on the following criteria: the inability of the veteran to dress or undress himself or herself, or to keep himself or herself 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 (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); the inability of a veteran to feed himself or herself through the loss of coordination of upper extremities or through extreme weakness; the inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect a veteran from the hazards or dangers to his daily environment. 38 C.F.R. § 3.352(a). Generally, except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. An exception to that rule provides that the effective date of an award of an increase shall be the earliest date as of which it is ascertainable that an increase in disability had occurred if application is received within one year from such date. 38 U.S.C. § 5110(b)(2), 38 C.F.R. § 3.400(o)(2). In December 2016, the Veteran filed a claim for SMC. As a claim for SMC is a claim for an increase in compensation, an effective date can be assigned up to one year from the date of the claim. In September 2016, the Veteran reported to the emergency department with complaint of pain in his left knee after twisting it ten days ago. In a follow-up a few days later for x-rays, the Veteran requested a wheelchair. In late September 2016, the Veteran was using crutches and wearing a brace on his right knee. He was fitted for a new knee brace and the physician noted that the Veteran's right shoulder was positive for Hawkins and Jobs signs. On examination he was unable to raise his right arm above 90 degrees passively or actively. The Veteran's left knee was tender on palpation. In December 2016 the Veteran reported that he depended on assistance from his parents and fiancé. He required some assistance with activities of daily living. The Veteran stated that he was driving but felt he shouldn't drive due to spinal challenges and relied on his parents and fiancé when he is unable to drive. He used crutches to assist with transferring and had an old wheelchair at home that was large and heavy. The Veteran requested a smaller and lighter wheelchair. He also reported difficulty in using crutches when experiencing pain and thought that he would benefit from Aid and Attendance. Later that month the Veteran again requested a new wheelchair along with a brace for his left knee. He stated that his left knee pops out of joint, and the lower leg rotates laterally. The Veteran reported that he was using crutches borrowed from a neighbor and had been using crutches for months. He also reported that approximately three months prior he had an episode of what he described as patellar dislocation of the left knee while turning in bed. Since that incident he had been unable to place much weight on the left knee and using crutches to ambulate. The Veteran described his left knee pain as so severe that he was unable to work and had to move back in with his parents. The Veteran submitted a December 2016 VA Examination for Housebound Status or Permanent Need for Regular Aid and Attendance. The examiner noted that the Veteran was able to feed himself but could not prepare his own meals due to an inability to stand. He needed assistance with bathing and tending to other hygiene needs but did not require nursing home care or medication management. The Veteran could handle his own financial affairs. The examiner explained that the Veteran had problems dressing himself due to ligament tears in his shoulder and broken bones that healed improperly. The Veteran was unable to shrug his shoulders and his lower lumbar region was hunched. He also had low back scoliosis. Although the Veteran was able to propel a wheelchair, despite left knee pain, his lower leg dislocated from the knee, even when he slept. The Veteran had no balance and was positive for atrophy of the leg musculature. The Veteran reported he was unable to care for himself because of pain, and that he needed someone to pick him up to help him reach restroom because he had difficulty moving. The Veteran said that he was unable to leave his home daily without the assistance of someone to push his wheelchair, and his shoulder and low back pain made regular use of crutches impossible. The Board finds that the above evidence supports to establish a factual need for aid and attendance. The Veteran depends on the assistance of others to prepare his food, dress himself, transportation, use of the bathroom, and moving around. These limitations are associated with his service-connected disabilities, with the Veteran's left knee disabilities mostly being the cause for his need of assistance. The Board finds that an effective date of August 22, 2016, should be assigned for the grant of SMC due to regular aid and attendance. This is the date the Veteran references in his September 1, 2016, emergency department visit when he mentions that ten days earlier his left knee popped out. The Veteran also referenced in December 2016 that he could not put weight on his left knee or walk without crutches since a dislocation three months prior. This left knee injury was the inciting event that kept the Veteran off his left knee and having to rely on crutches and a wheelchair to move around. An earlier date cannot be awarded as the claims file lacks any evidence earlier than the assigned date within the one-year period preceding the date of claim that the Board can assign an effective date. Without evidence from the period one-year prior to the date of the Veteran's claim that shows a factual need for regular aid and attendance, the Board cannot award an effective date earlier than August 22, 2016. Accordingly, an earlier effective of August 22, 2016 for the award of special monthly compensation due to regular aid and attendance is granted. REASONS FOR REMAND Service connection for a left knee condition to include under 38 U.S.C. § 1151 and/or secondary to service-connected left knee instability or left knee anterior cruciate ligament tear and meniscal tear, status post reconstruction failure In May 2020, VA obtained a physician's opinion for the Veteran's 38 U.S.C. § 1151 claim. However, the physician's opinion focused on the Veteran's left knee instability and left knee anterior cruciate ligament tear and meniscal tear, status post reconstruction failure. Both of these disabilities are already service connected. An essential element for service connection under 38 U.S.C. § 1151 is an additional disability. As the disabilities the physician opined on are not additional disabilities, they cannot form the basis for a claim under 38 U.S.C. § 1151. The claims file though is unclear if the Veteran has an additional disability related to treatment and delay of treatment that is the basis for his claim. When VA obtained an examination, it must be an adequate one. As such, a remand is necessary to obtain an opinion as to whether the Veteran has an additional disability. Furthermore, the Veteran appears to be alleging that he has an additional disability related to care for his service-connected left knee disabilities. As the alleged additional disability could be related to treatment for a service-connected disability, secondary service connection is available. As such, a remand is necessary to obtain an opinion on whether the Veteran has an additional disability that was caused by or aggravated beyond its natural progression by treatment for his service-connected left knee disabilities. The matter is REMANDED for the following actions: 1. Obtain an opinion from an appropriate clinician to address the Veteran's 38 U.S.C. § 1151 claim with respect to any additional left knee disability due to delay in fulfilling the Veteran's request for a pair of crutches, a wheelchair, and a VA orthopedic evaluation after his left knee separated or dislocated in August 2016. The examiner should provide opinions as to the following: (a.) Is it as least as likely as not that the Veteran has any residuals (additional disability) from the delay in fulfilling his request for crutches, a wheelchair, and a VA orthopedic evaluation after his left knee separated or dislocated in August 2016? (b.) If so, is it at least as likely as not that such additional disability is the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in conducting the treatment? (c.) In the course of treatment after the Veteran's left knee separated or dislocated in August 2016, did VA fail to exercise the degree of care that would be expected of a reasonable health care provider in terms of diagnosing and treating the Veteran's left knee? (d.) Was the proximate cause of any identified additional disability due to an event not reasonably foreseeable by a reasonable healthcare provider? (Continued on the next page) A complete rationale for any opinion expressed must be provided. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. In this regard, indicate whether the inability to provide a definite opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. 2. Obtain an opinion from an appropriate clinician on whether the Veteran has a left knee disability that was caused by or aggravated beyond its natural progression by his service-connected left knee instability and/or left knee anterior cruciate ligament tear and meniscal tear, status post reconstruction failure, to include any treatment or delayed treatment for these service-connected disabilities. A complete rationale must be provided. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Chandeck, 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.