Citation Nr: 21012382 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 15-03 949A DATE: March 4, 2021 ORDER The appeal for entitlement to service connection for erectile dysfunction, to include as due to herbicide exposure and/or as secondary to diabetes mellitus, type II, and prostate cancer, is dismissed. The discontinuance of special monthly compensation (SMC) based on the need for aid and attendance was improper; therefore, the appeal is granted. FINDINGS OF FACT 1. While in remand status, a November 2020 rating decision granted the Veteran’s claim of entitlement to service connection for erectile dysfunction. 2. The Regional Office (RO) complied with the procedural requirements for discontinuing the Veteran’s award of SMC based on the need for aid and attendance, to include: providing proper notification of the proposal to discontinue entitlement and giving the Veteran the opportunity to submit evidence and have a hearing. 3. The preponderance of the evidence shows that the Veteran’s service-connected disabilities rendered him in need of regular aid and attendance. CONCLUSIONS OF LAW 1. As the benefit sought on appeal with respect to the matter of service connection for erectile dysfunction has been granted, there remains no case or controversy as to the issue of entitlement to service connection for erectile dysfunction. 38 U.S.C. § 7105(d)(5); 38 C.F.R. § 20.101. 2. The criteria for restoration of SMC based on the need for aid and attendance, have been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.105(e), 3.344, 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters The Veteran had honorable active duty service with the United States Marine Corps from August 1966 to August 1986. The Veteran passed away in September 2018, his surviving spouse has been properly substituted as the Appellant. These matters are before the Board of Veterans’ Appeals (Board) on appeal from May 2013 and March 2014 rating decisions of a Department of Veterans Affairs (VA) RO. In August 2018, the Veteran and his spouse, the Appellant, testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran’s electronic claims file. Dismissal Entitlement to service connection for erectile dysfunction, to include as due to herbicide exposure and/or as secondary to diabetes mellitus, type II, and prostate cancer, is dismissed. Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. In this case, a November 2020 rating decision granted the Veteran’s claim of entitlement to service connection for erectile dysfunction. This action resolved the claim for service connection. As a result, no case or controversy regarding the matter of service connection for erectile dysfunction remains, and there is no remaining allegation of error of fact or law for appellate consideration. 38 U.S.C. § 7105(d)(5). Accordingly, the Board is without jurisdiction to review the appeal with respect to this matter, and the matter is dismissed. Propriety of Discontinuance of SMC Based on Aid and Attendance When determining whether a veteran is entitled to SMC based on aid and attendance, VA considers: inability of claimant 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 aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of claimant to feed himself 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 hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). It is not required that all the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made. The particular personal functions which the 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 the veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Id. The discontinuance of SMC based on the need for aid and attendance was improper; therefore, the appeal is granted. The Appellant asserts that discontinuance of the Veteran’s SMC for aid and attendance was improper and should be reinstated. In a June 2011 rating decision, the RO granted the Veteran SMC based on aid and attendance. In an October 2012 rating decision, the RO proposed the discontinuance of SMC based on aid and attendance because the Veteran’s need for aid and attendance was not related to a service-connected disability evaluated at 100 percent disabling. This proposal was finalized in a May 2013 rating decision after all due process requirements under 38 C.F.R. §§ 3.105(e), (i) were met. At the time of the May 2013 rating decision, the Veteran was service connected for aortic valvular disease at 60 percent disabling, post-operative left thoracic outlet syndrome with pain into the head and left eye at 40 percent disabling, post-operative right thoracic outlet syndrome at 30 percent disabling, degenerative disc disease of the cervical spine associated with post-operative left thoracic outlet syndrome with pain into the head and left eye at 30 percent disabling, type 2 diabetes at 20 percent disabling, and prostate cancer at 0 percent disabling from August 1, 2013. His combined rating was 90 percent from August 1, 2013. Although the Veteran did not have a single service-connected disability rated as 100 percent disabling, SMC based on aid and attendance can also be granted based on him requiring the regular aid and attendance of another person (described above). At the time the discontinuance of SMC based on the need for aid and attendance became effective on August 1, 2013, the award had been in effect since October 7, 2010, a period of less than 5 years. Therefore, the provisions of 38 C.F.R. § 3.344(a) and (b) do not apply. In October 2010, the Veteran submitted a complete examination for Housebound Status or Permanent Need for Regular Aid and Attendance. The examination included diagnoses of diabetes with extensive neuropathy and coronary artery disease. A number of other conditions were listed as well; however, the examiner’s handwriting is not easily decipherable. The Veteran was unable to prepare his own meals. He required assistance in bathing and tending to other hygiene needs, as he was prone to a high risk of falling. He was not legally blind, did not require nursing home care, and did not require medication management. He did not have the ability to manage his own financial affairs. The examiner also noted that the Veteran was unable to stand for a prolonged period of time. Additionally, the Veteran had poor gait and poor posture. A June 2014 VA treatment record shows that the Veteran reported that he had a walker, cane, bathroom equipment, and a mobility chair. An August 2017 VA treatment record shows that the Veteran reported that, in the week prior, he had fallen down face first on the cement and went to the Emergency Room. He received 35 stitches in his upper and lower lip. He stated that he had been unsteady and light-headed at times. In August 2018, the Veteran submitted another complete examination for Housebound Status or Permanent Need for Regular Aid and Attendance. The examination included diagnoses of type II diabetes mellitus with extensive neuropathy and spinal stenosis. The Veteran could feed himself; however, he was unable to prepare his own meals. He required assistance in bathing and tending to other hygiene needs, as he had a risk of falling. He was not legally blind, did not require nursing home care, but he required medication management. He had the ability to manage his own financial affairs. The examiner also noted that the Veteran had poor gait and used a cane. He had muscle atrophy and limited range of motion. In an August 2019 statement, the Appellant indicated that, during the 12 months prior to the Veteran’s death, he became very unsteady on his feet. The Appellant had to stop working full-time so that she could be home more. She further indicated that the Veteran needed help with daily showering and dressing. He was very unsteady on his feet, and he had fallen numerous times. After a review of the evidence, the Board finds that discontinuance of the Veteran’s entitlement to SMC based on the need for aid and attendance effective August 1, 2013, was improper. Indeed, the Aid and Attendance examinations of record consistently show the Veteran’s need for assistance in bathing and tending to other hygiene needs, as he had a high risk of falling. Further, the August 2018 examination indicates the Veteran needed assistance with medication management. Additionally, the Appellant stated that the Veteran was unsteady on his feet and had fallen numerous times. The August 2017 VA treatment record notes an incident where he severely injured himself after a fall on the cement. Therefore, the Board finds that the evidence of record is at least in equipoise as to whether the Veteran was so helpless as to need regular aid and attendance. As such, the discontinuance for aid and attendance was improper and the appeal is granted. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. MacDonald, 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.