Citation Nr: 21039836 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 13-33 996 DATE: July 1, 2021 ORDER Special monthly compensation based on the need for aid and attendance effective from March 11, 2011, to January 22, 2018, is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to special monthly compensation based on the need for aid and attendance prior to March 11, 2011, is denied. FINDINGS OF FACT 1. The evidence is in equipoise as to whether from March 11, 2011, to January 22, 2018, the service-connected lumbar spine, bilateral knee, and bilateral feet disabilities and bilateral radiculopathies of the lower extremities resulted in the Veteran needing the regular aid and attendance of another to protect himself from hazards or dangers incident to his daily environment, to dress or undress himself, and to keep himself ordinarily clean and presentable. 2. The weight of evidence is against a finding that prior to March 11, 2011, the service-connected disabilities resulted in the Veteran needed the regular aid and attendance of another or being permanently bedridden. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for entitlement to special monthly compensation on account of the need for aid and attendance of another person effective from March 11, 2011, to January 22, 2018, have been met. 38 U.S.C. § 1114 (2012); 38 C.F.R. §§ 3.351, 3.352 (2020). 2. The criteria for entitlement to special monthly compensation on account of the need for aid and attendance of another person prior to March 11, 2011, have not been met. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.351, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1974 to July 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2015, the Veteran had an informal conference with a decision review officer. In March 2017, the Veteran and his spouse testified at a videoconference hearing in front of the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claim file. In November 2017, the Board remanded claim of entitlement to special monthly compensation based on the need for aid and attendance for further development. In November 2019, the Board granted special monthly compensation based on the need for aid and attendance effective January 23, 2018, and denied entitlement to special monthly compensation based on the need for aid and attendance prior to January 23, 2018. The Veteran appealed the denial of entitlement to special monthly compensation based on the need for aid and attendance prior to January 23, 2018, to the United States Court of Appeals for Veterans Claims (the Court). In February 2021, the Court granted a joint motion for partial remand that vacated and remanded the part of the January 2019 Board decision that denied entitlement to special monthly compensation based on the need for aid and attendance prior to January 23, 2018. The November 2017 Board remand and a June 2019 supplemental statement of the case indicate that the Veteran was not eligible for special monthly compensation based on the need for aid and attendance for the period from May 17, 2011, to September 1, 2011. The Veteran was receiving special monthly compensation based on housebound status from March 11, 2011 to September 1, 2011. Special monthly compensation based on the need for aid and attendance is a higher benefit than special monthly compensation based on housebound status. Therefore, the Veteran is eligible to receive special monthly compensation based on the need for aid and attendance from May 17, 2011, to September 1, 2011. VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). 1. Entitlement to special monthly compensation based on the need for aid and attendance from March 11, 2011, to January 22, 2018 2. Entitlement to special monthly compensation based on the need for aid and attendance prior to March 11, 2011 Governing law and regulations The criteria for determining whether special monthly compensation is payable by reason of need of aid and attendance is set forth in 38 C.F.R. § 3.351, which in pertinent part provides: (b) Aid and attendance; need. Need for aid and attendance means helplessness or being so nearly helpless as to require the regular aid and attendance of another person. The criteria set forth in paragraph (c) of this section will be applied in determining whether such need exists. (c) Aid and attendance; criteria. The veteran, spouse, surviving spouse or parent will be considered in need of regular aid and attendance if he or she: (1) Is blind or nearly so blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; or (2) Is a patient in a nursing home because of mental or physical incapacity; or (3) Establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). The following will be accorded consideration in determining the need for regular aid and attendance: inability of claimant to dress or undress himself, 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, such as supports, belts, lacing at the back, etc.); inability of claimant 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. 38 C.F.R. § 3.352(a). "Bedridden" will be a proper basis for the aid and attendance determination and is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that the claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater-or-lesser part of the day to promote convalescence or cure will not suffice. It is not required that all of the disabling conditions enumerated above be found to exist before a favorable rating may be made. The particular personal functions that the claimant is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that the claimant 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 will not be based solely upon an opinion that the claimant's condition is such as would require him to be in bed. They must be based on the actual requirement of personal assistance from others. Id. The performance of the necessary aid and attendance service by a relative of the claimant or other member of his or her household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352(c). Although a veteran need not show all of the disabling conditions identified in 38 C.F.R. § 3.352(a) to establish entitlement to aid and attendance, the Court has held that it is logical to infer there is a threshold requirement that "at least one of the enumerated factors be present." Turco v. Brown, 9 Vet. App. 222, 224 (1996). Analysis Effective from August 1998, service connection is in effect for bilateral foot disabilities. Effective February 2010, service connection is in effect for a lumbar spine disability, bilateral knee disabilities, and bilateral radiculopathies of the lower extremities involving both femoral and sciatic nerves. Effective May 17, 2011, service connection is in effect for posttraumatic stress disorder (PTSD), a psychotic disorder not otherwise specified, and polysubstance abuse in remission. Effective February 2012, service connection is in effect for a scar associated with right foot surgery. On March 16, 2011, the Veteran filed his claim for special monthly compensation based on the need for regular aid and attendance. Pursuant to Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board must consider the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. As such, the Board will consider his special monthly compensation claim from March 16, 2010 (one year prior to date of claim) to January 22, 2018. The Board is presented with a record on appeal that demonstrates that, in addition to the above-mentioned service-connected disabilities, the medical evidence shows that the Veteran has limited range of motion of a shoulder. Service connection is not in effect for a shoulder disability. The Board is precluded from differentiating between symptomatology attributed to a non-service-connected disability and a service-connected disability in the absence of medical evidence which does so. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). VA treatment records reveal that on March 11, 2011, the Veteran underwent a right foot bunionectomy with a fifth digit hammertoe repair. On March 21, 2011, the Veteran submitted a VA Form 21-2680 (examination for housebound status or permanent need for regular aid and attendance). The examination report is dated March 14, 2011. A VA nurse practitioner indicated that the Veteran had been hospitalized on March 11, 2011. The nurse noted that the Veteran's recent surgery restricted activities and functions listed in this report. The nurse indicated that the Veteran was able to feed himself but that he could not prepare his own meals. The nurse stated that the Veteran needed assistance in bathing and tending to other hygiene needs and that his spouse is assisting him with bathing. The nurse indicated that there were no restrictions of each upper extremity with particular reference to grip, fine movements, and the ability to feed himself, to button clothing, shave, and attend to the needs of nature. The nurse noted that the restriction involving the lower extremities was non-weight-bearing of the right lower extremity for eight weeks. The nurse indicated that there were no restrictions of the spine, trunk, and neck. The nurse stated that he was able to leave the home as needed for appointments using crutches and a wheelchair. A September 2011 VA psychiatric examination report reveals that the Veteran intermittently is unable to perform activities of daily care because of a loss of motivation or drive. The VA examiner noted that the Veteran could provide self-care. A December 2011 VA foot examination report reveals that the Veteran was constantly using crutches. Another December 2011 VA examination report reflects that he was sometimes under the influence of pain medications for his feet at which times he was unable to follow instructions in a timely manner, cook, bath, run, jog, or comprehend. An April 2012 VA PTSD examination report shows that the Veteran had an intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. A November 2014 VA PTSD examination report reflects that there were no symptoms regarding personal hygiene issues. A March 2015 VA foot examination report reveals that the Veteran constantly used braces and orthotics for his feet. A March 2015 VA PTSD examination report shows that there were no symptoms pertaining to personal hygiene issues. A May 2015 VA knee examination report reflects that the Veteran regularly used a brace and a walker. At the March 2017 hearing, the Veteran's spouse testified that she bathes him and puts his shoes on for him. Hearing transcript, page 10. A January 18, 2018, VA aid and attendance examination report reflects that the examiner indicated that the lumbar spine disability, bilateral radiculopathies of the lower extremities, bilateral knee disabilities, and bilateral foot disabilities restrict the listed activities and functions discussed in this report. The doctor noted that the Veteran spend ten hours a day in bed from 9 am to 10 pm. The physician stated that he was able to feed himself. The examiner noted that the Veteran was able to prepare his own meals but that he claimed he could not stand for a long period of time. The doctor indicated that he needed assistance in bathing and tending to other hygiene needs because of claimed episodes of falling. The physician indicated that due to limited range of motion of a shoulder, there were restrictions of an upper extremity with particular reference to grip, fine movements, and the ability to feed himself, to button clothing, shave, and attend to the needs of nature. The examiner noted that the restrictions involving the lower extremities were limited kneeling and jumping and impaired balance. The doctor noted that the restrictions of the spine, trunk, and neck were limited bending of the back. The physician indicated that aids such as canes, braces, crutches, or the assistance of another person were required for locomotion and that the Veteran could only walk one block. In a November 2018 addendum to the January 18, 2018, VA aid and attendance examination report, the examiner noted that the Veteran's service-connected physical disabilities make his daily environment dangerous and hazardous. The physician indicated that his psychiatric disabilities needed to be assessed by a psychiatrist. As to whether the Veteran was bedridden due to service-connected disabilities, the doctor stated that the Veteran is confined to his bed 12 hours a day due to his back, knee, and feet disabilities. The January 18, 2018, VA examination report shows that the Veteran needed aid and attendance due to service-connected disabilities prior to January 23, 2018, the current effective date for the grant of special monthly compensation based on aid and attendance. The March 14, 2011, VA examination report reflects that he needed aid and attendance for the eight-week period after his right foot surgery on March 11, 2011. As for the period between May 2011 and January 17, 2018, the Veteran's spouse testified at the March 2017 hearing that she assists him in dressing or undressing and in keeping himself ordinarily clean and presentable. While the spouse's testimony is not competent medical evidence, as noted in February 2021 joint motion for partial remand, the regulation does not require competent medical evidence and instead merely requires evidence, whether it be lay or medical in nature, that a veteran requires the regular aid and attendance of another. Similarly, the September 2011 VA psychiatric examination report reveals that the Veteran intermittently is unable to perform activities of daily care because of a loss of motivation or drive. The April 2012 VA PTSD examination report also shows that the Veteran had an intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The Board notes that service connection was granted for psychiatric disorders effective May 17, 2011. Moreover, the January 18, 2018, VA examination report does not indicate that the various findings regarding the need for aid and attendance only began on that date. Thus, the January 2018 VA examination report suggests that the Veteran needed aid and attendance prior to January 18, 2018. In addition to the January 2018 VA examiner indicating in the November 2018 addendum that the service-connected disabilities make his daily environment dangerous and hazardous, a December 2011 VA examination report reflects that he was sometimes under the influence of pain medications for his feet at which times he was unable to follow instructions in a timely manner, cook, bath, run, jog, or comprehend. In light of the above, the evidence is in equipoise as to whether from March 11, 2011, to January 22, 2018, the service-connected lumbar spine, bilateral knee, and bilateral feet disabilities and bilateral radiculopathies of the lower extremities resulted in the Veteran needing the regular aid and attendance of another to protect himself from hazards or dangers incident to his daily environment, to dress or undress himself, and to keep himself ordinarily clean and presentable. Accordingly, special monthly compensation on account of the need for aid and attendance of another person is in order effective from March 11, 2011, to January 22, 2018, As for the period from March 16, 2010, to March 10, 2011, VA treatment records reveal that the Veteran had left foot surgery in July 2010. Nonetheless, two weeks after that surgery, he was able to ambulate in regular shoe gear. In August 2010, he was able to walk in post-operative shoes and crutches. An October 2010 VA treatment record reflects that the Veteran was coaching baseball and that his aquatic therapy goals were to ride a bike, participate in a marathon, and do more swimming. Another October 2010 VA treatment record reflects that a podiatrist provided a statement that the Veteran would need to be off work until the beginning of 2011. The Board notes that no medical professional has stated that the Veteran needed aid and attendance of another, such as assistance in dressing, undressing, and bathing, with regard to the July 2010 foot surgery. The Board places great weight on the March 2011 VA aid and attendance examination report referring to limitations after the March 2011 surgery and not to any limitations from a prior foot surgery, such as the July 2010 one. Furthermore, neither the Veteran nor his spouse has asserted that his spouse assisted him in dressing or undressing and in keeping himself ordinarily clean and presentable following the July 2010 surgery. There is also no evidence that the Veteran was bedridden prior to March 11, 2011. Neither a medical professional nor the Veteran or his spouse has asserted that he was in the bed for 12 hours during the daytime following the July 2010 surgery. The weight of evidence is against a finding that prior to March 11, 2011, the service-connected disabilities resulted in the Veteran needed the regular aid and attendance of another or being permanently bedridden. The preponderance of evidence is against the claim. Accordingly, special monthly compensation on account of the need for aid and attendance of another person prior to March 11, 2011is not warranted, and the claim is denied. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Cherry, 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.