Citation Nr: 21042700 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 17-02 864 DATE: July 13, 2021 ORDER Entitlement to special monthly compensation for aid and attendance due to service connected disabilities is denied. FINDING OF FACT The evidence of record is insufficient to establish that the Veteran's service-connected disabilities alone render him so helpless as to be in need of regular aid and attendance. CONCLUSION OF LAW The criteria for special monthly compensation for aid and attendance due to service connected disabilities have not been met. 38 U.S.C. § 1114(l); 38 C.F.R. §§ 3.350(b)(3), 3.352(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1968 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, the Board remanded the claim for a VA examination and opinion for the Veteran's claim. As that directive has been complied with, the Board may now adjudicate the claim on the merits. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran seeks special monthly compensation (SMC) based upon need of regular aid and attendance because of his service-connected disabilities. Under 38 U.S.C. § 1114(l), special monthly compensation is payable if, as the result of service-connected disability, the Veteran is so helpless as to be in need of regular aid and attendance of another person to perform the personal functions required in everyday living. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). Relevant factors considered in determining the need for regular aid and attendance include an inability of a claimant to dress or undress himself, or to keep himself ordinarily clean and presentable; an inability to feed himself; an inability to attend to the wants of nature; or incapacity, either 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. 38 C.F.R. § 3.352(a); see also Prejean v. West, 13 Vet. App. 444, 447-48 (2000). The Veteran's service-connected disabilities are bronchial asthma, diabetes mellitus type 2 with bilateral eye cortical cataracts and nuclear sclerosis, diabetic neuropathy of the bilateral lower extremities, and erectile dysfunction. Turning to the evidence since the Veteran's July 2015 claim, a July 2015 VA occupational therapy note recorded that the Veteran "reports he is getting overall minimal a[ssistance] with basic self-care A[ctivity of] D[aily] L[iving] tasks." His wife would assist him with tying his shoes due to his inability to bend over; with putting on pants, as he could not lift his leg due to knee pain; with putting on his shirt when his shoulder "goes out"; and with injecting insulin into the back of his arm, as "he is tired of getting them in the abdomen." The Veteran submitted a July 2015 aid and attendance disability benefits questionnaire from Dr HN. After listing both the Veteran's service-connected and non-service-connected disabilities, Dr HN wrote that the Veteran "needs home aid & attendance." In August 2015, VA examinations were provided. The functional impact of the Veteran's diabetes was "limited from doing strenuous activities," and the impact of his diabetic neuropathy of the lower extremities was "limited from working at heights or hazards." The Veteran stated his eye complications from diabetes caused blurry vision, which he primarily noticed while driving. At a September 2015 VA treatment session, the Veteran reported his asthma symptoms interfered with his normal activity as it "slows [him] down" a lot. He had been hospitalized once for the asthma in the prior five years. Next to "baseline functional status" the clinician wrote "performs ADLs independently." It was noted that the Veteran has shortness of breath with exertion. In his March 2016 notice of disagreement, the Veteran wrote that he needs his wife to help him with driving to appointments, taking his medication, "some help" with dressing, insulin injections, and for "forgetful moments." Of record is a letter from the Veteran's wife stating that "because of [the Veteran's] forgetfulness, . . . he is afraid to drive," so she drives him "everywhere." She wrote that "his diabetes is under [her] control" and that she makes sure he takes all his medicines. She added that she "ended [her] job to take care of him." In a March 2016 letter, Dr HN wrote that the Veteran "has multiple medical problems and needs aid and attendance. Patient's wife needs to drive husband to his appointments, and she also takes care of his diabetes. P[atient] also has a history of agoraphobia and panic disorder, and his wife helps take care of him, giving him his medications." A May 2016 physical medicine rehabilitation note for the Veteran's bilateral knee severe degenerative joint disease recorded that the Veteran "bikes in garage every morning" for 20 minutes and that he had recently returned from attending a wedding. A June 2016 VA post-procedure note found the Veteran was able to dress independently and to ambulate independently. Surgery notes from the end of October 2016 related that the Veteran was unable to climb one flight of stairs without shortness of breath and could walk a quarter-mile until becoming short of breath. The pre-surgical admission note wrote that the Veteran's "ADL status" was "Independent does not require assistance from another person for any activities." The discharge note wrote "mobility upon discharge: Ambulatory/Independent." In the Veteran's January 2017 substantive appeal he stated, "My wife does the most important things for me. Fixing my medicines for asthma, diabetes, and others. She monitors and prepares. She drives me to the doctors for ALL appointments. I totally depend on her for my care with the chronic asthma and diabetes." A September 2018 treatment note wrote that "Both [the Veteran and his wife] can cook, but currently wife of p[atient] does most of cooking." It was recorded that "Daily, p[atient] will have some work to do in his yard, sometimes taking up the whole day and skipping meals." As directed by the Board's prior January 2019 decision, an aid and attendance examination was provided in September 2019. The Veteran reported worsening asthma over the past few years with daily shortness of breath, wheezing, nebulizer twice a day, and use of handheld inhaler. Due to his asthma, he said he was unable to exercise and "very limited in his daily activities." Due to his knee conditions, he used a wheelchair; he could walk without assistance, though less than 20 feet, and his wife would walk behind him in case he fell. He reported that he could leave his home any time as long as his wife was with him, and "once every few weeks" he drove himself across the street to the grocery store. He did not travel any further, as his wife feared the Veteran could "get lost." At times he could lose his balance due to his knee conditions. He stated he "depends totally on his wife for cooking, cleaning, helping with getting dressed, undressed, to the toilet, walking around." The examiner noted that "per wife, this is 'in fear of falling.'" The Veteran reported that when standing up he felt dizzy and like falling over. He also had short-term memory loss, described as "[he] does not remember what was just done or said." In the September 2019 examiner's opinion, the Veteran would be unable to manage his own financial affairs, listing three conditions: "poor pulmonary health from shortness of breath due to asthma, . . . chronic knee pain causing decreased mobility and strength lessening ability to take on daily tasks, . . . [and] diabetes, not well-controlled per the Veteran, . . . causing feeling of lightheadedness, less ability to concentrate in tasks requiring attention such as paying bills, balancing the checkbook[,] etc." With respect to the Veteran's service-connected asthma, diabetes, diabetic neuropathy of the lower extremities, and erectile dysfunction, the September 2019 examiner found that the Veteran "does not need aid and attendance based on" these conditions alone. The examiner noted that the Veteran's asthma "appears to be controlled with nebulizers and inhalers," that his diabetes has not caused complications such as "any MI [or] CVA" and has not impaired use of his arms and legs, and that his diabetic neuropathy in the legs "ha[s] not stopped him from walking [or] from driving his car." In the examiner's opinion, "[the Veteran] has other non-service connected problems that disabled him and required aid and attendance such as his knee condition with severe osteoarthritis and polymyalgia rheumatica. These conditions cause him to be confined to the wheelchair[,] to not be able to walk around freely without help due to fear of falling because of weakness in the knees, to be able to dress, to bathe, to cook[,] to clean[,] etc[.,] without help. He can still do his toileting as he has full control of his bowel and bladder." In a November 2019 VA post-procedure note, the Veteran was found to be able to dress independently and ambulate independently. Based on all the evidence, the Board finds that the evidence fails to establish that the Veteran's service-connected disabilities alone render him so helpless as to be in need of regular aid and attendance. Treatment records across the appeal period reflect that the Veteran was found to be able to perform activities of daily living, to be mobile, and to be independent. Where the Veteran has reported limitations of the type that would support a need for aid and attendance, such as requiring help dressing or walking, these limitations have been opined as related to non-service-connected conditions. For example, at the September 2019 examination it was indicated that though the Veteran can walk, the Veteran's wife often walks directly behind him or pushes him in a wheelchair due to a concern that he could fall, which the examiner stated was associated with the Veteran's non-service-connected knee conditions. In July 2015 the Veteran stated he needs assistance getting dressed due to his non-service-connected shoulder and knee conditions. In this regard, the Board also notes that the Veteran's physician, Dr HN, has submitted multiple documents asserting that the Veteran needs aid and attendance. As mentioned in the Board's prior decision, Dr HN's submissions were based on all of the Veteran's conditions, such as his non-service-connected agoraphobia, panic disorder, and knee conditions, and therefore Dr HN's documents are of less probative value as to whether the Veteran needs aid and attendance due to solely to his service-connected disabilities. See, e.g., Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). The Board acknowledges that the Veteran's service-connected conditions, to include his asthma and diabetes, impose limitations on his ability to undertake certain activities, and that this has led the Veteran's wife to leave her job in order to cook, clean, dress, and otherwise take care of the Veteran. The fact that the Veteran is currently in a family arrangement where he receives aid and attendance for all of his disabilities, however, is not sufficient to establish entitlement to SMC for aid and attendance. Rather, to establish entitlement to VA special monthly compensation for aid and attendance, the evidence must show that the Veteran's service-connected disabilities impose such limitations that the Veteran would be helpless and in strict need of regular aid and attendance due to those service-connected disabilities alone. Based on the evidence of record in this case, the Board finds that it has not been established that the Veteran's service-connected disabilities alone would render him so helpless as to be in need of regular aid and attendance. 38 C.F.R. §§ 3.350(b)(3), 3.352(a). (Continued on the next page) Accordingly, entitlement to special monthly compensation for aid and attendance is denied. 38 U.S.C. § 1114(l); 38 C.F.R. §§ 3.350(b)(3), 3.352(a). K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Davis, Associate 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.