Citation Nr: 21042669 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 18-19 740 DATE: July 13, 2021 ORDER Entitlement to special monthly compensation (SMC) based on the need for aid and attendance of another person prior to May 8, 2019 is denied. FINDING OF FACT The Veteran was not in need of the regular aid and attendance of another person due to service-connected disabilities prior to May 8, 2019. CONCLUSION OF LAW The criteria for entitlement to SMC based on the need for aid and attendance of another person prior to May 8, 2019 have not been met. 38 U.S.C. §§ 1114 (l), 5107(b); 38 C.F.R. §§ 3.102, 3.350(b), 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1969 to June 1971. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing. A transcript of the hearing is of record. In June 2020, the Board remanded the case for further development. 1. Entitlement to SMC based on the need for aid and attendance of another person prior to May 8, 2019 The Board previously remanded the issue of entitlement to SMC based on aid and attendance. Under 38 U.S.C. § 1114 (l), SMC for aid and attendance is payable if, as the result of service-connected disability(ies), 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 (b). Need for aid and attendance means being so helpless as to require the regular aid and attendance of another person. 38 C.F.R. § 3.350 (b)(3). 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 or her daily environment. It is not required that all of the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made. Turco v. Brown, 9 Vet. App. 222, 224 (1996). The particular personal functions that the Veteran is unable to perform should be considered in connection with his or her 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. A Veteran will be found to be bedridden if the condition actually requires that he remain in bed, but not if he voluntarily stays in bed or if a physician merely recommends bed rest. 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 or her to be in bed. They must be based on the actual requirement of personal assistance from others. In a November 2020 rating decision, SMC based on the need for aid an attendance was granted effective May 8, 2019. This is not a full grant of the benefits sought on appeal and the issue of entitlement to SMC based on aid and attendance prior to May 8, 2019 is before the Board. AB v. Brown, 6 Vet. App. 35, 39 (1993). Prior to May 8, 2019, the Veteran was service-connected for diabetes mellitus; left lower extremity diabetic neuropathy with big toe and 2nd toe amputations; and right 5th toe amputation associated with diabetes mellitus; a mood disorder; tinea versicolor; and peripheral neuropathy of the bilateral upper and lower extremities. In his April 2018 VA Form 9, the Veteran reported that he was in need of aid and attendance due, in part, to his service-connected diabetes and mood disorder. At his hearing, the Veteran also contended that he was need of aid and attendance in large part because he has problems with movement and balance associated with additional amputations. He testified that all of the remaining toes of his right foot and the front part of his foot were amputated in June 2019. However, in June 2020 written correspondence the Veteran asserted that his additional right foot amputations occurred in August 2017 at the Atlanta VA medical center (VAMC). Records obtained pursuant to the Board's remand demonstrated that the Veteran had amputation of the remaining toes of his right foot on May 8, 2019. A VA examiner in October 2020 opined that there was evidence of surgical amputation of the Veteran's right foot remaining toes and the front part of his right foot, and that this surgery was associated with/necessitated by the Veteran's service-connected diabetes mellitus/diabetic neuropathy. The examiner noted that the Veteran had undergone distal Symes amputation, left hallux in August 2007; second digit metatarsophalangeal joint disarticulation amputation, left foot, in December 2007; partial fifth ray amputation, right foot, in April 2011; revisional 5th ray resection, left foot, in October 2013; and transmetatarsal amputation of the right foot on May 8, 2019. The examiner stated that: The Veteran's service connected disabilities do not render him being unable to: keep ordinarily clean and presentable, feed oneself, or require frequent adjustment of a special prosthetic or orthopedic appliance, or is otherwise unable to attend to the wants and needs of nature. The Veteran is not bedridden as a result of his service-connected disabilities. However, he is incapable due to physical incapacity to protect himself against the hazards and dangers incident in his daily environment and requires assistance with several other activities of daily living. Requires assistance dressing and undressing. Requires assistance with preparation of meals, housecleaning, shopping, and driving. Unable to protect self in an emergency due to restricted ambulation requiring wheelchair or walker. The Veteran's service-connected disabilities render him helpless or so nearly helpless that he requires the aid and attendance of another person. Veteran unable to stand or walk without assistance from person or walker/wheelchair which successfully limits completion of activities or daily living (housecleaning, cooking full meals, shopping, etc.) independently. He is incapable due to physical incapacity to protect himself against the hazards incident in his daily environment and other [activities of daily living]. The November 2020 rating decision granted service connection for, inter alia, amputation of the remaining toes of the right foot, effective May 8, 2019. It also granted SMC based on aid and attendance from that date. The Veteran initially filed his claim for SMC based on aid and attendance in August 2013. The evidence of record does not demonstrate that the Veteran was in need of aid and attendance prior to the date of the amputation of the remaining right foot toes on May 8, 2019. On a September 2011 Social Security Administration function report, the Veteran reported that he was able to shop, prepare meals, drive a car, and do laundry and ironing. On a December 2013 VA nursing triage note, the Veteran indicated that he did not need assistance with meal preparation, housework, or transportation. A June 2014 VA podiatry clinic note indicated that the Veteran had presented to the clinic ambulatory without assistance. A VA amputations examination in December 2014 noted that the Veteran used a cane for balance due to amputations and vascular condition. At that time, his amputations consisted of three toes of the left foot and one toe of the right foot. The examiner noted, however, that the Veteran had great difficulty in standing, walking, and maintaining balance. In October 2016, the Veteran presented to a VA clinic unaccompanied and ambulating without any assistance of a walking cane. In March 2017 the Veteran was noted to be ambulating without assistance. On a November 2017 VA nursing triage note, the Veteran indicated that he did not need assistance with meal preparation, housework, or transportation. On a February 2019 podiatry clinic note, the Veteran reported that a home health nurse came three times per week to change his dressing on his right foot. The Veteran presented to the clinic ambulating with a cane. The October 2020 VA examiner found that the Veteran "requires assistance dressing and undressing. Requires assistance with preparation of meals, housecleaning, shopping, and driving. Unable to protect self in an emergency due to restricted ambulation requiring wheelchair or walker." However, this examination was conducted after the May 2019 amputation of the remaining toes of the Veteran's right foot, and is not reflective of the Veteran's condition prior to that surgery. The medical evidence of record does show that, prior to May 8, 2019, the Veteran had not demonstrated or reported an inability to dress/undress himself, keep himself ordinarily clean and presentable, feed himself, attend to the wants of nature; had a physical ailment requiring prosthesis or an orthopedic appliance; nor had physical or mental incapacity requiring care or assistance on a regular basis to protect the Veteran from the hazards or dangers incident to his daily environment. Rather, at worst, the evidence demonstrates that the Veteran had assistance with changing wound dressings several times per week. In December 2013 and November 2017, the Veteran denied needing assistance with meal preparation, housework, or transportation. The extensive outpatient records consistently show that the Veteran was not in acute distress, and he was consistently able to ambulate without assistance or with a cane despite his amputations that were present then. The Board does not find entitlement to SMC for regular aid and attendance is warranted prior to May 8, 2019. The evidence of record does not reflect that the Veteran actually required the assistance of another in performing his activities of daily living before that date, or that he was bedridden due to his service-connected disabilities for this timeframe. The record does not show that the Veteran's mood disorder caused him to be of the severity level that he is deemed so helpless, and requiring or needing the regular aid and attendance of another person. Historically, the Veteran's mood disorder did not cause him to be bedridden nor did a physician instruct him to be so; and he was capable of all activities of daily living. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to SMC based on the need of the regular aid and attendance of another person for the appeals period prior to May 8, 2019. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. G. Mazzucchelli, 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.