Citation Nr: 21042096 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 15-02 743 DATE: July 12, 2021 ORDER Entitlement to special monthly compensation (SMC) based on the Veteran's spouse's need for aid and attendance is granted, effective October 19, 2013. REMANDED The issues of (1) entitlement to service connection for sleep apnea, (2) entitlement to service connection for insomnia, and (3) entitlement to SMC based on the Veteran's spouse's need for aid and attendance prior to October 19, 2013 are remanded for further development. FINDINGS OF FACT 1. The Veteran was in receipt of a combined disability rating of 80 percent effective October 19, 2013. 2. The Veteran's spouse was diagnosed with diabetes mellitus, congestive heart failure, depression, Parkinson's disease, lupus, fibromyalgia, neuropathies, and breast cancer. The effects of the disabilities caused the need for aid and attendance. CONCLUSION OF LAW The criteria for SMC by reason of the Veteran's spouse's need for aid and attendance are met, effective October 19, 2013. 38 U.S.C. §§ 1115, 5107; 38 C.F.R. § 3.351, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from March 1957 to December 1960 and from December 1988 to January 1991. These matters are before the Board of Veterans' Appeals (Board) on appeal from August 2013 and April 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. Jurisdiction of the Veteran's claims file currently resides with the Milwaukee, Wisconsin RO. In March 2017, the Board denied the issue of entitlement to VA medical treatment for a psychosis or mental illness under 38 U.S.C. § 1702. The Board then remanded the issues of service connection for a psychiatric disability, service connection for sleep apnea, service connection for insomnia, and entitlement to SMC based on Veteran's spouse's need for aid and attendance for additional development. These issues were remanded by the Board once again in November 2017. Thereafter, in May 2020, the Board granted service connection for a mood disorder. The Board then once again remanded the sleep apnea, insomnia, and SMC issues for further development. The case has returned to the Board for appellate review. Spouse's Need for Aid and Attendance The Veteran has claimed that he is entitled to SMC due to his spouse's need for aid and attendance. After reviewing the evidence of record, the Board grants the Veteran's claim, effective October 19, 2013. In support of this determination, the Board notes that any veteran who is entitled to disability compensation at the rates provided in 38 U.S.C. § 1114, whose disability is rated not less than 30 percent disabling, and whose spouse is (1) a patient in a nursing home; or (2) helpless or blind; or (3) so nearly helpless or blind as to need or require the regular aid and attendance of another person, is entitled to SMC by reason of the spouse's need for aid and attendance. 38 U.S.C. § 1115(E)(1); 38 C.F.R. § 3.351(a)(2). 38 C.F.R. § 3.351(b) provides that "need for aid attendance" means "helplessness or being so nearly helpless as to require the regular aid and attendance of another person." 38 C.F.R. § 3.351(c) then provides that a spouse will be considered in need of regular aid and attendance if he or she: (1) is blind or so nearly 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). Under 38 C.F.R. § 3.352(a), a claimant may be determined by VA to need regular aid and attendance if one or a combination of the following limitations is present as a result of service-connected disabilities: the inability of claimant to dress or undress himself (herself), or to keep himself (herself) ordinarily clean and presentable; a frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; the inability of a claimant to feed himself (herself) through loss of coordination of upper extremities or through extreme weakness; the 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 or her daily environment. Turning to the circumstances of the instant case, the Board notes that, following its May 2020 decision and remand, a VA RO issued a rating decision in October 2020 assigning a 70 percent initial rating for service-connected mood disorder, effective October 19, 2013. With this assignment of an initial rating for mood disorder, the Veteran's combined disability rating was increased to 80 percent, effective October 19, 2013. This increase to 80 percent satisfied the eligibility threshold for the Veteran's SMC claim as he now had a combined disability rating greater than 30 percent, effective October 19, 2013. See 38 U.S.C. § 1115(1)(E). Thus, the Board may proceed to address the merits of the Veteran's claim. Moving to the evidence of record, the Board first notes that the Veteran married B.W. in September 1989 in Oakland County, Michigan. The evidence of record indicates that B.W. passed away in December 2014; however, a certificate of death or similar document has not yet been associated with the claims file. See May 2015 VA Primary Care Note. The evidence of record pertaining to B.W.'s need for aid and attendance prior to her passing is limited and consists primarily of: (1) remarks the Veteran made which were documented in his VA treatment records, and (2) a VA Form 21-2680, Examination for Housebound Status of Permanent Need for Regular Aid and Attendance, completed by private provider Dr. Van Ort. In a September 2014 VA mental health care new patient evaluation note, the Veteran discussed his psychiatric history as well as his current concerns regarding his spouse, B.W. Specifically, the Veteran expressed feeling overwhelmed in July 2014 as he was then the primary caretaker for his wife. The Veteran explained that B.W. had Parkinson's disease, lupus, fibromyalgia, and recurrent breast cancer. The Veteran elaborated that, in July 2014, his wife was going through chemotherapy treatments, had significant pain and profuse diarrhea, and acquired an infection of her colon. Lastly, the Veteran reported that he was told that B.W. could die soon due to medical complications. Related to the Veteran's report in September 2014, Dr. Van Ort particularized the scope of B.W.'s needs in the April 2013 VA Form 21-2680. Firstly, Dr. Van Ort indicated that B.W. carried the following current diagnoses: uncontrolled diabetes mellitus; congestive heart failure; depression; Parkinson's disease; lupus; fibromyalgia; neuropathies; breast cancer; and chronic pain. Dr. Van Ort then stated that B.W.'s nutrition was poor and that she ambulated with an unsteady gait. Dr. Van Ort indicated that B.W. could not prepare her own meals and needed assistance attending to basic hygiene needs such as bathing. Dr. Van Ort stated that while B.W. did not require nursing home care, B.W. did need assistance for ambulation and in managing medications. Dr. Van Ort then detailed the following restrictions of B.W.'s upper extremities: weak grip and loss of fine motor skills. Comparatively, regarding the lower extremities, trunk, and mental capacity, Dr. Van Ort indicated that B.W. could only ambulate slowly with a cane, could not bend or twist, had lost control of her bladder, experienced poor balance, and displayed a loss of memory. Lastly, Dr. Van Ort clarified that B.W. needed assistance traveling more than 1 block in distance. From this evidence, the Board concludes that, while B.W. was not blind or a patient in a nursing home, the record has established that B.W. had a need for aid and attendance under 38 C.F.R. § 3.352(a) such that the Veteran's claim must be granted. Specifically, the above evidence establishes that B.W. needed regular aid and attendance (1) in keeping herself ordinarily clean and presentable, and (2) to protect her from the hazards or dangers incident to her daily environment. As the record supports a finding that B.W. had a need for aid and attendance during her lifetime, the Board grants the Veteran's claim effective October 19, 2013the first date he currently satisfies the minimum 30 percent combined disability rating eligibility threshold. See 38 C.F.R. § 1115(1)(E). The Board notes that this decision is only a partial grant of the Veteran's claim pertaining to entitlement to SMC. The issue of entitlement to SMC based on the Veteran's spouse's need for aid and attendance prior to October 19, 2013 is addressed in the Remand portion of the decision below. REASONS FOR REMAND 1. Service Connection for Sleep Apnea In May 2019, the Veteran was provided a VA medical opinion pertaining to the etiology of his sleep apnea. While an additional VA medical opinion was provided in December 2020 pertaining to the theory of service connection for sleep apnea on a direct basisas requested by the Board in May 2020the Veteran has contended, in the alternative, that his current sleep apnea was caused or aggravated by a psychiatric disorder. The Board notes that the May 2019 opinion was the last occasion upon which a theory of secondary service connection was addressed by a VA medical professional. This opinion was provided prior to the Board's May 2020 grant of service connection for a mood disorder, as well as the Agency of Original Jurisdiction's (AOJ) implementation of this grant in October 2020. In now evaluating the adequacy of the May 2019 opinion, the Board finds it to be in conflict with the Court of Appeals for Veterans Claims' (Court) holding in Atencio v. O'Rourke. 30 Vet. App. 74 (2018). In Atencio, the Court held that to be adequate, VA medical opinions in cases addressing secondary service connection must provide separate findings and rationales regarding both causation and aggravation. Id. at 90. Applying Atencio in the instant case, the May 2019 VA medical opinion did not provide functionally separate rationales for the causation and aggravation opinions. Accordingly, an additional VA medical opinion must be provided on remand. 2. Service Connection for Insomnia; SMC based on Spouse's Need for Aid and Attendance prior to October 19, 2013 Regarding the issue of service connection for insomnia, the Board remands it as it is intertwined with the remanded issue of service connection for sleep apnea. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Similarly, regarding the issue of entitlement to SMC based on the Veteran's spouse's need for aid and attendance prior to October 19, 2013, VA received the Veteran's claim for service connection for sleep apnea on October 15, 2012. If the Veteran is awarded service connection for sleep apnea on remand, and an effective date prior to October 19, 2013 is assigned for this award, the Veteran may meet the minimum 30 percent rating eligibility threshold regarding his claim for SMC prior to October 19, 2013. Accordingly, the Board remands the issue of entitlement to SMC prior to October 19, 2013 as it is intertwined with the service connection for sleep apnea issue. See Harris, supra; see also Harper v. Wilkie, 30 Vet. App. 356, 361 (2018) (holding that if a grant of a TDIU does not encompass the entire disability rating period on appeal, it serves as a partial grant and the remaining period remains in appellate status). The matters are REMANDED for the following action: Send the Veteran's claims file to an appropriate VA physician for the issuance of a medical opinion regarding the nature and etiology of the Veteran's sleep apnea. After reviewing the claims file, the clinician should address the following: (a.) Please state whether it is at least as likely as not (50 percent probability or more) that the Veteran's sleep apnea is proximately due to the Veteran's service-connected mood disorder (b.) Please state whether it is at least as likely as not (50 percent probability or more) that the Veteran's sleep apnea was aggravated (worsened beyond natural progression) by the Veteran's service-connected mood disorder. In providing responses to parts (a) and (b), please directly address Dr. Skaggs' April 2016 medical opinion. Additionally, in providing responses for parts (a) and (b), please provide separate explanatory rationales for causation and aggravation. The physician should consider medical and lay evidence dated both prior to and since the filing of the claim. The physician must provide a complete rationale for any opinion rendered. If the clinician cannot provide an opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.S. Pettine, 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.