Citation Nr: 21074294 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 20-22 150 DATE: December 14, 2021 ORDER Entitlement to special monthly compensation pursuant to 38 U.S.C. § 1114(r)(1) is granted. FINDING OF FACT Throughout the period on appeal, the Veteran requires the aid and attendance of another person due to service-connected disabilities other than those resulting in loss of use of the lower extremities. CONCLUSION OF LAW The criteria for entitlement to special monthly compensation pursuant to 38 U.S.C. § 1114(r)(1) have been met. 38 U.S.C. §§ 5107, 1114(r)(1); 38 C.F.R. §§ 3.102, 3.350(h), 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1967 to March 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claim on appeal, along with two others, were previously denied in a Board decision dated January 25, 2021. On September 8, 2021, the Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Partial Remand (JMPR) vacating the denial of special monthly compensation in excess of 38 U.S.C. § 1114(p)(1). Meanwhile, the JMPR confirms the parties' request that the other two claims be dismissed. As a result, these claims are no longer in appellate status. In short, the Board notes that the Veteran and his agent specifically contend that special monthly compensation is warranted pursuant to § 1114(r)(1). See Third Party Correspondence (rec'd Oct. 7, 2021) (arguing that two separate entitlements among § 1114(l, m, or n) yield entitlement at the O-rate, and then that O-rate with regular need of aid and attendance should yield entitlement at R-1). A claimant may "limit a claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum disability rating allowed by law" via "clearly expressed intent to limit the appeal to entitlement to a specific disability rating for the service-connected condition." See A.B. v. Brown, 6 Vet. App. 35, 39 (1993) (citing Hamilton v. Brown, 4 Vet. App. 528, 544 (1993)). The Board interprets the above as a limitation of their argument. Subject to this limited argument, and after the JMPR, the Board now concludes that the evidence supports a grant of the claim in full. As a result of this, the Board concludes that if the Veteran was not afforded substantial compliance with any remand directive, he is not accordingly prejudiced because the claim is granted in full. See Stegall v. West, 11 Vet. App. 268, 271 (1998). This matter is advanced on the Board's docket on account of the Veteran's age. 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). 1. Entitlement to special monthly compensation pursuant to 38 U.S.C. § 1114(r)(1) is granted. Special monthly compensation is available when, as the result of service-connected disability, a veteran suffers additional hardships above and beyond those contemplated by VA's schedule for rating disabilities. See 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352; see also VA Gen. Coun. Prec. 5-89 (Mar. 23, 1989) (explaining that special monthly compensation is a supplementary statutory benefit based on noneconomic factors such as personal inconvenience, social inadaptability, or the profound nature of a disability). The rate of special monthly compensation varies according to the nature of the veteran's service-connected disabilities. Basic levels of special monthly compensation are listed at 38 U.S.C. § 1114(k). Higher levels of special monthly compensation are provided at 38 U.S.C. § 1114 (l), (m), (n), and (o). Special monthly compensation is payable in addition to the basic rate of compensation otherwise payable for the degree of disability. The RO has already awarded the Veteran special monthly compensation at the following levels: K-1: Under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a) on account of loss of use of a creative organ, effective June 10, 2004; L-1: Under 38 U.S.C. § 1114(l) and 38 C.F.R. § 3.350(b) on account of loss of use of both feet, effective April 10, 2015; P-1: Under 38 U.S.C. § 1114(p) and 38 C.F.R. § 3.350(f)(3) at an intermediate rate between subsections (l) and (m) on account of loss of use, bilateral lower extremities (peripheral vascular disease, left lower extremity residuals of stroke, and left great toe amputation) with additional disabilities, Type II diabetes mellitus, with bilateral early nuclear sclerotic cataractous change, and left heel ulcer (formerly Type II diabetes mellitus), posttraumatic stress disorder (PTSD), nephropathy with hypertension, bilateral hearing loss, coronary artery disease independently ratable at 50 percent or more from Apri 10, 2015. However, the Veteran seeks an even higher award of special monthly compensation based on the need for regular aid and attendance under 38 U.S.C. § 1114(l), due to service-connected disabilities independent of the service-connected lower extremity disabilities. In light of the September 2021 JMPR and other evidence of record, the Board now finds that the evidence of record is at least evenly balanced to establish that the Veteran requires the aid and attendance of another person. The RO has already established that the Veteran is entitled to special monthly compensation at the L-rate based on the loss of use of both feet, due solely to his service-connected lower extremity disabilities. However, the Veteran also requests a separate award of special monthly compensation at the L-rate based on the need for regular aid and attendance due to his other service-connected disabilities, independent and without consideration of his service-connected lower extremity disabilities. This would entail consideration for aid and attendance purposes of his service-connected coronary artery disease, hearing loss, PTSD, neuropathy with hypertension, residuals of cardiovascular accident effecting the left upper extremity, and diabetes mellitus. In turn, based on the award of these two separate L-rates of special monthly compensation (both loss of use of the feet and aid and attendance), the Veteran believes he is entitled to a higher level of special monthly compensation, namely at the R-1 rate. In the October 2021 Brief, the Veteran's agent referenced a VA program website which indicates that the adult day healthcare program is designed for veterans who need help with activities of daily living and is also for veterans who are isolated or their caregiver is experiencing a burden. In determining the need for regular aid and attendance of another person, the following will be accorded consideration: Inability of a claimant to dress or undress him or herself, or to keep him 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.); inability of a claimant to feed him or herself through loss of coordination of the upper extremities or through extreme weakness; 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 claimant from the hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352(a). Bedridden, i.e., the veteran is actually required to remain in bed, will be a proper basis for the determination. The fact that a 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 will not suffice. 38 C.F.R. § 3.352(a). It is not required that all of the disabling conditions enumerated be found to exist before a favorable rating may be made. See Turco v. Brown, 9 Vet. App. 222, 224 (1996) (providing that eligibility for special monthly compensation by reason of regular need for aid and attendance requires that at least one of the factors set forth in VA regulation is met, but not all). The particular personal functions that the veteran is unable to perform should be considered in connection with his or her condition as a whole. It is only necessary that the evidence establish that the veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that the veteran is so helpless as to be in need of regular aid and attendance will not be based solely upon an opinion that the veteran's condition is such as would require him or her to be in bed. They must be based on the actual requirements of personal assistance from others. 38 C.F.R. § 3.352(a). The performance of the necessary aid and attendance service by a relative of the beneficiary or other member of his or her household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352(c). The medical evidence of record shows that the Veteran has attended a VA Adult Day Care (ADHC) program since a beginning date no later than November 2013. The Board previously determined that the Veteran was neither bedridden nor requiring the aid and attendance of another person for service-connected disabilities other than those that result in loss of use of the lower extremities. This portion of the January 2021 decision was vacated by the September 2021 JMPR. Ultimately, the Veteran's service-connected disabilities include, but are not limited to: loss of use of the bilateral extremities; coronary artery disease with diabetes mellitus type II, rated 60 percent disabling; bilateral hearing loss, rated as 40 percent disabling; PTSD, rated as 30 percent disabling; nephropathy with hypertension, rated as 30 percent disabling; residuals of a cerebrovascular accident manifesting in the left upper extremity, rated as 30 percent disabling; diabetic retinopathy, and impotence. The Board resolves all reasonable doubt in the Veteran's favor and concludes that the evidence is at least evenly balanced that the Veteran's attendance at the ADHC program is due to a need for regular aid and attendance of another person. The Board determines that even if the Veteran is not bedridden and even if he is able to be transported from his home to the ADHC, these do not preclude such a finding. As stated above, it is only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance, not that there be a constant need. 38 C.F.R. § 3.352(a). (Continued on the next page) As the evidence of record is at least evenly balanced to support that special monthly compensation is warranted to the level that the Veteran and his agent request, see A.B., supra, the claim must be granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The claim must be granted because the Board is prohibited from developing additional evidence for the purpose of obtaining evidence against a claimant's case. See Mariano v. Principi, 17 Vet. App. 305 (2003). There is no further doubt to resolve, because the Board has granted the Veteran's claim in full subject to his limited argument that he is entitled to the R-1 rate and no higher. See Stegall, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael B. Engle, 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.