Citation Nr: 21030525 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 14-38 756A DATE: May 19, 2021 ORDER Special monthly compensation (SMC) based on SMC (l) for the loss of use of both feet due to his service-connected neurological impairment of bilateral lower extremities is granted. SMC based on SMC (l) aid and attendance is granted. SMC based on entitlement to SMC (o) is granted. SMC (r)(1) is granted. FINDINGS OF FACT 1. The Veteran warrants a SMC (l) rating for loss of use of his feet. 2. The Veteran warrants a SMC (l) rating for the need for aid and attendance. 3. The Veteran warrants a SMC (o) rating based on entitlement to two SMC (l) ratings. 4. The Veteran is entitled to an additional monthly allowance of SMC at the rate under subsection (r-1) of 38 U.S.C. § 1114, based on entitlement to the maximum rate under subsection (o) and the need for regular aid and attendance. 5. The Veteran has not been deemed to be in need of personal health-care services provided on a daily basis in his 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. CONCLUSIONS OF LAW 1. The criteria for entitlement to SMC (l) are met. 38 U.S.C. § 1114(l); 38 C.F.R. §§ 3.350(a)(2), (b)(1). 2. The criteria for entitlement to SMC (l) are met. 38 U.S.C. § 1114(l); 38 C.F.R. §§ 3.350(b)(3), 3.352(a). 3. The criteria for entitlement to SMC (o) are met. 38 U.S.C. § 1114(o); 38 C.F.R. §§ 3.350(e)(1)(ii). 4. The criteria for entitlement to SMC based on special aid and attendance (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 had active service in the United States Navy from September 1968 to February 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). These matters were last before the Board in July 2020, when they were remanded for additional development. These matters have now returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives as an aid and attendance opinion was obtained. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). SMC 1. Entitlement to SMC based on the loss of the feet. 2. Entitlement to SMC based on for aid and attendance. The Veteran, through his previous attorney, asserts entitlement to SMC (m) for loss of hands and feet and SMC (l) based on the need for aid and attendance. As the Board is granting entitlement to SMC (r)(1), the higher rating, the Veteran is not prejudiced by the Board not addressing SMC(m). "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." Breniser v. Shinseki, 25 Vet. App. 64, 68 (2011) (citing 38 U.S.C. § 1114 (k)-(s)). Section 1114(l) provides five distinct ways for a veteran, "as the result of service-connected disability," to qualify for this rate of SMC: (1) anatomical loss or loss of use of both feet; (2) anatomical loss or loss of use of one hand and one foot; (3) blindness in both eyes with 5/200 visual acuity or less; (4) being permanently bedridden; or (5) having "such significant disabilities as to be in need of regular aid and attendance." 38 U.S.C. § 1114(l). Under 38 U.S.C. § 1114(s), SMC is payable at the housebound rate if the Veteran has a single service-connected disability rated as 100 percent and either of the following are met: (1) there is additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or (2) he or she is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). The requirement of "permanently housebound" will be considered to have been met when the veteran is substantially confined to his or her house (ward or clinical areas, if institutionalized) or immediate premises due to a service-connected disability or disabilities which it is reasonably certain will remain throughout his or her lifetime. 38 C.F.R. § 3.350(i)(2). SMC is payable where a veteran suffers from service-connected disability that renders him 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)(3), 3.352(a). Determinations as to the need or aid and attendance are based on the actual requirements of personal assistance from others. In determining the need for regular aid and attendance, consideration will be given to the inability of the veteran to dress or undress himself, or to keep himself clean; frequent need of adjustment of any prosthetic which by reason of the disability cannot be done without aid; inability of the veteran to feed himself; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect himself from the hazards or dangers of his daily environment. Bedridden will be that condition which, through its essential character, actually requires that the claimant remain in bed. 38 C.F.R. § 3.352 (a); see Turco v. Brown, 9 Vet. App. 222, 224-25 (1996) (stating that it is only necessary that the evidence establish that a veteran is so helpless as to need regular aid and attendance, not that there is a constant need). It is noted that, in order for the veteran to prevail in his claim, the evidence must show that it is a service-connected disability that has resulted in him being in need of regular aid and attendance or being housebound. See Prejean v. West, 13 Vet. App. 444, 447-48 (2000). The Veteran is service-connected for posttraumatic stress disorder rated at 70 percent; chronic constipation associated with Parkinson's disease rated at 30 percent until September 7, 2018 and 50 percent thereafter, right upper extremity impairment associated with Parkinson's disease rated at 20 percent prior to March 31, 2016 and 40 percent thereafter; left upper extremity impairment associated with Parkinson's disease rated at 30 percent; right and left lower extremity impairment associated with Parkinson's disease rated at 20 percent each; chewing and swallowing, and speech impairments rated at 10 percent each, tinnitus rated at 10 percent; and bilateral hearing loss, erectile dysfunction, partial loss of sense of smell, and automotive movement impairment rated noncompensable. A November 2011 examination documented the symptoms from his Parkinson's disease. He reported tremors, balance and speech difficulty, rigidity, and memory loss. He had difficulty walking, tingling, numbness, tremors, and rigidity in his upper extremities, and memory loss. An examination in 2018 also reported his Parkinson's symptoms. He had moderate balance impairment and bradykinesia (slowed motion), and mild loss of automatic functions and speech changes. He had moderate right upper extremity tremors and mild for his left upper extremity. Moderate bilateral upper extremity muscle rigidity and stiffness was reported. Moderate poor balance, shuffling gait, and slurred speech were reported. He had limited ability to manipulate small objects due to his tremors. The Veteran reported a history of falling. Per a 2013 medical examination report, his PTSD caused impaired memory, impaired judgment, difficulty in understanding complex commands, and impaired impulse control. A September 2017 VA examination report shows that his PTSD caused intermittent inability to perform activities of daily living including minimal personal hygiene. A September 2019 examination reported the effects on his need for aid and attendance. He was not permanently bedridden, but used a wheelchair for greater than 200 feet; and used a cane inside his home or a walker for short distances. He was constantly dizzy, imbalance constantly affected his ability to ambulate, and he had moderate short-term memory loss. He could not feed himself due to lack of coordination and tremors. He required assistance getting into or out of the bed. He required assistance with dressing. He had steppage gait with feet shuffling. He could not walk without the assistance of another person. He required a wheelchair and aid (cane/walker) was required to ambulate. He reported that he had poor endurance and fatigue and could only be outside of his home for one to two hours. For his lower extremities, he had muscle weakness and lack of coordination. He had poor foot lift off. A February 2021 examination noted bilateral leg weakness, and he was incapable of unsupported standing or walking. He used a walker, chair lift, wheelchair, and did not stand or ambulate without support. His poor balance and bradykinesia made him very unstable on his feet. For his upper extremities, he had significant bilateral tremors with reduced grip strength, slowed movement and ability to perform coordinated movements in regard to grasping and fine motor skills. The 2021 aid and attendance reported the effects of his disability. He was not restricted to his home or hospitalized; however, he required an attendant to report to the examination. He was not permanently bedridden and did not use an orthopedic or prostetic appliance. He reported dizziness when standing, frequent memory loss, terrible balance, and that he stayed at home unless he had an appointment. He could not feed, dress, undress, bath, or groom himself. The examiner documented upper extremity reduced grip strength, fine motor coordination and tremors. He had impaired balance. He could not ambulate without the assistance of another. He could only walk 20 steps at most without assistance. He required a cane to stand, but preferred a walker or wheelchair. His judgment was impaired at times. After review of the competent and probative evidence, the Board finds that entitlement to SMC(l) based on aid and attendance and SMC(l) based on the loss of feet are warranted. The Board finds that his lower extremity disabilities amount to the loss of his feet. He can only walk 20 steps, at most, unassisted. He requires the assistance of another, or the use of a walker or wheelchair to ambulate. He has a chairlift in his home to go up and down his stairs. He is only able to leave the house for one to two hours before being completely exhausted. His medical examinations report dizziness when standing, extreme imbalance, muscle weakness, incoordination, and poor foot lift. He has slowed motion in his lower extremities and has a history of falls. The Board acknowledges that he can somewhat ambulate without assistance (up to 20 steps), but finds this tends to show that he has extreme difficulty ambulating rather than having the use of his feet. Additionally, he almost always requires the use of assistive devices (wheelchairs or walkers). As such, the Board finds the Veteran is entitled to SMC(l) based on the loss of feet. 38 U.S.C. § 1114(l). Additionally, the Board finds entitlement to SMC(l) based on aid and attendance is warranted based on separate service-connected disabilities, other than loss of feet. The Veteran is unable to feed, bathe, dress, or undress himself. He needs assistance with grooming. He has impaired memory and judgment. He leaves the house only with his spouse and mostly for appointments. He has impaired impulse control and has difficulty understanding complex commands. The Board acknowledges that he is not permanently bedridden or hospitalized. However, the evidence of records shows he requires the aid and attendance of his spouse. As such, the Board finds that he is entitled to SMC(l) based on the need for aid and attendance of another. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b)(3). Additionally, SMC is authorized in particular circumstances in addition to compensation for service-connected disabilities. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352. SMC is authorized under subsections (k) through (s), with the rate amounts increasing the later in the alphabet the letter appears (except for the "s" rate). SMC at the "k" and "r" rates are paid in addition to any other special monthly compensation rates, with certain monetary limits. SMC at 38 U.S.C. § 1114(o) level is warranted if the veteran, as the result of service-connected disability, has suffered disability under conditions which would entitle such veteran to two or more of the rates provided in one or more of § 1114(l) through § 1114(n), no condition being considered twice in the determination, or if the veteran has suffered bilateral deafness (and the hearing impairment in either one or both ears in service connected) rated at 60 percent or more disabling and the veteran has also suffered service-connected total blindness with 5/200 visual acuity or less, or if the veteran has suffered service-connected total deafness in one ear or bilateral deafness (and the hearing impairment in either one or both ears is service connected) rated at 40 percent or more disabling and the veteran has also suffered service-connected blindness having only light perception or less, or if the veteran has suffered the anatomical loss of both arms so near the shoulder as to prevent the use of prosthetic appliances, he or she shall receive compensation at the rate found in § 1114(o). 38 U.S.C. § 1114(o). The regulations enacted pursuant to § 1114(o) provide that service-connected paralysis of both lower extremities together with the loss of anal and bladder sphincter control will entitle a veteran to the maximum rate under § 1114(o), through the combination of loss of use of both legs and helplessness. The requirement of loss of anal and bladder sphincter control is met even though incontinence has been overcome under a strict regimen of rehabilitation of bowel and bladder training and other auxiliary measures. 38 C.F.R. § 3.350(e)(2). Determinations for entitlement under § 1114(o) must be based upon separate and distinct disabilities. That requires, for example, that where a veteran who had suffered the loss or loss of use of two extremities is being considered for the maximum rate on account of helplessness requiring regular aid and attendance, the latter must be based on need resulting from pathology other than that of the extremities. 38 C.F.R. § 3.350(e). If the loss of use of two extremities or being permanently bedridden leaves the person helpless, increase is not in order on account of this helplessness. Under no circumstances will the combination of "being permanently bedridden" and "being so helpless as to require regular aid and attendance" without separate and distinct anatomical loss, or loss of use, of two extremities be taken as entitling the veteran to the maximum benefit. The fact, however, that two separate and distinct entitling disabilities, such as loss of use of both hands and both feet, result from a common etiological agent, for example, one injury or rheumatoid arthritis, will not preclude maximum entitlement. 38 C.F.R. § 3.350(e). The Board now turns to whether the Veteran is entitled to additional compensation based on 38 U.S.C. § 1114(r). There are two parts to subsection (r): special aid and attendance that is identified by (r)(1), and a higher level of special aid and attendance that is discussed in (r)(2). 38 U.S.C. § 1114(r); 38 C.F.R. §§ 3.350(h), 3.352. Aid and attendance as authorized by 38 U.S.C. § 1114(l), 38 U.S.C. § 1114(r) provides for a higher level of benefit called "special aid and attendance" in certain circumstances. A veteran receiving the maximum rate under 38 U.S.C. § 1114(o), who is in need of regular aid and attendance or a higher level of care, is entitled to an additional allowance during periods he or she is not hospitalized at United States Government expense. 38 U.S.C. § 1114(r)(1)-(2); 38 C.F.R. § 3.350(h)(1). A still higher-level aid and attendance allowance is authorized by 38 U.S.C. § 1114(r)(2), and is payable in lieu of the regular aid and attendance allowance authorized by 38 U.S.C. § 1114(r)(1). To be awarded the SMC-R1 rate under 38 U.S.C. § 1114, the Veteran must be entitled to SMC at the rate authorized under subsection (o), the maximum rate authorized under subsection (p), or at the intermediate rate authorized between the rates authorized under subsections (n) and (o) and at the rate authorized under subsection (k) (i.e., (n)1/2+k). For SMC-R1, the Veteran must also be in need of regular aid and attendance. See 38 U.S.C. § 1114(r); 38 C.F.R. § 3.350(h), 3.352. 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, subsections (o) or (p), or was based on an independent factual determination. See 38 U.S.C. § 1114(r); 38 C.F.R. § 3.350(h), 3.352. After considering the above ratings now in effect for SMC payments/levels, the Board finds the Veteran is entitled to SMC(o) based on the now assigned SMC(l) aid and attendance and loss of feet. The Board finds the disabilities are separate and distinct. In this regard, the Veteran is need of aid and attendance of another due to his upper extremity disabilities, impaired judgment and memory loss, and difficulties with activities of daily living. He is entitled to SMC based on the loss of feet due to his lower extremity disabilities where he is unable to ambulate further than 20 steps without the assistance of another or with the help of a cane, walker, or wheelchair. Therefore, in this matter, the Board finds that entitlement to SMC (R-1) is warranted. 38 C.F.R. § 3.350(h)(1). In this regard, the Veteran is assigned SMC(l) based on his disabilities for the need of regular aid and attendance as well as loss of feet. Additionally, he is now assigned the maximum rate authorized under subsection (o). 38 U.S.C. § 1114(o); 38 C.F.R. § 3.350(f). With these two pre-requisites met, the Board finds that entitlement to SMC (R-1) is warranted. A higher rate of aid and attendance benefits is awarded if the veteran, in addition to such need for regular aid and attendance, is in need of a "higher level of care." 38 U.S.C. § 1114(r)(2). The need for a "higher level of care" means that the veteran requires personal health-care services provided on a daily basis in their 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. 38 C.F.R. § 3.352(b)(2). 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 thereof. Id. Additionally, based on the Veteran's aid and attendance examination completed in February 2021, the record does not show that the Veteran is in need of personal health-care services provided on a daily basis in his 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 so as to warrant increased SMC based on the need for a higher-level aid and attendance (r-2). Moreover, a rating under subsection (t) is not warranted as the record does not show, that in the absence of regular aid and attendance, the Veteran would require hospitalization, nursing home care, or other residential institutional care. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Morales, 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.