Citation Nr: 21029989 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 17-21 369 DATE: May 17, 2021 ORDER Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance of another person prior to July 8, 2019, is denied. As of July 8, 2019, SMC based on the need for aid and attendance is granted, subject to the laws and regulations governing monetary payments. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder is remanded. FINDING OF FACT Prior to July 8, 2019, the evidence shows that the Veteran had not suffered the anatomical loss or loss of use of both feet or one hand and one foot, had not established service connection for blindness in both eyes, was not permanently bedridden due to service-connected disability, and did not, as a result of his service-connected disabilities alone, require the care of assistance of another person on a regular basis. As of July 8, 2019, the evidence is at least evenly balanced that as a result of his service-connected disabilities, he requires care or assistance of another person on a regular basis. CONCLUSION OF LAW The criteria for an award of SMC based on aid and attendance prior to July 8, 2019, are not met. As of July 8, 2019, the criteria for an award of SMC based on aid and attendance are met. 38 U.S.C. §§ 1114(l), 5107; 38 U.S.C. §§ 3.102, 3.350(b), 3.352(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1967 to April 1969. These matters are before the Board of Veterans' Appeals (Board) on appeal of a June 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2018 the Board remanded the appeals for further development. In February 2021, the Board again remanded this decision. The February 2021 Board remand found that the record raised a claim for entitlement to special monthly compensation based on the need for the aid and attendance of another person due to his peripheral neuropathy. See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991). 1. Aid and Attendance This matter comes before the Board from a prior increased rating claim for the Veteran's service-connected peripheral neuropathy. Specifically, on its February 2021 decision, the Board stated: The record raises a claim for entitlement to special monthly compensation based on the need for aid and attendance of another person. At the July 2019 VA examination, the Veteran reported difficulty dressing, feeding himself and using the toilet due to peripheral neuropathy. Because the Veteran's claim for peripheral neuropathy dates from February 2013, the Board must address whether SMC is warranted for the entire appeal period. SMC is payable to a veteran who by reason of service-connected disability is permanently bedridden, blind in both eyes, or 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). The following factors will be accorded consideration in determining whether the veteran is in need of regular aid and attendance of another person: the inability of the veteran 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 such aid; inability of the veteran to feed himself through the 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 veteran from the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). 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 the veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that the veteran is so helpless as to need regular aid and attendance, not that there is a constant need. 38 C.F.R. § 3.352(a); see also Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in § 3.352(a) must be present for a grant of SMC based on need for aid and attendance). "Bedridden" will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. 38 C.F.R. § 3.352(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), it was observed that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran was afforded a VA examination for his peripheral neuropathy in May 2014. At that time, he denied experiencing constant pain. He reported experiencing moderate intermittent pain, moderate paresthesias, and moderate numbness of the lower extremities. He did not endorse any severe symptoms. The examination report indicates he had full strength in all extremities. The examiner opined that the Veteran's peripheral neuropathy was mild. Loss of mobility and stamina was noted. A June 2016 VA treatment record indicates that the Veteran was able to perform self-care without assistance but had some difficulty in dressing and undressing himself. In addition, VA treatment records from August 2016 indicate that the Veteran presented for care walking independently. VA treatment records from July 2017, January 2018, and July 2018 indicate that the Veteran presented for care walking with a cane. The Veteran underwent a VA examination in July 2019 for his bilateral upper and lower extremity peripheral neuropathy. At that time, he reported difficulty dressing, feeding himself, and using the toilet due to his peripheral neuropathy. The examiner found that due to the decreased sensation in both hands and both feet, the Veteran had difficulty performing strength maneuvers with either hand or either foot. The examiner found the Veteran would have difficulty balancing, climbing, and walking on uneven surfaces. He would also have difficultly gripping, pulling, pinching, handling objects, performing fine motor activities, and feeling and manipulating objects. VA treatment records from June 2019 state that the Veteran was prescribed a rollator for walking because "he presented a need to have rest periods when walking. The rollator has a seat to be used only for resting when needed to rest in a seated position but not while moving it." There was no indication of the Veteran being unable to walk; just that he needed to rest at times. This is supported by a later VA examination dated in August 2019. VA treatment records from September 2019 indicate that the Veteran presented for care walking with a cane. In March 2021, the Veteran underwent a VA diabetes mellitus examination in conjunction with an aid and attendance examination. The examiner found the Veteran's diabetes mellitus did not produce functional impairment, nor did it render him housebound or in need of aid and attendance. In March 2021, the Veteran underwent a peripheral neuropathy examination in conjunction with his aid and attendance examination. The examiner opined that the Veteran would benefit from aid and attendance of another person. The examiner reasoned that based on the service-connected peripheral neuropathies of the upper and lower extremities, the Veteran had limitations. Specifically, the Veteran had difficulty with dressing himself or using kitchen cutting wear. The examiner noted the Veteran was able to do self-care actives by himself such as bathing and toileting. The examiner found the Veteran had difficultly doing most household activities that include moderate standing position such as laundry or cleaning. The examiner found the Veteran had difficulty cooking meals, but he could eat by himself after a table had been set by another person. Finally, the examiner found the Veteran was unable to drive a motor vehicle. In March 2021, the Veteran underwent a VA aid and attendance examination. The examiner found the Veteran lived alone, with his daughter living on the second floor. The Veteran reported his daughter cleaned his house, cooked, bought his groceries, and washed his clothes. The Veteran reported that he stayed at home all day. He reported that he could not perform activities of daily living as his diabetes neuropathy and weakness of lower extremities limited his ability to bend in order to clean. The Veteran reported that he went to church on the weekend, which was nearby. The examiner noted the Veteran was not permanently bedridden or hospitalized. The Veteran could not travel beyond his current domicile. The Veteran traveled to the examination in a private vehicle with a family member. The Veteran reported he wakes up at 8 AM, has breakfast cooked by his daughter, reads the bible, prays, sits on the balcony, has lunch brought by his daughter, showers at 5 PM, has dinner cooked by his daughter, and goes to sleep at 8 PM. The Veteran used a 4-wheel walker and walking cane. He never had dizziness or memory loss. The Veteran's imbalance affected his ability to ambulate occasionally. The examiner found there were no other body parts or system impairments that affected the ability to protect him from the daily environment. The Veteran was able to perform all self-care skills. The examiner found the Veteran could walk without the assistance of another person, only within in the home. The examiner found the Veteran needed aid, such as a cane and walker, for ambulation. The Veteran left home for medical care only. The Veteran's functional impairments are permanent. The examiner found that the Veteran's best corrected vision was 5/200 or worse in both eyes, however, he is not service-connected for his eyes. The examiner found the Veteran did not have cervical spine or thoracolumbar limitation of motion or deformity. The examiner found the upper extremities functions were normal in the upper extremities but not the lower extremities as the Veteran has muscle weakness in the bilateral lower extremities. He also does not have normal weight bearing as a result of his peripheral neuropathy. The examiner found the Veteran's balance was not normal due to his neuropathy. The examiner opined the Veteran is in need of aid and attendance. After having considered all of the evidence of record, the Board finds that prior to July 8, 2018, the evidence does not support that the Veteran was housebound or required the regular aid and attendance of another as a result of his service-connected disabilities alone. However, as of July 8, 2019, after resolving all reasonable doubt in his favor, the Board finds that it is factually ascertainable that SMC for aid and attendance is warranted. Prior to July 8, 2019, the record does not contain any evidence that the Veteran required the need for aid and attendance, the date in which shows that the effects of the Veteran's service-connected disabilities at the time rendered him in need of regular aid and attendance, as contemplated by VA regulations. The Veteran's statement in the July 8, 2019 examination was the first evidence in which showed the need for aid and attendance. Prior to this date, the Board notes that the claims file bares no evidence, lay or medical, in which shows that the Veteran had been rendered so disabled as to require regular aid and attendance. A June 2016 VA treatment record noted the Veteran was able to perform self-care without assistance, despite some difficulty putting on and taking off shirts. Further, although the use of a cane was required, the voluminous amount of VA treatment records of record show the Veteran was consistently able to present for care ambulating independently. There is also absolutely no indication of the Veteran being bedridden or housebound. His peripheral neuropathy was found cause pain and impact the Veteran's endurance but was ultimately determined to be mild in nature, causing no loss of muscle strength, prior to July 8, 2019. Further, as it relates to the Veteran's upper extremity peripheral neuropathy, VA treatment records prior to that date show that the Veteran experienced symptomatic relief with modalities and exercise overhead. Although it was noted he had decreased range of motion with overhead activities, the records do not show that he was completely precluded from performing overhead activities. It is worth noting that SMC is only available when, as the result of service-connected disability, a veteran suffers additional hardships above and beyond those contemplated by VA's schedule for rating disabilities. See 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352; see also VA Gen. Coun. Prec. 5-89 (Mar. 23, 1989) (explaining that SMC is a supplementary statutory benefit based on noneconomic factors such as personal inconvenience, social inadaptability, or the profound nature of a disability). In differently, the rating criteria compensates a Veteran for the average impairment caused by a service-connected disability. In this instance, prior to July 8, 2019, the evidence does not show that the Veteran's service-connected disabilities caused additional hardships above and beyond those contemplated by VA's rating schedule. Thus, the Board finds that prior to July 8, 2019, SMC for aid and attendance or housebound is not warranted. However, as of July 8, 2019, it is factually ascertainable that the Veteran's service-connected disabilities alone required him to need the regular aid and attendance of another. Therefore, SMC is warranted as of that date. The evidence is in relative equipoise that the Veteran is in need of aid and attendance since July 8, 2019. The Board relies on the Veteran's statement in the July 2019 VA examination that he required aid to dress himself, feed himself, and to use the toilet and the March 2021 VA examiner's opinion that the Veteran is need of aid and attendance because the Veteran had difficulty dressing himself and his ability to provide meals for himself without the aid of someone due to his bilateral neuropathy of the upper and lower extremities. Further, the record indicates that the Veteran's daughter assists him with all of the Veteran's daily tasks. Although SMC based on aid and attendance is a higher benefit, the Board notes that at no point during the appeal period has the Veteran shown that he is housebound as a result of his service-connected disabilities. In sum, the Board finds that prior to July 8, 2019, the evidence is against finding that the Veteran's service-connected disabilities required him to be in need of regular aid and attendance of another person. However, as of July 8, 2019, the evidence is in relative equipoise and therefore SMC is warranted. 38 U.S.C. § 5107(b). REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder. The Veteran contends his acquired psychiatric disorder is etiologically related to his service or in the alternative is secondary to his service-connected diabetes and bilateral upper and lower neuropathy. In March 2021, the Veteran underwent a VA psychiatric examination. The examiner opined in part that the Veteran's depressive disorder is not due, secondary, incurred, or associated in any way to the service-connected bilateral upper and lower extremities neuropathies. The examiner reasoned that the Veteran sought psychiatric care almost 34 years after the events that led to his service-connected conditions. The examiner stated there is no relation between service-connected neuropathies and his mental conditions. The neuropathies in terms of etiology and pathophysiology are not related one with the other. The examiner explained that Veteran's depressive disorder and neuropathies are in different time frames, different etiology, different pathophysiology, and different anatomical system, with no relation with each other. The examiner further opined that there is no evidence of aggravation. The examiner explained that the Veteran sought psychiatric care in 34 years after his military discharge and the events that the neuropsychiatric disorder and the service-connected physical condition is not established. The examiner explained that the Veteran's service-connected conditions proceeded the Veteran's neuropsychiatric condition, and therefore the Veteran's neuropsychiatric condition could not be aggravated by the service-connected physical conditions. The Board finds that the March 2021 VA examination is incomplete. The examiner noted in his rationale that the Veteran sought treatment for his psychiatric disorder several decades after he left service. The Board finds it unclear on how the timing of his disability relates to aggravation. Further, the examiner's rationale that the neuropathies did not aggravate the Veteran's depression because the neuropathies proceeded the Veteran's neuropsychiatric condition is not adequate. Simply because one disability precedes another disability does not mean that the preceding disability cannot aggravate the other. As such the Board finds an addendum medical opinion is required to address whether the Veteran's service-connected peripheral neuropathy of the upper and lower extremities aggravated the Veteran's major depressive disorder. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician to determine the etiology of major depressive disorder, the examiner must provide the following opinion: (a.) Whether the Veteran's major depressive disorder is at least as likely as not aggravated beyond its natural progression by the Veteran's bilateral upper and lower extremity peripheral neuropathies? A complete and clear rationale must be provided. MARTHA R. LUBOCH Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Robert Batten 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.