Citation Nr: A21003790 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 201109-118882 DATE: February 18, 2021 ORDER Entitlement to a higher level of special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(r)(1), based on the award of SMC pursuant to 38 U.S.C. § 1114(o) and the need for regular aid and attendance, is granted. FINDINGS OF FACT 1. Due to the service-connected loss of use of the bilateral feet and diabetic peripheral neuropathy of the bilateral lower extremities, the Veteran requires care or assistance on a regular basis. 2. Due to the service-connected ischemic heart disease and diabetes mellitus, the Veteran requires care or assistance on a regular basis. 3. The Veteran has incurred disabilities under conditions which would entitle him to two SMC awards pursuant to 38 U.S.C. § 1114(l), without consideration of any condition twice. 4. The Veteran is entitled to an additional monthly allowance of SMC at the rate under 38 U.S.C. § 1114(r)(1), based on entitlement to the rate under 38 U.S.C. § 1114(o) and the need for regular aid and attendance. 5. The Veteran has not been deemed to be in need of personal health-care services provided on a daily basis in his home by a person who is licensed to provide those services or who provides those services under the regular supervision of a licensed health-care professional. CONCLUSIONS OF LAW 1. The criteria for an award of SMC pursuant to 38 U.S.C. § 1114(o), based on the presence of two SMC awards pursuant to 38 U.S.C. § 1114(l), have been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R.§§ 3.102, 3.350, 3.352(a). 2. The criteria for entitlement to payment of SMC pursuant to 38 U.S.C. § 1114(r)(1) level, but not higher, are met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1962 to September 1968. These matters come to the Board of Veterans Appeals (Board) on appeal from an October 2020 rating decision. In a November 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. 1. Entitlement to special monthly compensation (SMC) 38 U.S.C. § 111 (r)(1) benefits, based on the award of SMC 38 U.S.C. § 1114(o) and the need for regular aid and attendance Service connection has been established for prostate cancer, rated 100 percent; sarcoidosis, rated 100 percent; loss of use of the bilateral feet, rated 100 percent; ischemic heart disease, rated 60 percent; diabetes mellitus, rated 20 percent; and erectile dysfunction, rated 0 percent. The combined service-connected disability rating has been 100 percent since November 15, 2006. The Veteran is also in receipt of SMC benefits, pursuant to 38 U.S.C. § 1114(k)(1), (s)(1), (l)(1), (p)(2). SMC is authorized in particular circumstances in addition to compensation for service-connected disabilities. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352. SMC is authorized under subsections 38 U.S.C. § 1114(k) through 38 U.S.C. § 1114(s), with the rate amounts increasing the later in the alphabet the letter appears, except for the 38 U.S.C. § 1114(s) rate. SMC at the 38 U.S.C. § 1114(k) and 38 U.S.C. § 1114(r) rates are paid in addition to any other SMC rates, with certain monetary limits. As relevant to the Veteran’s claim, SMC at the 38 U.S.C. § 1114 (l) rate is payable when a veteran, due to service-connected disability, has 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. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). The following will be considered in determining the need for regular aid and attendance: inability of a claimant to dress or undress, or to keep 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 a claimant to feed him or herself through loss of coordination of the 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 a claimant from the hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352(a). It is not required that all of the disabling conditions enumerated in the provisions of 38 C.F.R. § 3.352(a) be found in order to establish eligibility for aid and attendance, but eligibility requires at least one of the enumerated factors be present. The particular personal function that a Veteran is unable to perform should be considered in connection with the condition as a whole. Also, it is only necessary that the evidence establish that a Veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Turco v. Brown, 9 Vet. App. 222 (1996); 38 C.F.R. § 3.352. SMC at the 38 U.S.C. § 1114(o) rate is warranted, if a Veteran, as the result of service-connected disability, has incurred disability under conditions which would entitle that Veteran to two or more of the rates provided in one or more subsections 38 U.S.C. § 1114(l) through 38 U.S.C. § 1114(n), with no condition being considered twice in the determination. 38 U.S.C. § 1114(o); 38 C.F.R. § 3.350(e)(1)(ii). To be awarded SMC rate under 38 U.S.C. § 1114(r)(1), the Veteran must be entitled to SMC at the rate authorized under 38 U.S.C. § 1114(o), the maximum rate authorized under 38 U.S.C. § 1114(p), or at the intermediate rate authorized between the rates authorized under 38 U.S.C. § 1114(n) and 38 U.S.C. § 1114(o) and at the rate authorized under 38 U.S.C. § 1114(k). The Veteran must also be in need of regular aid and attendance. 38 U.S.C. § 1114(r); 38 C.F.R. §§ 3.350(h), 3.352. Currently, the Veteran is in receipt of SMC, pursuant to 38 U.S.C. § 1114(l). The Board finds that the Veteran’s service-connected disabilities, when considered separately, each meet the criteria for the need for regular aid and attendance under 38 U.S.C. § 1114(l), and separate ratings are warranted. A January 2018 VA Aid and Attendance Worksheet shows that the Veteran was said to be in need of the aid or attendance of another person in the ordinary activities of daily living, as a result of diabetes mellitus, diabetic left and right lower extremity neuropathy, and prostate cancer. The examiner specified that the Veteran experienced increased falls with injury in the prior six months related to diabetic neuropathy and associated bilateral foot drop and unstable gait. Therefore, as a result of service-connected diabetic neuropathy with foot drop, he required care or assistance on a regular basis to protect him from the hazards or dangers incident to the daily environment. Thus, the Board finds that the Veteran meets the criteria for regular aid and attendance due solely to those service-connected disabilities. That is further supported by the conclusion of an August 2019 VA Aid and Attendance examiner that due to the veteran’s service-connected bilateral lower extremity peripheral neuropathy with foot drop and resultant impaired balance with ambulatory dysfunction, the Veteran needed care from another person with activities of daily living. Additionally, a June 2020 VA Aid and Attendance examination report shows that the Veteran was in need of the regular aid and attendance of another as a result of coronary artery disease and diabetes with complications. The Veteran required help with dressing and hygiene. He could not support himself. He was short of breath. He could only leave his immediate premises with an attendant. Thus, the Board finds that the Veteran is twice entitled to 38 U.S.C. § 1114(l) rate, as the service-connected disabilities distinctly affect separate parts of the body and require care and assistance. As the Veteran is twice entitled under the 38 U.S.C. § 1114(l) rate, entitlement to the SMC 38 U.S.C. § 1114(o) rate is warranted. 38 U.S.C. § 1114(o); 38 C.F.R. § 3.350(e)(1)(ii). In turn, entitlement to the SMC 38 U.S.C. § 1114(o) rate meets the threshold requirement for entitlement to the SMC 38 U.S.C. § 1114(r)(1) rate. The law states that when one is entitled to SMC 38 U.S.C. § 1114(o), and establishes a factual need for regular aid and attendance, entitlement to special aid and attendance is demonstrated. 38 U.S.C. § 1114(r); 38 C.F.R. § 3.350(h). The need for aid and attendance need not be independent of the underlying disabilities used to meet the threshold eligibility requirement, as the regulation provides an exception to the pyramiding rule. 38 C.F.R. § 3.350(h)(1). Here, the Board finds that a factual need for regular aid and attendance has been established. Based on a review of the evidence, the Board finds that entitlement to SMC at the 38 U.S.C. § 1114(r)(1) rate is warranted, based on a demonstrated factual need for a special level of aid and attendance. However, the Board finds that the Veteran’s disabilities do not warrant SMC at the 38 U.S.C. § 1114(r)(2) higher level of care rate. The need for a higher level of care which necessitates the payment of 38 U.S.C. § 1114(r)(2) means that the Veteran requires personal health-care services provided on a daily basis in their 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. Personal health-care services include (but are not limited to) such services as physical therapy, administration of injections, placement of catheters, and the changing of sterile dressings, or similar functions which require professional health-care training or the regular supervision of a trained health-care professional to perform. A licensed health-care professional includes (but is not limited to) a doctor of medicine or osteopathy, a registered nurse, a licensed practical nurse, or a licensed physical therapist. 38 C.F.R. § 3.352(b)(2). The VA examination reports do not show that the Veteran requires physical therapy, administration of injections, placement of indwelling catheters, or changing of sterile dressing. Thus, based on the definition of “personal health care services” he does not qualify since he does not require any of the listed services. While the Veteran requires the assistance of his spouse or other family members, the evidence does not show that the required care needs to be skilled. Therefore, entitlement to SMC based on the need for aid and attendance as contemplated by 38 U.S.C. § 1114 (r)(2) is not warranted. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Layton, 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.