Citation Nr: 21030459 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 98-10 917 DATE: May 19, 2021 ORDER Special monthly compensation (SMC) under 38 U.S.C. § 1114(m) for loss of use of both legs is granted. SMC under 38 U.S.C. § 1114(l), based on the need of regular aid and attendance due to multiple service-connected disabilities other than those indicating that he has loss of use of both legs, is granted. SMC under 38 U.S.C. § 1114(o) is granted. SMC under 38 U.S.C. § 1114(r)(1) is granted. REMANDED Entitlement to SMC under 38 U.S.C. § 1114(r)(2) is remanded. FINDINGS OF FACT 1. The Veteran's service-connected lower extremity disabilities result in a level of disability that approximates the criteria for loss of use of both legs. 2. The Veteran's service-connected disabilities, other than those that indicate he has loss of use of both feet, combine to create a disability picture so severe and debilitating that causes the Veteran to require regular aid and attendance. 3. The Veteran has service-connected conditions entitling him to two or more of the rates, no condition being considered twice, provided in 38 U.S.C. § 1114(l) through (n). 4. The Veteran is entitled to SMC under 38 U.S.C. § 1114(o) and is also entitled to aid and attendance on a factual basis. CONCLUSIONS OF LAW 1. The criteria for SMC under 38 U.S.C. § 1114(m) for loss of use of both legs, are met. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352. 2. The criteria for SMC under 38 U.S.C. § 1114(l), based on the need of regular aid and attendance due to multiple service-connected disabilities other than those indicating that he has loss of use of both legs, are met. 38 U.S.C. § 1114(l); 38 C.F.R. §§ 3.350(b)(3), 3.352(a). 3. The criteria for SMC under 38 U.S.C. § 1114(o) are met. 38 U.S.C. § 1114(o); 38 C.F.R. §§ 3.350(e)(1). 4. The criteria for SMC under 38 U.S.C. § 1114(r)(1) are met. 38 U.S.C. § 1114(r)(1); 38 C.F.R. §§ 3.350(h), 3.352(b)(1). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1979 to January 1995. This matter comes before the Board of Veterans' Appeals (Board) from a January 2007 rating decision. The Veteran testified at a Board hearing in August 2014. In January 2019, the Board issued a decision denying a higher level of special monthly compensation under 38 U.S.C. § 1114(o) and (r). This decision, however, was vacated by a September 2020 order of the United States Court of Appeals for Veterans Claims (Court), which granted a joint motion for partial remand (JMPR). Pursuant to this order, the issue is now back before the Board. The Veteran's attorney asserts in a March 2021 brief that the Board should remand the Veteran's left knee disability issue to implement its October 2020 decision. The Board's October 2020 decision is final and the Board does not have current jurisdiction to address matters concerning the service-connected left knee disability. Implementation of this Board decision is now with the jurisdiction of the Regional Office (RO). *** SMC is 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). The rate of SMC varies according to the nature of the Veteran's service-connected disabilities. Basic levels of SMC are listed at 38 U.S.C. § 1114(k). Higher levels of SMC are provided at 38 U.S.C. § 1114 (l), (m), (n), and (o). The Veteran is service-connected for chronic fatigue syndrome, persistent depressive disorder, epilepsy, mucous colitis, residuals of lumbar strain, tinnitus, eczema, gingival overgrowth, right knee arthritis, left knee injury, bilateral lower extremity radiculopathy, right Achilles rupture, left wrist fracture, right thumb and right finger fracture, chronic sinusitis, chronic bronchitis, herpes simplex, and impotence. His combined disability rating is consistently100 percent from August 2006 with total disability based on individual unemployability from service-connected disabilities in effect from November 1, 1996. The Veteran currently receives SMC under subsection (k) for loss of use of a creative organ and loss of use of his right foot and subsection (l) for significant disabilities requiring regular aid and attendance of another person. He asserts that he should receive a higher level of SMC based on 38 U.S.C. § 1114(o) and then also receive the higher level of aid and attendance in 38 U.S.C. § 1114(r). The Veteran is entitled to SMC under 38 U.S.C. § 1114(m) for loss of use of both legs. Subsection (m) provides for SMC for veterans with anatomical loss or loss of use of both hands, or of both legs or one arm and one leg with factors preventing natural elbow and knee action with prosthesis in place, or blindness in both eyes with only light perception. 38 U.S.C. § 1114(m); 38 C.F.R. § 3.350(c). The evidence of record establishes that the Veteran's bilateral leg disabilities manifest as abnormal gait, balance issues, and difficulties with walking and standing. In this regard, an August 2010 VA treatment note references balance and coordination problems. A June 2007 VA treatment note shows that the Veteran reported more problems with his legs and that his legs go numb and he loses balance. An August 2013 VA treatment note indicates that the Veteran was in a wheelchair, with crutches. A September 2013 VA examination documents the Veteran's difficulties standing, sitting, and walking. A December 2014 VA examination indicates that the Veteran cannot stand or walk for any length of time and is primarily wheelchair bound. An October 2011 VA aid and attendance examination indicates that the Veteran ambulates poorly, with very obvious difficulty walking, poor gait with a pronounced limp, unable to stand by himself, very poor balance and evident difficulties in self-propulsion, uses wheelchair when he has to go further than 100 feet, must use crutches to ambulate around the house, and has extremely poor balance because of his left knee condition. A May 2010 VA treatment note documents gait difficulties of proprioceptive loss of feet and neuroleptics. An August 2015 VA treatment note documents prescribed orthotics to provide support for unsteady gait. An October 2008 VA treatment note references a history of chronic fatigue, chronic low back pain and bilateral knee pain with frequent falls. Based on this evidence, and resolving doubt in favor of the Veteran, the Board concludes that his service-connected lower extremity disabilities result in a level of disability that approximates the criteria for loss of use of both legs. The Veteran is entitled to SMC under 38 U.S.C. § 1114(l), based on multiple service-connected disabilities other than those indicating that he has loss of use of both legs. Under 38 U.S.C. § 1114(l), special monthly compensation is payable if, as the result of service-connected disability, the Veteran is so helpless as to be in need of regular aid and attendance of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 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: 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 because of the loss of coordination of upper extremities or because of extreme weakness; and the 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 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). The Veteran is already in receipt of SMC based on aid and attendance. Pursuant to the September 2020 JMPR, the Board will consider whether the Veteran is entitled to SMC based on aid and attendance for service-connected disabilities other than those that indicate he has loss of use of both legs. Excluding the Veteran's bilateral lower extremity disabilities, service connection is current in effect for chronic fatigue syndrome (rated 100 percent), persistent depressive disorder (rated 70 percent), mucous colitis (rated 60 percent), epilepsy (rated 40 percent), residuals of lumbar strain (rated 20 percent), tinnitus (rated 10 percent), eczema (rated 10 percent), gingival overgrowth (rated 10 percent), and the following disabilities rated noncompensable: residuals of left wrist fracture, residuals of right thumb and ring finger residuals, chronic sinusitis, chronic bronchitis, herpes simplex, and impotence. His combined rating is 100 percent. An October 2006 VA (CFS) examiner indicated that the Veteran's fatigue seemed to wax and wane requiring assistance from his spouse approximately 50 percent of the time with certain activities of daily living. The examiner indicated that the Veteran was able to perform activities of daily living on his own but required his wife to assist him about half the time with certain bathroom and dressing activities. A November 2006 statement for consideration of aid and attendance signed by a VA physician indicated the Veteran was not able to walk unaided but needed "crutches or braces," that the Veteran had reported that he needed help cooking and fixing meals, needed help in bathing and tending to hygiene, could not care for the needs of nature because of diarrhea/incontinence, was not confined to bed, was able to sit up, was not blind, was not able to travel but that "[h]e can travel when diarrhea finished/treated. Needs assistance." The report also indicated that the Veteran did not require nursing home care, but "[n]eeds help for his knees & lbp [low back pain]." The August 2008 VA examiner indicated that, although the Veteran reported that he was in bed 24 hours per day, he had definite strength and bulky musculature, and that despite complaints of severe fatigue, he made frequent doctors' visits to VA. The examiner concluded that the Veteran "would benefit from assistance as he does need help with cleaning, cooking, travel, and intermittent help with dressing and bathroom privileges." The June 2010 VA examiner concluded that the Veteran required the daily personal healthcare services of a skilled provider, without which he would be either in a nursing home or would require other institutionalized care. VA medical statements for consideration of A&A and examination reports from October 2011, April 2012, December 2012, and September 2014, reflect that the Veteran was not able to walk unaided, was able to feed himself, was not able to care for the needs of nature, was not confined to bed, needed assistance in bathing and tending to other hygiene needs, was not able to care for the needs of nature due to diarrhea and incontinence, was not confined to bed, and was able to sit up, was not blind, was not able to travel much, could not leave home without assistance, and did not require nursing home care. A September 2013 VA examination of the Veteran's lumbar spine indicates that his lumbar spine disability manifested as pain and difficulty sitting, standing, and walking. A similarly dated VA examination for chronic fatigue syndrome indicates that the Veteran experienced debilitating fatigue, low grade fever, generalized muscle aches or weakness, fatigue lasting 24 hours or longer after exercise, headaches, migratory joint pains, neuropsychological symptoms, and sleep disturbance. Frequency of symptoms was described as nearly constant. A January 2015 VA examination, also for chronic fatigue syndrome, shows similar symptoms. An April 2016 VA psychiatric examination indicates that the Veteran's mental health symptoms include near-continuous panic or depression the ability to function independently, appropriately, and effectively. The Veteran's bilateral lower extremity disabilities certainly contribute to his need for regular aid and attendance. Nevertheless, the question currently before the Board is whether his other service-connected disabilities, considered independently of the lower extremity disabilities, cause him to require regular aid and attendance. Resolving doubt in favor of the Veteran, the Board finds that they do. As mentioned, the Veteran's chronic fatigue syndrome is currently rated as 100 percent disabling. The rating criteria for this rating consists of debilitating fatigue, cognitive impairments or a combination of other signs and symptoms that area nearly constant and so severe as to restrict routine daily activities almost completely and which may occasionally preclude self-care. Additionally, the Veteran's mental health disability is rated as 70 percent disabling. As mentioned, his mental health symptoms include near-continuous panic or depression the ability to function independently, appropriately, and effectively. Furthermore, the Veteran's gastrointestinal disorder (rated as 60 percent disabling) is cited in multiple occasions as a factor that contributes to the Veteran's helplessness. Finally, his back disability causes him to experience significant mobility issues. Based on the above, and resolving doubt in favor of the Veteran, the Board finds that his service-connected disabilities other than those that indicate he has loss of use of both feet are sufficient to support entitlement to SMC under 38 U.S.C. § 1114(l), based on the need of regular aid and attendance. In this regard, the Board finds that these disabilities combine to create a disability picture so severe and debilitating that causes the Veteran to require regular aid and attendance. The Veteran is entitled to SMC under 38 U.S.C. § 1114(o). Subsection (o) provides for the highest level of SMC for conditions entitling to two or more of the rates, no condition being considered twice, provided in 38 U.S.C. § 1114(l) through (n); 38 U.S.C. § 1114(o); 38 C.F.R. § 3.350(e). Having found that the Veteran is entitled to SMC under 38 U.S.C. § 1114(m) based on loss of use of both legs and SMC under 38 U.S.C. § 1114(l) based on the need for regular attendance based on the service-connected disabilities other than those that indicate he has loss of use of both feet, the Board further finds that he meets the criteria for entitlement to SMC under 38 U.S.C. § 1114(o). The Veteran is entitled to SMC under 38 U.S.C. § 1114(r)(1). Subsection (r) provides a higher level of aid and attendance. There are two parts to SMC(r): there is special aid and attendance that is provided by subsection (r)(1), and a higher level of special aid and attendance that is provided by subsection (r)(2). See 38 U.S.C. § 1114(r); 38 C.F.R. §§ 3.350(h), 3.352. For entitlement to special aid and attendance under subsection (r)(1), the Veteran must be entitled to SMC at the (o) level and entitled to aid and attendance on a factual basis. As discussed above, the Veteran meets both criteria. He is therefore entitled to SMC under 38 U.S.C. § 1114(r)(1). REASONS FOR REMAND Entitlement to SMC under 38 U.S.C. § 1114(r)(2) is remanded. For entitlement to the higher level of aid and attendance under subsection (r)(2), the evidence must show that the Veteran needs not only aid and attendance but a higher level of care. A higher level of care means that in the absence of such care, the Veteran would be an inpatient or resident at a hospital or nursing home. This means daily care by a licensed professional or someone under the supervision of a licensed professional. The existence of the need for such care shall be determined by a physician employed by the Department or, in areas where no such physician is available, by a physician carrying out such function under contract or fee arrangement based on an examination by such physician. 38 U.S.C. § 1114(r)(1); 38 C.F.R. §§ 3.350, 3.352. Since the Veteran meets the threshold criteria for entitlement to SMC 38 U.S.C. § 1114(r)(2) and since there no clear evidence as to whether the Veteran requires a higher level of care, the Board finds that the appropriate course of action is to remand for a VA examination that would shed light on this aspect of the claim. (CONTINUED ON THE NEXT PAGE) This matter is REMANDED for the following action: Schedule the Veteran for a VA examination to determine whether the Veteran requires a higher level of care, as defined by VA law and regulations, for his service-connected disabilities. Per regulation, a "higher level of care" means that 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. If a physical examination is not needed or possible, obtain an addendum to answer this question. In either case, please review record and provide a comprehensive rationale. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. López, 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.