Citation Nr: 21029553 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 17-47 241 DATE: May 13, 2021 ORDER Special monthly compensation (SMC) for aid and attendance pursuant to 38 U.S.C. § 1114(l) is granted. FINDING OF FACT Resolving reasonable doubt in his favor, the Veteran is in need of regular aid and attendance of another person due to his service-connected seizure disorder. CONCLUSION OF LAW The criteria for entitlement to special monthly compensation based on the need for aid and attendance have been met. 38 U.S.C. §§ 1114(l), 5107; 38 C.F.R. §§ 3.350, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had an honorable period of active service from February 1980 to July 1980. He was discharged under other than honorable conditions after a period of active service from September 1984 to July 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision by the Regional Office of the Department of Veterans Affairs (VA). In April 2019, the Board remanded the SMC issue for additional development. Thereafter, the Board rendered a decision in December 2019 denying the claim for entitlement to SMC benefits based on the need for aid and attendance of another person and by reason of being housebound. In an August 2020 order, the United States Court of Appeals for Veterans' Claims (Court) granted a joint motion of the parties and vacated and remanded the claim of entitlement to SMC benefits pursuant to 38 U.S.C. § 1114(l) based upon the need for aid and attendance and 38 U.S.C. § 1114(s) by reason of being housebound, back to the Board for action consistent with the joint motion. Entitlement to SMC based on the need for aid and attendance of another person or on account of being housebound. Compensation at the aid and attendance rate is payable when the veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114(l). Determinations as to the need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to such conditions as: inability of the claimant to dress or undress himself/herself or to keep himself/herself 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 the claimant to feed himself/herself 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 the hazards or dangers inherent in his/her daily environment. "Bedridden" will be a proper basis for the determination, and is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. It is not required that all of the disabling conditions enumerated above be found to exist before a favorable rating may be made. The particular personal functions which the claimant is unable to perform should be considered in connection with his/her condition as a whole. 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. 38 C.F.R. § 3.352(a). The following basic considerations are critical in determining the need for the regular aid and attendance of another person: inability of the Veteran to dress or undress him or herself, or to keep him or herself 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 him or herself 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 or her daily environment. 38 C.F.R. § 3.352(a). Determinations as to the need for aid and attendance must be based on actual requirements of personal assistance from others. Id. It is not required that all of the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found to exist before a favorable rating may be made. The particular personal functions which a veteran is unable to perform should be considered in connection with his or her condition as a whole. It is only necessary that the evidence establish that a veteran is so helpless as to need regular aid and attendance, not that there is a constant need. Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Factual Background Following the Veteran's initial submission of a December 2015 examination for housebound status or permanent need for regular aid and attendance, a March 2016 rating decision denied SMC for aid and attendance/housebound status. Currently, service connection is in effect for seizure disorder, rated 10 percent disabling effective July 19, 2007 to November 21, 2014, rated 80 percent disabling from November 21, 2014 to January 28, 2015, and rated 100 percent disabling from January 28, 2015. See July 2019 Rating Decision Codesheet. A December 2014 VA examination noted the Veteran's reports of having eight episodes of seizures over the past 12 months, that the dosage for his seizure medications had increased due to the recurrent seizures. See December 2014 C&P Exam. The Veteran reported a history of grand mal seizures with jerking of the body, drooling from the mouth, urinary incontinence, and loss of consciousness during episodes. The examiner noted at least two major seizure episodes as well as major psychomotor seizures in the past year with a frequency of at least one in three months over the past year. The Veteran stated he had a restricted driving license with driving approval only for medical appointments. In a May 2015 correspondence, the Veteran reported that his seizure disability had gotten worse and that he was having seizures every two to three weeks. See May 2015 VA 21-4138 Statement in Support of Claim. He indicated that in March 2015, VA medical treatment providers increased his medication dosage from 750 mg to 3000 mg per day. He reported having a seizure about two weeks ago during an MRI. In a June 2015 VA examination, the examiner highlighted the increased seizure medication dosage following eight seizures. See June 2015 C&P Exam. The examiner found that based on the increased seizure frequency, the Veteran would have difficulty with performing any jobs requiring physical labor or jobs which require operating machinery, climbing ladders, working at heights, etc., due to the service-connected seizure disorder. The examiner also noted he will also need to restrict driving until his seizures can be controlled. A December 2015 examination for housebound status or permanent need for regular aid and attendance reflects that the Veteran was not able to feed himself or prepare his own meals. See December 2015 VA 21-2680 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance. The reviewing examiner noted the Veteran sometimes had trouble while on seizure medications and that most of the time was confined to his bed due to his medications. The examiner noted the Veteran did not need assistance in bathing and tending to other hygiene needs, was not legally blind, did not requiring nursing home care, did not require medication management, and had the ability to manage his own financial affairs. On physical examination, the examiner noted the Veteran was well-nourished, alert and oriented, and was in no acute distress. The examiner noted the Veteran had difficulty rising, had an unstable gait, and needed a walker to mobilize while on seizure medications. The examiner noted the Veteran was limited in range of motion and strength. The examiner noted that due to the service-connected grand mal seizure disorder and current health, the Veteran's balance was affected, had difficulty performing self-care or travel beyond his home. The examiner noted the Veteran was able to leave the home or immediate premises two days a week at most for medical appointments and chemo treatments. An April 2016 VA treatment record noted the Veteran's hospitalization for long-term monitoring for generalized seizures. The record noted seizure precautions included no driving for three to six months (based on individual state laws), no swimming or bathing alone or unsupervised, no operating heavy machinery, and no operating at heights or climbing ladders. The record noted the Veteran could not return to work. A September 2016 VA treatment record noted the Veteran's last seizure was in the previous month. The record noted that since his last visit in December 2015, he has not had any other seizures and his last EEG in May 2015 was a normal study. The Veteran reported seizures with auras of a strange sensation that he was unable to describe. The Veteran reported the medications worked but made him sleepy. He reported that he lived with his family, and he did not drive. A December 2016 letter from the Veteran's treating provider noted that due to the interactions between his anti-epileptic medication with other medications, the Veteran was unable to work. A June 2017 private treatment record noted the Veteran had many side effects from his antiseizure medications. In a June 2017 VA treatment record, the Veteran reported he currently had seizures and fell trying to get to the bathroom. Following a functional dependency assessment, the reviewing provider noted that currently, the Veteran had a moderate score that required six hours of care per week. In a July 2019 VA aid and attendance/housebound examination, the examiner noted the Veteran was not permanently bedridden, was not currently hospitalized, and could travel beyond his current domicile with an accompanying attendant. The examiner noted the Veteran was constantly dizzy, had mild occasional memory loss, and had constant imbalance issues that affected his ability to ambulate. The examiner noted the Veteran was unable to dress or undress himself and unable to bathe or groom himself. The examiner noted there were no other body parts or system impairments that affected his ability to protect his self from the daily environment. The examiner noted the Veteran was able to walk without assistance of another person for up to a few hundred yards and used a cane or walker for ambulation. The Veteran was unrestricted from leaving his home. The examiner noted the Veteran functional impairments were permanent, did not have spinal deformity or limitation of motion, and did not have corrected vision of 5/200 or worse in both eyes. The examiner noted the Veteran had mild to moderate impairment in both the left and right upper extremities, had normal ability to self-feed, had normal toileting ability, had some difficulty dressing and undressing, and had marked difficulty in self-bathing and grooming. The function of the lower extremities was noted as normal. After examination, the examiner noted the Veteran had a history of recurrent meningioma associated with his seizures and bilateral arm tremors and poor eyesight. The examiner noted that due to this condition, the Veteran had significant impairment of bilateral upper extremities and required help with dressing, grooming, and bathing. The examiner noted that due to seizures, the Veteran could not take showers and he could not drive. However, the examiner found the Veteran was not homebound and was able to leave the house as long as someone drove him. A December 2020 examination for housebound status or permanent need for regular aid and attendance reflects that the Veteran's seizure disorder was not controlled. The examiner noted the Veteran was able to feed himself but was not able prepare his own meals. The examiner noted the Veteran had a housekeeper who prepared meals, cleaned, and shopped. The examiner noted that after seizures occurred, he needed assistance in bathing and tending to other hygiene needs. The examiner noted he was not legally blind, did not require nursing home care, and had the mental capacity to manage his benefit payments or was able to direct someone to do so. However, the Veteran required medication management and he had a medication dispenser that was managed by his sister. The examiner noted the Veteran was well groomed and had an erect posture. The Veteran had problems with gripping and was incapacitated post seizures. The examiner noted the Veteran also had dizziness that interfered with his balance and that his multiple shoulder replacements limited his upper range of motion and strength. The examiner noted the Veteran's seizures and TBI limited his vision, cognition, and balance. The examiner noted that the Veteran was able to leave his home or immediate premises to attend medical appointments and that he needed aids such as a cane or other assistance of another person for locomotion for distances over 30 feet or a block. Analysis The Board acknowledges, at the outset, that the Veteran has not suffered the anatomical loss or loss of use of both feet or one hand and one foot, is not service-connected for blindness in both eyes, and is not permanently bedridden. Also, there are some nonservice-connected disabilities that contribute to his functional impairments and his need for aid and assistance (e.g., multiple shoulder replacements). Nevertheless, the Board finds that the evidence is relatively evenly balanced on the question of whether the Veteran's service-connected seizure disorder is of sufficient severity to require the need for assistance in order to perform daily activities and protect himself from the hazards and dangers of his daily environment. In particular, the evidence indicates that he experienced constant dizziness that interfered with his balance and ability to walk safely by himself, he required assistance with medication management and various other activities of daily living. For example, he was unable to prepare his own meals, he was unable to dress and undress himself, he could not bathe by himself, he needed assistance grooming, and he required the assistance of another person when ambulating because of his imbalance problems and he has fallen in his home trying to get to the bathroom. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to SMC based on the regular need for the aid and attendance of another person is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. SMC based on housebound status is a lesser benefit than SMC at the aid and attendance rate. See 38 U.S.C. § 1114(l), (s); 38 C.F.R. § 3.350(i). Hence, the grant of SMC at the aid and attendance rate renders the housebound issue moot. Mary E. Rude Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Cheng, 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.