Citation Nr: 21030294 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 13-01 813 DATE: May 18, 2021 ORDER Entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114(o), for accrued benefits purposes, is granted. Entitlement to increased SMC based upon the need for regular aid and attendance under 38 U.S.C. § 1114(r)(1), for accrued benefits purposes, is granted. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran had loss of use of both feet and both hands due to service-connected disability. 2. The Veteran required the aid and attendance of another due to service-connected disability CONCLUSIONS OF LAW 1. The criteria for SMC under 38 U.S.C. § 1114(o) for accrued benefits purposes have been met. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352, 3.1000(a), 4.63. 2. The criteria for an additional monthly allowance based upon the need for regular aid and attendance under 38 U.S.C. § 1114(r)(1) for accrued benefits purposes have been met. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352, 3.1000(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1968 to January 1970. He died in November 2019. The appellant is his widow. This matter originates from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, that assigned the Veteran SMC at the "s" rate. The Veteran appealed the determination to the Board of Veterans' Appeals (Board) on the basis that he was entitled to a higher rate of SMC. In a February 2015 decision, the Board found that SMC based on the need for regular aid and attendance was warranted and granted SMC under 38 U.S.C.A. § 1114(l). The Veteran appealed this determination to the Court of Appeals for Veterans Claims (Court). In October 2015, the Veteran and the Secretary of Veterans Affairs filed a Joint Motion for Partial Remand (JMPR) to the Court. In October 2015, the Court granted the JMPR, vacating the Board's February 2015 decision to the extent that it denied the Veteran a higher level of SMC than that awarded by the Board. The Court remanded the claim back to the Board for action consistent with the terms of the October 2015 JMPR. The Board thereafter remanded this matter in April 2016, May 2017, March 2018, and November 2019 for additional development. Shortly after the Board's November 2019 remand, wherein the Board requested that the Veteran be afforded a new examination, the Veteran passed away. In recertifying the appeal to the Board, the Agency of Original Jurisdiction (AOJ) noted that the Veteran had passed away before he could be scheduled for a new examination. Under these circumstances and in view of the favorable decision that follows, the Board find that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). As noted, the Court vacated the portion of the Board's February 2015 decision that denied a higher level of SMC than what was awarded. The parties to the JMPR found that Board should have considered whether the Veteran was entitled to higher levels of SMC, such as at the "o" rate. In this regard, the appellant and her attorney argue that the Veteran had no effective function left in his bilateral upper and lower extremities thus warranting a higher rate of SMC, although the Veteran was able to ambulate and/or move his extremities to some extent. SMC is a special statutory award in addition to awards based on the schedular evaluations provided in VA's rating schedule. Claims for SMC, other than those pertaining to one-time awards and an annual clothing allowance, are governed by 38 U.S.C. §§ 1114 (k)-(s) and 38 C.F.R. §§ 3.350 and 3.352. In this regard, the rate amounts increase the later in the alphabet the letter appears (except for the (s) rate). SMC under subsections (k) through (r) are rates that are paid in addition to any other SMC rates, with certain monetary limits. SMC at the "l" 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.A. § 1114(l); 38 C.F.R. § 3.350(b). SMC at the "m" rate is warranted if the veteran, as a result of service-connected disability, has suffered the anatomical loss or loss of use of both hands, or of both legs at a level, or with complications, preventing natural knee action with prosthesis in place, or of one arm and one leg at levels, or with complications, preventing natural elbow and knee action with prosthesis in place, or has suffered blindness in both eyes having only light perception, or has suffered blindness in both eyes, rendering such Veteran so helpless as to be in need of regular aid and attendance. 38 U.S.C.A. § 1114(m); 38 C.F.R. § 3.350(c). SMC under subsection (n) is for amputation or loss of use of certain body parts, to include blindness without light perception in both eyes. Subsection (o) is granted for loss of both arms, entitlement to two or more rates provided in Subsections (l)-(n), deafness of certain severities, paraplegia, and/or helplessness, while Subsection (p) provides for SMC rates in between the different subsections, i.e., "intermediate" rates. Subsection (r)(1) authorizes a special aid and attendance rate when the veteran is in receipt of the maximum rate under either Subsection (o) or (p) and is in need of regular aid and attendance or a higher level of care. Subsection (r)(2) is granted when the veteran needs regular aid and attendance and meets the criteria for an intermediate rate between Subsections (n) and (o) plus the criteria for Subsection (k). The regular or higher level aid and attendance allowance is payable whether or not the need for regular aid and attendance or a higher level of care was a partial basis for entitlement to the maximum rate under 38 U.S.C. § 1114(o) or (p), or was based on an independent factual determination. 38 C.F.R. § 3.350(h)(1). A Veteran is entitled to the higher level aid and attendance allowance authorized by 38 U.S.C. § 1114(r)(2) and 38 C.F.R. § 3.350(h) in lieu of the regular aid and attendance allowance when all of the following conditions are met: (i) the Veteran is entitled to the compensation authorized under 38 U.S.C. 1114(o), or the maximum rate of compensation authorized under 38 U.S.C. 1114(p); (ii) the Veteran meets the requirements for entitlement to the regular aid and attendance allowance § 3.352(a); (iii) the Veteran needs a "higher level of care" (as defined in § 3.352(b)(3) than is required to establish entitlement to the regular aid and attendance allowance, and in the absence of the provision of such higher level of care the Veteran would require hospitalization, nursing home care, or other residential institutional care. 38 C.F.R. § 3.352(b)(1) (i-iii). Need for a higher level of care shall be considered to be need for personal health-care services provided on a daily basis in the Veteran's home by a person who is licensed to provide such services or who provides such services under the regular supervision of a licensed health-care professional. Personal health-care services include (but are not limited to) such services as physical therapy, administration of injections, placement of indwelling catheters, and the changing of sterile dressings, or like functions which require professional health-care training or the regular supervision of a trained health-care professional to perform. A licensed health-care professional includes (but is not limited to) a doctor of medicine or osteopathy, a registered nurse, a licensed practical nurse, or a physical therapist licensed to practice by a state or political subdivision. 38 C.F.R. § 3.352(b)(3). A person performing personal health-care services who is a relative or other member of the Veteran's household is not exempted from the requirement that he or she be a licensed health-care professional or be providing such care under the regular supervision of a licensed health-care professional. 38 C.F.R. § 3.352(b) (5). The performance of the necessary aid and attendance service by a relative of the beneficiary or other member of his or her household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352(b)(6). The requirements for establishing the need for a higher level of care are to be strictly construed. The higher-level aid- and-attendance allowance is to be granted only when the Veteran's need is clearly established and the amount of services required by the Veteran on a daily basis is substantial. 38 C.F.R. § 3.352(b)(6). The record reflects that the Veteran was service connected for the following disabilities: (1) posttraumatic stress disorder, evaluated as 70 percent disabling; (2) coronary artery disease, evaluated as 60 percent disabling; (3) Parkinson's disease with diminished reflexes, tremors, and muscle rigidity right upper extremity, evaluated as 40 percent disabling; (4) balance impairment associated with Parkinson's disease, evaluated as 30 percent disabling; (5) diminished reflexes, tremors and muscle rigidity left upper extremity associated with Parkinson's disease, evaluated at 30 percent disabling; (6) diabetes mellitus, type II, evaluated as 20 percent disabling; (7) bilateral hearing loss, evaluated as noncompensable; and (8) constipation associated with Parkinson's disease, evaluated as noncompensable. The Veteran's total combined evaluation was 100 percent. He received SMC at the 38 U.S.C.A. § 1114(s) rate for having PTSD that rendered him unemployable and an additional disability of coronary artery disease evaluated as 60 percent disabling. In the Board's February 2015 decision that granted SMC under 38 U.S.C.A. § 1114(l), the Board found that a "significant amount of evidence reflects that the Veteran's need for aid and attendance was primarily due to his service-connected Parkinson's disability and his diabetes mellitus." In terms of the criteria for a higher rate of SMC based on loss of use of the Veteran's hands and feet, there is both favorable and unfavorable evidence. Starting with the unfavorable evidence, a March 2012 QTC examination report shows moderate tremor in the Veteran's bilateral upper extremities which had no impact on his ability to work. There is also the opinion of a QTC examiner (a family practitioner) who conducted a general examination of the Veteran in July 2016. This examiner noted that the Veteran was able to walk into the examination room with no difficulty and was observed to have mild to moderate upper extremity tremor that was not qualifying for anatomic loss of use. In addition, VA outpatient records include a July 2019 primary care record showing that the Veteran was unable to shower, bathroom or walk even a few steps without supplemental oxygen which his cardiologist ordered thereby suggesting that these limitations were related to his cardiac disability, and a May 2019 note that the Veteran ambulated at home with a walker thereby suggesting that he did not have loss of use of his bilateral upper extremities. Turning to the favorable evidence, a March 2012 housebound (HB)/aid and attendance (A&A) examination report by a nurse practitioner notes that the Veteran needed assistive devices to include a walker and wheelchair due to Parkinson's disease/gait imbalance. She also reported that his tremors impaired his fine motor skills to the extent that he was unable to cut food or serve himself serve food, although could feed himself. She further noted that he was unable to grasp a bar of soap or washcloth. There is also the report of a May 2018 examiner who assessed the Veteran's tremors as "severe" and noted that he was in constant need of a wheelchair due to severe balance issues and multiple falls. She went on to opine that in light of the pertinent information and the progressive nature of Parkinson's disease as documented in the medical literature, it was more likely than not that the diagnosis of Parkinson's disease, not the Veteran's lumbar spine condition, peripheral vascular disease, or diabetic peripheral neuropathy, was responsible for his bilateral lower extremity symptoms of tremor, stiffness, weakness, and fatigue which led to "major functional disabilities" as evidenced by his inability to stand, shower, or transfer without assistance of another person due to his history of falls. In addition, there is the private medical opinion of Dr. Shoag in December 2020 who opined after reviewing the Veteran's claims file in its entirety and relaying his medical history in detail that his Parkinson's disease with diminished reflexes, near-constant tremors, and muscle rigidity of the left and right upper extremities and balance impairment was advanced to the extent that the Veteran had been unable to walk and independently perform activities of daily living. The Court in Tucker v. West, 11 Vet. App. 369 (1998) noted that the proper inquiry for SMC purposes is determining whether the appellant had effective functioning remaining other than that which would be equally well served by amputation with use of a suitable prosthetic appliance." Id. In this regard, while some VA examinations and treatment notes indicate that the Veteran had the ability to walk, it was generally never more than a few feet and with the aid of an assistive device such as a cane or walker. For longer distances, the Veteran required a wheelchair or a scooter. Notably, a May 2019 VA treatment record notes that the Veteran was being evaluated for a scooter because he was no longer able to use a powered wheelchair due to his tremors. In view of the foregoing, the Board finds that the evidence is at the very least in equipoise regarding the Veteran's loss of use of upper and lower extremities due to service-connected disability. Consequently, by resolving reasonable doubt in his favor, the Board finds that he satisfied the criteria for SMC under 1114(m) and 1114(1) for loss of use of the bilateral upper and lower extremities due to service-connected Parkinson's disease. Thus, because he suffered disability under conditions that would entitle him to two or more of the rates provided for in 38 U.S.C. § 1114(l)-(n), he satisfied the criteria for SMC at the 38 U.S.C. § 1114(o) rate. As noted, 38 U.S.C. § 1114(r)(1) provides for increased SMC if a Veteran is entitled to SMC at the 38 U.S.C. § 1114(o) rate and is in the need of regular aid and attendance. As such, in view of the finding that the Veteran satisfied the criteria for SMC at the "o" rate and the fact that he was previously found by VA to require the regular aid and attendance of another due to service-connected disability pursuant to 1114(l), the criteria for a higher rate of SMC under 1114(r)(1) are met. Accordingly, the appellant's claim is granted to the extent that she is entitled to a higher level of SMC at the "o" and "r (1)" rates on an accrued benefits basis. In this regard, VA regulations entitle the surviving spouse of a Veteran to collect accrued monetary benefits to which the Veteran was entitled at the time of death. 38 C.F.R. § 3.1000(a). Lastly, further consideration of a higher rate of SMC under 1114(r)(2) is not warranted as the appellant and her representative neither assert nor does the evidence support the criteria for SMC at this rate. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shawkey, Anne M. 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.