Citation Nr: 21010214 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 13-09 916 DATE: February 24, 2021 ORDER Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is granted. REMANDED Entitlement to service connection for diabetes mellitus is remanded. FINDING OF FACT The evidence of record is at least in relative equipoise as to whether the Veteran is in need of regular aid and attendance based upon his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to SMC based on the need for regular aid and attendance of another person have been met. 38 U.S.C. § § 1134, 5107; 38 C.F.R. § § 3.102, 3.350, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1971 to November 1973 and from April 1974 to December 1987. In March 2017, the Veteran testified at a hearing before Veterans Law Judge Auer. A transcript of the hearing is associated with the record. In October 2017, the Board remanded these matters to obtain legible copies of the Veteran’s service records, obtain private and VA treatment records, provide the Veteran appropriate notice regarding lay evidence, obtain a VA medical opinion regarding the etiology of his diabetes mellitus, and to provide the Veteran with a VA aid and attendance examination. There has been substantial compliance with the remand directives, and the matter is again before the Board. Stegall v. West, 11 Vet. App. 268, 271 (1998). In December 2020, the Veteran testified at a hearing before Veterans Law Judge Hwa. A transcript of the hearing is associated with the record. As there have been two hearings by two separate Veterans Law Judges on the issues on appeal, a panel decision is necessary for final adjudication of the claim. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). In Arneson, the United States Court of Appeals for Veterans Claims (the Court) interpreted 38 C.F.R. § 20.707 as requiring that an appellant must be provided the opportunity for a hearing before all three Veterans Law Judges involved in a panel decision. By law, an appeal can be assigned only to an individual Veterans law Judge or to a panel of not less than three members. See 38 U.S.C. § 7102. Thus, when an appellant has had a personal hearing before two separate Veterans Law Judges during the appeal and these hearings covered one or more common issues, a third Veterans Law Judge is assigned to the panel after the second Board hearing has been held and the appeal is then ready for appellate review. Under these circumstances where a “claimant’s appeal is assigned to a Board panel in a piecemeal fashion,” the Court held in Arneson that the “claimant must still be afforded the opportunity for a hearing before every member of the panel that will ultimately decide his case.” Arneson, 24 Vet. App. at 386. This does not mean that the hearing must be held before every member of the panel at the same time, but rather “only that [the appellant] be afforded the opportunity to be heard...by every panel member who will decide his case.” Id. In this case, the Veteran waived his right to a third hearing on the record at the December 2020 Hearing. See December 2020 Hearing Transcript, p. 2. 1. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance The Veteran seeks entitlement to Special Monthly Compensation (SMC) based on the need of aid and attendance of others due to his service-connected disabilities. Special monthly compensation at the aid and attendance rate is payable to a Veteran who, as a result of his service-connected disabilities: (1) is blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to five degrees or less; (2) is a patient in a nursing home because of mental or physical incapacity; or (3) establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b)(3). Pursuant to 38 C.F.R. § 3.350 (b)(3) and (4), the criteria for determining that a Veteran is so helpless as to be in need of regular aid and attendance, including a determination that he is permanently bedridden, are contained in 38 C.F.R. § 3.352(a). That regulation provides that the following criteria will be considered in determining whether the Veteran is in need of the regular aid and attendance of another person: the inability of the Veteran to dress or undress himself, or to keep himself 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 such aid; the inability of the Veteran to feed himself through the loss of coordination of upper extremities or through extreme weakness; the inability to attend to the wants of nature; or an incapacity, physical or mental, which requires care or assistance on a regular basis to protect the Veteran from the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352 (a). It is not required that all of the above disabling conditions be found to exist before a favorable rating may be made. Turco v. Brown, 9 Vet. App. 222, 224 (1996). The particular personal functions that a Veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that a Veteran is so helpless as to need regular aid and attendance, not that there is a constant need. Determinations that a Veteran is so helpless as to be in need of regular aid and attendance will not be based solely upon an opinion that his condition is such as would require him to be in bed. They must be based on the actual requirement of personal assistance from others. See 38 C.F.R. § 3.352 (a) The Veteran is currently in receipt of a 70 percent rating for chronic posttraumatic stress disorder (PTSD) and depressive disorder not otherwise specified (NOS); a 40 percent rating for degenerative disc disease of the lumbar spine; a 10 percent rating for left knee osteoarthritis, medial collateral ligament strain, and chondromalacia; a 10 percent rating for right knee osteoarthritis, bursitis, and chondromalacia; a 10 percent rating for right ankle recurrent strain; a 10 percent rating for left ankle recurrent strain with residual ligamental laxity; and noncompensable ratings for left and right lower extremity radiculopathy. The Veteran is also in receipt of total disability rating due to individual unemployability. At the March 2017 hearing, the Veteran testified that he uses a walker to ambulate, but that it is not safe for him to walk because he loses balance and coordination. He testified that his wife helps him dress and bathe, and that he sometimes lacks control of bowel movements. The Veteran’s wife testified that the Veteran cannot go to the bathroom on his own. The Veteran’s wife also testified that the Veteran cannot go near the stove, and that she does all the cooking. The Veteran’s wife testified that she hides the keys from the Veteran so that he does not do anything dangerous. At the December 2020 hearing, the Veteran testified that he cannot stand for more than a minute. The Veteran indicated that he fears what might happen during an episode of PTSD. The Veteran testified that his wife helps him walk with the walker. The Veteran stated that his wife prepares his food, and she will not allow him into the kitchen. The Veteran indicated that he needs aid and attendance due to his service-connected lumbar spine, ankle, and PTSD disabilities. The Veteran also indicated that he was limited by his cervical spine disability, though the Board notes that the Veteran is not service-connected for a cervical spine disability. In January 2018, the Veteran was provided with a VA aid and attendance or housebound examination. Upon review of the Veteran’s medical history, the examiner concluded that the Veteran’s need for aid and attendance is not solely because of his service-connected disabilities. The examiner noted that the Veteran’s cervical spondylosis with myelopathy renders him in need of intermittent aid and attendance of another individual to perform some of his activities of daily living. The examiner noted that, at times, the Veteran needs help with dressing and bathing. He is also in need of help with cooking, household chores, and driving. The examiner found that the Veteran’s service-connected disabilities do not render him permanently housebound. The Veteran is not substantially confined to his dwelling or immediate premises as a direct result of his service-connected disabilities. In May 2020, the Veteran was provided with a new VA aid and attendance or housebound examination. The examiner noted that the Veteran was restricted to his home or immediate vicinity but was not permanently bedridden. The Veteran was noted to have problems with balance and need a walker. The Veteran uses a wheelchair for long distances. The Veteran was found to need help with dressing, undressing, bathing, grooming, and toileting. The Veteran spends most of his time watching television and reading. The examiner noted the presence of limitation of motion, weakness, weight bearing deficits, and balance deficits in the lower extremities. The Veteran can leave home once per week for appointments, church, and occasional grocery shopping. The limitations noted at the VA examinations and during the testimony of the Veteran and his wife are supported by VA treatment records. For example, in September 2018, the Veteran reported to his primary care provider that he is not stable in walking, needs a walker to ambulate, and that his wife pushes him in his wheelchair. In April 2020, the Veteran reported that he experiences episodes of bowel or bladder incontinence when he is unable to get to the bathroom in time due to his slow ambulation. The Board acknowledges that the January 2018 examiner found that the need for aid and attendance is not solely because of his service-connected disabilities. However, the examiner did not consider whether the Veteran’s service-connected disabilities alone would render him in need for aid and attendance. Regarding the May 2020 VA examination, the Board notes that this examination only considered the Veteran’s physical disabilities. VA treatment records and the Veteran’s testimony show that the Veteran is also limited in functioning by his service-connected PTSD and depression. For example, in October 2017, the Veteran reported experiencing nightmares and hallucinations due to PTSD. Upon review of the entire record, including lay and medical evidence, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran’s combination of physical and mental service-connected disabilities requires care and assistance on a regular basis in order to dress himself, prepare meals, keep himself clean and presentable, and protect him from the hazards or dangers inherent in his daily environment. Accordingly, entitlement to SMC based on the need for regular aid and attendance is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. As special monthly compensation based on aid and attendance is a greater benefit than special monthly compensation at the housebound rate, the issue of entitlement to special monthly compensation at the housebound rate is moot. REASONS FOR REMAND 1. Entitlement to service connection for diabetes mellitus is remanded. The Veteran contends that his current diagnosis of diabetes mellitus, type II, (diabetes) was either incurred during active duty service or caused by exposure to contaminated water at Camp Lejeune. In October 2017, the Board remanded this matter to obtain a VA medical opinion regarding the etiology of the Veteran’s diabetes. Although the Board regrets further delay, remand is again warranted to ensure that all due process requirements are met. In July 2018, a VA examiner opined that the Veteran’s diabetes was not a result of exposure to contaminated water at Camp Lejeune, as it is not a recognized presumptive condition and accordingly not supported by the associated VA, scientific, and medical evidence. In June 2020, a VA examiner opined that the Veteran’s diabetes was more likely due to other risk factors than exposure to contaminated water. The VA examiner listed the Veteran’s risk factors for diabetes, including obesity, race, and high blood pressure. The VA examiner specifically noted that the Veteran’s history of depression and stress caused by PTSD are risk factors for diabetes. Service connection may be established on a secondary basis for a disability that is proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). As the Veteran is already service-connected for PTSD and depression, the Board finds that a theory of secondary service connection for diabetes due to PTSD and depression has been reasonably raised by the record. Accordingly, remand is warranted to obtain a VA medical opinion regarding whether the Veteran’s PTSD was caused by or aggravated by his PTSD and depression. (Continued on the next page)   The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s diabetes mellitus is at least as likely as not proximately due to service-connected PTSD and depressive disorder or aggravated beyond its natural progression by service-connected PTSD and depressive disorder. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Casey, 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.