Citation Nr: 21074833 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 17-50 400 DATE: December 16, 2021 ISSUE Entitlement to special monthly compensation (SMC) based on aid and attendance and/or housebound status for accrued purposes. ORDER Entitlement to special monthly compensation (SMC) based on aid and attendance and/or housebound status for accrued purposes is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT 1. it was not medically possible to differentiate what portion of the Veteran's symptoms were attributable to his service-connected PTSD and his non-service connected depressive disorder as due to his stroke diagnosis. 2. The evidence is at least evenly balanced as to whether the Veteran required assistance in accomplishing the activities of daily living and is unable to protect himself from the hazards and dangers of his daily environment due to his service-connected posttraumatic stress disorder (PTSD) with depressive disorder as due to his stroke. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for SMC based on the need for aid and attendance are met. 38 U.S.C. §§ 1114(l), 5107, 5121A; 38 C.F.R. § 3.102, 3.350(b), 3.352(a), 3.1010. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from May 1959 to October 1967. The Veteran died in April 2016, and the appellant is his surviving spouse. In September 2021, the Appellant testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. By way of background, the Veteran was denied SMC based on the need for aid and attendance in an August 2015 rating decision. The Veteran filed an October 2015 Notice of Disagreement (NOD) with this August 2015 rating decision. As noted above, the Veteran died in April 2016. In August 2016, the Veteran's spouse applied for substitution, which was approved. Following issuance of a September 2017 Statement of the Case (SOC), the appellant perfected her appeal, requesting a Board Hearing. As noted above, a virtual hearing was held in September 2021. Entitlement to SMC based on aid and attendance and/or housebound status for accrued purposes. The appellant appeals the denial of entitlement to SMC based on the need for aid and attendance or on account of being housebound. Under 38 U.S.C. § 1114(l), special monthly compensation is payable if, as the result of service-connected disability, the Veteran has an anatomical loss or loss of use of both feet, or of one hand and one foot; has blindness in both eyes with visual acuity of 5/200 or less; is permanently bedridden; or is so helpless as to be in need of regular aid and attendance of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). The following will be accorded consideration in determining the need for regular aid and attendance: 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). It is not required that all of the disabling conditions enumerated in 38 C.F.R. § 3.352 (a) be found to exist before a favorable rating may be made. The particular personal functions which 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 is a constant need. See Turco v. Brown, 9 Vet. App. 222 (1996). Accrued benefits are periodic monetary benefits to which a payee was entitled at his death under existing ratings or decisions, or those based on evidence of record at the date of death and due and unpaid. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. For a claimant to prevail on an accrued benefits claim, the record must show that (i) the appellant has standing to file a claim for accrued benefits, e.g., the Veteran's surviving spouse or child; (ii) the Veteran had a claim pending at the time of death; (iii) the Veteran would have prevailed on the claim if he/she had not died; and (iv) the claim for accrued benefits was filed within one year of the Veteran's death. 38 U.S.C. §§ 5121, 5101(a); 38 C.F.R. § 3.1000; Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998). Typically, only the evidence of record at the time of the Veteran's death is considered in adjudicating a claim for accrued benefits. 38 C.F.R. § 3.1000. However, the law regarding accrued benefits claims was amended on October 10, 2008. Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145 (2008). Section 212 created a new statute which provides that, if a claimant dies while a claim or appeal for any benefit under a law administered by VA is pending, a living person who would be eligible to receive accrued benefits due to the claimant may, not later than one year after the date of the death of the claimant, request to be substituted as the claimant for the purposes of processing the claim to completion. 38 U.S.C. § 5121A (2012). In addition, the new statute permitted the submission of additional evidence in support of the claim. Based on the evidence presented below, the Board finds that the criteria for entitlement to SMC based on aid and attendance have been met for the appeal period in question. At the time of the Veteran's death, he was service connected for posttraumatic stress disorder (PTSD). The Board also notes that the Veteran was service connected for the cause of death. Discussion In April 2015, the Veteran submitted an Examination for Housebound Status or Permanent need for Regular Aid and Attendance. The examiner did not indicate what medical conditions were associated the Veteran's limitations with activities of daily living. The examiner reported the Veteran was unable to feed himself, prepare his own meals, and required assistance in bathing, medication management and tending to hygienic needs. The examiner reported that the Veteran had the ability to manage his financial affairs. With regards to the Veteran's posture and general appearance, the examiner described the Veteran as having chronic pain in knees, hips and trouble with general mobility. Upper extremity restrictions: The Veteran had limited upper arm mobility and required assistance with grooming and eating. Lower extremity restrictions: The examiner reported that the Veteran had week lower extremities, with balance problems and difficulty getting out of a chair. Spine, trunk and neck restrictions: The examiner reported that the Veteran had chronic pain in his spine, hips and shoulders. The examiner reported that the Veteran's activities were restricted to his home and doctor visits, including dialysis, Monday, Wednesday and Friday. See April 15, 2015 Examination for Housebound Status or Permanent need for Regular Aid and Attendance. In August 2015, the Veteran was afforded an August 2015 Post Traumatic Stress Disorder (PTSD) examination to evaluate the current severity of his service-connected PTSD. The examiner confirmed the Veteran's diagnosis of chronic PTSD. The Veteran was also diagnosed with a depressive disorder due to a cerebrovascular vascular accident (CVA) or stroke. The examiner reported that the Veteran's Depressive disorder is part of the Veteran's PTSD diagnosis, but the stroke intensified the Veteran's symptoms of depression such that it met the criteria for a separate disorder. The examiner reported that the Veteran's stroke occurred on February 9, 2014. The examiner reported that the medical diagnoses relevant to the understanding or management of the mental health disorder included the Veteran's recent stroke, sleep apnea, dialysis and diabetes type II. With respect to the Veteran's mental disorders, the examiner reported that it was not possible to differentiate what portion of each symptom is attributable to each diagnosis and discuss whether there is any clinical association between these diagnoses: Overlap between the two disorders is significant. The examiner reported that the Veteran's PTSD symptoms have gotten worse with the onset of his latest medical issues. The examiner reported that the Veteran sleeps some, uses a CPAP but has not been able to use it much this past year due to being in and out of the hospital. The examiner reported that the Veteran has nightmares. The examiner reported that the Veteran's biggest issue is depression, but the Veteran takes sertraline. The examiner reported that the Veteran sits in the dark as much as possible. The examiner reported that sitting in the dark calms the Veteran down. Id. at pgs. 1-3. The VA examiner reported that the Veteran's PTSD was manifested by symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent event, impaired judgment, disturbances of motivation and mood. Id. at pgs. 5-6. The August 2015 examiner remarked that the Veteran once felt the need to isolate because of anxiety around people related to PTSD, now he also feels extremely embarrassed and self-conscious, worthless, and helpless because of his physical limitations which only compound his sense of vulnerability. The examiner reported that the Veteran is no longer capable of managing his financial affairs. The examiner reported that the Veteran's wife pays the bills, and he understands that he could not do this himself. The examiner reported that in the past year, he has had people (both friends and relatives) borrow money from him and none of them has repaid the debt. The examiner reported that the Veteran has had money stolen from him but does not feel that anyone has cheated him out of money, though this writer would remind him that his friends and relatives who "borrowed" have not repaid, and I would consider this cheating in a way. The August 2015 examiner reported that they may have thought that his stroke would make him not remember who borrowed from him, so it was free money. The examiner reported that the Veteran's spouse has been concerned and voiced her concern to him after it has come to light that someone got money from him. The examiner reported that the Veteran's spouse keeps a close eye on the finances now and the Veteran wishes that she be the one to manage his funds. Id. at pg. 7. In February 2016, the Veteran submitted an Examination for Housebound Status or Permanent need for Regular Aid and Attendance. The examiner reported that the Veteran was able to feed himself, unable to prepare his own meals, required assistance in bathing, medication management and tending to hygienic needs. The examiner reported that this assistance was associated with status post stroke and Bell's Palsy. The examiner reported that the Veteran did not have the ability to manage his financial affairs. With regards to the Veteran's posture and general appearance, the examiner reported that the Veteran has a power wheelchair for mobility and has right sided weakness. Upper extremity restrictions: The examiner reported that the Veteran had some right-side weakness from his stroke and required assistance with activities of daily living. Lower extremity limitations: The examiner reported that the Veteran uses a power wheelchair for mobility status post stroke, requiring assistance with transfers. Spine, Trunk and Neck restrictions: The examiner reported that the Veteran has osteoarthritis and is able to sit up with assistance during transfers. The examiner reported that the Veteran is usually in bed or recliner during the day and only goes out for doctor visits, sometimes to church. See February 2, 2016 Examination for Housebound Status or Permanent need for Regular Aid and Attendance. Board Hearing Testimony In her September 2021 Board Hearing, the appellant testified that that she was the primary caretaker for the Veteran. The appellant testified that she assisted with the Veteran's activities of daily living, including feeding, personal hygiene, transporting him to the doctor, ensuring that he took his medications. See September 3, 2021 Board Hearing transcript, pg. 4. Addressing his mental health, the appellant testified that the Veteran would often forget that he had taken his medications, or forget that he had eaten. She testified that at times, the Veteran would refuse to eat. Id. at pgs. 4-5. The appellant testified that when the Veteran was at home, he would become angry for no reason. The appellant testified that the Veteran would often be disoriented, mainly at night. The appellant testified that the Veteran had difficulty sleeping and would experience nightmares. The appellant testified that she witnessed the Veteran's deterioration over time, which left him housebound and ultimately bedridden (refusing to eat or eat properly). Id. at pgs. 5-7 & 9. Cause of Death The Board notes that the Veteran has been service connected for the cause of death. The Veteran suffered a head injury during service while boxing. A CT scan in April 2006 showed encephalomalacia involving the right cerebellar hemisphere. In an August 2017 medical opinion, a VA examiner determined that encephalomalacia could contribute to encephalopathy; therefore, it is at least as likely as not that the Veteran's service treatment records show a diagnosis which could have contributed to his death from encephalopathy. See August 26, 2017 Medical Opinion. Analysis The Board notes that while the Veteran's has been service connected for the cause of death as due to encephalopathy, the Board finds that this is not dispositive on the issue before the Board. The dispositive issue is whether the Veteran's service-connected PTSD with depression causes the Veteran to be in need of aid and attendance in and of itself. Based on a careful review of the evidence outlined above, the Board finds that the Veteran's psychiatric disability, inclusive of his depressive disorder as due to a stroke, alone caused such severe mental incapacity that the Veteran possessed an inability to maintain hygiene, manage medication, finances, or feedings, and required care and assistance on a regular basis to protect the Veteran from the hazards or dangers incident to his daily environmentparticularly as his depression increased subject to his psychiatric and physical disabilities limiting his ability to care for himself. The Board notes that the August 2015 PTSD examiner reported that the Veteran's depressive disorder is part of the Veteran's PTSD diagnosis, but the stroke intensified the Veteran's symptoms of depression such that it met the criteria for a separate disorder. The examiner reported that the Veteran's stroke occurred on February 9, 2014. See August 13, 2015 PTSD examination, pgs. 1&3. The Board underscores that the August 2015 PTSD examiner reported that the Veteran's PTSD symptoms have gotten worse with the onset of his latest medical issues. The examiner reported that the Veteran sleeps some, has nightmares and sits in the dark as much as possible. The examiner reported that the Veterans' biggest issues was his depression. Id. at pg. 2. The August 2015 examiner reported that the Veteran's PTSD was manifested by symptoms of depressed mood, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent event, impaired judgment. Id. at pgs. 5-6. While the record shows that the Veteran's physical impairment was partly due to nonservice-connected residuals of his stroke, the Board notes that his service-connected PTSD and depressive disorder as due to his stroke was also shown to contribute to his inability to protect himself from the hazards of daily living. The August 2015 PTSD examiner remarked that the Veteran once felt the need to isolate because of anxiety around people related to PTSD, now he also feels extremely embarrassed and self-conscious, worthless, and helpless because of his physical limitations which only compound his sense of vulnerability. See August 13, 2015, PTSD examination, pg. 7. To the extent that the evidence reflects that nonservice connected and service-connected disabilities rendered the Veteran in need for regular aid and attendance of another person, where it is not possible to distinguish the effects of nonservice-connected conditions from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to the Veteran's service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). Addressing the Veteran's mental disorder, including PTSD and his depressive disorder as due to his stroke, the August 2015 PTSD examiner reported that it was not possible to differentiate what portion of each symptom is attributable to each diagnosis. The examiner reported that overlap between the two disorders is significant. See August 13, 2015, PTSD examination, pg. 1. The Board is reminded that the Appellant testified in her September 2021 Board Hearing that she assisted with the Veteran's activities of daily living, including feeding, hygiene, taking him to the doctor, making sure he took his medications. The Appellant testified that the Veteran would be disoriented, mainly at night, would often forget that he had taken his medications, or forget that he had eaten and at times, would refuse to eat. The appellant testified that the Veteran would become angry for no reason. The appellant testified that she witnessed the Veteran's deterioration over time. Id. at pgs. 5-6. The Board is also reminded that it is not required that all of the disabling conditions enumerated in 38 C.F.R. § 3.352 (a) be found to exist before a favorable rating may be made. The particular personal functions which 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 is a constant need. See Turco v. Brown, 9 Vet. App. 222 (1996). Upon careful review of the evidence, and in particular, the probative August 2015 PTSD examination, which is moored by the Appellant's September 2021 testimony regarding the Veteran's need for aid and attendance over the course of this appeal, the Board finds that the evidence is at least evenly balanced as to whether the Veteran required assistance in accomplishing the activities of daily living and is unable to protect himself from the hazards and dangers of his daily environment due to his service-connected posttraumatic stress disorder (PTSD) with depressive disorder as due to his stroke. In resolving reasonable doubt in his favor, the Board finds that the evidence of record supports a grant of SMC based on aid and attendance. 38 C.F.R. § 3.352(a). As this represents a complete grant of the benefit sought on appeal, no discussion of SMC based on being housebound (which is a lesser benefit) is necessary. Therefore, aid and attendance for accrued purposes, is granted subject to the laws which govern the payment of monetary benefits. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Little, 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.