Citation Nr: 21030443 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 19-05 617 DATE: May 18, 2021 ORDER An effective date of December 2, 2010, for entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance (A&A) under 38 U.S.C. § 1114(l), is granted. An effective date of July 28, 2017, for entitlement to SMC under 38 U.S.C. § 1114(p) at the rate intermediate between subsections (l) and (m), is granted. FINDINGS OF FACT 1. From December 2, 2010, the Veteran's service-connected disabilities cause the need for regular A&A of another person under 38 U.S.C. § 1114(l). 2. From July 28, 2017, the Veteran had SMC based on the need for regular A&A of another person and at least one service-connected disability ratable at 50 percent or greater, that is separate and distinct and involves a different bodily system from the disability that forms the basis of the award of SMC based on the need for regular A&A of another person. CONCLUSIONS OF LAW 1. From December 2, 2010, the criteria for entitlement to SMC based on the need for regular A&A under 38 U.S.C. § 1114(l), have been met. 38 U.S.C. § 1114(l), 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352(a). 2. From July 28, 2017, the criteria for entitlement to SMC under 38 U.S.C. § 1114(p) at the rate intermediate between subsections (l) and (m), have been met. 38 U.S.C. § 1114(p), 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1971 to April 1972. This matter was previously before Board of Veterans' Appeals (Board) in October 2020 from an April 2020 joint motion for partial remand (JMPR) from the Court of Appeals for Veterans Claims (Court), which vacated and remanded the issue of an increased rating for post-traumatic stress disorder (PTSD). The Court also found that the August 2019 Board decision failed to address the Veteran's explicitly raised argument that he is entitled to SMC based on A&A, in part, due to his service-connected PTSD. In compliance with the April 2020 JMPR, the October 2020 Board decision denied an increased rating, in excess of 50 percent for PTSD, from July 13, 2010 to August 6, 2018, and remanded the issue of SMC based on the need for regular A&A, prior to February 23, 2018, such that the issue could be considered by the Agency of Original Jurisdiction (AOJ) in the first instance. In the February 2021 supplemental statement of the case (SSOC), the AOJ denied entitlement to SMC based on the need for regular A&A, prior to February 23, 2018. In March 2021, the Veteran submitted a response to the February 2021 SSOC, in which he submitted additional argument in support of his contention that the award of entitlement to SMC should be from December 2010. As the AOJ has adjudicated the issue in accordance with the October 2020 Board remand, and in compliance with the April 2020 JMPR, the issue of entitlement to an effective date for entitlement to SMC based on the need for regular A&A, prior to February 23, 2018, is addressed below on the merits. 1. An effective date of December 2, 2010, for SMC based on the need for regular A&A under 38 U.S.C. § 1114(l), is granted. The Veteran is currently in receipt of SMC based on the need for regular A&A, under 38 U.S.C. § 1114(l), effective February 23, 2018. However, he contends that his entitlement to arose in December 2010 due to symptoms of his service-connected PTSD and Meniere's Syndrome. The Veteran contends that the issue of SMC was in appellate status since July 2010 as an inferred issue along with his increased rating claim for PTSD, which has been in appellate status since that time. As such, the Veteran contends that the issue of SMC is also open since 2010. For the foregoing reasons, an effective date of December 2, 2010, is warranted for the grant of SMC based on the need for regular A&A under 38 U.S.C. § 1114(l). SMC under 38 U.S.C. § 1114(l), may be established based on the need for aid and attendance. See also 38 C.F.R. §§ 3.350(b), 3.352(2). Such a need means that the Veteran is helpless or so nearly helpless, 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) (2017). The need for aid and attendance means being so helpless as to require the regular aid and attendance of another person. 38 U.S.C. § 3.350(b). Under 38 C.F.R. § 3.352(a), the following factors will be accorded consideration in determining whether the Veteran is in need of regular aid and attendance of another person: inability of the claimant to dress and undress himself or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliance; inability of the claimant to feed himself through loss of coordination of the upper extremities or through extreme weakness; inability to tend to the wants of nature; or incapacity, physical or mental, which requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his daily environment. VA does not require that all 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 section 3.352(a) must be present for a grant of special monthly compensation based on need for aid and attendance). SMC benefits "are to be accorded when a veteran becomes eligible, without need for a separate claim." Bradley v. Peake, 22 Vet. App. 280, 294 (2008) (citing Akles v. Derwinski, 1 Vet. App. 118, 121 (1991)). In other words, SMC is not "a wholly different benefit" but an issue within a claim for an increased or higher initial disability evaluation. A March 2020 rating decision granted entitlement to SMC under 38 U.S.C. § 1114(l), effective February 23, 2018, based on a finding that the Veteran's Meniere's Syndrome was totally disabling, causing his need for regular A&A. Notwithstanding the AOJ's grant, the Board must consider SMC when it is raised by the appellant or the record and pertains to the period on appeal for the associated increased rating claim. A claim for increased disability compensation may include the "inferred issue" of entitlement to SMC, even where the appellant has not expressly raised the issue of SMC. Akles v. Derwinski, 1 Vet. App. 118, 121 (1991). VA has expressly adopted the Akles rule for all complete claims. 38 C.F.R. § 3.155(d)(2). In a June 2019 correspondence, the Veteran's representative stated that his claim for SMC is part and parcel to his increased rating claim for PSTD. The record shows that SMC has been raised by the record associated with the increased rating claim for PTSD. As such SMC is included as an inferred issue along with the increased rating claim for PTSD throughout the period on appeal. December 2010 VA treatment records show reported dizzy spells and lightheadedness daily when standing, which was reported to occur frequently over the preceding two months. A January 2011 VA treatment record indicates that the Veteran exhibits severe psychiatric symptomology that interferes with his ability to function and maintain independence in the community. A March 2011 VA treatment record indicates that the Veteran is lightheaded when standing. A December 2011 VA treatment record indicates that the Veteran feels unsteady on his feet. Dizziness and imbalance were noted as present for the past year. A February 2012 VA treatment record indicates that the Veteran's family assists him with his daily activities. A May 2012 VA treatment record indicates reported dizziness while sitting and severe dizziness when standing. In an April 2013 VA treatment record, the Veteran's major complaint was noted as imbalance. He reported that his spouse will not allow him to go fishing for fear that he will fall into the water. The Veteran was noted as discouraged by his loss of capabilities. In a May 2013 statement, the Veteran reported that his equilibrium imbalance impacts him daily. An April 2014 VA treatment record indicates that the Veteran has difficulty with walking to the bathroom at night due to his vestibular impairment. An April 2016 VA examination for vestibular conditions indicates that the Veteran has a history of dizziness for the past six years, and that the Veteran is unable to perform duties where sudden dizziness might present a significant fall hazard. The February 2018 VA examination indicates that the Veteran's peripheral vestibular condition makes it difficult for him to climb ladders or ascend heights due to safety concerns. In a June 2019 affidavit, the Veteran stated that he has difficulty getting out of bed due to dizziness, and that he must hold onto handles while showering due to poor balance and dizziness. He stated that his spouse helps him put on pants, socks, and shoes daily. He stated that he is unable to prepare meals due to his inability to stand for long periods of time as a result of dizziness. He stated that his peripheral neuropathy contributes to his difficulty with standing and walking, and that he uses a cane for ambulation. He also stated that he has been unable to drive at night for approximately three years due to glaucoma. He stated that now, his spouse or brother, will drive him when he needs to go somewhere. In summary, from December 2, 2010, the evidence demonstrates that the Veteran's service-connected PTSD and Meniere's Syndrome disabilities rendered him so helpless as to require the regular A&A of another to help with activities of daily living. See 38 C.F.R. § 3.350(b). From December 2, 2010, the evidence supports a finding that the Veteran's service-connected PTSD and Meniere's Syndrome, caused him to be so helpless as to require regular A&A of another person. Accordingly, entitlement to an effective date of December 2, 2010, for SMC, under 38 U.S.C. § 1114(l), based on the need for regular A&A is warranted, and the claim is granted. 2. An effective date of July 28, 2017, for entitlement to SMC under 38 U.S.C. §§ 1114(p) at the rate intermediate between subsections (l) and (m), is granted. The Veteran is currently in receipt of SMC under 38 U.S.C. § 1114(p), effective February 23, 2018. However, he contends that his entitlement arose on July 28, 2017. As discussed above, a March 2020 rating decision granted entitlement to SMC under 38 U.S.C. § 1114(l), effective February 23, 2018, based on a finding that the Veteran's Meniere's Syndrome was totally disabling, causing his need for regular A&A. The rating decision also granted entitlement to SMC under 38 U.S.C. § 1114(p) at the rate intermediate between subsections (l) and (m) based on the finding that the Meniere's Syndrome was totally disabling, causing the need for A&A, and a 100 percent evaluation for residuals of lung cancer. As addressed above in this decision, effective December 2, 2010, the Veteran has been granted SMC based on the need for regular A&A due to his PTSD and Meniere's Syndrome disabilities, under 38 U.S.C. § 1114(l). The Veteran is separately rated for prostate cancer, evaluated as 100 percent disabling, from July 28, 2017 to December 17, 2019, and evaluated as 60 percent disabling, from December 18, 2019 to the present; and for adenocarcinoma of the lungs, metastasis from prostate, evaluated as 100 percent disabling, from October 10, 2017 to the present. An award of SMC under 38 U.S.C. § 1114(p) and 38 C.F.R. § 3.350(f)(3) at an intermediate rate between that provided under 38 U.S.C. § 1114(l) and 38 U.S.C. § 1114(m), is warranted if the Veteran has at least one additional service-connected disability ratable at 50 percent or greater, that is separate and distinct and involves a different bodily system from the service-connected disabilities, which in turn provide the sole basis for his award of SMC based on the need for regular A&A under 38 U.S.C. § 1114(l). 38 C.F.R. § 3.350(f)(3). From July 28, 2017, the Veteran has at least one additional service-connected disability (i.e. prostate cancer and adenocarcinoma of the lungs, metastasis from prostate) ratable at 50 percent or greater, that is separate and distinct and involves a different bodily system from the disability that forms the basis of the award of SMC based on the regular need for A&A. In conclusion, effective July 28, 2017, an award of SMC under 38 U.S.C. § 1114(p) and 38 C.F.R. § 3.350(f)(3) at an intermediate rate between that provided under 38 U.S.C. § 1114(l) and 38 U.S.C. § 1114(m) is warranted and, the claim is granted. K. L. WALLIN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Timothy T. Emmart 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.