Citation Nr: 21013834 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 01-03 705A DATE: March 10, 2021 ORDER Special monthly compensation (SMC) based on the need for regular aid and attendance is granted. Eligibility for payment or reimbursement for an automobile or other conveyance and adaptive equipment or adaptive equipment only is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) before July 17, 2002 is remanded for extraschedular consideration. FINDINGS OF FACT 1. The Veteran requires regular assistance with dressing, bathing and other hygiene, preparing food, ambulation, and household chores. See June 2014 Private Examination; VA Examinations dated October 2019, January 2020. 2. The Veteran’s service-connected disabilities do not result in loss or loss of use of a hand or foot, permanent impairment of both eyes, severe burn injury, amyotrophic lateral sclerosis, or ankylosis of a knee or hip. See VA Examinations dated July 2007, January 2009, December 2009, September 2011, September 2014, October 2019, January 2020. CONCLUSIONS OF LAW 1. The criteria for SMC based on the need for regular aid and attendance are met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.350(b), 3.352(a). 2. The criteria for eligibility for payment or reimbursement for an automobile or other conveyance and adaptive equipment or adaptive equipment only are not met. 38 U.S.C. §§ 3901, 3902, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.350, 3.808. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from October 1979 to October 1982. This case is before the Board of Veterans’ Appeals (Board) on appeal from March 2001, June 2009, and July 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. 1. SMC Based on the Need for Aid and Attendance SMC is warranted based on the need for regular aid and attendance when, as the result of a service-connected disability, the Veteran is so helpless as to be in need of regular aid and attendance, based on factors including inability to feed himself, dress, undress, attend to the wants of nature, bathe or keep ordinarily clean and presentable, frequent need of adjustment of any special prosthetic or orthopedic appliances, and incapacity, physical or mental, which requires care or assistance on a regular basis to protect from hazards or dangers incident to one’s daily environment. See 38 C.F.R. §§ 3.350(b), 3.352(a). Not all of these factors need be present to warrant SMC based on the need for regular aid and attendance, nor must the Veteran require constant, but only “regular” aid and attendance. Id. In this case, evidence from VA and private examinations indicate that the Veteran needs regular assistance with dressing, bathing and other hygiene, preparing food, ambulation, and household chores. See June 2014 Private Examination; VA Examinations dated October 2019, January 2020. In particular, a June 2014 private examination noted that the Veteran needed assistance with bathing and hygiene and an October 2019 VA examination noted that he needed assistance getting dressed and had difficulty with balance. See also December 2009 VA Knee Examination (noting difficulty getting into bathtub). On the other hand, there is no evidence that the Veteran needs assistance feeding himself, and a January 2020 VA examination noted that the Veteran ambulated “Steady and balanced” using a rolling walker. Even so, the Board finds that the preponderance of the evidence indicates that the Veteran is in need of regular aid and attendance. To the extent any reasonable doubt remains as to this finding, all such doubt is resolved in the Veteran’s favor. See 38 C.F.R. § 3.102. Therefore, SMC based on the need for regular aid and attendance is warranted. 2. Automobile Allowance Veterans or service members with certain service-connected disabilities may be found eligible to receive financial assistance in acquiring one automobile or other conveyance and adaptive equipment, or adaptive equipment only. 38 U.S.C. § 3901. Eligibility for assistance to purchase a vehicle and adaptive equipment is warranted where one of the following exists as the result of injury or disease incurred or aggravated during active service: (1) loss or permanent loss of use of one or both feet; (2) loss or permanent loss of use of one or both hands; (3) permanent impairment of vision of both eyes, meaning central visual acuity of 20/200 or less in the better eye, with corrective glasses, or central visual acuity of more than 20/200 if there is a field defect in which the peripheral field has contracted to such an extent that the widest diameter of visual field subtends an angular distance no greater than 20 degrees in the better eye; (4) severe burn injury precluding effective operation of an automobile; (5) amyotrophic lateral sclerosis; or, (6) for adaptive equipment only, ankylosis of one or both knees or one or both hips. 38 U.S.C. § 3901; 38 C.F.R. § 3.808. VA regulations provide that permanent loss of use of a hand or foot exists when “no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the elbow or knee with the use of a suitable prosthetic appliance.” See 38 C.F.R. §§ 3.350 (a)(2). The Veteran is service-connected for major depressive disorder, a back disability and associated bilateral lower extremity radiculopathy, disabilities of the bilateral knees, bilateral pes planus, a left wrist disability, and bilateral otitis media and externa. There is no evidence of any loss of use of one or both hands, permanent impairment of vision, severe burn injury, amyotrophic lateral sclerosis, or ankylosis of the knees or hips. See, e.g., VA Examinations dated July 2007, January 2009, December 2009, September 2011, September 2014. Moreover, the Board finds that the Veteran’s service-connected knee and foot disabilities do not result in the permanent loss of use of one or both feet. Examinations throughout the claim period consistently report that the Veteran retains significant use of his lower extremities, e.g. the ability to walk a full block with the assistance of a walker. See January 2020 VA Examination; January 2020 VA Treatment Record (noting Veteran “walks with steady gait” using a walker); See also October 2019 VA Examination (noting Veteran able to ambulate alone with a rollator). Even a June 2014 private examination describing the Veteran as “non ambulatory” noted that he was able to take steps with aid. In any case, no examination either before or after the June 2014 private examination yielded findings of a similar severity. See, e.g., VA Knee Examinations dated December 2009,September 2011. Therefore, reconciling the Veteran’s examinations into a consistent disability picture, the Board finds that his service-connected disabilities have not resulted in permanent loss of use of one or both feet. See 38 C.F.R. § 4.2 (The Board has the responsibility to interpret VA examinations in light of the entirety of the record, and to reconcile various examinations into a consistent disability picture.) Accordingly, eligibility for payment or reimbursement for an automobile or other conveyance and adaptive equipment or adaptive equipment only is not warranted. REASONS FOR REMAND Entitlement to a TDIU before July 17, 2002 The Veteran is seeking an earlier effective date for the grant of a TDIU, currently effective from the date of the Veteran’s schedular eligibility, July 17, 2002. He contends that he has been unable to work due to his service-connected disabilities since the 1980s. See TDIU Applications dated October 2000, August 2007. Although the Veteran’s service-connected disabilities do not meet the schedular requirements for a TDIU before July 2002, “[i]t is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.” 38 C.F.R. § 4.16(b). For this reason, a TDIU may still be assigned on an extraschedular basis to a Veteran whose disability ratings fail to meet the required minimums. Where this is warranted, the claim must first be referred by the AOJ to the Director of the Compensation Service for extraschedular consideration. Therefore, a remand is necessary for the RO to refer the claim to the Director of the Compensation Service for extraschedular consideration. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. After completing the development outlined in Item 1., refer the issue of entitlement to a total disability rating based on individual unemployability to the Director of the Compensation Service for extraschedular consideration for the period before July 17, 2002. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Timmerman, 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.