Citation Nr: 21029605 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 17-50 365 DATE: May 14, 2021 ORDER Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance is granted. FINDING OF FACT The Veteran's service-connected posttraumatic stress disorder (PTSD) with major depressive disorder (MDD) and bilateral upper and lower extremity peripheral neuropathy rendered him so helpless as to be in need of regular aid and attendance. CONCLUSION OF LAW The criteria for SMC based on the need for regular aid and attendance are met. 38 U.S.C. §§ 1114(l), 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who had active service with the United States Army from March 1968 to April 1971 and received the Purple Heart Medal, died in July 2016. The appellant is the Veteran's surviving spouse and the RO has recognized the appellant as a valid substitute claimant for the purposes of processing the claim to completion. See July 2017 Statement of the Case at 30; 38 U.S.C. § 5121A; see also 38 C.F.R. § 3.1010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In this regard, the record shows that an examination, VA Form 21-2680, was associated with the record within a year of the February 2016 rating decision relevant to claim. However, since the RO never determined whether such examination constituted new and material evidence with respect to the February 2016 rating decision, that decision never became final and is the proper rating decision on appeal. 38 C.F.R. § 3.156(b). In March 2020, the appellant testified at a hearing before the undersigned Veterans Law Judge. 1. Entitlement to SMC based on the need for regular aid and attendance is granted. SMC is payable if a veteran, as the result of service-connected disability, is so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). 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: inability of the veteran to dress himself or herself or to keep himself or herself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliance which, by reason of the particular disability, cannot be done without aid (not to 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 the veteran to feed himself or herself through the loss of coordination of the upper extremities or through extreme weakness; inability to attend to the wants of nature; or, physical or mental incapacity that requires care and assistance on a regular basis to protect the veteran from the hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352. It is not required that all of the disabling conditions enumerated be found to have existed before a favorable rating may be made. The particular personal functions which a veteran was 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 was a constant need. Determinations that a veteran is so helpless as to be in need of regular aid and attendance will not be based solely upon an opinion that the veteran's condition was such as would have required him or her to be in bed. They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352; Turco v. Brown, 9 Vet. App. 222 (1996). Prior to his death, the Veteran was service connected for PTSD with MDD, a left arm disability resulting from a shell fragment wound, diabetes, bilateral upper and lower extremity peripheral neuropathy, and otitis media. As detailed below, the evidence indicates that the Veteran's PTSD with MDD and bilateral upper and lower extremity peripheral neuropathy was productive of limitations requiring regular aid and attendance before his death. In March 2020, the appellant testified that the Veteran was in need of regular aid and attendance to protect himself from the hazards or dangers incident to the Veteran's daily environment. She reported that the Veteran had cognitive deficiencies due to his service-connected PTSD with MDD and was unable to care for himself if left alone and needed her assistance to perform basic activities of daily living. The appellant indicated that the Veteran became significantly agitated when out in public, but he could not be left alone for his own safety because of his memory problems. See Board Hearing Transcript at 7. She described an incident in which she left the Veteran by himself and returned to find smoke everywhere because he had forgotten to turn the stove off. Id at 4-5. She also recounted that the Veteran overdosed on his morphine medication twice because he did not remember taking it. Id. As a result, the appellant stated that she had to store his medication in the safe and would leave the Veteran by himself only if a healthcare provider or one of their grown-up children was present. Id at 11. She further indicated that she bathed the Veteran, provided assistance using the bathroom, prepared his meals, organized and administered his medication, handled the finances, prepared him for transportation, and transported him to all of his appointments. Id at 12, 14, 18. In essence, the appellant reported that she did everything for the Veteran and protected him from the daily hazards of life. Furthermore, the appellant testified that the Veteran needed regular aid and assistance as a result of his peripheral neuropathy. She reported that the Veteran required use of a cane, walker, and wheelchair to ambulate because of his lower extremity weakness and lack of balance. Id at 10-11. She also reported that the Veteran had trouble holding things and required the use of a special drinking cup. Id at 13. The Board finds that the medical evidence of record supports appellant's statements. In this regard, an examination for housebound status or permanent need for regular aid and attendance, VA Form 21-2680, was submitted in August 2013 and in November 2015. At the time of the 2013 examination, the examiner determined that the Veteran was unable to prepare his own meals and needed assistance with bathing and hygiene, required medication management, and did not have the ability to manage his own financial affairs. The examiner noted that the Veteran had decreased sensation in his fingers and loss of dexterity, as well as decreased balance due to his advanced neuropathy. He also noted that the Veteran's psychiatric disorder caused memory impairment, affected his mood and motivation, and that he had increasing limitation of activity due to pain and neuropathy. In the 2015 examination report, the same examiner noted that the Veteran still had poor balance and had poor ability to perform activities with fine motor skills, which limited his ability to conduct proper hygiene and required assistance. VA treatment records confirm that the Veteran used a cane, walker, and wheelchair for mobility. See e.g. March 2016 VA treatment record. Here, given the appellant's competent and credible testimony, the medical evidence of record, and affording her the benefit of the doubt, the Board finds that the Veteran's PTSD with MDD and bilateral upper and lower extremity peripheral neuropathy rendered the Veteran so helpless that he needed the regular aid and assistance of another. Accordingly, SMC based on aid and attendance is warranted. The Board notes that SMC based on the need for regular aid and attendance provides a higher benefit than SMC at the housebound rate. Therefore, as SMC based on aid and attendance has been granted herein, the issue of entitlement to SMC at the housebound rate is moot. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.S. Mahoney 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.