Citation Nr: 21040891 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 14-19 363 DATE: July 7, 2021 ORDER Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance is granted. FINDING OF FACT The Veteran's service-connected disabilities require the regular aid and attendance of another person. CONCLUSION OF LAW The criteria for entitlement to special monthly compensation benefits based on the need for aid and attendance of another person have been met. 38 U.S.C. §§ 1114; 38 C.F.R. §§ 3.102, 3.159, 3.350, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from April 1968 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO in February 2018. A transcript of that hearing is of record The Board remanded the case in April 2018, January 2019, and August 2020 for further development. The case has since been returned to the Board for appellate review. Law and Analysis A veteran may receive SMC either by reason of being housebound or based on the need for regular aid and attendance, but may not receive both simultaneously; regular aid and attendance is the greater monetary award. Compare 38 U.S.C. § 1114 (l) with 38 U.S.C. § 1114 (s). In that regard, the Board notes that the issue on appeal was previously characterized as entitlement to SMC based on the need for regular aid and attendance or based on housebound status. However, the agency of original jurisdiction (AOJ) granted entitlement to SMC due to housebound status in an October 2018 rating decision. As such, that issue is no longer in appellate status or before the Board. While a Veteran may generally not receive SMC for both aid and attendance and housebound status simultaneously, as above, aid and attendance is the greater monetary award and thus, remains on appeal. Aid and Attendance Benefits SMC based on aid and attendance is payable if, as the result of service-connected disability, the veteran has an anatomical loss or loss of use of both feet, or of one hand and one foot; has blindness in both eyes with visual acuity of 5/200 or less; is permanently bedridden; or is so helpless as to be in need of regular aid and attendance of another person. 38 U.S.C. §§ 1114(l); 38 C.F.R. § 3.350. Aid and attendance means helplessness or being so nearly helpless as to require the regular aid and attendance of another person. See 38 C.F.R. § 3.350(b)(3). Determinations as to need for aid and attendance must be based on actual requirement of personal assistance from others. In making such determinations, consideration is given to such conditions as: inability to dress or undress himself or keep himself ordinarily clean and presentable, frequent need for adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid, inability to feed himself through loss of coordination of upper extremities or through 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 individual from hazards or dangers incident to his daily environment . 38 C.F.R. § 3.352; see also Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in section 3.352(a) must be present for a grant of special monthly compensation based on need for aid and attendance). "Bedridden" will be a proper basis for the determination of being so helpless as to require regular aid and attendance of another and is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. Id. It is not required that all of the disabling conditions enumerated above be found to exist before a favorable rating may be made. Id. The particular personal functions which the Veteran 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 veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Id. Determinations that the veteran is so helpless, as to be in need of regular aid and attendance will not be based solely on an opinion that the claimant's condition is such that it would require him to be in bed. They must be based on the actual requirements of personal assistance from others. Id. In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the Veteran is entitled to SMC based on the need for regular aid and attendance. The Veteran is currently service-connected for posttraumatic stress disorder (PTSD) evaluated at 100 percent, diabetes mellitus at 20 percent, peripheral neuropathy of the lower extremities, each evaluated at 20 percent, shell fragment wound to the left leg evaluated at 10 percent, shell fragment wound of the abdomen, evaluated at 10 percent, right thumb injury evaluated at 10 percent and several scars evaluated as noncompensable. Relevant to the discussion below, the Board notes that the Veteran has also been diagnosed with non-service connected arthritis of the right hip, bipolar disorder, schizophrenia, and vascular dementia. Review of the medical evidence of record shows that a December 2009 physician's report from the Veteran's then assisted living facility indicated that the Veteran had been diagnosed with vascular dementia, bipolar disorder, PTSD, diabetes, and hypertension. She noted that the Veteran had poor decision making due to poor insight and paranoia and required assistance with medication management, monitoring for safety and wondering and his instrumental activities of daily living (IADLs). She further noted that the Veteran's history of bipolar disorder and dementia impaired his judgment, safety assessment and insight and found that his dementia caused an inability to understand the risks associated with decisions. In February 2010, the manager of his assisted living facility submitted a letter stating that the Veteran had a diagnosis of dementia, along with several other medical conditions, and was in need of significant care with his activities of daily living (ADLs). The Veteran was then afforded a VA psychiatric examination in January 2011, which also addressed the need for aid and attendance. The examiner noted that the Veteran was living in an assisted living facility and was experiencing paranoia and hearing voices. The Veteran was in the facility because he could not cook or clean for himself and his brother, his legal guardian, was concerned about his tendency not to take his medication properly. The examiner then opined that the Veteran had diagnoses of PTSD and bipolar disorder, by history, as well as clear evidence of cognitive problems attributed to vascular etiology. The examiner then opined that the Veteran was unable to live independently, largely due to his dementia. The examiner also opined that his PTSD functional impairment had remained about the same. The Veteran was next afforded a VA examination for aid and attendance in January 2012. That examiner opined that the Veteran was able to feed himself and prepare meals, did not require assistance for bathing or hygiene and noted that the Veteran was able to manage medications as well as his finances. He also noted that the Veteran was able to leave his home as often as required without restrictions. As will be discussed in further detail below, this examination is inadequate as the findings and opinions of that VA examiner are unsupported by the medical evidence of record. In a March 2012 rating decision, the RO increased the Veteran's PTSD to 100 percent and also proposed a finding of incompetency as to disbursement of funds. It also granted SMC based on aid and attendance from February 23, 2010 to January 23, 2012, based on the 2010 statements from the Veteran's assisted living facility and denied the benefit thereafter, due to the findings of the January 2012 VA examination. The Veteran then submitted a DBQ from his psychiatrist in support of his claim in April 2012. His treater opined that due to the Veteran's PTSD, bipolar disorder and dementia, the Veteran was unable to make his own meals, needed assistance with bathing and using the bathroom and was not capable of managing his medications or finances and required assistance with transportation. The Veteran was found not competent for VA purposes in an August 2012 rating decision. During an October 2012 VA psychiatric appointment attended by both the Veteran and his brother, the Veteran reported that he was doing great and was living independently. He was cooking his meals in the microwave and performing his ADLs. His brother was buying his groceries and checking on him every evening to see if he had taken his medication. After that discussion, the treater asked the Veteran to wait in the waiting room and asked the Veteran's brother if he remembered the psychiatrist telling him that the patient was unable to live by himself. The VA treater discussed with the Veteran's brother, the Veteran's legal guardian, that the Veteran's belief that he could care for himself was part of his illness and noted that he could not recognize his need for care. The diagnosis was reviewed, and it was agreed that if multiple family members checked on the Veteran multiple times per day, the arrangement could be tried temporarily, but it would be better if someone moved in with the Veteran. The treater then reminded the Veteran's brother that as the Veteran's guardian, he was responsible to follow the doctor's suggestions as to what was best for the Veteran, otherwise Aging and Adult Services would need to be contacted. In a September 2013 rating decision, the AOJ proposed to decrease the Veteran's PTSD to 50 percent based on clear and unmistakable error. The AOJ indicated that review of the January 2010 VA examination showed that the Veteran was unable to live independently due to his dementia and the service-connected PTSD symptoms had not changed. The AOJ indicated that the January 2010 examiner stated that he was able to separate the symptoms of the Veteran's PTSD and dementia and that the dementia was responsible for the severe symptoms, including an inability to perform activities of daily living. VA medical records show that in July 2014, the Veteran was living with his brother and in September 2014, his brother reported increasingly disruptive behavior and concerns that the Veteran was not taking his medication. The Veteran underwent a VA psychiatric examination in August 2015. That examiner diagnosed the Veteran with PTSD. He noted that the Veteran had been diagnosed with bipolar disorder and schizoaffective disorder by history, but opined that symptoms of those disorders were not observed in the current examination. He also noted that there was evidence that the Veteran occasionally had episodes of paranoia and delusions related to his bipolar/schizoaffective disorder history, but found very little information in the record regarding the PTSD symptoms and related functioning. The examiner opined that the diagnoses reflect what is perceived as a pattern of a carry-over diagnosis of Prolonged PTSD without formally continual assessment of PTSD criteria. During the 2015 VA examination, the VA examiner noted that the Veteran denied intrusive memories about his experiences in Vietnam, however, the examiner noted that the Veteran exhibited significant psychological distress when talking about his experiences and openly wept. The examiner also noted the presence of feelings of detachment, persistent negative emotional state, irritable behavior, clinically significant distress, or impairment in social, occupational, or other areas of functioning, and difficulty adapting to stressful circumstances. The examiner then opined that the Veteran's PTSD caused occupational and social impairment with reduced reliability and productivity and an intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. In October 2015, a treater from the Veteran's VA medical center submitted a DBQ form in support of his claim. She indicated that the Veteran's diagnoses were diabetes mellitus, osteoporosis, schizoaffective disorder, dementia, incontinence, hypertension, chronic heart failure, and neuropathy. She then opined that the Veteran was unable to cook his meals due to his inability to stand for very long, shortness of breath on exertion, and dementia. She indicated that the Veteran needed assistance bathing and other hygiene needs due to osteoarthritis, dementia, shortness of breath, neuropathy, and incontinence. She noted that his dementia caused the need for medical and financial management. VA medical records dated May 2016 indicate that the Veteran had a history of severe PTSD and bipolar disorder. A note for that visit indicated that dementia was in remission. In November 2016, the Veteran was admitted to a VA center after calling 911 with delusions. Treaters noted noncompliance with medications and the Veteran reported his blood sugars had been off, which, treaters noted could possibly explain his agitation, paranoia, and lesions. In a June 2017 rating decision, the AOJ continued the Veteran's PTSD as 100 percent disabling. The decision noted that earlier examinations had indicated total impairment due to multiple mental disabilities, some of which were not service connected, however, it noted that the August 2015 VA examination indicated that all of the Veteran's symptoms were due to his PTSD. The Veteran submitted another DBQ in support of his claim in February 2018. In that form, his treater indicated that the Veteran's diagnoses were schizophrenia, diabetes, hypertension, obesity, diabetic neuropathy, dementia, bipolar disorder, sleep apnea, COPD, venous stasis, and chronic heart failure, as well as two illegible disorders. That provider indicated that the Veteran had difficulty balancing himself, needed help shaving and using the bathroom, as well as meal preparation. A July 2018 VA examination for peripheral neuropathy reported moderate pain, numbness and tingling and found that these symptoms would impact jobs requiring prolonged standing, walking and strenuous activity. The examiner then opined that the lower extremity neuropathy alone would not specifically impact the Veteran's ADLs, however, the examiner did opine that the neuropathy did impact his ambulation, in addition to his non-service connected hip and knee disorders. The Veteran was then afforded a VA examination for aid and attendance in March 2019. At that time, the Veteran reported that he was living in the basement of his niece's home. Prior to that, he had been living at an independent living facility, but had fallen and had trouble walking since that fall. His niece was giving him his medications and meals and he had an aid who came to the home three days per week to assist him with bathing and light cleaning. He reported walking with the assistance of a walker and use of a grabber to reach things from the floor as well as a shower chair for bathing. He then reported an inability to get dressed due to issues with his right leg. The VA examiner opined that the Veteran's right hip disorder, which was not service connected, affected the Veteran's balance and ambulation. The examiner then opined that the Veteran's service connected PTSD, diabetes mellitus with peripheral neuropathy, thumb disorder, shrapnel wounds and scars would not impact the Veteran's ability to feed, dress, bathe, or attend the wants of nature. He found that while the Veteran needed a walker for ambulation around the home and for short distances, this need was due to his severe right hip degenerative joint disease and not his neuropathy. The Veteran submitted another DBQ form in support of his claim in August 2019. That provider indicated that the Veteran required constant care due to his diabetes with neuropathy, bilateral lower extremity edema, chronic heart failure, blood glucose monitoring and diet management. It was also noted that a nurse was needed to monitor the Veteran's weight, vital signs, and diet due to his chronic heart failure and diabetes with hypertension. The Veteran was then afforded a VA examination for aid and attendance in March 2021. That examiner opined that the Veteran required assistance due to his diagnoses of dementia, Parkinson's disease, diabetic peripheral neuropathy of the lower extremities and shell fragment wounds. The examiner noted mild-moderate assistance was required in most areas and noted that the Veteran was unable to dress himself due to diabetic peripheral neuropathy of the right leg. He reported that a caregiver organized his medication and his brother was managing his finances. The Veteran was next afforded a VA psychiatric examination in June 2021. During that examination, the Veteran was diagnosed with PTSD, unspecified neurocognitive disorder, and Parkinson's disease. The examiner then opined that the symptoms of the disorders and their resulting impairments overlap, and it was not possible to differentiate what symptoms were attributable to each diagnosis. The examiner then opined that the Veteran's diagnoses caused total occupational and social impairment. The examiner noted, among other things, that the Veteran experienced intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene and noted that his brother was his fiduciary. First, the Board finds that the evidence of record overwhelmingly demonstrates that the Veteran requires the need of regular aid and attendance of another person. While the January 2012 VA examiner found that the Veteran did not require aid with his activities of daily living, was able to manage his finances and was able to leave his home without restrictions, the Board finds that the evidence of record simply does not support these findings. Additionally, the Veteran has had a legal guardian appointed for the entire relevant time period and was found not competent to handle funds for VA purposes in August 2012. Further, during an October 2012 appointment, a VA medical provider cautioned the Veteran's brother regarding providing too much independence for the Veteran and stated that part of the Veteran's illness was not recognizing his need for care. He recommended that the Veteran not live independently, even with family members checking in on him multiple times per day and frankly stated that Aging and Adult Services would be called if the Veteran's legal guardian could not follow doctor's recommendations. Therefore, although the evidence does sometimes show that the Veteran performs activities of daily living independently, the Board notes that overall, the evidence demonstrates that the Veteran has not been able to cook or prepare meals for himself, clean his home, run errands, manage his medications or finances for the entire relevant period. As to whether or not the Veteran's service connected disorders caused the need for aid and attendance, the Board finds that the evidence cited above permits application of the reasonable doubt doctrine. The March 2019 VA medical opinion found that the Veteran's service connected disorders would not impact his ability to feed, dress, bathe, or attend the wants of nature. However, the Board finds that this examination did not adequately address the Veteran's psychiatric diagnoses in making such a determination. The opinion also failed to address the evidence of record showing that the Veteran could not independently perform his IADLs, or manage his medication and finances. Additionally, while the March 2019 examiner found that it was the Veteran's right hip disorder, which caused his need for a walker, the October 2015 DBQ provider opined that the Veteran's neuropathy contributed to the Veteran's need for assistance with bathing and other hygiene needs and the July 2018 VA examiner opined that the Veteran's diabetic neuropathy contributed to his impaired ambulation. The March 2021 VA examiner also noted that the Veteran was unable to dress himself due to diabetic neuropathy. Thus, after giving the Veteran the reasonable benefit of the doubt, the Board finds that the evidence of record demonstrates that the Veteran's diabetes mellitus with peripheral neuropathy contributes to his inability to safely ambulate and independently bathe, dress, and care for himself. With regard to the Veteran's psychiatric disorders, the Board notes that the Veteran's medical records contain a number of diagnoses and acknowledges that only the Veteran's PTSD diagnosis is service connected. While some providers and DBQ opinions have indicated that diagnoses other than PTSD cause the Veteran's inability to care for himself, other providers and examiners have opined that it is the PTSD that causes the need for assistance and/or that the symptoms of the Veteran's disorders overlap such that it is not possible to differentiate what symptoms are attributable to each diagnoses. As the Board has previously outlined these numerous, varying opinions, it will not discuss them again here. The Board instead notes that due to these varying opinions of record, it is unable to determine what degree of functional impairment is attributable to the Veteran's service-connected PTSD versus his nonservice-connected disorders, and based upon its review of the record, it appears that additional examinations would not provide further clarification. As such, the Board will attribute the Veteran's psychiatric, functional limitations to his service-connected PTSD. See Mittleider v. West, 11 Vet. App. 181 (1998) (where it is not possible to distinguish symptoms attributable to service-connected and nonservice-connected disabilities, the Board will consider all of the symptoms as attributable to the service-connected disability). Accordingly, resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran requires the regular aid and attendance of another person due to his service-connected PTSD and diabetes mellitus with peripheral neuropathy, and SMC based on the need for regular aid and attendance is granted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Nathaniel Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Rideout-Davidson, 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.