Citation Nr: 21005977 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 16-31 105 DATE: February 3, 2021 ORDER Entitlement to accrued benefits for special monthly compensation (SMC) based on aid and attendance is granted. FINDING OF FACT Prior to his passing, the Veteran required regular aid and attendance from another due to his service-connected disability of PTSD. CONCLUSION OF LAW The criteria for SMC based on the need for regular aid and attendance of another have been met; thus, benefits accrue to the appellant. 38 U.S.C. §§ 1114, 5121 (a); 38 C.F.R. §§ 3.350, 3.352, 3.1000 (a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Marine Corps from June 1966 to August 1970. The Veteran passed away in January 2016. The appellant is his surviving spouse. In January 2021, the appellant testified before the undersigned Veteran’s Law Judge (VLJ) at a virtual hearing. A transcript of this hearing has been associated with the claims file. By way of history, a February 2009 rating decision denied the Veteran’s claim for a rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) (based on an October 2008 claim to reopen). The Veteran filed a notice of disagreement in February 2009; a statement of the case was issued in June 2011; and the Veteran perfected his appeal through a July 2011 VA Form 9, substantive appeal. However, the Veteran’s claim was never certified to the Board for further review. Thereafter, in June 2012, the Veteran filed a claim for entitlement to a total disability rating based upon unemployability (TDIU) based on his PTSD, which the agency of original jurisdiction (AOJ) interpreted as an increased rating claim for PTSD. The Veteran was granted a 100 percent rating for his PTSD effective June 21, 2012, the date of his claim for a TDIU. In September 2015, the Veteran formally filed for SMC based on aid and attendance. In January 2016, the AOJ denied the Veteran’s claim, but the Veteran had passed shortly before. The appellant then filed a claim for accrued benefits and the resulting appeal ensured. A claim for a TDIU is part of an increased rating claim when expressly raised by the Veteran or reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 456 (2009). Further, the United States Court of Appeals for Veterans Claims (Court) has noted that VA has a “well-established” duty to maximize a claimant’s benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008). This duty to maximize benefits requires VA to assess all of a claimant’s disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C. § 1114. See Bradley at 294 (finding that SMC “benefits are to be accorded when a veteran becomes eligible without need for a separate claim”). Given this, the Veteran’s claim for an increased rating for PTSD was pending since his claim to reopen was filed in October 2008. Thus, the Veteran’s inferred claims for TDIU and SMC based on aid and attendance have also been pending since that time. While the Board is granting SMC, the Board is not setting an effective date for these benefits. SMC based on the need for regular aid and attendance The appellant asserts that the Veteran should have been entitled to SMC during his lifetime based on aid and attendance because he was severely limited due to his service-connected PTSD. Accrued benefits are those benefits to which an individual was entitled at the time of death under an existing rating or based on evidence in the file at the date of death, and which were due and unpaid at the time of death. See 38 U.S.C. § 5121 (a); 38 C.F.R. § 3.1000 (a). Upon the death of a veteran, any accrued and unpaid benefits are payable to the living person in such order: (A) the veteran’s spouse; (B) the veteran’s children (in equal shares); (C) the veteran’s dependent parents (in equal shares). 38 U.S.C. § 5121 (a)(2); 38 C.F.R. § 3.1000 (a)(1). The appellant is a proper party to receive benefits, if such benefits accrue. SMC based on the need for aid and attendance of another is payable when the veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to require regular aid and attendance. See 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). The following criteria are to be considered for determining whether a veteran is in need of the regular aid and attendance of another person: (1) the inability of the claimant to dress himself or herself or to keep himself or herself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliance which, by reason of the particular disability, cannot be done without aid (not to include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); (3) the inability of the claimant to feed himself or herself through the loss of coordination of the upper extremities or through extreme weakness; (4) the inability to attend to the wants of nature; or, (5) a physical or mental incapacity that requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352 (a). The Veteran’s sole service-connected disability was PTSD. Since January 23, 2008, he had been assigned a 70 percent rating. Since June 21, 2012, he had been assigned a 100 percent rating. The November 2012 rating decision that assigned the 100 percent rating noted the following symptoms which combined to form a total occupational and social impairment: difficulty in adapting to work, a worklike setting, and to stressful circumstances; near-continuous depression and panic affecting the ability to function independently, appropriately and effectively; speech intermittently illogical, irrelevant, and obscure; suicidal ideation; the examiner’s assessment of his then-current mental functioning; difficulty in establishing and maintaining effective work and social relationships; difficulty in understanding complex commands; disturbances of motivation and mood; flattened affect; forgetting to complete tasks; impaired abstract thinking, judgment, and short- and long-term memory; anxiety; depressed mood; forgetting directions, names, recent events; weekly panic attacks; and suspiciousness. The January 2016 rating decision that denied SMC based on aid and attendance denied the claim because the AOJ determined that the Veteran’s colon cancer and other non-service-connected disabilities were the basis for his need for aid and attendance. In January 2021, the appellant testified that prior to his death, the Veteran was severely anxious and depressed. She had to bathe him, feed him, and help him dress. She prepared the Veteran for transportation and transported him to all of his appointments. In essence, the appellant did everything for the Veteran and protected him from the daily hazards of life. While the Veteran’s other non-service-connected disabilities also played a role in his diminished functioning, the Board finds that the Veteran’s PTSD alone rendered him so helpless as to require regular aid and attendance. See 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). The Board has considered the factors in 38 C.F.R. § 3.352 (a) and find that the following apply: the inability of the claimant to dress himself or herself or to keep himself or herself ordinarily clean and presentable; and a physical or mental incapacity that requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352 (a). As such, the Board finds that entitlement to SMC based on the need for aid and attendance is warranted. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. M. Hitchcock 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.