Citation Nr: 21074454 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 17-05 450 DATE: December 15, 2021 ORDER Entitlement to special monthly compensation (SMC) for aid and attendance prior to May 25, 2016 is denied. Entitlement to SMC for aid and attendance beginning May 25, 2016 is granted. Entitlement to eligibility for specially adapted housing is granted. Entitlement to eligibility for a special home adaption grant is dismissed as moot. FINDINGS OF FACT 1. Prior to May 25, 2016, the Veteran was not eligible for entitlement to SMC based on need for regular aid and attendance 2. Since May 25, 2016, the Veteran's diabetes mellitus and residuals to include a stroke history, and his end stage renal failure declined to the point of 100 percent disabling with resulting residual disabilities to include anatomical loss of the bilateral lower extremities and bilateral upper extremity radiculopathy, as well as his PTSD symptoms, all of which rendered the Veteran so significantly disabled as to be in need of regular aid and attendance. 3. The Veteran's service-connected disabilities has resulted in the permanent loss of use of both lower extremities. 4. By virtue of this decision, the Board is granting the Veteran's claim for entitlement to specially adapted housing. Therefore, the issue of eligibility for a special home adaptation grant is moot, due to the award of eligibility for assistance in acquiring specially adapted housing. CONCLUSIONS OF LAW 1. The criteria for entitlement to SMC for aid and attendance prior to May 25, 2016 have not been met. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352. 2. Beginning May 25, 2016, but no earlier, the criteria for entitlement to SMC for aid and attendance have been met. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352. 3. The criteria for eligibility for specially adapted housing have been met. 38 U.S.C. §§ 2101, 5107; 38 C.F.R. §§ 3.102, 3.809. 4. The claim for entitlement to a special home adaptation grant is dismissed as moot. 38 U.S.C. §§ 2101 (b), 7105; 38C.F.R. §3.809A. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1970 to August 1971. The matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) as to the issues of entitlement to specially adapted housing or special home adaptation; and from a January 2014 rating decision as to the issue of entitlement to SMC based on aid and attendance/housebound. The Board notes that the Veteran requested a Board hearing in his VA Form 9, but in an October 2019 statement, he withdrew this request. The record contains additional pertinent evidence submitted by the Veteran directly to the Board and evidence that was developed by the RO following the 2017 statements of the case, including VA treatment records and examinations. The evidence has not yet been considered by the Agency of Original Jurisdiction (AOJ), and a September 2021 letter from the RO advised him he could submit a waiver of the evidence or remand the claims back to the AOJ. In November 2021, the Veteran waived AOJ review of the additional evidence. Therefore, the Board may proceed with appellate adjudication. Special monthly compensation for aid and attendance Special monthly compensation (SMC) under 38 U.S.C. § 1114(l) is payable if the Veteran, as the result of service-connected disability, has suffered the anatomical loss or loss use of both feet, or of one hand and one foot, or is blind in both eyes, with 5/200 visual acuity or less, or is permanently bedridden, or so helpless as to be in need of regular aid and attendance of another person. Here, the Veteran is currently service connected with PTSD, end stage renal disease, loss of use of bilateral lower extremities due to peripheral vascular disease, and anatomical loss of both feet due to peripheral vascular disease, all rated at 100 percent disabling. He is service connected for right upper extremity radiculopathy rated at 40 percent; left upper extremity radiculopathy rated at 30 percent; diabetes mellitus rated at 20 percent; and his right knee, right lower extremity scar, and left lower extremity scar are rated as noncompensable. The Veteran is also in receipt of SMC under 38 U.S.C. § 1114, subsection (k) and 38 C.F.R. § 3.350(a) on account of loss of use of a creative organ; under 38 U.S.C. § 1114, subsection (m) and 38 C.F.R. § 3.350(c) on account of the anatomical loss of one leg at a level or with complications preventing natural knee action with prosthesis in place and the anatomical loss of the other leg at a level or with complications preventing natural knee action with prosthesis in place; and under 38 U.S.C. § 1114, subsection (p) and 38 C.F.R. § 3.350(f)(4) at the rate intermediate between subsection (m) and subsection (n) on account of entitlement to the rate equal to subsection (m) with additional disability, PTSD independently ratable at 100 percent. As such, it has already been established that the Veteran is entitled to SMC based on the loss of use of his lower extremities and his total and permanent disabilities, and that he is already in receipt of SMC based on being housebound; but he also requests an award of SMC based on the need for regular aid and attendance. This would entail consideration for aid and attendance purposes for his PTSD as well as the influence of issues associated with the sequelae of his diabetic condition that in turn precipitated cardiovascular problems and end stage renal disease. In determining the need for regular aid and attendance of another person, the following will be accorded consideration: being so helpless (due to service-connected disabilities) as to be permanently bedridden or in need of regular aid and attendance. Aid and attendance is defined as: inability to dress or undress, or to keep 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 to feed oneself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or physical or mental incapacity which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to the daily environment. See 38 C.F.R. § 3.352(a). "Bedridden" means that condition which actually requires that the claimant remain in bed. Voluntarily taking to bed or the fact 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. Id. It is only necessary that the evidence shows that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. Turco v. Brown, 9 Vet. App. 222, 224 (1996). Determination as to the need for regular aid and attendance will not be based solely upon an opinion that their condition is such as would require them to be in bed. They must be based on the actual requirement of personal assistance from others. 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. See 38 C.F.R. § 3.352(c). Upon review of the evidence, SMC for regular aid and attendance is warranted beginning May 25, 2016, but no earlier. See 38 U.S.C. § 1114(l), 38 C.F.R. §§ 3.350(b), 3.352(a). This award is based on the collective impact of the Veteran's service-connected disabilities to include his PTSD and the sequelae of his diabetic condition that precipitated cardiovascular problems and end stage renal disease without consideration of his bilateral lower extremity disabilities. Specifically, the Veteran meets the criteria for the need of the aid and attendance of another person and bedridden status, due to his remaining service-connected disabilities. See 38 C.F.R. § 3.352(a). Prior to May 25, 2016 The Board notes that the Veteran's claim for aid and attendance first arose in 2013. However, prior to May 25, 2016, the Veteran was not eligible for SMC based on need for regular aid and attendance. By way of history, in January 2013 when the Veteran first filed a claim for SMC for aid and attendance/housebound, the criteria regarding Aid and Attendance or being Housebound had not been met. See 38 C.F.R. § 3.350. Specifically, the Veteran was only service connected for PTSD and his right knee at the time of the 2014 rating decision and 2017 statement of the case (SOC) which denied his claim. That notwithstanding, he has since become service-connected with a plethora of medical conditions. Specifically, a December 2014 rating decision found the Veteran to not be competent to handle his finances; an October 2016 rating decision granted service connection for diabetes mellitus; an April 2017 rating decision granted service connection for end stage renal disease; a November 2019 rating decision granted loss of use of bilateral lower extremities due to peripheral vascular disease and for anatomical loss of use of both feet due to peripheral vascular disease; and a July 2020 rating decision granted service connection for bilateral upper extremity diabetic peripheral neuropathy. Additionally, the RO has recharacterized the Veteran's diabetes mellitus type II service connection claim to include erectile dysfunction, right eye diabetic retinopathy and stroke (claimed as cerebral vascular accident). However, prior to May 25, 2016, the evidence does not indicate the Veteran was in need of regular aid and attendance. For example, in the January 2013 aid and attendance/housebound application examination, it was noted that the Veteran needed assistance with the tasks of daily living but his confinement to home was a result of non-service-related dementia, seizure disorder, the residuals of a stroke, and residuals of an aortic aneurysm. These conditions were all subsequently denied service connection in an August 2014 rating decision. A VA Medical examiner also reviewed his treatment records and provided an opinion that the need for assistance is unrelated to his service-related PTSD. Therefore, only non-service-related conditions caused the need for a higher level of care at that time. Thereafter, as noted above, the Veteran was granted service connection for diabetes mellitus type II effective July 5, 2015, as the evidence showed he was diagnosed with diabetes mellitus type II prior to May 8, 2001, the date the law change establishing diabetes mellitus type II as a presumptive condition of Agent Orange exposure. This date was determined based on receipt of his claim on July 5, 2016, and regulations state that if a claim is reviewed more than a year after the effective date of the law, benefits may be authorized for a period of one year prior to the date of receipt of such request. Therefore, the Veteran's diabetes mellitus was granted based on this regulation with a 20 percent evaluation effective July 5, 2015. He was then granted service connection for end stage renal disease associated with the diabetes mellitus, effective July 5, 2015, the date he was granted service connection for diabetes mellitus type II, as the evidence showed he had an established diagnosis of chronic kidney disease and his end stage renal disease is a complication of diabetes mellitus type II. He was also granted entitlement to SMC based on housebound on account of his PTSD being rated 100 percent and his end stage renal disease and diabetes mellitus being independently ratable at 60 percent or more beginning July 5, 2015. (For clarity, the Board notes that the criteria for entitlement to SMC based on aid and attendance versus SMC based on housebound are separate and distinct). There was no indication that the Veteran had the need for regular aid and attendance at that time. However, the medical evidence shows that the Veteran's end stage renal disease associated with the diabetes mellitus worsened on May 25, 2016, the date he underwent surgery for catheter placement to begin regular hemodialysis. He thereafter required regular dialysis, and more than sedentary activity was precluded due to persistent albuminuria and edema (excess swelling). As this is the date that his end stage renal disease associated with his diabetes mellitus worsened to the point of 100 percent disabling causing some activities of daily living to be precluded compounded with his PTSD symptoms (see discussion below), and his symptomatology continued to worsen since this date, the Board will give the Veteran the benefit of the doubt that he had a need for regular aid and attendance beginning May 25, 2016, but no earlier. As such, SMC based on the need for regular aid and attendance prior to May 25, 2016 is denied. Since May 25, 2016 Beginning May 25, 2016, but no earlier, in giving the benefit of the doubt in favor of the Veteran, the Board finds SMC based on the need for regular aid and attendance is warranted. Specifically, as noted above, the Veteran's end stage renal disease associated with his diabetes mellitus type II worsened to 100 percent disabling as of May 25, 2016, the date he underwent surgery for catheter placement to begin regular hemodialysis. He thereafter required regular dialysis, and more than sedentary activity was precluded due to persistent albuminuria and edema (excess swelling). This subsequently led to worsening diabetes mellitus and residuals to include loss of use of the bilateral lower extremities due to peripheral vascular disease associated with the diabetes mellitus and bilateral upper extremity peripheral neuropathy beginning July 25, 2018, which also led to anatomical loss of both feet since April 2019. A review of the Veteran's VA treatment records and VA examinations also corroborate that the Veteran's medical condition deteriorated over time since May 2016 to the point of requiring regular aid and attendance. For example, currently, the Veteran is 69 years old and lives with his wife. In a March 2019 examination for housebound status, it was noted the Veteran was unable to walk and is confined to a bed for 15 hours of the day. The examiner noted the Veteran is not able to feed himself or prepare his own meals; he requires assistance in bathing and tending to other hygiene needs (and that he is unable to move without assistance); requires medication management and financial management/assistance. It was noted he only leaves his home for medical appointments, and is otherwise wheelchair bound. In the July 2020 VA examination for diabetes, it was noted that the Veteran does not speak and has vascular dementia and is wheelchair bound. It was also noted he has bilateral neuropathy in his legs/feet and hands since 2003 and he now cannot walk. Testing revealed his diabetic neuropathy causes moderate constant pain, moderate intermittent pain, and moderate paresthesias in the bilateral upper extremities. He has no muscle strength in his bilateral knees or ankles, and less than normal strength in his bilateral elbows, wrists, and grip and pinch. He also has no reflexes in his knees and ankles and touch/monofilament testing was absent in the knees, ankles, and feet/toes. The examiner opined that the Veteran has difficulty with lifting using the arms, grabbing/gripping and using hand tools due to episodes of pain, numbness and tingling, and that his general appearance reveals generalized weakness and that he is wheelchair bound with signs of malaise present. In the July 2020 VA examination for amputation, it was noted that the Veteran is bed and wheelchair bound, and that he had bilateral above the knee amputations. The examiner noted that the Veteran requires 100 percent care by his wife, and he will not be able to perform any physical or any type of work. In the July 2020 VA examination for central nervous system diseases, it was noted that the Veteran has significantly become forgetful, or memory loss has gotten worse. He is dependent to his wife regarding his meds, financial affairs and doctor's appointments, and he forgets things easily. His speech was comprehensive, but his thought process was very slow, and he was not able to answer simple questions or commands spontaneously. In the September 2020 examination for housebound status, it was noted that the Veteran is restricted due to his bilateral amputations, dialysis, glaucoma, and impaired vision. He is confined to bed, a recliner, or wheelchair 24 hours a day. He is able to feed himself, though needs assistance sometimes. He is not able to prepare his own meals and he needs assistance with bathing and tending to hygiene needs. He needs complete care from his wife, to include medication management. It was noted that he is unable to perform activities of daily living, is unable to self-transfer (even with assistive aids), is incontinent and completely dependent on his wife for all needs, and only leaves home for medical appointments. A November 2020 examination showed the bilateral upper extremity diabetic neuropathy had increased from moderate to severe. These examinations confirm the need for complete care by the Veteran's wife. It concludes that he cannot transfer or provide for the activities of daily living and is unable to leave home for anything other than medical treatment, and states that he requires complete assistance with activities of daily living. As discussed above, the aforementioned conditions were not service connected at the time the 2017 SOC was issued, which materially affected the Veteran's claim for SMC for aid and attendance. Therefore, although the Veteran was not granted service connection for the loss of use of his bilateral upper and lower extremities until 2018, the Board finds that in giving the benefit of the doubt in favor of the Veteran, SMC is warranted beginning May 25, 2016. As noted above, this finding is based on the grant of service connection for diabetes mellitus and end stage renal disease associated with diabetes, both effective July 2015; with resulting worsening symptomatology beginning on May 25, 2016, and that beginning May 25, 2016, but no earlier, these disabilities worsened to the point of needing regular aid and attendance. This is confirmed by the later resulting service-connected disabilities of loss of use of his bilateral upper and lower extremities due to the worsened diabetes mellitus and end stage renal disease. In summary, the above evidence reflects the necessity of the regular aid and attendance of another family member or person beginning May 25, 2016, due to his service-connected disabilities, both due to and apart from his lower extremities. See 38 C.F.R. § 3.352(a). Simply stated, it does not appear the Veteran would be able to take care of himself without the regular assistance of another. And although the Veteran is diagnosed with various nonservice-connected disorders, VA treatment records and VA examinations and lay evidence corroborate that the severity of the Veteran's service-connected diabetes and residuals, PTSD, upper extremity radiculopathy, and renal dysfunction disorders, standing alone, would necessitate the regular aid and attendance of another for many activities of daily living. See 38 U.S.C. § 1114 (l); 38 C.F.R. §§ 3.350, 3.352. Therefore, resolving any doubt in the Veteran's favor, the Board finds the evidence supports SMC for regular aid and attendance beginning May 25, 2016, but no earlier, and the claim is granted to that extent only. Specially Adapted Housing Specially adapted housing is available to a veteran who is entitled to compensation for permanent and total disability due to: (1) amyotrophic lateral sclerosis rated as 100 percent disabling under 38 C.F.R. § 4.124a , Diagnostic Code 8017; (2) blindness in both eyes, having only light perception, plus the anatomical loss or loss of use of one lower extremity; (3) full thickness or subdermal burns that have resulted in contractures with limitation of motion of two or more extremities or of at least one extremity and the trunk; or (4) the loss or loss of use of both upper extremities such as to preclude use of the arms at or above the elbows. Specially adapted housing is additionally available to a veteran with a permanent and total disability that precludes locomotion without the aids of braces, crutches, canes, or a wheelchair due to: (5) the loss, or loss of use, of both lower extremities, such as to preclude locomotion; (6) the loss or loss of use of one lower extremity, together with residuals of organic disease or injury which affect the functions of balance and propulsion; or, (7) the loss or loss of use of one lower extremity together with the loss or loss of use of one upper extremity which affect the functions of balance or propulsion as to preclude unaided locomotion. See 38 U.S.C. § 2101(a); 38 C.F.R. § 3.809. Here, it is not in dispute that the Veteran has loss of use of his bilateral lower extremities due to peripheral vascular disease associated with diabetes mellitus type II. Indeed, he has been service connected for such since July 2018; and since April 2019, has been in receipt of 100 percent disability rating under Diagnostic Code 5107 for anatomical loss of both feet. As such, the evidence shows that the Veteran has loss of use of both lower extremities due to his above the knee amputations. Therefore, specially adapted housing is granted based on a permanent and total disability due to the loss of use of both lower extremities. See 38 U.S.C. § 2101(a); 38 C.F.R. § 3.809. Special Home Adaptation Grant Where entitlement to a certificate of eligibility for specially adapted housing is not established, an applicant may nevertheless qualify for a special home adaptation grant. See 38 U.S.C. § 2101(b); 38 C.F.R. § 3.809a(b). As discussed above, the Veteran is being granted a certificate of eligibility for specially adapted housing, which is a greater benefit. Therefore, any claim for a special home adaptation grant under 38 U.S.C. § 2101(b) is rendered moot, as this benefit is available only if a veteran is not entitled to the more substantial benefit of specially adapted housing under 38 U.S.C. § 2101(a). Thus, the appeal seeking a certificate of eligibility for a special home adaptation grant is dismissed as moot. B. G. LeMoine Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.Hoy, 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.