Citation Nr: 21006045 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 18-33 452 DATE: February 3, 2021 ORDER Entitlement to special monthly compensation (SMC) benefits based on the need for regular aid and attendance is granted, subject to laws and regulation applicable to payment of VA monetary benefits. FINDING OF FACT Resolving doubt in the Veteran’s favor, the Veteran required care and assistance on a regular basis due to his service-connected disabilities in order to protect him from the hazards or dangers inherent in his daily environment. CONCLUSION OF LAW The criteria for an award of SMC based on the need for regular aid and attendance have been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1953 to November 1954. The Veteran died in June 2019. The Appellant is the Veteran’s widow. The Agency of Original Jurisdiction (AOJ) recognized the Appellant as an appropriate substitute in this matter in a November 2019 memorandum. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2016 rating. This matter was remanded by the Board in August 2018. The Board finds there has been substantial compliance with its remand directives for the claim decided herein. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to special monthly compensation based on aid and attendance. The Appellant contends that the Veteran required her regular aid and attendance due to his service-connected disabilities. SMC based on the need for aid and attendance is payable when a 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 was blind in both eyes, or was permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350. The following criteria are to be considered for determining whether a veteran was in need of regular aid and attendance: (1) the inability of the veteran 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 veteran 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 required care and assistance on a regular basis to protect the veteran from the hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352. The performance of the necessary aid and attendance service by a relative of a veteran or other member of his or her household will not prevent the granting of SMC based on the need for regular aid and attendance. Id. It is not required that all of the disabling conditions enumerated be found to have existed before a favorable rating may be made. The particular personal functions which a veteran was 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 a veteran was so helpless as to need regular aid and attendance, not that there was a constant need. Determinations that a veteran was 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 was such as would have required him or her to be in bed. They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352 ; Turco v. Brown, 9 Vet. App. 222 (1996). The Veteran was service-connected for unspecified depressive disorder (100 percent disabling due to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU)), left hand residual trauma degenerative joint disease (60 percent disabling), and left index finger amputation (20 percent disabling). The Veteran wrote in a January 2017 Notice of Disagreement (NOD) that he needs someone to help with medication management and can no longer drive. The Appellant wrote in a January 2017 statement that either she or one of their adult children spend the entire day with the Veteran. She wrote that she manages his medication because the Veteran tends to forget or take too much and become confused by the pills that look alike. She wrote that she cooks for him, both to ensure compliance with the diet prescribed by the Veteran’s doctor and because the forgetful Veteran will leave the stove on. The Appellant reiterated that the Veteran cannot drive, explaining that his psychiatric medication makes him drowsy. The Appellant wrote that the Veteran can physically perform self-care such as bathing, feeding, and toileting under her supervision, but that she believes he needs her assistance to keep him from the hazards and dangers of his surroundings. She also wrote that she keeps an eye on him in the bathroom to ensure that he does not fall because of medication or conditions. In an October 2016 VA psychiatric examination, the Veteran reported that he always needs to be with his wife because he forgets things. A December 2017 examination found mild memory loss among the Veteran’s symptoms. The examiner opined that the Veteran’s psychiatric condition does not require care and assistance on a regular daily basis, and that his mental disorder symptoms were not severe enough to interfere with his daily activities, although he was not able to handle financial debts and other social functioning. An April 2018 addendum noted that the Veteran was in contact with reality in all his surroundings, knows his debts, payments, and bills, and is capable of managing funds, although the task has been performed by his wife. Unfortunately, these examinations do not specifically discuss the Veteran’s psychiatric disability’s impact on his ability to protect himself from the hazards or dangers incident to his daily environment, in spite of the fact that this is the basis of the claim. As the Veteran has passed away, it is not possible to cure this deficiency with a new examination, and the Board must make a decision based upon the evidence of record. A September 2016 VA treatment note indicates that the Veteran should avoid driving or operating heavy machinery because of his psychiatric medication, which is consistent with the Veteran and the Appellant’s statements that he is unable to drive. The treatment records are somewhat inconsistent regarding the Veteran’s ability to perform his activities of daily living (ADLs). On some dates the record indicates that he is able to perform his ADLs independently, including activities such as cooking and driving, while other notations indicate that he is more dependent on others, including complete dependence. The Board finds that the indications of complete dependence later in the record are often related to severe nonservice-connected conditions that caused him to be hospitalized. However, the VA treatment records do contain information about ADLs that is related to the Veteran’s service-connected psychiatric disability. In May 2018, the record reflects ongoing memory problems, and indicates that the Veteran is able to carry out his ADLs with the supervision of the Appellant, and that the Appellant aids him with his medication. This notation also indicates that he is dependent on others for cooking, transportation, money management, and use of medication, which aligns with the Appellant’s statement. In an October 2018 treatment note, the Appellant reported that she assists the Veteran with his ADLs, medication administration, and managing finances, due to his cognitive impairment. The Appellant wrote in January 2017 that the Veteran has a tendency to say that he is okay even when he is not in the context of discussing his independence. The Board recognizes that it is often difficult for individuals to admit the extent of their dependence on others, even in treatment settings, and finds that the Veteran’s tendency to present himself as more independent that he actually is explains the inconsistency in the record regarding his ability to perform ADLs. The Board will resolve doubt in the Veteran’s favor and find that the evidence is at least in equipoise that his psychiatric symptoms, including memory and cognitive impairment, caused the Veteran to require regular aid and assistance to protect him from the hazards or dangers incident to his daily environment, including appliances such as the stove and the possibility of taking his medication incorrectly. Entitlement to SMC based on the need for aid and attendance is thus granted. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Budd, 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.