Citation Nr: 21030460 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 13-08 465 DATE: May 19, 2021 ORDER Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is granted. FINDING OF FACT The Veteran's service-connected disabilities have caused him to be so helpless as to be in need of regular aid and attendance. CONCLUSION OF LAW The criteria for entitlement to SMC, based on the need for aid and attendance, have been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.351, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1998 to May 2006. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in February 2018. A transcript of that hearing has been associated with the claims file. The Veteran filed a claim for TDIU in January 2010 and the agency of original jurisdiction (AOJ) denied an increased rating for depression in a June 2010 rating decision. In December 2010, the Veteran filed a claim for an increased rating for major depressive disorder. The SMC claim is also part and parcel of an increased rating claim, when such a claim is raised by the record. See Akles v. Derwinski, 1 Vet. App. 118 (1991); see also Bradley v. Peake, 22 Vet. App. 280 (2008) (stating that SMC benefits are to be accorded when a veteran becomes eligible without need for a separate claim). A July 2018 Board decision denied the claim. The Veteran appealed the issue to the United States Court of Veterans Claim (Court). The Court issued a Joint Motion for Partial Remand (JMPR) and vacated this portion of the Board decision. The issue has since returned to the Board for appellate review. Entitlement to SMC based on the need for aid and attendance is granted. Compensation at the aid and attendance rate is payable when a Veteran's service connected disabilities cause the anatomical loss or loss of use of both feet, one hand and one foot, blindness in both eyes with a visual acuity of 5/200 or less or being permanently bedridden 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 Veteran has not raised, and the record does not raise, entitlement to SMC based upon the anatomical loss or loss of use of both feet, one hand and one foot, blindness in both eyes with a visual acuity of 5/200 or less or being permanently bedridden, and accordingly these factors need not be addressed. Determinations as to the need for regular aid and attendance are factual and must be based upon the actual requirements for personal assistance from others. 38 C.F.R. § 3.351(c)(3). Consideration is given to conditions such as: (1) the inability of the Veteran to dress or undress himself or to keep himself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; (3) inability of the Veteran to feed himself through loss of coordination of upper extremities or through extreme weakness; (4) inability to attend to the wants of nature; or (5) incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352(a). All conditions need not be present for a finding of aid and attendance; however, at least one condition must be present. Turco v. Brown, 9 Vet. App. 222, 224-25 (1996). It is only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that the Veteran is so helpless as to be in need of regular aid and attendance must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352(a). Performance of the necessary aid and attendance by a relative or other member of his household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352(c). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the Veteran shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). In this case, service connection is in effect for major depressive disorder, rated as 50 percent from April 2008 and 70 percent from May 2013; right wrist carpal tunnel syndrome, rated as 10 percent from April 2008 and 30 percent from May 2013; tinnitus, rated as 10 percent from May 2006; left and right hernia scar, rated as 10 percent from February 2010; bilateral hearing loss, rated as noncompensable from May 2006; left inguinal hernia repair, rated as noncompensable from May 2006; and condyloma acuminata, rated as noncompensable from April 2008. The Veteran is in receipt of a total disability rating based on individual unemployability (TDIU) from January 2011. On the March 2009 VA mental disorder examination, the Veteran reported that he experiences depressed mood every day. He stated that he stays in his home and that "it's a toss-up about whether or not I feel like getting out of bed most days." The examiner found that the Veteran has no limitations with toileting, grooming, self-feeding, bathing, dress/undressing, traveling, or driving. However, the examiner indicated the Veteran has moderate problems with household chores, shopping, engaging in sports/exercise, and other recreational activities. The examiner noted that the Veteran's remote memory and immediate memory is normal, but his recent memory is moderately impaired. The Veteran reported that he has difficulty remembering recent events and conversations. He stated that he does not remember details and has difficulty learning. The examiner concluded that there is no evidence of total occupation impairment, and it is not assessed that the Veteran is unemployable due solely to the symptoms of major depressive disorder. In an October 2009 VA treatment record, the Veteran reported that although he could cook and clean, he did not do so due to his depression, and that he had someone to assist him with his finances and manage his medication. He stated he often forgot to take his medication. In a November 2009 VA treatment record, the Veteran reported that he is independent with all activities of daily living. On the January 2010 Veteran's application for increased compensation based on unemployability, the Veteran stated he last worked full-time in December 2009 and became too disabled to work in January 2010. In a January 2010 Social Security Administration (SSA) function report, the Veteran stated that he needs help with bathing and feeding his dogs. The Veteran stated it takes him longer to dress but that he is able to bathe with help and reminders; needs help and reminders with care for hair; needs assistance with shaving; and needs meals prepared. He stated he is unable to do housework or yardwork unless he has help. The Veteran stated he needs help with grocery shopping in person or online. The Veteran also stated he is unable to manage his finances. On the January 2010 SSA psychiatric review, the medical provider indicated the Veteran has mild limitations in restriction of activities of daily living and moderate limitation in difficulties in maintaining concentration, persistence, and pace. On a January 2010 SSA record, the Veteran stated at times he goes two or three days without showering. He stated he must be reminded to take medication. In a March 2010 VA treatment record, the Veteran reported that he did not know how he arrived to his appointment and that he had driven himself. However, the social worker noted the Veteran was driven by a friend. The social worker found the Veteran's tearful confusion to be genuine. On the October 2010 application for acquiring specially adapted housing, the Veteran stated that depression prevents him effectively maintaining household maintenance and cleanliness. In an October 2010 VA treatment record, the Veteran reported that he was able to complete a number of chores. On the January 2011 VA mental disorder examination, the examiner observed the Veteran to be clean and appropriately dressed; lethargic; cooperative; normal affect; anxious and depressed mood; intact orientation; rambling thought process; rumination thought content; and average intelligence. The examiner indicated the Veteran has problems with activities of daily living with moderate limitation for household chores; no limitations for shopping; and slight limitation driving. The Veteran stated he does not take care of his house well and does not have motivation to clean or organize his house. The Veteran stated he experiences some hypervigilance and road rage when driving. The Veteran reported that he had not taken his prescribed psychotropic medication for a "few weeks" because he had not refilled the prescription. The examiner also noted the Veteran's recent memory to be mildly impaired. He stated that he has problems with his memory and difficulty concentrating. In an October 2011 electronic mail related to preliminary independent living assessment, VA personnel characterized the Veteran's house as "not very habitable." See August 2020 JMPR. In a March 2012 VA treatment record, the Veteran stated that he must force himself to leave his home. He stated that he is lethargic and goes days without leaving his couch. He stated that at times he does not eat until four o'clock in the afternoon. In an August 2012 VA treatment record, the Veteran reported that he did not follow the neighborhood rules for cleaning the perimeter of his house and he was cited. In a September 2012 VA treatment record, the Veteran stated he cannot drive anymore because of his narcolepsy. He stated his father must drive him. The Veteran also stated that he does not have sufficient energy to perform activities of daily living. He stated he is exhausted and has no will or motivation to drive or to get out of the bed. In an October 2012 VA treatment record, the Veteran stated that his three dogs defecated in a bedroom and he did not clean that room. In an April 2013 VA treatment record, the Veteran indicated he has sufficient energy to perform activities of daily living. On the March 2013 substantive appeal for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), the Veteran stated that simple tasks are overwhelming. The Veteran stated he goes days without changing his clothes. He stated he takes one shower a week. He stated that he does not shave and maintains health with reminders from his parents. On the May 2013 VA mental disorders examination, the Veteran stated that he takes several hours to get out of bed and stays in bed about 14 to 16 days per month. He stated that he does not shave, bathe, or change his clothing. He stated that at this examination he has worn the same clothes for three days. The examiner indicated that the Veteran experiences neglect of personal appearance and hygiene and intermittent inability to perform activities of daily living, to include maintenance of minimal personal hygiene. The examiner remarked that the Veteran arrived on time for his appointment, was neatly groomed, and seasonally and casually dressed. The Veteran drove himself to the appointment. The examiner also remarked that there is no impairment in the Veteran's ability to manage activities of daily living, such as managing personal hygiene and maintaining appropriate and seasonal dress. On the April 2014 VA examination for housebound status or permanent need, the medical provider indicated the Veteran is able to feed himself and prepare meals. However, the medical provider indicated that the Veteran needs assistance in bathing and tending to other hygiene needs. The medical provider did not provide an explanation to this need. The medical provider stated that the Veteran can leave his home, but he chooses not to during the week. The medical provider stated that the Veteran does not generally leave the home because of his depression. In August and November 2014 VA treatment records, the Veteran indicated he has sufficient energy to perform activities of daily living. In February, April, June, and August 2015 VA treatment records, the Veteran indicated he has sufficient energy to perform activities of daily living. On the April 2017 examination for housebound status or permanent need for regular aid and attendance, the medical provider indicated the Veteran is unable to prepare his own meals; needs reminders to bathe and other hygiene needs; requires assistance with medication management with cutting blood pressure tablets and reminders to take medication; and needs help to manage his financial affairs. The medical provider stated that the Veteran's carpal tunnel syndrome impairs his ability to grip and manipulate devices and impacts his ability to drive. Also, the Veteran's depression disorder causes a lack of motivation and affects his ability to travel beyond the home because he spends majority of his time lying on the couch sleeping. The medical provider stated that the Veteran requires one person to assist when leaving the home. The medical provider stated that the Veteran mainly leaves home for medical appointments and shopping. In an April 2017 VA treatment letter, the medical provider stated that the Veteran's memory impairment diagnosis, neurological and psychological issues, and carpal tunnel syndrome caused him to cease driving. The medical provider found this to be best for safety. The Veteran surrendered his drivers license to the department of motor vehicles. In an April 2017 VA treatment record, the medical provider stated that the Veteran is able to manage his care with the assistance of his spouse. In a May 2017 VA treatment record, the Veteran's wife reported that when she moved in with the Veteran three years prior, he was having a hard time managing life. He had severe difficulties managing money and maintaining a household. She stated the Veteran was living in an unclean environment when she arrived. The Veteran stated that since marrying his wife he has been able to maintain himself better since his wife manages finances, cleaning, and cooking. On the July 2017 VA aid and attendance or housebound examination, the wife stated that she looks after the Veteran. She stated that the Veteran does not drive and sits all day watching television. She stated that he will use the push lawn mower to cut grass in the summer and he shovels snow in the winter. The examiner concluded that the Veteran's mental health symptoms do not render him unable to protect himself from the hazards of daily living. On the July 2017 VA mental disorders examination, the examiner indicated the Veteran experienced depressed mood; anxiety; chronic sleep impairment; mild memory loss; disturbance of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and suicidal ideation. The examiner observed the Veteran's appearance to be appropriate and casual; oriented; cooperative and friendly; passive suicidal ideation with no plan or intent; speech within normal limits; depressed mood; and appropriate affect. The examiner indicated the Veteran is capable of managing his financial affairs. The examiner remarked that the Veteran's mental health symptoms do not render him unable to protect himself from the hazards of daily living. The examiner stated that he is not psychotic and reality testing is intact. The examiner stated that the Veteran is not housebound. On the August 2017 notice of disagreement (NOD) the Veteran stated that the VA examiner's review was not accurate. The Veteran stated that the examiner is unable to "see inside" his head. He explained that without his wife's care, he would be lost and could not manage his household. He further stated that he would attempt to end his life from all the anxiety and frustration he feels on a daily basis. On the December 2017 substantive appeal, the Veteran stated that he needs aid and attendance because he is incapable of achieving daily goals on his own. He stated he is unable to drive due to neurological difficulties. He stated that his wife cannot pursue employment because she is caring for him. The Veteran stated that sometimes he does not practice hygiene for days. He stated that showering is difficult because he falls. At the February 2018 Board hearing, the Veteran testified that he can feed himself, but he is unable to prepare food. Board Hearing Transcript (T.) at 3. The Veteran stated that his anxiety causes him to have difficulty with concentration. Id. He stated that he does not finish tasks. Id. The Veteran stated that he must be reminded to perform personal hygiene. Id. He stated that he can wash himself. Id. The Veteran testified that he is not able to manage his medication well. T. at 5. He stated that his wife usually gives him his medication. Id. The Veteran further stated that he is unable to manage his financial affairs. T. at 6. He stated that he filed for bankruptcy in 2009 and he continues to have difficulty knowing his payments. Id. He stated that he overdrafts his banking account. Id. Additionally, the Veteran stated that he is not good at cleaning and caring for the dogs. T. at 7. He stated his wife must remind him. Id. At the Board hearing, the Veteran's wife stated that she moved to the United States to help the Veteran. T. at 7. She testified that the Veteran "lived in disorder with nine dogs, dirty, poop everywhere." Id. The Veteran's wife stated that the Veteran is different than the person she knew. Id. She stated that prior to their marriage, the Veteran was very neat and organized. Id. She stated they worked together for two years in her home country. Id. She stated that he was "in charge" of the library and was very neat. Id. She stated that in 2014 he did not want to do anything. T. at 8. She stated that he wants to lie down on the couch. Id. She stated that this is very different to have worked with someone that was very professional. Id. She stated the Veteran has two masters degrees. Id. On the March 2019 VA mental disorders examination, the examiner indicated that the Veteran experienced depressed mood; anxiety; near continuous panic or depression affecting ability to function independently; chronic sleep impairment; mild memory loss; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances; and suicidal ideation. The examiner found that the Veteran is capable of managing his financial affairs. In a September 2019 VA treatment record, the medical provider indicated that the Veteran needs assistance with bathing, personal hygiene, and dressing. The medical provider commented that the caregiver prompts the Veteran to bathe two to three times a week and the caregiver lays out the Veteran's clothes. The medical provider indicated that the Veteran is able to feed, ambulate, and toilet independently. The Board finds that the evidence of record is in equipoise. Due to the July 2017 VA mental disorders examination not considering the Veteran's statements, Veteran's wife's statements, and VA social worker's findings, the Board finds the conclusion that the Veteran is not in need of aid and attendance and can manage his financial affairs less probative. Furthermore, the VA treatment records do not contain an explicit finding that the Veteran is unable to perform activities of daily living or observations of the Veteran's inability to maintain or perform hygiene; however, the records do contain some reports of difficulty maintaining personal hygiene. Accordingly, the Board finds that the evidence for and against the claim of entitlement to the award of SMC due to need for aid and attendance is in equipoise. Therefore, reasonable doubt must be resolved in favor of the Veteran, and entitlement to an award for SMC due to need for aid and attendance is warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Thompson, Associate 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.