Citation Nr: 21023836 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-34 982 DATE: April 21, 2021 ORDER Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance under 38 U.S.C. § 1114(l), effective April 1, 2019, is granted. REMANDED Entitlement to SMC at a higher rate is remanded. FINDING OF FACT The preponderance of the evidence supports finding the Veteran’s service-connected disabilities render him in need of regular aid and attendance. CONCLUSION OF LAW The criteria for SMC based on the need for the regular aid and attendance, effective April 1, 2019, have been met. 38 U.S.C. § 1114(l); 38 C.F.R. §§ 3.102, 3.350(b), 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1991 to December 1994. Entitlement to SMC at a higher rate The Veteran is in receipt of SMC(k) for loss of use of a creative organ, effective October 6, 2006, and SMC(s) based on statutory housebound status, effective October 6, 2006. See 38 U.S.C. § 1114. The Veteran contends he is entitled to a higher level of SMC. The Board finds the preponderance of the evidence supports the Veteran’s service-connected disabilities warrant entitlement to SMC based on the need for regular aid and attendance under 38 U.S.C. §§ 1114(l), effective April 1, 2019. Pursuant to 38 C.F.R. § 3.352(a), the following criteria are to be considered for determining whether a claimant is in need of the regular aid and attendance of another person: (1) the inability of the claimant to dress himself or to keep himself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliance which, by reason of the particular disability, cannot be done without aid; (3) the inability of the claimant to feed himself through the loss of coordination of the upper extremities or through extreme weakness; (4) the inability to attend to the wants of nature; or, (5) a physical or mental incapacity that requires care and assistance on a regular basis to protect the claimant from the hazards or dangers of his daily environment. The performance of necessary aid and attendance service by a relative of the claimant or other member of his or her household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352(c). The Veteran is service connected for generalized sarcoidosis with headaches, to include symptoms of joint pain, trouble focusing, generalized malaise, nausea, blurred vision, and frequent urination, rated at 100 percent, effective October 6, 2006; cardiomegaly, rated at 100 percent, effective October 6, 2006; diabetes mellitus, rated at 40 percent, effective October 6, 2006; erectile dysfunction with balanoposthitis, rated at 20 percent, effective October 6, 2006; right upper extremity neuropathy, rated at 10 percent, effective July 22, 2008; left upper extremity neuropathy, rated at 10 percent, effective July 22, 2008; right lower extremity neuropathy, rated at 10 percent from July 22, 2008 and 20 percent from March 3, 2010; left lower extremity neuropathy, rated at 10 percent from July 22, 2008 and 20 percent from March 3, 2010; major depressive disorder, rated at 30 percent, effective July 24, 2009; bilateral thigh dermatitis, rated at 10 percent, effective March 3, 2010; and bilateral diabetic retinopathy with macular edema and cataracts, rated at 0 percent from October 18, 2019 and 90 percent from September 28, 2020. The preponderance of the evidence supports finding the Veteran’s service-connected disabilities meet the criteria for SMC based on the need for aid and attendance under 38 U.S.C. § 1114(l). Specifically, there is competent and probative evidence showing the Veteran requires assistance with bathing and grooming and requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). The Board gives probative weight to the November 2019 VA examination for aid and attendance. The examiner diagnosed severe polyneuropathy, sarcoidosis, and diabetes mellitus with episodes of hypoglycemia. The Veteran described a typical day as his wife preparing him breakfast and preparing his medication before going to work. He stated his wife comes home at lunch to prepare a meal and assist him with any activities he needs done. He stated his wife or family members come to the house frequently throughout the day to check on him because he has a history of hypoglycemic episodes. He stated he no longer cooks due to polyneuropathy and weak hand grip. He stated he no longer drives. The examiner stated the Veteran had impairments that affect his ability to protect himself from his daily environment. The examiner stated his severe polyneuropathy of bilateral upper and lower extremities impairs fine motor movement and impairs his ability to detect harmful temperatures or to maintain a grip on objects. The examiner stated that he requires assistance with bathing, grooming, and dressing due to his neuropathy. The examiner noted sporadic episodes of hypoglycemia that require treatment with a glucagon pen. The examiner stated this renders him unsafe to be left alone for extended periods of time. The examiner described his gait as slow and stiff with limited flexion of the leg when stepping forward. The examiner noted the Veteran was able walk without the assistance of another person within his home. The examiner stated the Veteran required a cane for ambulation. The examiner described his upper extremity impairment as mild to moderate, with the ability to feed, with difficulty dressing, bathing, grooming, and toileting. The examiner described his lower extremity impairment as muscle weakness with abnormal propulsion and balance. The Board gives probative weight to the Veteran’s and his wife’s lay statements describing his wife and children needing to frequently check in on him and the Veteran requiring assistance with activities of daily living. See Layno v. Brown, 6 Vet. App. 465 (1994). When determining the effective date of the need for regular aid and attendance, the record shows the Veteran was working at Womack Army Medical Center in administration until April 2019. See November 2019 VA examination. This is consistent with treatment records prior to April 2019 noting the Veteran was working at Womack. This date is consistent with an April 2019 letter from the U.S. Office of Personnel Management stating the Veteran was found disabled from his position as a medical support assistant due to sarcoidosis and neuropathy. The Veteran’s ability to work prior to April 2019 does not support finding his service-connected disabilities required the need for regular aid and attendance prior to April 2019. See 38 C.F.R. § 3.352(a). Therefore, the Board finds the Veteran is entitled to SMC based on a need for regular aid and attendance under 38 U.S.C. § 1114(l), effective April 1, 2019. REASONS FOR REMAND Entitlement to SMC at a higher rate is remanded. The Veteran contends entitlement to a higher rate of SMC than is granted in the decision herein, to include SMC for the loss of use of the hands, loss of use of the feet, and/or SMC(r). See June 2017 VA Form 9, April 2019 statement, and April 2020 statement. The Veteran and his wife informed VA that the Veteran was granted social security administration (SSA) disability benefits and stated VA had not helped obtain these records. See August 2020 Veteran statement and March 2021 wife statement. When VA is put on notice of the existence of relevant SSA records, VA must seek to obtain those records. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). The matters are REMANDED for the following action: Obtain the Veteran’s disability records from the Social Security Administration (SSA). Document all requests and responses in the claims file. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Winkler, 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.