Citation Nr: 21071857 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 17-04 660A DATE: December 1, 2021 ORDER Entitlement to special monthly compensation (SMC) based on aid and attendance is granted. FINDINGS OF FACT 1. The Veteran is not blind, or nearly blind, is not institutionalized, or in a nursing home on account of physical or mental incapacity due to his service-connected disabilities. 2. The evidence is at least evenly balanced as to whether the Veteran's service-connected disabilities render him so helpless as to be in need of regular aid and attendance of another person. CONCLUSION OF LAW The criteria for entitlement to SMC based on the Veteran's need for aid and attendance have been met. 38 U.S.C. §§ 1114, 1115, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1969 to April 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the December 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), In July 2019, the Veteran had a Board hearing before a different Veterans Law Judge (VLJ); however, a written transcript of the proceeding could not be produced due to technical difficulties. The RO notified the Veteran of the audio malfunction and informed him of an opportunity to testify at another hearing. The Veteran responded and requested another hearing before a VLJ. In March 2021, the Veteran and his spouse testified before the undersigned VLJ. A hearing transcript is of record. Normally, when two different VLJs hold hearings on the same case, the Veteran is afforded a panel hearing. See Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011). However, where, as here, a second hearing is held because the original hearing was not recorded in whole or in part due to equipment failure or other cause, a panel hearing is not necessary. See 38 C.F.R. § 20.717; see also Chairman's Memorandum 01-11-10. Instead, the original hearing is treated as if it did not exist, and only the VLJ who presided over the second hearing will decide the claim. In May 2021, the Board granted service connection for coronary artery disease (CAD), remanded service connection for acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression, and remanded entitlement to SMC based on aid and attendance. On review, the Board finds substantial compliance with its remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). In a September 2021 rating decision, the RO granted service connection for PTSD and assigned an initial rating of 50 percent, effective November 27, 2013, the date of the claim. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Entitlement to SMC based on the Veteran's need for aid and attendance. VA's governing laws and regulations direct that special monthly compensation (SMC) at the aid and attendance rate is payable by reason of the Veteran being helpless or so nearly helpless due to his service-connected disabilities that he requires the regular aid and attendance of another person. 38 U.S.C. § 1502(b); 38 C.F.R. § 3.351(a), (b). To establish a need for regular aid and attendance, the 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 five degrees or less; (2) be a patient in a nursing home because of mental or physical incapacity; or (3) show a factual need for aid and attendance. 38 U.S.C. § 1502(b); 38 C.F.R. § 3.351(c). Determinations as to a factual need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to such conditions as the inability to dress and undress, the inability to keep ordinarily clean and presentable, the inability to feed oneself through loss of coordination of the upper extremities or through extreme weakness, or the inability to attend to the wants of nature. It includes the frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid. A need for aid and attendance also includes either physical or mental incapacity that requires care or assistance on a regular basis to protect against the hazards or dangers incident to the daily environment. Additionally, an individual who is bedridden, as that term is defined by regulation, meets the criteria for aid and attendance. 38 C.F.R. § 3.352(a). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Turning to the evidence of record, an August 2013 VA treatment record noted the Veteran had some delusional hallucinations, and the Veteran presented himself to be middle-aged and ambulatory, oriented to time, place, person, and situation. In November 2013, a VA treatment record noted the Veteran had chronic chest pain and discomfort and shortness of breath. He presented out-of-breath, rather pale, fatigued, and tired. A March 2015 VA treatment record noted over the past few days he was easy to fatigue and developed dyspnea on exertion. The VA physician noted severe CAD. It was noted in a March 2016 VA treatment record that the Veteran would get shortness of breath with ambulation but had fairly good balance ambulating but fatigued. In an April 2017 VA assessment for CAD, the VA physician noted the Veteran was not a surgical or intervention candidate but did have chronic dyspnea. An October 2017 VA treatment record noted the Veteran performance was restricted in physically strenuous activity but ambulatory and was able to carry out all activities of daily living and work of a light or sedentary nature such as light housework or office work. However, he could not walk up a flight of stairs without getting shortness of breath. A November 2020 VA treatment record noted the Veteran was able to walk into VA cardiology clinic from parking lot without symptoms of chest pain, worsening shortness of breath, dizziness, or having to stop and rest. During a July 2021 VA examination, the examiner noted that the Veteran's gait was slow, unsteady, and incoordinated with stuttering or teetering walk and he somewhat walked on his toes. His ability to walk was limited without a wheeled rollator walker, which he used in-house for all ambulation. He could not put on his socks and shoes; get his hands over head to put on overhead shirts without assistance; his wife helped him getting his shirts on and had difficulty with buttons depending on weakness; all his meals are prepared by his wife and served on a plate to him at his table; he did not drive; he had slow reflexes; and his grocery shopping was done by his spouse. The Veteran was able to feed himself. The examiner found, however, that Veteran's unsteady gait and stance with weakness and dizziness was, in part, due to medication, but also due to low white and platelets counts, that he had a port for treatment at the oncology center, and a colostomy from the history of colorectal cancer with straight catheters. Thus, the examiner determined that the limitations contributing to his need for aid and attendance were not from his service-connected disabilities. A July 2021 VA mental health examination report indicates that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. Another VA mental health examination was provided to the Veteran in September 2021 and the examiner found the Veteran's acquired psychiatric disorder caused occupational and social impairment with reduced reliability and productivity. Analysis In this case, the Veteran is in receipt of service connection for PTSD and CAD. He is neither blind nor nearly blind, is not institutionalized, or a patient in a nursing home at any point during the pendency of this appeal. Therefore, the facts must establish that the Veteran is in need of aid and attendance in order to establish eligibility for SMC benefits. He asserts that he needs aid and attendance of another due to his service-connected disabilities. On review, the evidence demonstrates that the Veteran requires the aid and attendance of another due to both service-connected and non service-connected disabilities. On the July 2021 aid and attendance examination report, the examiner listed the Veteran's current diagnoses, to include PTSD, ischemic heart disease, and chronic heart failure, as well as colorectal cancer and leukopenia, to name a few. The evidence shows that the Veteran's primary limitations include an unsteady stance, weakness, dizziness, angina, and chronic dyspnea. The Veteran uses a rollator at all times. He requires constant monitoring due to his multiple disabilities. He needs help getting up from a chair and his bed, and while showering. When examined in July 2021, the VA examiner indicated that the Veteran's instability of stance and weakness is, in part, due to multiple diagnoses and the medications used to control them. In later comments, the examiner stated that the Veteran's unsteadiness with weakness and dizziness is in part due to medication, but also due to low white blood cell and platelet counts. The July 2021 VA examiner however did not separate the effects of the medications for the service-connected disabilities from those prescribed for the nonservice-connected disabilities, therefore the effects that he experiences shall be attributed to the service-connected disabilities. Mittleider v. West, 11 Vet. App. 181 (1998) (the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that clearly does so). Moreover, the Board reviewed the Veteran's prescribed medications for his CAD, and notes that at least two of his heart medications, according to research publicly available on the world wide web, may cause dizziness. Further, the Veteran's treatment notes indicate that he has experienced involuntary movement of the jaw and mouth, likely due to his antipsychotic medication. At the very least, his service-connected disabilities alone require some need for aid and attendance. Any reasonable doubt created by relative equipoise in the evidence must be resolved in favor of the Veteran, and therefore entitlement to SMC based on aid and attendance is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Moreover, because SMC based on aid and attendance pursuant to 38 U.S.C. § 1114(l) is a greater benefit than SMC at the housebound rate pursuant to 38 U.S.C. § 1114(s), and there is no indication that there is a separate and distinct disability that would warrant SMC at the housebound rate pursuant to 38 U.S.C. § 1114(s), the issue of entitlement to SMC at the housebound rate need not be further addressed. Finally, the Board notes that neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Moldawer, 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.