Citation Nr: 21007200 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 17-67 257 DATE: February 9, 2021 ORDER Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities leave him in need of the regular aid and attendance of another person. CONCLUSION OF LAW The criteria for entitlement to SMC based on the need for aid and attendance by another person are met. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from July 1964 to August 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2017 rating decision issued by a Department of Veteran’s Affairs (VA) Regional Office (RO). In an April 2019 decision, the Board denied entitlement to SMC based on the need for aid and attendance and/or based on being housebound. The Veteran subsequently appealed that decision to the United States Court of Appeals for Veterans Claims (CAVC). In a June 2020 Memorandum Decision, the Court set aside and remanded the April 2019 Board decision. The Court explained that the April 2019 Board decision failed to provide an adequate statement of reasons or bases for denying the Veteran’s claim because the Board held the Veteran to a higher standard than that required by the applicable regulation and noted that it was unclear to the Court why the limitations the Veteran showed through VA examinations and lay testimony did not render him "‘so helpless as to need regular aid and attendance.’ 38 C.F.R. § 3.356(a).” As an initial matter, the Board acknowledges the various correspondences submitted by the Veteran’s representative requesting that the Agency of Original Jurisdiction (AOJ) issue a Statement of the Case (SOC) for the Veteran’s service connection claim for sleep apnea. See, e.g., April 2020 Status Request. Specifically, the Veteran’s representative contends that a timely Notice of Disagreement (NOD) was submitted to VA in August 2017 following a July 2017 rating decision that denied the Veteran’s sleep apnea claim. See id. The Board notes that in February 2019, VA notified the Veteran that the second page of his VA Form 21-0958, NOD was not provided when he submitted his NOD and requested a copy of that page. See February 2019 Subsequent Development Letter. The February 2019 notification letter specifically indicated that if the second page is not provided, the Veteran’s NOD would be considered invalid. As the AOJ did not accept the Veteran’s NOD, informed the Veteran of such in a letter that included additional steps the Veteran would have to take, and as the Veteran has not otherwise appealed the timeliness of this NOD issue, the issue of service connection for sleep apnea is not currently before the Board and will not be addressed in this decision. Entitlement to SMC based on the need for aid and attendance The Veteran contends that he is entitled to SMC based on his continuous need for aid and attendance due to his service-connected disabilities. Specifically, his representative argues that he is unable to dress himself, keep clean and presentable, and is unable to attend to the wants of nature due to his service-connected right shoulder disability. See March 2017 NOD. He also asserts that his service-connected psychiatric disability causes the Veteran to be forgetful. Id. As an initial matter, in a March 2018 rating decision, the AOJ awarded the Veteran SMC at the (s)(1) level, effective December 19, 2017, for the Veteran’s service-connected disability rated as total with additional service-connected disabilities independently ratable at 60 percent or more. The Board notes, however, that a higher level of compensation at the (l) level is payable to eligible veterans who, by reason of service-connected disabilities, require the regular aid and attendance of another person. Specifically, under 38 U.S.C. § 1114(l), SMC for aid and attendance is payable if, as the result of a 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 factors are accorded consideration in determining whether a veteran is in need of regular aid and attendance of another person: inability to dress and undress himself (herself), or to keep himself (herself) ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliance; inability to feed himself (herself) through loss of coordination of the upper extremities or through extreme weakness; inability to tend to the wants of nature; or incapacity, physical or mental, which requires care and assistance on a regular basis to protect from the hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352(a). There need not be a constant need for aid and attendance but, rather, only a regular need for aid and attendance. 38 C.F.R. § 3.352(a). Further, 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. Id.; see also Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in section 3.352(a) must be present for a grant of SMC based on need for aid and attendance). In the present case, the Veteran is service connected for the following disabilities: major depressive disorder with psychotic features (rated as 100 percent disabling); right shoulder chronic spontaneous anterior dislocation with degenerative joint disease (rated as 30 percent disabling from April 28, 2010, and 40 percent disabling from September 6, 2017); diabetes mellitus, type II, with erectile dysfunction associated with major depressive disorder with psychotic features (rated as 10 percent disabling from April 17, 2014, and 20 percent disabling from December 19, 2017); and dyshidrosis of the bilateral hands (rated as 10 percent disabling). Turning to the evidence of record, in January 2017, the Veteran submitted a Report of Examination for Housebound Status or Permanent Need for Regular Aid and Attendance. The examiner indicated that although the Veteran was not restricted to his bed, he could not prepare his own meals due to his service-connected right shoulder disability and needed assistance with bathing and other hygiene needs. The Veteran also required medication management pertaining to his psychosis and a history of traumatic brain injury. Additionally, the examiner found that due to the Veteran’s right shoulder condition, the Veteran could not grip with the affected hand, complete fine movements, or feed himself. He could leave his home two to three times a week and could manage his financial affairs. That same month, a VA occupational therapist noted that the Veteran had significant impairment in mobility and strength, impaired upper body management, and impaired dressing/grooming/showering. See January 2017 VA occupational therapy note. The occupational therapist further noted that the Veteran’s spouse reported that the Veteran forgets to take his medication and that she cuts his food, helps him dress, and helps him shower his back. The Veteran was issued an 18-inch shoehorn, a suction cup reacher, a flexible sock aid, a dressing stick, a long handled back scrubber, and a non-slip jar opener. See id. Thereafter, a February 2017 Emergency Department social work note reflects that the Veteran needed assistance with activities of daily living (ADLs) and instrumental activities of daily living (IADLs) and that his family was providing caregiving assistance. On the other hand, in June 2017, the Veteran reported to an emergency department social worker that he was independent with regards to ADLs after being seen for low blood pressure, dizziness, and spitting up blood, In September 2017, the Veteran’s spouse submitted a statement that she quit her job to help the Veteran with the functions of daily life, such as taking a shower, dressing, and protecting him from the hazards of his daily environment. She reported that the Veteran could not use his right arm to open jars or bottles or use his preprogrammed cell phone or computer. See September 2017 lay statement. In October 2017, the Veteran underwent a VA shoulder and arms conditions examination. He reported functional loss in the form of limitations with shaving, bathing/washing his back, and dressing due to right shoulder pain. Range of motion testing revealed decreased range of motion to five degrees in all planes while his right shoulder muscle strength was 1/5. The examiner found that the Veteran’s disability limited his ability to perform certain tasks and that the Veteran was limited with reaching or lifting overhead, pushing, pulling, lifting, and carrying. The examiner found that the Veteran could perform light physical and sedentary activities. Subsequent VA treatment records demonstrate that the Veteran’s spouse continued to assist him. For example, a March 2018 VA psychiatry note reflects that the Veteran was unable to cut food due to his right shoulder condition while a June 2018 VA psychiatry note reflects that the Veteran’s spouse scrubbed his back when he took showers and that he took his medication regularly since his spouse was now at home. The treatment record also notes that the Veteran cooked sometimes when his spouse was busy. Additionally, after presenting to the emergency department with right shoulder pain/dislocation, a July 2018 emergency department social work note reflects that the Veteran was able to manage some aspects of self-care but that his spouse assisted him with bathing and IADLs. April 2019 VA treatment records further reflect that the Veteran bought an electric scooter due to his difficulty using a walker and manual wheelchair secondary to his limited motion of his right upper extremity and difficulty stowing the manual wheelchair and walker into vehicle. Although there were concerns with his described dependence on his spouse in a setting of psychosis, he was assessed with being able to operate his power mobility independently. See April 2019 VA treatment records. Significantly, a December 2019 VA treatment record reflects that the Veteran underwent a KATZ functional assessment screening, which screens for whether a patient is independent or dependent (with a score of six indicating a patient is independent and a score of zero indicating the patient is very dependent). The Veteran had a score of 1/6 and the assessment screening indicated he needed help with bathing, dressing, toileting, and transferring. Finally, a January 2020 VA psychiatry treatment note reflects that the Veteran’s spouse helped him with everything and that she stayed home to take care of the Veteran full time to ensure that he took his medications regularly and for his safety. The treatment note further reflects that she helped him take showers because he was unable to do so himself and usually drove him but that sometimes he drove himself when his spouse was by his side. Here, after careful and thorough consideration of the above evidence, the Board finds that the evidence demonstrates that the Veteran's service-connected disabilities leave him in the need of regular aid and attendance of another person. In this regard, the evidence shows that the Veteran’s right shoulder disability impacts his ability to perform even minimal ADLs such as bathing, dressing, grooming, and preparing meals due to his recurrent dislocations, decreased range of motion, decreased muscle strength, and pain. He also experiences memory issues and olfactory hallucinations due to his major depressive disorder with psychotic features, which impacts his ability to manage his medications on his own. The Board notes that the Veteran and his spouse are competent to report on the aspects of the Veteran’s life that are capable of lay observation, such as receiving help to prepare meals, toilet, bathe, dress, and groom himself. Layno v. Brown, 6 Vet. App. 465 (1994). The Board also finds that the Veteran and his spouse’s lay statements regarding his need for regular assistance from another are generally credible as such are consistent with the other medical evidence of record. Specifically, the January 2017 occupational therapist note, February 2017 Emergency Department social work note, July 2018 emergency department social work note, and December 2019 KATZ functional assessment screening are consistent with the Veteran and his spouse’s lay statements that the Veteran needs assistance with dressing, grooming, and using the bathroom. Additionally, the finding from the January 2017 examination for Housebound Status or Permanent Need for Regular Aid and Attendance that the Veteran could not grip with the affected hand, complete fine movements or feed himself, as well as the October 2017 VA examination report noting the Veteran’s decreased range of motion and strength are also consistent with the lay statements of record. As such, the Board finds that the symptoms of the Veteran’s right shoulder disability and major depressive disorder documented in the medical evidence of record, in conjunction with the competent and credible lay statements of record, demonstrate that the Veteran requires significant assistance. The Board recognizes that the medical providers have assessed the Veteran with varying functional levels and also recognizes the more negative evidence of record, including the June 2017 treatment record where the Veteran reported he was independent with regards to ADLs and the June 2018 VA psychiatry note reflecting that the Veteran cooked sometimes when his spouse was busy. However, the Board finds that this does not outweigh the sum of the other evidence of record, including the June 2017 examination, VA treatment records, and lay statements of record, which indicate that the Veteran needs regular assistance with ADLs. The Board also reiterates that it is not required that all the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found to exist before a favorable decision may be made.   Accordingly, the evidence is at least in equipoise as to whether the Veteran has difficulty performing the activities of daily living without the aid and assistance of another person as a result of his service-connected disabilities. Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to SMC based on the need for regular aid and attendance under 38 U.S.C. § 1114(l) is granted. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda Purcell, 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.