Citation Nr: 22015706 Decision Date: 03/18/22 Archive Date: 03/18/22 DOCKET NO. 17-51 318 DATE: March 18, 2022 ORDER Entitlement to special monthly compensation based on the need for aid and attendance is granted. FINDING OF FACT The Veteran's service-connected disabilities render him sufficiently helpless as to need regular aid and attendance, but do not require him to remain in bed. CONCLUSION OF LAW The criteria for entitlement to special monthly compensation based on the need for aid and attendance have been met. 38 U.S.C. § 1114(l); 38 C.F.R. §§ 3.350, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1965 to May 1969. The Veteran initially requested a Board hearing. See September 2017 VA Form 9. Prior to the scheduled Board hearing, the Veteran withdrew his request. See October 2020 Correspondence (withdrawal of request for a Board hearing). While the record contains evidence not yet considered by the agency of original jurisdiction (AOJ), the Veteran has waived consideration of that evidence by the AOJ prior to a decision on the merits. January 2022 AOJ Waiver. In addition, the claim on appeal may be granted on the current record. Therefore, the Board may proceed to the merits. See 38 C.F.R. § 20.1305(c). Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is granted. The Veteran contends that his service-connected disabilities render him so helpless as to be in need of regular aid and attendance. See January 2020 Informal Hearing Presentation. Under 38 U.S.C. § 1114(l), SMC is payable if, as the result of service-connected disability, the Veteran has 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). Under 38 C.F.R. § 3.352(a) , the following factors will be accorded consideration in determining whether the Veteran is in need of regular aid and attendance of another person: the inability of the Veteran 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 such aid; inability of the Veteran to feed himself because of the loss of coordination of upper extremities or because of extreme weakness; and 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 Veteran from the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). It is not required that all the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found to exist before a favorable rating may be made. The particular personal functions which the 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 the Veteran is so helpless as to need regular aid and attendance, not that there is a constant need. 38 C.F.R. § 3.352(a); see also Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in section 3.352(a) must be present for a grant of SMC based on need for aid and attendance). The Veteran is in receipt of service connection for posttraumatic stress disorder (PTSD) rated 70 percent disabling, ischemic heart disease (IHD) rated 60 percent disabling, residuals of a shell fragment wound rated 10 percent disabling, a right thigh scar rated 10 percent disabling, hemorrhoids rated noncompensable, and a chest scar rated noncompensable. The Veteran's representative argues that the Veteran's IHD and PTSD render him unable to perform basic hygiene and daily living tasks, particularly including the Veteran's memory dysfunction and poor coordination allegedly resulting from PTSD that prevents him from managing his own medications. See January 2020 Informal Hearing Presentation. The record contains two VA 21-2680s. The December 2015 VA 21-2680 attributes his restrictions on activities to dyspnea, aortic aneurysm, and abnormal UGI, though, in discussing inability to manage medication, the nurse who filled out the form attributed those deficiencies to "brain surgery [which] messed up reading skills." The nurse does not indicate how the "aortic aneurysm" (which medical records show was treated and was associated with the Veteran's IHD) affects the Veteran's ability to complete activities of daily living. The brain abscess ("brain surgery") is not service-connected and, from medical records, the dyspnea is due to non-service-connected COPD and CAD. Thus, the December 2015 VA 21-2680 does not support the finding that the Veteran is rendered helpless due to service-connected conditions as the opinion primarily focuses on non-service-connected conditions. The June 2016 VA 21-2680 was completed by the Veteran's treating physician and attributes the Veteran's inability to perform activities of daily living to COPD, CAD, cerebral abscess, low back condition, PTSD, and neuropathy. Only the CAD and PTSD are service-connected. Most significantly, the treating physician indicated that the Veteran's memory and other cognitive deficiencies prevented him from managing his own medications and managing his financial affairs. Most of the other deficits were due to his COPD, low back, peripheral neuropathy, and balance/gait issues due to the brain abscess and other non-service-connected conditions. The overall assessment, however, is of limited probative value because it does not separate the effects of service-connected from non-service-connected conditions, particularly including physical limitations due specifically to CAD. There is not an opinion of record focusing solely on the Veteran's service-connected conditions in addressing his ability to perform activities of daily living and self-care. However, the VA examinations of record provide additional context and, as the Veteran's representative argues, place the evidence in approximate balance as to whether the Veteran's CAD and PTSD cause sufficient functional limitations to qualify the Veteran for SMC based on the need for aid and attendance. The October 2012 VA examination which most recently assessed the Veteran's CAD for rating purposes noted that the Veteran's CAD requires continuous medication and he has a history of myocardial infarction and coronary bypass surgery. The examiner estimated the Veteran's lowest level of activity at which he experiences symptoms as >3-5 METs which is consistent with activities such as light yard work, mowing the law, and brisk walking. The examiner noted that the Veteran has exertional dyspnea and chest pain that is relieved with NTG. The examiner opined that the Veteran's heart condition has both physical and sedentary functional impact. Therefore, the opinion supports the finding that some of the physical limitations identified in the June 2016 VA 21-2680 are attributable to CAD. More importantly, the January 2021 VA examination which assessed the Veteran's PTSD concluded that, due to extensive overlap in the symptoms of the two diagnoses, it was not possible to separate the symptoms of the Veteran's PTSD from those of the mild neurocognitive disorder due to a brain abscess. The examiner opined that the Veteran had total occupational and social impairment and that his symptoms included mild memory loss (such as forgetting names, directions or recent events), memory loss for names of close relatives, own occupation, or own name, impaired judgment, and spatial disorientation. The examiner noted difficulties reading and writing as well as balance issues. The examiner opined that the Veteran was unable to manage his own financial affairs, including due to memory as well as his difficulties with reading and doing simple math. VA and private treatment records are consistent with the above assessments. See, e.g., February 2021 VA Evaluation for Caregiver Support Program (noting Veteran is not able to understand the current treatment plan due to "memory processing deficits" and "wife manages all of the Veteran's care"). The above-summarized assessments, as well as the record as a whole, create an approximate balance of the evidence as to whether the Veteran's service-connected conditions render him so helpless as to be in need of regular aid and attendance of another person. While the Veteran has serious non-service-connected disabilities that contribute substantially to his current functional deficits, the opinions of record establish that his service-connected conditions render him unable to handle his medications, to otherwise manage his medical treatment, or to manage his financial affairs. His spouse competently, credibly, and persuasively reported providing extensive assistance in all of these areas. See, e.g., February 2020 Spouse Statement. While his mild neurocognitive disorder due to the brain abscess does contribute to these deficiencies as well as balance issues which result in the need for assistance with bathing and safely navigating his home, the January 2021 VA examiner opined that it would require speculation to separate the effects of the mild neurocognitive disorder from the PTSD. There is no contrary opinion of record that the effects of the two disabilities can be separated. Therefore, giving the Veteran the benefit of every doubt, the Board will attribute all such functional deficiencies to his service-connected PTSD for the purpose of assessing whether he is entitled to SMC based on the need for aid and attendance. The evidence is wholly against finding that the Veteran is bedridden. The Veteran and his representatives have not made any such argument and the evidence establishes that the Veteran does move about his house and, occasionally (but somewhat routinely), leaves his house to go to medical appointments and attend church. The Veteran's service-connected disabilities do not render him unable to leave his bed. Because there is an approximate balance of the evidence on the issue of whether his service-connected disabilities render him so helpless as to be in need of regular aid and attendance of another person, the claim of entitlement to SMC based on the need for aid and attendance will be granted. Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Lynch v. McDonough, 21 F.4th 776, No. 2020-2067 (Fed. Cir. Dec. 17, 2021). R. JANOFSKY Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kerry Hubers 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.