Citation Nr: 21041425 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 20-00 291 DATE: July 9, 2021 ORDER Entitlement to special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114 (o), from August 20, 2018, is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to SMC pursuant to 38 U.S.C. § 1114 (r)(1), from August 20, 2018, is granted, subject to controlling regulations governing the payment of monetary awards. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran requires assistance in accomplishing the activities of daily living and is unable to protect himself from the hazards and dangers of his daily environment on account of his service-connected depressive disorder not otherwise specified (NOS), cerebrovascular accident with residual migraine headaches, and seizure disorder. 2. The evidence is at least evenly balanced as to whether the Veteran requires assistance in accomplishing the activities of daily living and is unable to protect himself from the hazards and dangers of his daily environment on account of his service-connected loss of use of the left lower extremity and residual left upper extremity paresis. 3. The Veteran is entitled to SMC benefits under 38 U.S.C. § 1114 (o) and has established the need for regular aid and attendance; he is not 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. With reasonable doubt resolved in favor of the Veteran, the criteria for SMC pursuant to 38 U.S.C. § 1114 (o), based on the presence of two SMC (l) awards, are met. 38 U.S.C. §§ 1114 (l), (o), 5107(b); 38 C.F.R. §§ 3.102, 3.350, 3.352. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for SMC pursuant to 38 U.S.C. § 1114 (r)(1) are met. 38 U.S.C. §§ 1114 (r)(1), 5107(b); 38 C.F.R. §§ 3.102, 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1975 to June 1978. His awards include the Army Commendation Medal. This matter comes before the Board of Veterans' Appeals (Board) from a September 2018 rating decision, in which the agency of original jurisdiction (AOJ) denied entitlement to SMC based on the regular need for the aid and attendance of another person or on account of being housebound. As for characterization of the issue on appeal, the Board acknowledges that the September 2018 rating decision only specifically adjudicated the issues of entitlement to SMC based on the regular need for the aid and attendance of another person or on account of being housebound. However, as explained in more detail below, the Veteran and his representative contend that an even higher rate of SMC is warranted based on the severity of the functional limitations caused by the combination of the Veteran's service-connected disabilities. In this regard, the United States Court of Appeals for Veterans Claims (Court) has held that VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C. § 1114. See Bradley, 22 Vet. App. at 280 (finding that SMC "benefits are to be accorded when a Veteran becomes eligible without need for a separate claim"). Therefore, for the reasons set forth below, the Board finds that the Veteran is entitled to SMC pursuant to 38 U.S.C. § 1114 (o) and (r)(1). Entitlement to SMC pursuant to 38 U.S.C. § 1114 (o) and (r)(1). SMC at the aid and attendance rate pursuant to 38 U.S.C. § 1114 (l) is payable when a 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 be in need of regular aid and attendance. See 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). Pursuant to 38 C.F.R. § 3.350 (b)(3) and (4), the criteria for determining that a veteran is so helpless as to be in need of regular aid and attendance, including a determination that he is permanently bedridden, are contained in 38 C.F.R. § 3.352 (a). That regulation provides that the following will be accorded consideration in determining the need for regular aid and attendance: inability of a 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; inability to feed himself through the 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 him from hazards or dangers incident to his daily environment. "Bedridden" is defined as that condition, which, through its essential character, actually requires that a claimant remain in bed. The fact that a 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 above disabling conditions be found to exist before a favorable rating may be made. The particular personal functions that a 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 a veteran is so helpless as to need regular aid and attendance, not that there is a constant need. Determinations that a veteran is so helpless as to be in need of regular aid and attendance will not be based solely upon an opinion that his condition is such as would require him to be in bed. They must be based on the actual requirement of personal assistance from others. See 38 C.F.R. § 3.352 (a). SMC pursuant to 38 U.S.C. § 1114 (o) is warranted if a veteran has suffered disability under conditions which would entitle him to two or more of the rates (no condition being considered twice) provided in 38 U.S.C. § 1114 (l) through (n). 38 U.S.C. § 1114 (o); 38 C.F.R. § 3.350 (e)(1)(ii). For combinations, determinations for entitlement under § 1114(o) must be based upon separate and distinct disabilities. That requires, for example, that where a veteran who had suffered the loss or loss of use of two extremities is being considered for the maximum rate on account of helplessness requiring regular aid and attendance, the latter must be based on need resulting from pathology other than that of the extremities. 38 C.F.R. § 3.350 (e)(3). To be awarded additional SMC benefits at the (r)(1) rate, a veteran must be entitled to SMC benefits at the rate authorized under subsection (o), the maximum rate authorized under subsection (p), or at the intermediate rate authorized between the rates authorized under subsections (n) and (o) and at the rate authorized under subsection (k). The Veteran must also be in need of regular aid and attendance. See 38 U.S.C. § 1114 (r); 38 C.F.R. § 3.350 (h), 3.352. SMC benefits at the (r)(2) rate requires a finding that a veteran requires personal healthcare service provided on a daily basis in the veteran's home by a person who is licensed to provide such service or who provides such service under the regular supervision of a licensed health-care professional. See 38 U.S.C. § 1114 (r). In this case, the Veteran and his representative contend that SMC pursuant to 38 U.S.C. § 1114 (r)(1) is warranted on the basis of entitlement to SMC pursuant to 38 U.S.C. § 1114 (o) and the need for regular aid and attendance. The Board finds, for the following reasons, that the evidence is at least evenly balanced as to whether SMC pursuant to 38 U.S.C. § 1114 (o) and (r)(1) is warranted during the entire claim period from August 20, 2018. The Veteran's claim for SMC was received on August 20, 2018. He is service-connected for the following disabilities: depressive disorder NOS; loss of use of left lower extremity; cerebrovascular accident with residual migraine headaches; residual left upper extremity paresis; seizure disorder, mixed; skull loss; and trigeminal nerve disability. The report of a May 2018 VA aid and attendance examination (VA Form 21-2680) and VA treatment records dated from July 2018 to November 2019 indicate that the Veteran was diagnosed as having seizure disorder, falls, cerebrovascular accident, and weakness. He reported that his gait was impaired/spastic and that he had a tendency to fall to the left and experienced frequent falls, that he had left sided weakness, that he would sometimes forget where he was driving, and that he experienced frequent seizures that were resistant to treatment. He was not confined to bed, was able to feed himself, did not require assistance in bathing and tending to other hygiene needs, was not legally blind, and did not require nursing home care. He was not able to prepare his own meals, required medication management, and did not have the ability to manage his own financial affairs. Examination revealed that the Veteran had a spastic gait on the left, a positional tremor in the upper extremities bilaterally, and left upper and lower extremity muscle weakness (3-4+/5). He had a tendency to fall to the left side, poor coordination, and functional deficit due to seizure disorder and residuals of a stroke. He was only able to leave his home or immediate premises with assistance, was unable to walk independently, required the assistance of a cane and/or another person for ambulation, and was only able to walk one block at a time. In an August 2020 independent medical opinion, A.S.D. Dio, M.D. reported that he reviewed the Veteran's entire claims file and interviewed the Veteran. Dr. Dio summarized relevant records in the Veteran's claims file and explained, in pertinent part, that during his interview with the Veteran, the Veteran reported that he walked with a limp, dragged the tip of his foot, and was "lucky if [he] could make to the mailbox" while walking. His gait had worsened over time and he was experiencing more frequent falls. He experienced disabling weakness of the left side of his body since at least August 2018, experienced frequent falls, and was unable to get up from a fall without holding onto something. He required assistance around the house, had a friend come over to take him places, used a cane and staff to ambulate, and had his furniture set up in a way that it was able to assist him with walking around the house. Also, he experienced difficulty lifting objects with his left hand since at least August 2018 (e.g., he was unable to even carry a cup without it spilling) and performed most tasks with his right hand, had debilitating headaches associated with "double or triple vision" and poor hand-eye coordination, was forgetful, experienced frequent seizures (sometimes several times per day), struggled to take a decent shower, experienced difficulty putting on pants, and was unable to button his shirts and tie his shoes. Dr. Dio opined that it was likely ("at least as likely as not") that, since at least August 2018, the Veteran's service-connected loss of use of the left lower extremity and residual left upper extremity paresis, alone, were of such significance that he required regular aid and attendance. He identified specific records in the Veteran's claims file and reasoned, in pertinent part, that the Veteran's current upper and lower extremity stroke residuals, through loss of coordination and weakness (which led to frequent falls), rendered him unable to dress, ambulate, or feed himself. He was unable to keep himself ordinarily clean and presentable without the help of another person and clearly required care or assistance on a regular basis to protect him from the hazards or dangers of his daily environment. Moreover, Dr. Dio opined that it was likely ("at least as likely as not") that, since at least August 2018, the Veteran's service-connected depressive disorder, cerebrovascular accident with residual migraine headaches, and seizure disorder, alone, were of such significance that he was in need of regular aid and attendance. He identified specific records in the Veteran's claims file and reasoned, in pertinent part, that the Veteran required a caretaker to assist him on a daily basis due to his service-connected depressive disorder, cerebrovascular accident with residual migraine headaches, and seizure disorder. He experienced memory problems attributed to his depression, and this required him to depend upon a caretaker for daily basic tasks and for overseeing his compliance with medication and hygiene. His seizure disorder precluded him from driving, and the frequency of his seizures clearly required someone to provide emergency aid and make sure he complied with his medication regime (especially given his memory difficulties). Also, migraines, such as those experienced by the Veteran, can trigger seizures and can be related to an increased frequency of the seizure episodes. In the absence of regular aid and attendance, he would require hospitalization, nursing home care, or other institutional care. In a statement received in September 2020, the Veteran reported that he lived in an assisted living facility from November 2018 to February 2019, but had to move to his own home in March 2019 for financial reasons. He hired a caretaker who would come to his home approximately twice per day for an hour at a time to take care of most of his daily needs. Due to his service-connected loss of use of the left lower extremity, he was unable to pick up his left foot, would drag his foot, and experienced trips/falls 3 to 4 times per day. In order to walk or stand, he constantly had to hold on to something for balance and constantly used a cane or walker. He would usually need to grip or hold on to the wall when trying to get around his home and had support bars for use in the shower. He also experienced difficulties with his left arm in that he was unable to grip objects and would often drop things in his left hand. This made it very difficult for him to use a cane or walker, as he was only able to grip it with his right hand. As a result, it was very difficult to tie his shoes or button his pants. He was unable to lift anything more than 30 pounds. As a result of the above limitations, the Veteran's caretaker had to assist him with most of his daily activities, such as cleaning, laundry, and cooking. He spent most of the day on the couch watching the news, reading, or using the computer. He was unable to drive due to his left arm and leg disabilities and his caretaker performed all of his errands and brought him to all of his medical appointments. Overall, due to his service-connected loss of use of the left lower extremity and residuals of left upper extremity paresis, he would be unable to complete his activities of daily living without assistance. In a separate statement received in September 2020, the Veteran reported, in pertinent part, that he required regular aid and attendance from his caretaker due to his service-connected depressive disorder, seizure disorder, and cerebrovascular accident, alone. He experienced seizures approximately 5 to 7 times per week, but sometimes experienced 3 seizures in one day. The seizures were random and he did not know what triggered the seizures. He felt momentarily stunned during seizures and felt very disoriented after each seizure. As a result, he was unable to cook and clean, and was only drive himself when going to church 4 miles down the road. At all other times, he required the assistance of his caretaker to drive him places. He experienced problems with memory on a daily basis, his caretaker had to manage his medications, and he had often forgotten to take his medications prior to having the assistance of his caretaker. He would forget to dress properly, required reminders to eat and zip his pants, and would sometimes accidently leave the stove on when not in use. Moreover, he experienced severe depression, would sometimes not want to get dressed or shower due to his depression, and relied upon his caretaker to motivate him to complete these activities of daily hygiene. Overall, due to his service-connected depressive disorder, seizure disorder, and cerebrovascular accident, he would be unable to complete his activities of daily living without assistance. In light of the above, the Board finds that the evidence is at least evenly balanced as to whether the Veteran is in need of regular aid and attendance of another person due solely to the manifestations of his service-connected depressive disorder NOS, cerebrovascular accident with residual migraine headaches, and seizure disorder. Specifically, he requires assistance with medication management due to memory loss, requires assistance with cooking so that he does not forget to turn off the stove, needs to be reminded to maintain basic hygiene, and experiences frequent seizures that require the presence of a caretaker. Moreover, the Board also finds that the evidence is at least evenly balanced as to whether the Veteran is in need of regular aid and attendance of another person due solely to the separate manifestations of his service-connected loss of use of the left lower extremity and residual left upper extremity paresis. As a result of these disabilities, he is unable to tie his shoes or button his clothes, and requires frequent assistance with ambulation due to an impaired gait, weakness, and the risk of falls. Accordingly, as the Veteran suffers from disability under conditions that would entitle him to two or more of the rates provided for in 38 U.S.C. § 1114 (l)-(n), SMC pursuant to 38 U.S.C. § 1114 (o) is warranted during the entire claim period. As explained above, 38 U.S.C. § 1114 (r)(1) provides for increased SMC if a veteran is entitled to SMC at the 38 U.S.C. § 1114 (o) rate and is in need of regular aid and attendance. Here, the Veteran has been found entitled to SMC pursuant to 38 U.S.C. § 1114 (o), and also as being in need of regular aid and attendance. Accordingly, entitlement to SMC pursuant to 38 U.S.C. § 1114 (r)(1) is also warranted during the entire claim period. As noted above, 38 U.S.C. § 1114 (r)(2) provides for a higher level of SMC if, in addition to the need for regular aid and attendance, a veteran needs a higher level of care. "Higher level of care" requires, inter alia, that there is a need for personal healthcare services on a daily basis, provided the person is licensed to provide such services or which provides the services under the supervision of a licensed-health care professional. Personal healthcare services include services such as physical therapy, administration of injections, placement of catheters, the changing of dressings, or "like functions which require professional healthcare training or the regular supervision of a trained healthcare professional to perform." 38 C.F.R. § 3.352 (b)(2). In this case, although the Veteran has reported the assistance of a paid caretaker, there is no indication that personal healthcare services have been provided by a licensed professional, or under the supervision of a licensed professional, or that such services were clearly needed. The Board acknowledges the significant contributions of the Veteran's caretaker to his care, which were certainly considered in the award of SMC. However, there is no indication that the Veteran's caretaker is a licensed healthcare professional, and her care is not apparently given under the supervision of a licensed professional, as defined above. 38 C.F.R. § 3.352. Therefore, the Board finds that a higher level of monthly aid and attendance under the provisions of 38 U.S.C. § 1114 (r)(2) is not warranted at any time during the claim period. 38 C.F.R. § 3.350 (h). (CONTINUED ON NEXT PAGE) Lastly, SMC based on housebound status is a lesser benefit than SMC pursuant to 38 U.S.C. § 1114 (o) and (r) (1). Thus, the award of SMC pursuant to 38 U.S.C. § 1114 (o) and (r) (1) renders the housebound issue moot. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Elwood, 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.