Citation Nr: A21020303 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 200701-84493 DATE: December 21, 2021 ORDER Entitlement to special monthly compensation (SMC) based on a need for the regular aid and attendance (A&A) of another person is granted throughout the evaluation period, subject to the regulations governing payment of monetary awards. FINDING OF FACT For the period of the appeal, it is as likely as not that the Veteran's service-connected disabilities (major depressive disorder and generalized anxiety disorder, [rated] 100 percent; status post right hip total arthroplasty, 70 percent; neurogenic bladder, 60 percent; obstructive sleep apnea, 50 percent; fibromyalgia, 40 percent; bowel impairment, 30 percent; left hip avascular necrosis (extension), 10 percent; bilateral hip and groin surgery residual scars, 0 percent; left hip avascular necrosis (impairment), 0 percent; surgical scar, right upper thigh, 0 percent; left hip avascular necrosis (flexion), 0 percent; and hypertension, 0 percent) have rendered her unable to self-care for some daily personal needs and to protect herself from the hazards and dangers incident to her daily environment without the assistance of another person. CONCLUSION OF LAW SMC based on the need for the regular A&A of another person is warranted for throughout the evaluation period. 38 U.S.C. §§ 1114(l), 5107; 38 C.F.R. §§ 3.102, 3.350(b), 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from September 2006 to January 2007 and from April 2010 to December 2010. This case is before the Board of Veterans' Appeals (Board) on appeal from a June 2020 Department of Veterans Affairs (VA) rating decision. In June 2020, the Veteran filed VA Form 10182, Board Appeal, expressing her disagreement with the rating decision and choosing the Hearing docket. In March 2021, a virtual Board hearing was held before the undersigned. Entitlement to SMC based on the need for the regular A&A of another person SMC is an additional level of compensation paid to Veterans above the basic levels of compensation for various types of losses or levels of impairment solely due to service-connected disabilities. It reflects recognition by the VA that certain disabilities, either alone or in combination, have an impact on a Veteran beyond the impairment of earning capacity which is central to the Rating Schedule. 38 C.F.R. § 4.1. SMC under 38 U.S.C. § 1114(l) is payable where a veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of 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 that she is in need of the regular A&A of another person. 38 C.F.R. § 3.350(b). Determinations as to the need for A&A must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to such conditions as: inability of the claimant to dress or undress herself or to keep 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; inability of the claimant to feed herself through loss of coordination of 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 the claimant from the hazards or dangers inherent in her daily environment. 38 C.F.R. § 3.352(a). It is not required that all of the enumerated factors in 38 C.F.R. § 3.352(a) be found to exist to establish eligibility for A&A; such eligibility requires at least one of the enumerated factors be present. The particular personal function that a veteran is unable to perform should be considered in connection with her condition as a whole, and it is only necessary that the evidence establish that the veteran is so helpless as to need regular A&A, not that there be a constant need. Id.; see also Turco v. Brown, 9 Vet. App. 222 (1996). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue, including degree of disability, shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran seeks SMC based on the need for the regular A&A of another person as a result of her service-connected disabilities, which for the period considered in this appeal include: major depressive disorder and generalized anxiety disorder, [rated] 100 percent; status post right hip total arthroplasty, 70 percent; neurogenic bladder, 60 percent; obstructive sleep apnea, 50 percent; fibromyalgia, 40 percent; bowel impairment, 30 percent; left hip avascular necrosis (extension), 10 percent; bilateral hip and groin scars as a residual of surgeries, 0 percent; left hip avascular necrosis (impairment), 0 percent; surgical scar, right upper thigh, 0 percent; left hip avascular necrosis (flexion), 0 percent; and hypertension, 0 percent. In various statements and testimony, the Veteran and her "caretaker" wife described her daily need for assistance. In her January 2020 claim, the Veteran asserted that there was no "shortage of pain and fatigue." She relied on her wife to help with her personal care, such as dressing, showering, shaving, and occasionally feeding. For example, she stated she could not bend her leg at the hip enough to don socks and her wife had to lace her shoes. Joint stiffness made it difficult to get dressed, and when her hip swelled (which was often), she usually could not walk without assistance for at least two days. Both hips were affected, and she feared her left hip would give out. She also reported bowel and bladder incontinence problems. Her wife helped to prepare her meals, which included cutting her food due to pain in her hands. She needed help with medication management, as she tended to forget to take it regardless of the alarms that were set to remind her (her memory problems were discussed at length). In a January 2020 statement, the Veteran's wife provided further explanation and context for the assistance she rendered the Veteran. She noted the Veteran's sleep apnea and the numerous occasions on a daily basis that the Veteran fell asleep during the day due to sleepiness. She described how forgetfulness was a major concern with the Veteran, and that her medication for service-connected mental conditions affected her memory. She noted the Veteran's incontinence resulted in daily accidents. She stated that dressing and showering were some of the main activities for which the Veteran required assistance, noting that she could not shower alone for fear of her hip giving way and falling and that she needed her to wash her backside, hair, and other areas. She noted the pain and weakness in the Veteran's hands and her inability to tie her shoes or open a bottle of water without assistance. A January 2020 statement by a friend echoed many of these descriptions regarding how dependent the Veteran was on her wife for even simple tasks such as dressing and reminding her to eat and take her medication; he also mentioned that the Veteran had chronic pain that caused her to remain in bed all day. Additional, lengthy statements from the Veteran and her wife, further describing the challenges posed by the Veteran's service-connected physical and mental disabilities, which were inter-related (e.g., her fibromyalgia reportedly led to "brain fog") were received in April 2020. Her wife indicated that the Veteran's short-term memory loss was among her worst symptoms. At the March 2021 Board hearing, the Veteran testified that she needed her wife to assist her in dressing because it was "incredibly painful" for her to do it on her own; in preparing meals because she had numbness and tingling in her hands; and in bathing because it was dangerous for her to be in the shower without supervision given that her hip could give way (prior statements indicated that a shower chair did not fit in her tub). She also related that when her hips swelled, she could not get out of bed and needed her wife's assistance in getting her up. The Veteran's wife testified that she bathed the Veteran and helped her get dressed. She noted that the Veteran was unable to put on her adult diaper or other items of clothing by herself due to problems with her hips and shoulders (the latter being associated with her fibromyalgia). She also cut up the Veteran's food, administered her insulin pen (for nonservice-connected diabetes), and organized her medications in a weekly container. In a letter received on the day of the hearing, the Veteran reiterated that she always needed her wife to help her bathe, get dressed, be reminded to eat and take medication including its preparation, and to put on a CPAP mask for her sleep apnea. After considering the Veteran's contentions and facts in this case and applying the relevant legal criteria, the Board concludes that it is at least as likely as not that, throughout the period of the appeal, the Veteran's service-connected disabilities have rendered her unable to care for some daily personal needs and to protect herself from the hazards and dangers incident to her daily environment without the assistance of others. The medical evidence pertaining to the Veteran's functional capacity presents a disability picture that is both consistent with the lay statements of the Veteran, her wife, and a friend and also somewhat in conflict with such statements. A December 2019 VA A&A examination report was completed by the Veteran's psychiatrist, whose comments appear to reflect the Veteran's own self-reports, such as the need for assistance in bathing and tending to hygiene needs and in medication management. The examiner also stated that the Veteran had several conditions that may contribute to her memory loss and that she required frequent reminders to take medication. He also noted restrictions in her upper and lower extremities due to pain, stiffness, and swelling (from service-connected disabilities and osteoarthritis), which made gripping and opening items difficult and limited her ability to walk, sit, and stand. For locomotion, she needed assistive devices or the assistance of another person. In January 2020, the Veteran underwent a private neuropsychological evaluation, which was conducted upon referral for an assessment of her present cognitive abilities. The evaluation showed an intact performance across many measures including in most areas of memory (she had visual difficulties that impacted her). Her score profile did not suggest symptoms of mild cognitive impairment or dementia. Rather, the basis of her cognitive difficulties appeared more related to her decreased level of arousal and alertness, which impacted her on a daily basis. It was also stated that her reported chronic daily pain impacted her functional abilities and limited her activity level, and that her symptoms were further compounded by significant psychological symptoms associated with her service-connected mental impairments of major depressive disorder and generalized anxiety disorder. The evaluation also discussed the possibility that the Veteran's various medical disorders, including possible narcolepsy, fibromyalgia, chronic pain, and depression/anxiety, may be impacting her arousal and alertness. A March 2020 report of a VA A&A examination, which was arranged by the AOJ in conjunction with the claim, showed that the Veteran was able to feed herself and prepare meals but needed assistance with bathing (she could not raise her arms completely). She suffered from memory loss and her partner reminded and assisted her in taking her medication properly. She suffered from incontinence and had loss of bladder control. Her memory loss was notably progressing. She required a cane to ambulate and walked with a limp. Due to hip replacement, she was unable to stand for too long. Walking produced pain (she had falling incidents when her hip allegedly gave out). She did not leave home without someone due to her anxiety issues. She was deemed to have the mental capacity to manage her benefit payments or direct someone to do so. VA outpatient records show that in March 2020 the Veteran applied for the VA caregiver program but did not meet the eligibility criteria for the program (among other things, she was found to not require personal care services from a caregiver for a minimum of 6 months). In a telephone interview to review the application, there was a discussion with the Veteran's caregiver (wife) about what assistance she provided the Veteran, which amounted to bathing legs, feet, back, and hair; dressing (i.e., putting on compression socks, shirts, and pants); and cooking and shopping. The Veteran was noted to be independent with grooming, toileting, and eating, and she was deemed able to maintain safety with self and use of electrical appliances. The caregiver reported that the Veteran had short and long-term memory impairment and that she and the Veteran both managed the Veteran's finances and medications. VA outpatient records in March 2020 also show, in a home telehealth continuum of care call discussing her activities of daily living, that in the last seven days, the Veteran required help to bathe and move around indoors (due to a weak hip) but no help with dressing, eating, using the toilet, and moving around in bed. The Veteran also needed help preparing meals but not in performing housework, shopping, transportation, using the telephone, and managing medications or own finances. In April 2020 VA medical opinions, rendered by a psychiatrist and by a physician in physical medicine/rehabilitation, both found that "from a purely physical stand point" the Veteran's service-connected mental disorders did not clearly impact her physical functional limitations and that they were not so severe that she would be unable to protect herself from hazards of daily environment. (Neither examiner discussed or appeared to have reviewed the recent statements of the Veteran and her wife, particularly in regard to memory loss issues.) An April 2020 private mental residual functional capacity assessment (by a provider who has treated the Veteran bi-weekly since October 2017) indicates that in most areas, namely understanding and memory, sustained concentration and persistence, social interaction, and adaptation, the Veteran's ability to function was mostly assessed as seriously limited or on occasion even precluded. For example, such functions included the ability to understand and remember very short and simple instructions, to carry out detailed instructions, to make simple work-related decisions, to interact appropriately with the general public, to be aware of normal hazards and take appropriate precautions, and to tolerate normal levels of stress. The provider asserted that the Veteran's depression had increased as she was in chronic pain and her memory was becoming impaired. In finding the Veteran could manage her own funds, it was noted that intellectually her ability was "high" but that she had occasionally forgotten to pay a bill on time. A December 2020 private comprehensive medical report, authored by a family nurse practitioner in connection with the Veteran's application for state community services assistance (received into the record at the time of her Board hearing), essentially indicates that the Veteran met nursing home level of care for care in a facility or community and that she required assistance with mobility, transfers, toileting, hygiene, and bathing but not for eating or dressing. In reviewing the medical evidence, it demonstrates a conflicting picture of the Veteran's functional abilities with regard to undertaking and completing activities of daily living (ADLs). Nevertheless, in interpreting the evidence in a light most favorable to the Veteran, it is reasonable for the Board to find that she is unable to protect herself from the hazards of daily life, particularly given her memory problems and her need for supervision while bathing. The evidence also shows the regular A&A of another was required to care for at least some of her daily personal necessities such as bathing, dressing, meal preparation, and medication management. While some medical evidence reflects that she was able to accomplish many of these same ADLs without any assistance, upon longitudinal review of the record, the Board concludes that the evidence is at least in equipoise as to whether the Veteran requires the regular A&A of another person on account of her service-connected disabilities. Accordingly, SMC based on the need for A&A is warranted, and the appeal is granted. George R. Senyk Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debbie Breitbeil, 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.