Citation Nr: 21031010 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 12-31 802 DATE: May 20, 2021 ORDER As of August 20, 2009, a separate rating of special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(l) is granted, subject to the laws and regulations governing the payment of monetary benefits. As of August 20, 2009, a higher rating of SMC pursuant to 38 U.S.C. § 1114(o) is granted, subject to the laws and regulations governing the payment of monetary benefits. As of August 20, 2009, a higher rating of SMC pursuant to 38 U.S.C. § 1114(r)(1) is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. The Veteran's service-connected peripheral neuropathy of the bilateral lower extremities resulted in the loss of use of both feet as of August 20, 2009, the date of receipt of his informal claim for a higher rating of SMC. 2. Resolving all doubt in the Veteran's favor, he required the regular aid and attendance of another person as a result of his service-connected disabilities, excluding his peripheral neuropathy of the bilateral lower extremities, as of August 20, 2009, the date of receipt of his informal claim for a higher rating of SMC. 3. As of August 20, 2009, the Veteran is entitled to two rates of SMC under 38 U.S.C. § 1114(l). 4. As of August 20, 2009, the Veteran is entitled to SMC pursuant to 38 U.S.C. § 1114(o) and is in need of the regular aid and attendance of another person. CONCLUSIONS OF LAW 1. As of August 20, 2009, the criteria for a separate rating of SMC pursuant to 38 U.S.C. § 1114(l) have been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352. 2. As of August 20, 2009, the criteria for a higher rating of SMC pursuant to 38 U.S.C. § 1114(o) have been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350. 3. As of August 20, 2009, the criteria for a higher rating of SMC pursuant to 38 U.S.C. § 1114(r)(1) have been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1975 to July 1981. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in June 2011 by a Department of Veterans Affairs (VA) Regional Office, which awarded, in pertinent part, SMC based on aid and attendance from August 20, 2009, to October 27, 2009, entitlement to a higher level of SMC effective October 27, 2009, and SMC for loss of use of both buttocks effective October 16, 2009. The Veteran perfected an appeal of the ratings assigned. In a rating decision issued in October 2012, the Agency of Original Jurisdiction (AOJ) awarded service connection for loss of use of both feet and SMC based on aid and attendance, effective August 20, 2009, respectively, and revoked SMC for loss of use of buttocks. In a March 2015 decision, the Board denied entitlement to higher rates of SMC under 38 C.F.R. § 3.350(f)(3) and 38 U.S.C. § 1114(o), which the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In January 2017, the Court vacated and remanded the Board's decision in a Memorandum Decision. In November 2017, the Board, in pertinent part, remanded the issues for additional development and, in June 2019, denied the claims. The Veteran then appealed only with respect to the issue of entitlement to a higher level of SMC under 38 U.S.C. § 1114(o) to the Court, which granted a Joint Motion for Partial Remand (JMPR) and vacated the Board decision in December 2020. The case now returns to the Board for further appellate review. Entitlement to a higher rating of SMC pursuant to 38 U.S.C. § 1114(o). SMC is a special statutory award in addition to awards based on the schedular evaluations provided in VA's rating schedule. Claims for SMC, other than those pertaining to one-time awards and an annual clothing allowance, are governed by 38 U.S.C. §§ 1114 (k)-(s) and 38 C.F.R. §§ 3.350 and 3.352. In this regard, the rate amounts increase the later in the alphabet the letter appears (except for the (s) rate). SMC under subsections (k) through (r) are rates that are paid in addition to any other SMC rates, with certain monetary limits. Pertinent to the instant case, subsection (o) is granted for loss of both arms, entitlement to two or more rates provided in Subsections (l)-(n), deafness of certain severities, paraplegia, and/or helplessness. In this regard, SMC under subsection (l) is payable for anatomical loss or loss of use of both feet, one hand and one foot, blindness in both eyes with visual acuity of 5/200 or less or being permanently bedridden or so helpless as to be in need of regular aid and attendance. SMC under subsection (m) is payable for anatomical loss or loss of use of both hands; anatomical loss or loss of use of both legs at a level, or with complications, preventing natural knee action with prosthesis in place; anatomical loss or loss of use of one arm at a level, or with complications, preventing natural elbow action with prosthesis in place with anatomical loss or loss of use of one leg at a level, or with complications, preventing natural knee action with prosthesis in place; blindness in both eyes having only light perception; or blindness in both eyes leaving the veteran so helpless as to be in need of regular aid and attendance. SMC under subsection (n) is for amputation or loss of use of certain body parts, to include blindness without light perception in both eyes. 38 U.S.C. § 1114. The Veteran contends he is entitled to two or more rates of SMC under subsection (l) and, as a result, SMC under subsection (o). Specifically, he contends two separate ratings are warranted based on (1) the loss of use of both feet due to his service-connected peripheral neuropathy of the bilateral lower extremities and (2) the need for aid and attendance due to service-connected disabilities independent of peripheral neuropathy of the bilateral lower extremities. Similarly, in the JMPR, the parties found the Board must address whether the Veteran is entitled to SMC under subsections (l) through (n) based on his service-connected disabilities other than peripheral neuropathy of the bilateral lower extremities, to include whether he required the regular aid and attendance of another person without consideration of the loss of use of both feet. As of August 20, 2009, service connection is in effect for the following: bronchial asthma; loss of use of both feet; hypertensive heart disease and left ventricular hypertrophy with left atrial enlargement; hiatal hernia with gastroesophageal reflux (GERD); diabetes mellitus with erectile dysfunction (DM); spondylosis with degenerative disc disease, intervertebral disc syndrome, and degenerative arthritis changes (back disability); hypertension; nonproliferative diabetic retinopathy of the bilateral eyes with early cataracts; diarrhea; stasis dermatitis; peripheral neuropathy of the bilateral upper extremities; gout; bilateral pes planus; allergic rhinitis with posttraumatic septal deviation; facial scar; scars of the left thumb; and skin condition. The Veteran also is currently in receipt of SMC under subsections (s), (k), (l), and (p) at the rate equal to subsection (m). Notably, the previous award of SMC under subsection (l) appears predicated on the Veteran's need of regular aid and attendance. However, as noted above, he is in receipt of service connection for loss of use of both feet due to his peripheral neuropathy of the bilateral lower extremities, evaluated as 100 percent disabling as of August 20, 2009. In light of such determination, the Board finds the criteria for one rating of SMC under subsection (l) based on loss of use of both feet is warranted as of August 20, 2009. Therefore, the remaining inquiry is whether the Veteran meets the criteria for a separate rating of SMC under subsections (l) through (n), to include whether any of his service-connected disabilities other than the loss of use of both feet renders him in need of the regular aid and attendance of another person. With regard to the latter inquiry, the Board has considered the basic criteria for regular aid and attendance are set forth in 38 C.F.R. § 3.352(a) in accordance with 38 C.F.R. § 3.351(c)(3). The following are accorded consideration: inability of claimant to dress or undress, 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 aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid); inability to feed himself through loss of coordination of upper extremities or through extreme weakness; 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 claimant from hazards or dangers incident to his daily environment. Additionally, the Board's analysis herein will focus solely on the functional impairment resulting from the Veteran's service-connected disabilities exclusive of his loss of use of both feet due to peripheral neuropathy of the bilateral lower extremities. An October 2009 VA examination report shows the Veteran's service-connected back disability resulted in limitation in walking, spasms, decreased motion, and falls. Although he denied stiffness, fatigue, paresthesia, and numbness, he reported weakness of the spine, leg, and foot and pain traveling to both legs and the right hip. In addition, while such disability did not result in incapacitation, the Veteran could not walk more than a few feet at a time with a walker. With respect to his diarrhea, his activities were decreased during flare-ups. Notably, neurological examination of the upper extremities revealed normal motor function, but abnormal sensory function with decreased sensation in the hands. The examiner concluded the Veteran would be able to perform activities of daily living. In February 2011, however, neurological examination of the upper extremities revealed abnormal motor function with findings of decreased hand grip and abnormal sensory function. Reflexes revealed the absence of bilateral biceps jerk, triceps jerk, brachioradialis, and finger jerk. On VA examination in April 2011, the Veteran reported symptoms of dizziness off and on and loss of short term memory. According to him, his children helped him to his wheelchair in the mornings, helped him go to the bathroom, and shaved him. His son helped him dress and undress, and every third day his children bathed him. Specific to his bronchial asthma, the Veteran reported weekly asthma attacks and respiratory infections six times per year. According to the report, he would develop a cough with thick, yellow sputum production after slight physical exertion and paroxysmal nocturnal dyspnea. In connection with his hypertension, he reported symptoms of chest pain and shortness of breath occurring three to four times per day that lasted one to two minutes and resulted in an inability to function. With respect to his DM, the Veteran reported a progressive loss of strength, without urinary or fecal incontinence, and shortness of breath, easy fatigability, dizziness, chest pain, and fainting attacks. He asserted that he was unable to do any type of activity as such symptoms occurred on a near-constant basis. In regard to his back disability, the Veteran reported being able to walk about five feet with assistance and constant, severe pain associated with stiffness, fatiguability, spasm, and decreased motion. According to the VA examiner, the Veteran's symptoms impaired his ability to perform prolonged sitting and activity. Physical examination in April 2011 revealed normal motor strength and sensation in the upper extremities and no muscle atrophy. The Veteran was able to get up from the wheelchair unassisted, but had difficulty getting on and off the examination table and changing positions without assistance. The Veteran's posture was mildly stooping. He was able to self-feed, but notably required assistance with shaving, bathing, toileting, and ambulation. The VA examiner found the Veteran's DM resulted in restrictions, to include the avoidance of strenuous physical activities, and concluded the Veteran should avoid heavy lifting, carrying, and frequent bending and stooping due to his back disability. He was also to avoid strenuous exercise activities in light of his asthma. The VA examiner ultimately determined the Veteran should not leave the immediate premises of his house or other immediate premises without the assistance of someone due to his peripheral neuropathy of the bilateral lower extremities. In January 2019, the Veteran underwent another VA examination, at which time it was noted that, although he was not permanently bedridden, he was housebound and required a scooter to ambulate. With respect to the Veteran's ability to protect himself from daily hazards/dangers, the VA examiner noted he experienced dizziness one or more times per day, mild memory loss, and near-constant imbalance affecting his ability to ambulate. In this regard, the VA examiner observed that, in addition to the loss of use of both feet, the Veteran's cardiac arrythmia, diabetic peripheral neuropathy, asthma, degenerative neck and back disease, pes planus, and gout affected his ability to protect himself from his daily environment. Additionally, he determined the Veteran should only leave the home for medical care purposes. Further, the VA examiner found the Veteran had mild or moderate impairment of strength and coordination in the bilateral upper extremities that resulted in the inability to dress and undress, self-bathe, self-groom, and self-toilet. He concluded the Veteran needed assistance with all activities of daily living, except for feeding, and should be considered housebound. Upon review, the Board finds the medical evidence of record indicates that the Veteran's service-connected disabilities independent of his peripheral neuropathy of the bilateral lower extremities markedly restricted his ability to care for himself throughout the appeal period. In particular, the aforementioned examination reports consistently show the Veteran was unable to dress/undress, bathe, groom, and toilet without the assistance of another person as a result of his service-connected disabilities. Additionally, the January 2019 VA examiner specifically opined the Veteran's cardiac arrythmia, peripheral neuropathy of the bilateral upper extremities, asthma, back disability, pes planus, and gout affected his ability to protect himself from his daily environment. Further, the Board finds significant the lay statements of record describing the level of care required by the Veteran and his family members' role in providing such care. Moreover, the Board notes the severity of the Veteran's service-connected disabilities has remained consistent throughout the appeal period as reflected in the static ratings assigned. Therefore, the Board resolves all doubt in the Veteran's favor and finds his service-connected disabilities, excluding the loss of use of both feet due to peripheral neuropathy of the bilateral lower extremities, resulted in his need for the aid and assistance of another person with homemaking activities, personal hygiene, and self-protection for the entire appeal period stemming from the receipt of his informal claim on August 20, 2009. Consequently, the criteria for a separate rating of SMC under subsection (l) based on the need for the regular aid and attendance of another person, in addition to the award of SMC under subsection (l) for loss of use of both feet, were met throughout the appeal period. Given the above award, the Veteran is now entitled to two rates of SMC under subsection (l) and, as a result, SMC under subsection (o). 38 U.S.C. § 1114. Finally, in a March 2021 statement, the Veteran argued he is entitled to SMC under 38 U.S.C. § 1114(r)(1) for a higher rate of aid and attendance if the Board were to award SMC under 38 U.S.C. § 1114(o). See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991); Bradley v. Peake, 22 Vet. App. 280 (2008) (finding that SMC "benefits are to be accorded when a veteran becomes eligible without need for a separate claim"). In this respect, subsection (r)(1) authorizes a special aid and attendance rate when the veteran is in receipt of the maximum rate under either Subsection (o) or (p) and is in need of regular aid and attendance or a higher level of care. As the Board herein awards entitlement to SMC under subsection (o) and has determined that the Veteran was in need of the regular aid and attendance of another person throughout the appeal period, the criteria for SMC under subsection (r)(1) have been met as of August 20, 2009. 38 U.S.C. § 1114. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. M. Celli, 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.