Citation Nr: 21031098 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 16-34 160 DATE: May 20, 2021 ORDER Special monthly compensation based on aid and attendance (SMC-AA), from October 17, 2012 to January 30, 2020, is granted. FINDINGS OF FACT 1. From October 17, 2012 to January 30, 2020, the Veteran has required regular aid and attendance from another due to his service-connected disabilities. 2. The Veteran is already in receipt of SMC based on the need of aid and attendance effective January 31, 2020. CONCLUSION OF LAW For the appeal period from October 17, 2012 to January 30, 2020, the criteria for SMC based on the need for regular aid and attendance of another are met. 38 U.S.C. §§ 1114; 38 C.F.R. §§ 3.350, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1977 to August 1993. The Veteran's claim was previously before the Board in October 2018 and January 2020, wherein the Veteran's claim was remanded for additional development. The Veteran's claim for SMC-AA was pending alongside a claim for service connection for memory loss. In November 2019, the Veteran's claim for service connection for memory loss was granted and evaluated along with the Veteran's already service-connected claim for posttraumatic stress disorder (PTSD). The rating remained at 50 percent. The Veteran's claim was most recently remanded so that the agency of original jurisdiction (AOJ) could obtain an examination to determine the Veteran's limitations as it pertains to SMC-AA. Through an October 2020 rating decision, the Veteran's claim for SMC-AA was granted effected January 31, 2020, but no earlier. As such, the Board will only consider whether SMC-AA is warranted for the appeal period prior to January 31, 2020. The Board notes that a supplemental statement of the case (SSOC) was issued in October 2020 for several increased rating claims, including for fibromyalgia, a lumbar spine disability, epididymitis, PTSD, and a cervical spine disorder. However, no pending appeal is associated with those claims. A November 2018 rating decision addressed the Veteran's claims for an increased rating for his service-connected back and neck disabilities, but the Veteran did not appeal that decision. Therefore, the Board does not have jurisdiction to address the SSOC. SMC based on the need for regular aid and attendance The Veteran asserts he should be entitled to SMC-AA because he is severely limited due to his service-connected disabilities. SMC based on the need for aid and attendance of another is payable when the veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to require regular aid and attendance. See 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). The Veteran's sole contention is whether his service-connected disabilities render him so helpless as to require aid and attendance. The following criteria are to be considered for determining whether a veteran is in need of the regular aid and attendance of another person: (1) the inability of the claimant to dress himself or herself or to keep himself or herself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliance which, by reason of the particular disability, cannot be done without aid (not to include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); (3) the inability of the claimant to feed himself or herself through the loss of coordination of the upper extremities or through extreme weakness; (4) the inability to attend to the wants of nature; or, (5) a physical or mental incapacity that requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352 (a). As explained above, the Veteran's claim for service connection for memory loss was pending concurrently with the Veteran's claim for SMC-AA. Therefore, any limitations associated with the Veteran's memory loss should be considered along with the Veteran's claim for SMC-AA. Further, the Veteran's claim for SMC-AA could be granted effective the date of the claim for service connection for memory lossi. e., October 17, 2012, should the Veteran meet the criteria for the benefit. Since October 17, 2012, the Veteran is service-connected for the following disabilities: PTSD with memory loss, rated at 50 percent; fibromyalgia, rated at 40 percent; degenerative joint disease of the lumbar spine, rated at 10 percent; arthritis of the cervical spine, rated at 10 percent; and disabilities of thoracic spine, right testicle, and headaches were all rated as noncompensable (0 percent). During the period on appeal, the Veteran's ratings for his PTSD, back, and neck disabilities were increased. The Board has considered the record, to include statements from the Veteran, his wife, and his children. Importantly, the Veteran and his wife state that his wife had to stop working due to the Veteran's poor cognitive functioning. The Veteran started struggling to safely cook, drive, handle finances, and take his medication. Further, they reported difficulty with the Veteran attending to activities of daily living (ADLs), to include bathing and dressing. See statements received October 17, 2012 and October 17, 2013. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 470 (1994). VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to." Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). The Board gives the statements of the Veteran and his family great probative weight because they are familiar with the Veteran's functioning on a daily basis. The Board does not find that the record is inconsistent with the lay statements. The January 2020 opinion that was the basis for the grant of SMC-AA considered the Veteran's mental limitations and found him unable to handle monthly payments, know how to pay bills, handle money, or handle his financial affairs. The examination also found the medication the Veteran takes and physical limitations of his physical service-connected disabilities would require aid and attendance. Continued on Next Page Given the above, the Board finds that the Veteran's service-connected disabilities require regular aid and attendance. The Board has considered the factors in 38 C.F.R. § 3.352 (a) and find that the following apply: the inability of the claimant to dress himself or herself or to keep himself or herself ordinarily clean and presentable; and a physical or mental incapacity that requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352 (a). As such, the Board finds that entitlement to SMC based on the need for aid and attendance is warranted for the appeal period from October 17, 2012 to January 30, 2020. Romina A. Casadei Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. M. Hitchcock 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.