Citation Nr: 21030742 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 20-04 388 DATE: May 19, 2021 ORDER Entitlement to SMC (l) based on the loss of use of both feet is granted. Entitlement to SMC (m) based on the loss of use of both hands is granted. Entitlement to SMC (o) based on the award of one SMC(l) and one SMC(m) is granted. SMC (r)(1) based on the award of SMC(o) and the need for aid and attendance is granted. FINDINGS OF FACT 1. Resolving all doubt in his favor, due to his service-connected bilateral lower extremity (BLE) neurological impairment, the Veteran has suffered the loss of use of both feet. 2. Resolving all doubt in his favor, due to his service-connected bilateral upper extremity (BUE) neurological impairment, the Veteran has suffered loss of use of his hands. 3. The Veteran has suffered disability under conditions which would entitle him to one SMC-L award, and one SMC-M award, without consideration of any condition twice. 4. The Veteran requires care or assistance on a regular basis in order to feed himself, keep himself clean and presentable, and protect him from the hazards or dangers inherent in his daily environment; however, a VA physician has not deemed him 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 an award of SMC-L based on loss of use of both feet due to service-connected bilateral lower extremity neurological impairment has been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352(a). 2. The criteria for an award of SMC-M based on loss of use of both hands due to service-connected bilateral upper extremity neurological impairment has been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352(a). 3. The criteria for an award of SMC-O based on the presence of one SMC-L and one SMC- M award has been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352(a). 4. The criteria for an award of SMC-R(1) based on the award of SMC-O and the need for aid and attendance has been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from May 1969 to May 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to a higher level of special monthly compensation (SMC) The Veteran is in receipt of SMC at the (L-1) rate, the (S-1) rate, and (K-1) rate. He contends that a higher rating is warranted. SMC at the (l) rate is payable if, as the result of service-connected disability, the Veteran has suffered: (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 visual acuity of 5/200 or less; (4) being permanently bedridden; or (5) being 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). Loss of use of a hand or foot is defined as no effective function remaining other than that which would be equally well served by an amputation stump at the site of election below the elbow or knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc., in the case of the hand, or of balance, propulsion, etc., in the case of a foot, could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. §§ 3.350 (a)(2)(i), 4.63. Examples under 38 C.F.R. § 3.350 (a)(2) which constitute loss of use of a foot include extremely unfavorable ankylosis of the knee, complete ankylosis of two major joints of an extremity, shortening of the lower extremity of 3 1/2 inches or more, and complete paralysis of the external popliteal (common peroneal) nerve and consequent foot-drop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of that nerve. See also 38 C.F.R. § 4.63. SMC at the (m) rate is payable if, as the result of service-connected disability, the Veteran has suffered: (1) anatomical loss or loss of use of both hands; (2) anatomical loss or loss of use of both legs at a level, or with complications, preventing natural knee action with prosthesis in place; (3) anatomical loss or loss of use of one arm and of one leg at a level, or with complications, preventing natural elbow and knee action with prosthesis in place; (4) blindness in both eyes having only light perception; or (5) blindness in both eyes which results in being so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114 (m); 38 C.F.R. § 3.350 (c). SMC at the (n) rate is payable if, as the result of service-connected disability, the Veteran has suffered: (1) anatomical loss or loss of use of both arms at a level, or with complications, preventing natural elbow action with prosthesis in place; (2) anatomical loss of both legs so near the hip as to prevent use of a prosthetic appliance; (3) anatomical loss of one arm and one leg so near the shoulder and hip as to prevent use of a prosthetic appliance; or (4) anatomical loss of both eyes or blindness without light perception in both eyes. 38 U.S.C. § 1114 (n); 38 C.F.R. § 3.350 (d). SMC at the (o) rate is payable if, as the result of service-connected disability, the Veteran has suffered: (1) anatomical loss of both arms so near the shoulder as to prevent use of a prosthetic appliance; (2) when two or more of the rates (l) through (n) are warranted, with no disability being considered twice; (3) bilateral deafness rated at 60 percent or more (when the hearing impairment in either one or both ears is service-connected) in combination with service-connected blindness with bilateral visual acuity 20/200 or less; or (4) service-connected total deafness in one ear or bilateral deafness rated at 40 percent or more (when the hearing impairment in either one or both ears is service-connected) in combination with service-connected blindness of both eyes having only light perception or less. 38 U.S.C. § 1114 (o); 38 C.F.R. § 3.350 (e)(1). Through the combination of loss of use of both legs and helplessness, paralysis of both lower extremities together with loss of anal and bladder sphincter control merits payment of SMC at the maximum (o) rate. 38 C.F.R. § 3.350 (e)(2). Payment of SMC at the maximum (o) rate is also merited for loss of use of two extremities combined with helplessness, to include from absolute deafness and nearly total blindness and from very severe multiple injuries producing total disability outside of useless extremities. 38 C.F.R. § 3.350 (e)(4). Determinations must be based upon separate and distinct disabilities. 38 C.F.R. § 3.350 (e)(3). SMC (p) bumps up the rate assigned under other provisions in half step or whole step increments. 38 U.S.C. § 1114 (p); 38 C.F.R. § 3.350 (f). Bump-ups in excess of the (l) rate, but in no event higher than the (o) rate, are assigned for various combinations involving loss or loss of use of the feet, legs, arms, and/or hands, as well as for various combinations involving blindness and deafness. 38 C.F.R. § 3.350 (f)(1-2). Further, additional disability or disabilities independently ratable at 50 percent or more warrants the assignment of the next highest half step rate. 38 C.F.R. § 3.350 (f)(3). In no event can the rate be higher than (o), however. Similarly, additional disability or disabilities independently ratable at 100 percent without consideration of total disability based on individual unemployability warrants the assignment of the next highest whole step rate. 38 C.F.R. § 3.350 (f)(4). In no event can the rate be higher than (o), however. The additional disability or disabilities must be separate and distinct as well as involve different anatomical segments or bodily systems from those used to achieve SMC at the (l) through (n) rate or a half step rate. 38 C.F.R. §§ 3.350 (f)(3-4). Finally, the next highest half step or whole step rate is assigned for anatomical loss or loss of use, or a combination of anatomical loss and loss of use, of three extremities. 38 C.F.R. § 3.350 (f)(5). SMC at the (r) rate concerns special aid and attendance. 38 U.S.C. § 1114 (r); 38 C.F.R. § 3.350 (h). It is an additional allowance available when not hospitalized at government expense. 38 C.F.R. § 3.350 (h). To qualify under the (r)(1) or the (r)(2) rate, receipt of the (o) rate, the maximum rate under (p), or an intermediate rate between the (n) and (o) rates plus a (k) rate is required. The need for regular aid and attendance is also required to qualify under the (r)(1) and (r)(2) rates. SMC (r)(2) applies when, as a result of a service-connected disability, a Veteran otherwise entitled to SMC at the (l) rate needs in-home personal health-care services provided by either 1) a person who is licensed to provide such services, or 2) a person who provides such services under the regular supervision of a licensed health-care professional. In the Jensen case, involving a program for special housing adaptations, the Court concluded that the VA and the Board had interpreted the underlying statute, (3.350), so strictly that deserving and entitled Veterans were being excluded from the housing benefit that was designed to assist them. Using the definitions of "loss of use" contained in 38 C.F.R. § 3.350, the Court defined loss of use of both lower extremities when dysfunction was so severe as to preclude locomotion without the regular and constant use of assistive devices. But "total" loss of use was not required. Jensen v. Shulkin, 29 Vet. App. 66, 78-79 (2017). Otherwise stated, the concept of loss of use contemplated that the claimant was deprived of the use of his lower extremities to such a degree that his locomotion was precluded. But this definition defines locomotion as precluded even when a veteran is capable "on occasion" of moving about unaided. Id. The Court added that SMC due to loss of use of the feet is not limited to those veterans who have "no" remaining effective functioning of the feet. Id. Turning to the merits of the case, the Veteran is service connection for PTSD with a 100 percent evaluation, liver cancer with a 100 percent evaluation, dermatographism associated with Grave's disease with a 30 percent evaluation, type 2 diabetes with a 20 percent evaluation, each of the following have been assigned 10 percent evaluations: Grave's disease, dry eye syndrome, parkinsonian speech impairment, parkinsonian masked fascies, parkinsonian left upper extremity neurological impairment, parkinsonian right upper extremity neurological impairment, parkinsonian right lower extremity neurological impairment, parkinsonian left lower extremity neurological impairment and tinnitus. He has been awarded non compensable evaluations for parkinsonian loss of smell, parkinsonian chewing and swallowing impairment, and hepatitis C. The Veteran has already been determined to need regular aid and attendance as a result of disabilities associated with his PTSD and Parkinson's disease, and therefore SMC at the (l) rate was awarded. The Veteran has been awarded TDIU from March 23, 2010, on account of PTSD, dry eye syndrome, and Grave's disease, and dementia resulting from Parkinson's. He has been deemed not competent to handle disbursement of funds. October 2018 he had an examination for housebound status or permanent need for regular aid and attendance. He was noted as having Parkinson's disease, and diplopia. His gait was shuffling. He was able to feed himself. He is not confirmed to bed. His wife does the cooking for safety reasons. He requires assistance with nail trimming, buttoning clothing, and doing laundry. He requires assistance with counting and dispensing medications. He has a stooped posture. He has hand weakness, bradykinesia, and difficulty with fine finger movements. He is unable to walk long distances due to leg cramps, bradykinesia. He requires care due to hip pain. He has scoliosis of the spine, and has restricted mobility of his neck due to pain. He has short term memory loss and an unsteady gait. He reported walking around the block with a cane. He uses a walker when getting out of bed, and a cane when walking around the neighborhood. November 2018 he was granted special monthly compensation based on aid and attendance. In October 2019 he submitted a NOD requesting a higher level of SMC, to include at the R-1 level, to include as based on his need for aid and attendance due to his PTSD alone and his loss of use of the bilateral upper and lower extremities. February 2020 he was granted service connection for liver cancer with a 100 percent evaluation from August 19, 2019, based on active malignancy. Since there is a likelihood of improvement, the assigned evaluation is not considered permanent and is subject to a future review examination. VA and private treatment records show he is awaiting a liver transplant for treatment. In an April 2020 affidavit, his spouse said every morning she must position the Veteran's walker by his bed so he can use it to support himself. She reported the Veteran needs assistance with nearly all of his daily activities. She must help him use the bathroom. They have a walk-in shower with a bench, so once the Veteran is seated she helps bathe him, washing his feet, back and calves, as the Veteran can no longer bend over. Occasionally she has to help him wash his hair if he can't get his arms over his head. Once finished, she helps him rise from a seated position to use the walker. She stated he has hardly any motivation due to his PTSD. She lays his clothes out daily, and helps him button or zip his clothing. He forgets what is clean or dirty and lacks any motivation to check. She must prepare his meals daily, as it is a safety hazard to have him in the kitchen. When the Veterans tremors are particular bad she feeds him. She reminds him daily to take his medication. The Veteran can no longer drive due to his poor reflexes and memory issues. The Veteran submitted an affidavit in April 2020, reporting his wife must motivate him to get up each day, as his depression is sometimes so severe it is difficult to move. His wife motivates him to bathe and change clothes daily. She takes care of all the cooking and cleaning around the house. He must be reminded to take his medication daily. If left alone, he would not take the accurate dosage of medication, and he would not bathe daily, nor would he wear clean clothes. He would be unable to cook and clean. He reported his wife reads books to him in order to keep him engaged. He reported without her he would be unable to accomplish most if not all of daily tasks. In another April 2020 affidavit, the Veteran reported his wife helps him transition from laying down to a seated position. The muscle stiffness in his back, arms and legs is limiting, and therefore, his wife must pull up the Veteran by his arms and assist him in swinging his legs over to one side of the bed, after which he then uses a walker. His wife assists him in taking a shower. His wife lays out clothes every day and helps him get dressed, getting each foot in each pant leg, and pulling the pants up, as well as pulling the shirts over his head. He transitions from a walker to a cane through the day. He reported his wife handles all of the cooking, due to his inability to stand up for more than 3 minutes, and his hand tremors. His wife helps him lower himself onto the toilet. He can no longer drive a car due to his inability to turn his head, or press on the pedals for a long period of time. In evaluating whether he is entitled to higher level of SMC, the Board initially notes that the Veteran does not have anatomical loss of any extremity, nor has blindness nor deafness has been established. Entitlement to SMC-L based on Bilateral Lower extremity disabilities The Veteran's representative has argued that the Veteran is entitled to an SMC-L award based solely on his service-connected BLE neurological impairment. Specifically, he contends that the Veteran's BLE service-connected conditions are so severe that they result in the loss of use of both feet, thus entitling the Veteran to SMC-L based on loss of use of both feet. In support thereof, his representative has noted that, for VA purposes, loss of use of a foot will be held to exist when there is no effective remaining function other than that which would be equally well served by an amputation stump with the use of suitable prosthetic appliance. 38 C.F.R. §§ 3.350 (a)(2), 4.63. Additionally, loss of use of a foot will be held to exist when the acts of "balance, propulsion, etc...could be accomplished equally well by an amputation stump with prosthesis[.]" The representative also noted that in Tucker v. West, 11 Vet. App. 369, 373 (1998), the Court held that actual amputation is not required to establish loss of use. In applying these criteria the Veteran's case, his representative acknowledged, as noted above, that the Veteran's BLE service-connected disabilities necessitated the constant use of a walker and the regular use of a cane due to weakness and numbness in his lower extremities. At the January 2011 examination he had severe balance impairment, bradykinesia, loss of automatic movements, and speech changes. December 2014 treatment note indicated the Veteran to had weakened movement in his bilateral lower extremities, numbness in his feet, and weak gait. At the October 2018 examination he was noted as having a shuffling gait, and needing to use a walker to get out of bed, or a cane when walking. He was unable to walk long distances due to cramping and bradykinesia. In the affidavit's supplied by the Veteran and his spouse, they explain the Veteran needs assistance transitioning from sitting to standing, and assistance in using the bathroom. He is unable to prepare food for himself, with times his spouse must assist in feeding him. Ultimately, the Veteran's representative asserts that the Veteran's unsteady gait, and inability to balance and self-propel himself indicates that there remains no effective remaining function other than that which would be equally well served by a prosthetic appliance, in this case a cane and a walker. He cannot perform the acts of balance nor propulsion and requires an assistive device in order to adequately ambulate. Therefore, the Veteran asserts he does not possess the ability to ambulate within the range of normal expected standards, thus equating to no effective remaining function. As stated above, the Court in Jensen, defined loss of use of both lower extremities when dysfunction was so severe as to preclude locomotion without the regular and constant use of assistive devices. But "total" loss of use was not required. Jensen v. Shulkin, 29 Vet. App. 66, 78-79 (2017). The Jensen case aptly applies here, as there is evidence the Veteran requires regular and constant use of assistive devices. After considering the totality of the evidence, the Board finds that the Veteran's service-connected BLE disabilities have resulted in the loss of use of both feet as there remains no effective function as indicated by the Veteran's inability to balance, self-propel, and his continued use of prosthetic devices, to wit, a cane and a walker. There is substantial information in this regard indicating that the Veteran's use of his feet is limited to assisted-standing to transition from one limited activity to the next. There is no medical or lay evidence indicating that the Veteran is able ambulate independently. Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran has established entitlement to SMC-L based solely on his loss of use of his feet due to his service-connected BLE disabilities. Entitlement to SMC-M In a July 2020 submission, the Veteran's representative asserted that the Veteran is also entitled to a SMC-M rating based on his bilateral upper extremity disabilities. Here, the Board acknowledges that the record clearly reflects that the Veteran requires assistance with almost every element of daily life, including washing, eating, relieving himself, dressing, and the like. At the October 2018 examination, he was noted as needing assistance with nail trimming, buttoning clothing, and doing laundry. He had hand weakness, bradykinesia, and difficulty with fine finger movements. His wife reported she must help him on occasion wash his hair, if he can't lift his arms over head, and must assist him in bathing. She reported having to help him buttoning or zip his clothes. She must prepare the daily meals, and when his tremors are particularly bad she must feed him. He is unable to drive due to poor reflexes and memory issues. The Veteran reported needing assistance in all activities of daily living, feeding, bathing, using the bathroom. He has tremors which impact all activities. He reported muscle stiffness in his back arms and legs is limiting, and therefore his wife must pull his arms up and assist him in getting out of bed to then use a walker, or a cane. Loss of use of a hand, for the purpose of SMC, exists where no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function of the hand, whether the acts of grasping, manipulation, etc., could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 4.63. Again, 38 C. F. R. 3.350(a)(2) states that loss of use of a hand will be found to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the elbow with use of a suitable prosthetic appliance. Loss of use of a hand will be held to exist when the acts of grasping and manipulation could be accomplished equally well by amputation stump with prosthesis. 38 C. F. R. 3. 350(a)(2). His service-connected bilateral upper extremity neurological impairment negatively impacts his ability to dress, bathe, and feed himself due to tremors, numbness, and weakness. He needs constant assistance in performing activities of daily living. Given such, and after affording the Veteran the benefit of the doubt, the Board finds that the Veteran is entitled to SMC under 38 U.S.C. § 1114 (m) based on the loss of use of both hands. Entitlement to SMC-O Next, the Board will consider whether additional SMC awards are warranted based on the receipt of one SMC-L award and one SMC-M award. Specifically, as noted above, if a veteran, as the result of service-connected disability, has suffered disability under conditions which would entitle him to two or more of the SMC rates provided at 38 U.S.C. § 1114 (1) - (n), without consideration of the same condition twice, the veteran is entitled to SMC (o). In this instance, the Veteran has been awarded one SMC-L and one SMC-M, without consideration of the same condition twice. As more fully described above, he has been awarded SMC-L based on loss of use of both feet due to his service-connected BLE disabilities. Additionally, he has been awarded SMC-M based on his upper extremity disabilities. As such, under the plain reading of the law, he is entitled to SMC-O. Because the need for aid and attendance is based on a separate and distinct disability from the loss of use of the bilateral lower extremities and bilateral upper extremities, the evidence establishes two separate conditions entitling the veteran to SMC at the "l" and "m" rate. As such, he is entitled to a higher rate of SMC at the "o" rate. 38 U.S.C. § 1114 (o); 38 C.F.R. § 3.350 (e)(ii). Entitlement to SMC-R(1) The Board must next consider whether the Veteran is entitled to an even higher rate of SMC. In this regard, the Veteran's representative has argued that, if the Board awards SMC-O, it must also grant SMC-R(1). 38 U.S.C. § 1114 (r)(1) provides that if a veteran is entitled to SMC-O and is also need in aid and attendance. The Veteran is in receipt of a 100 percent evaluation for PTSD, and has been found incompetent for VA purposes for disbursement of funds. The Veteran's representative argued that due to the Veteran's psychiatric disability he is unable to do many things on his own. The Veteran must rely heavily on assistance from his wife to complete average daily tasks. He has severe memory loss, and must be reminded to eat, and on especially bad days she feeds him. He has severe depression, night terrors memory loss, and lack of concentration. A February 2018 report documents he moves slowly, has difficulty walking, consistently dropping things out of his hands, and frequently hurts himself. October 2018 medical records document the Veteran's wife cooks for him, completes his laundry, and dresses him. Additionally he is incompetent to manage financial matters due to his service-connected psychiatric treatment. And therefore, the separate SMC (l) is warranted on account of his need for aid and attendance due to his service-connected psychiatric symptoms. By virtue of this decision, the Veteran has been awarded an SMC-O award, based on his loss of use of upper, and lower extremities, and it is evident his psychiatric condition results in-part on his need for aid and attendance. As such, the Board finds that he is also entitled to an award of SMC-R(1). The Board must note here that this particular grant of benefits is circular in nature and seems to warrant repeated compensation for the same level of impairment, specifically the need for aid and attendance. However, while pyramiding is prohibited under the Rating Schedule, SMC awards are distinct from the schedule and are intended to be benefits in addition to the regular schedule, they are not traditional "ratings" in the ordinary sense of the word for VA purposes. Moreover, where there is ambiguity in the law, the Board is inclined to resolve that ambiguity to the maximum benefit of the veteran. Thus, the Board finds that entitlement to SMC-R(1) is warranted in this case. Entitlement to Higher and/or Additional SMC Awards However, the criteria for a higher SMC award have not been met. In this regard, 38 U.S.C. § 1114 (r)(2) provides that if a veteran in need of aid and attendance is in need of a higher level of care such that in the absence of said care he would require hospitalization, nursing home care, or other residential institutional care, a higher level of compensation should be awarded. The 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. The existence of the need for such care shall be determined by a physician employed by VA. Id. The Board has considered whether additional SMC awards are warranted including SMC-L (under theories of entitlement not addressed above), SMC-M (under theories of entitlement not addressed above), SMC-N (anatomical loss related to arms and legs and bilateral blindness), SMC-P (next higher rate based on requirements of disability), and SMC-T (residuals of traumatic brain injury). 38 U.S.C. § 1114 (l), (m), (n), (p), (t). However, the record does not support a finding of any additional SMC benefits not granted herein either due to the Veteran not meeting the criteria for such award, or as the awards are at rates lower than the benefits granted herein. CHRISTOPHER J. O'DONNELL Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Skiouris, 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.