Citation Nr: 21026951 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 17-19 604 DATE: May 4, 2021 ORDER Entitlement to a higher award of special monthly compensation (SMC) based on the need of regular aid and attendance, due to service-connected disabilities separate and distinct from the Veteran's left leg amputation with loss of use of the left hand, is denied. FINDING OF FACT The Veteran does not have any service-connected disabilities exclusive of his left leg amputation with loss of use of the left hand that independently render him in need of regular aid and attendance. CONCLUSION OF LAW The criteria for a higher award of SMC based on the need of regular aid and attendance due to service-connected disabilities, separate and distinct from the Veteran's left leg amputation with loss of use of the left hand, have not been satisfied. 38 U.S.C. § 1114(o); 38 C.F.R. § 3.350(e)(3). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1988 to October 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). It was previously before the Board in October 2019, where it was remanded for additional development. The Veteran testified at a hearing before the undersigned Veterans Law Judge in May 2019. The Veteran seeks to establish entitlement to SMC based on the regular need for aid and attendance due to service-connected disabilities. Such a need means that the Veteran is helpless or so nearly helpless, due to service-connected disabilities, 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 he or she is blind or is 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; if the veteran is a patient in a nursing home because of mental or physical incapacity; or if the evidence establishes a factual need for aid and attendance or "permanently bedridden" status under the criteria set forth in 38 C.F.R. § 3.352(a). 38 U.S.C. § 1114(l); 38 C.F.R. § 3.351(b). Here, the RO granted SMC at the rate intermediate between (l) and (m) in , and the Board granted SMC at the (m) rate in its previous decision in October 2019, for the Veteran's left leg amputation with loss of use of the left hand. Two or more awards of SMC at the rates provided under subsections (l) through (n) of 38 U.S.C. § 1114 may not be awarded based on the same disabilities. 38 U.S.C. § 1114(o); 38 C.F.R. § 3.350(e)(3); Breniser v. Shinseki, 25 Vet. App. 64, 77 (2011). Thus, "a claimant who is in receipt of SMC cannot establish entitlement to a second rate of SMC under section 1114(l) based on the need for aid and attendance . . . unless the claimant's need for aid and attendance arises from a disability other than that for which the claimant is already in receipt of SMC." Id. (emphasis in original). Thus, to the extent a veteran has a need for regular aid and attendance due to the same disabilities, entitlement to a separate award of SMC at the (l) rate based on such need, and hence entitlement to SMC at the (o) rate, may not be established as a matter of law. See id.; 38 C.F.R. § 3.350(e)(3). Since the August 2013 rating decision was issued, service connection has been established for a number of other disabilities, including posttraumatic stress disorder (PTSD )with traumatic brain injury, rated as 100 percent disabling, coronary artery disease (CAD), rated as 30 percent disabling, and a low back disability, rated as 20 percent disabling, among other service-connected disabilities. As such, the Board remanded the Veteran's claim in October 2019 for an examination to determine whether he has service-connected disabilities distinct from his left leg amputation with loss of use of the left hand that independently render him in need of regular aid and attendance. The examination was provided in October 2020, with several addendum opinions provided the following December 2020 as to each disability in question. The examiner opined in each addendum that none of his service-connected disabilities, independent of his left leg amputation with loss of use of the left hand, requires the regular need of aid and attendance. Nothing in the record, the examiner explained, shows a worsening of his independence due to his right thigh shrapnel wound and scar, PTSD, lateral epicondylitis of the right elbow, right knee meniscal tear, hypertension, lumbar strain, right carpal tunnel syndrome, tinnitus, CAD, or migraines. His regular need for aid and attendance, the examiner opined, "is entirely due to his amputation of leg and thumb." The Board acknowledges the Veteran's statements, including during his hearing before the undersigned and those provided in response to the most recent supplemental statement of the case continuing his denial, that his additional service-connected disabilities result in a need for assistance with activities of everyday living. However, the following factors are considered in determining the need for regular aid and attendance: 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; inability of a 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, either 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). While the October 2020 examination report itself states that the Veteran's various disabilities are limiting, the examiner noted that, while his feeding is not of normal speed and dexterity, he could feed himself and prepare his own meals with the assistance of both his right and left hand. He was also noted to be able to transfer himself to a wheelchair or crutches to move around his home. While the examiner noted that the Veteran's meniscal tear and right thigh injury residuals limited his endurance and ability to stand, any assistance in bathing and tending to other hygiene needs was necessitated by the left leg amputation for which SMC is already awarded. He is not bedridden, legally blind, does not require nursing home care, and can handle his own medication needs and financial affairs. The Board notes that a disability rating is itself is recognition that a service-connected disability results in a level of functional impairment. The relevant inquiry here, however, is whether a veteran is helpless or so nearly helpless, due to service-connected disabilities, as to require the regular aid and attendance of another person. Here, while his other service-connected disabilities do result in certain restrictions, the examination report does not suggest that any service-connected disability exclusive of his left leg amputation, with loss of use of the left hand, results in regular need for aid an attendance. As the Veteran's service-connected disabilities separate from his left leg amputation with loss of use of the left hand have not caused him to need the regular aid and attendance of another person, entitlement to an additional SMC based upon the need for aid and attendance must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Accordingly, for the reasons set forth above, the appeal is denied. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Scarduzio, 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.