Citation Nr: 21013356 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 13-25 028 DATE: March 9, 2021 ORDER Entitlement to special monthly compensation (SMC) (l) based on the need of regular aid and attendance is granted. FINDING OF FACT The Veteran's service-connected disabilities at least as likely as not result in him being in need of regular aid and attendance of another person. CONCLUSION OF LAW The criteria for entitlement to SMC (l) based on the need of regular aid and attendance are met. 38U.S.C. §1114; 38C.F.R. §§3.350, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1985 to April 1988, August 2006 to November 2007, and from May 2008 to February 2009. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in February 2019, when the Board denied entitlement to SMC based on aid and attendance for a traumatic brain injury (SMC (t)). The Veteran appealed the case to the United States Court of Appeals for Veterans Claims (Court), where the parties filed a Joint Motion for Partial Remand (JMPR). In February 2020, the Court granted the JMPR, vacating the portion of the Board decision denying entitlement to SMC (t) and remanding the case for further proceedings consistent with the February 2020 JMPR. SMC (t) is a special benefit that is authorized by section 601 of the Veterans' Benefit Act of 2010. Pub. Law 111-275. Section 601 authorized an additional monetary allowance for veterans with residuals of a TBI who require a higher level of care, but do not qualify for the benefit under 38 U.S.C. § 1114 (r)(2). 83 FR 20735, 20736. This award was enacted effective October 1, 2011, as section "t" of 38 U.S.C. § 1114. Entitlement to SMC (t) is subject to the criteria of 38 C.F.R. § 3.352 (b)(3), which provides, in part, the need for a higher level of care shall be considered to be need for personal health-care services such as administration of injections, or like functions. The Court noted the Board provided inadequate reasons and bases for two reasons. First, the Court found the Board erred when it denied the Veteran’s claim for SMC (t) because it did not adequately consider whether the Veteran’s family administering his medications met the higher level of care, as noted above, set forth in 38 C.F.R. § 3.352 (b)(3). Second, although the Veteran did not claim entitlement to SMC based on the need for regular aid and attendance as set forth in 38 U. S. C. § 1114(l) and 38 C. F. R. § 3.352(a), (SMC (l)), the Court found the Board erred when it did not consider whether the record raised the possibility the Veteran may be entitled to SMC (l). See AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Akles v. Derwinski, 1 Vet. App. 118, 121 (1991) (Veterans may claim SMC or entitlement may be raised by the record). In a January 2021 Appellate Brief submitted by the Veteran’s representative, the Veteran waived his claim for SMC (t) and limited his claim to SMC (l). Accordingly, the Board finds the record raised the possibility of entitlement to SMC (l) and will only consider entitlement to SMC (l) and not SMC (t). Akles v. Derwinski, 1 Vet. App. 118, 121 (1991) Entitlement to SMC based on the need of regular aid and attendance A veteran may be entitled to additional SMC benefits where there is an established need for regular aid and attendance. 38 U.S.C. §1114(l); 38 C.F.R. §3.350(b)(3). Requiring aid and attendance means that a person is helpless or so nearly helpless as to require the regular aid and attendance of another person. A veteran will be considered to be in need of regular aid and attendance if by reason of his or her service-connected disabilities he or she (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 5 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 38 C.F.R. §3.352(a). The criteria to be considered in establishing a factual need for aid and attendance include: the inability of a 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. 38C.F.R. §3.352(a). It is not required that all the disabling conditions enumerated be found to exist before a favorable rating may be made. Moreover, it is only necessary that the evidence establish that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that a claimant is so helpless as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant's condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others. Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. In the February 2019 Board decision, the Board, in part, denied the Veteran’s claim for SMC (t), because the type of care the Veteran’s family provided him is contemplated by SMC (l) and did not rise to the higher level of care required by SMC (t). The Board now concludes; however, that the type of care the Veteran’s family provided him meets the requirements set forth in 38 C.F.R. §3.352(a) and SMC (l) is warranted. The Veteran’s service-connected disabilities include posttraumatic stress disorder (PTSD), residuals of a TBI, back pain, left shoulder condition, bilateral knee condition, bilateral ankle condition, tinnitus, bilateral lower extremity peripheral neuropathy, cervical myositis, bilateral hearing loss, allergic rhinitis, right side deviation of nasal septum, and a skin condition. In a November 2018 private medical examination, Dr. M.C. reported the Veteran lost his capacity to engage in the most basic functions and required help from his family and close friends to care for his basic day-to-day needs. Dr. M.C reported the Veteran heard voices others did not hear, had overt periods of dissociation, intrusive thoughts of combat-related activities, anxiety, increased startle response, anger, and low frustration tolerance. Dr. M.C. further reported that absent help from his friends and family, the Veteran would have required institutionalized care because he would have been unable to care for himself. Dr. M.C. reported the Veteran relied on his wife to drive him to medical appointments; manage his medications; and essentially provide 24-hour care. Moreover, the Veteran’s wife assisted him with bathing, prepared all meals, and cared for their home. During the medical examination, the Veteran reported he relied on his wife’s assistance with medication management and other caregiving activities. Moreover, the Veteran reported he was unable to help around the house or participate in household chores and logistics. After interviewing the Veteran and his wife, reviewing the medical records, service records, applicable medical literature, and lay statements, the examiner concluded the Veteran requires daily aid and attendance. Dr. M.C. provided a well-reasoned and detailed medical examination. Although this exam was originally conducted to evaluate the Veteran’s entitlement to SMC (t), the Board finds this medical opinion highly probative and affords it substantial weight and will use it to help determine the Veteran’s entitlement to SMC (l). VA provided the Veteran an examination in October 2016, in part, to determine his eligibility for SMC (t). Although the examiner concluded the Veteran did not need the regular aid and attendance of another to complete his activities of daily living, the Board finds this examination limited in its application because VA conducted the examination to determine whether the Veteran met the higher level of care requirements for SMC (t) and not the requirements for SMC (l). The Veteran’s friends and family provided several lay statements documenting their assistance helping the veteran with nearly all aspects of his daily life. In a November 2020 statement, the Veteran’s spouse reported that in April 2014 she began managing all the Veteran’s medications, driving him to his medical appointments, and attending his medical appointments. In a February 2017 statement, she reported that she has been taking care of the Veteran 24 hours per day. She helps with bathing, medication management, cooking, laundry, and running errands. In February 2017 the Veteran’s son submitted a statement noting he assisted the Veteran from January 2013 to March 2014, for up to 10 hours per day. He reported that he assisted him with bathing and shaving. He cleaned the Veteran’s house, washed dishes, maintained the outside of the house, and did laundry. He further reported he drove him to medical appointments, purchased groceries, and managed his medications. In February 2017, the Veteran’s sister submitted a statement that she assisted the Veteran from September 2011 until December 2012, often up to eight hours per day. Specifically, she helped with personal grooming, medication management, and housework. In December 2018, the Veteran’s brother submitted a statement noting he began helping him in November 2010 until August 2011. He assisted the Veteran with dressing, grooming, and hygiene. Moreover, he helped clean the Veteran’s house, prepared food, and assisted with medication management. He further reported that he feared the Veteran might accidently hurt himself because of his memory issues and from November 2010 until August 2011 he visited the Veteran every day to ensure his safety. In February 2017, a friend of the Veteran submitted a statement noting he began assisting the Veteran in January 2010 until October 2010 and often stayed with him for up to eight hours per day. He went grocery shopping for the Veteran, drove him to medical appointments, and helped pay his bills. He took care of the Veteran’s house, cooked for him, and helped him shower and dress. In sum, the Board finds the Veteran's service-connected disabilities at least as likely as not result in him needing regular aid and attendance of another person. The Board finds the private medical opinion provided by Dr. M.C. as well as the lay statements provided by the Veteran’s family and close friends to be highly probative. The reports by the Veteran’s friends, family, and Dr. M.C. show the Veteran is unable to manage his medication, drive himself to medical appointments, dress himself, cook for himself, and otherwise keep himself clean and orderly. The Board finds the Veteran is unable to protect himself from hazards or dangers incident to his daily environment without regular assistance from others due to his service-connected disabilities. VA regulation makes it clear the Veteran does not have to manifest all disabling conditions enumerated in 38 C.F.R. §3.352(a) to support an award of the benefit sought, nor does he have to establish a constant need of aid and attendance. Here, there is at least an approximate balance of positive and negative evidence as to whether the Veteran needs regular intervention from others to perform activities of daily living and to protect himself from hazards or dangers incident to his daily environment. Resolving reasonable doubt in the Veteran's favor, the Board finds entitlement to SMC based on the need of regular aid and attendance is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Zachery S.C. Luce, 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.