Citation Nr: 22017803 Decision Date: 03/26/22 Archive Date: 03/26/22 DOCKET NO. 17-22 765 DATE: March 26, 2022 ORDER Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance (A&A) from March 30, 2016, for substitution purposes, is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT Throughout the appeal period, the Veteran was so helpless as to be in need of regular aid and attendance of another person due to his service-connected disabilities. CONCLUSION OF LAW Throughout the appeal period, the criteria for SMC based on the need for regular aid and attendance have been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.351, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1967 to February 1969, including service in the Republic of Vietnam from July 1968 to February 1969. He was awarded the combat infantry badge (CIB). The Veteran passed away in February 2017, while his claim for SMC was pending. The appellant is the Veteran's surviving spouse, who has been substituted as the claimant. In March 2020, the Appellant testified at a Board of Veterans' Appeals (Board) hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. She waived Department of Veterans Affairs (VA) Regional Office\Agency of Original Jurisdiction (RO\AOJ) consideration of any additional evidence added to her file. This case was previously before the Board in May 2020, when it was remanded for a finding on whether the Appellant should be substituted as claimant based upon the Veteran's death, and September 2021, when it was remanded for the AOJ to adjudicate the matter of entitlement to service connection for diabetes mellitus, type II, and coronary artery disease (CAD), secondary to herbicide exposure, for substitution purposes, and obtain a medical opinion regarding the impact of the Veteran's service-connected disabilities on his ability to care for himself prior to his death. By a December 2021 rating decision, the AOJ granted service connection for CAD, rated 30 percent, and diabetes mellitus, type II, rated 20 percent; both effective from March 30, 2016, the date of receipt of the Veteran's claim for SMC based on A&A. 1. SMC for Substitution Purposes Generally, SMC is available when, as the result of service-connected disability, a veteran suffers additional hardships above and beyond those contemplated by VA's schedule for rating disabilities. Breniser v. Shinseki, 25 Vet. App. 64, 68 (2011) (citing 38 U.S.C. § 1114 (k)-(s)). The rate of SMC varies according to the nature of the veteran's service-connected disabilities. The basic levels of SMC are set out in section 1114(k). SMC based on aid and attendance is payable when a veteran, due to service-connected disability, has suffered 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 need for aid and attendance is defined as helplessness or being so nearly helpless as to require the regular aid and attendance of another person. To establish a need for regular aid and attendance, the Veteran must (1) be 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 five degrees or less; (2) be a patient in a nursing home because of mental or physical incapacity; or (3) show a factual need for aid and attendance. 38 C.F.R. § 3.351(c). Determinations as to the need for regular aid and attendance are factual and must be based upon the actual requirements for personal assistance from others. In making such determinations, consideration is given to such conditions as: (1) the inability of the claimant to dress or undress himself, or to keep himself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without assistance; (3) the inability of the claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; (4) the inability to attend to the wants of nature; or (5) incapacity, either physical or mental, which requires care or assistance on a regular basis to protect a claimant from hazards or dangers incident to one's daily environment. It is not required that all of the disabling conditions enumerated be present before a favorable rating is made. 38 C.F.R. § 3.352(a). The particular personal functions that the claimant is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the claimant be so helpless as to be in need of regular aid and attendance, not that there is a constant need. Bedridden constitutes a condition that, through its essential character, actually requires that an individual remain in bed. The fact that a claimant has voluntarily taken to bed, or that a physician has prescribed bed rest for a lesser or greater portion of the day will not suffice. 38 C.F.R. §§ 3.350(b)(4), 3.352(a). In Turco v. Brown, 9 Vet. App. 222, 224 (1996), the Court held that eligibility for SMC by reason of regular need for aid and attendance requires that at least one of the factors set forth in VA regulation is met. In addition, determinations that the claimant 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. Id. It is not required that all of the disabling conditions enumerated above be found to exist before a favorable rating may be made. The particular personal functions that the claimant 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 claimant is so helpless as to need regular aid and attendance, not that there be a constant need. 38 C.F.R. § 3.352(a). The appeal period before the Board begins on March 30, 2016, the date VA received the Veteran's claim stating he was applying for A&A because he needed assistance at home with personal care and needed to hire a caregiver to assist him, plus the one-year look-back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). Throughout the appeal period prior to his death, the Veteran had been service-connected for posttraumatic stress disorder (PTSD), rated 70 percent; spondylolisthesis, rated 40 percent; CAD, rated 30 percent; diabetes mellitus, type II, rated 20 percent, as well as left lower leg scar and hearing loss, each rated zero percent. His combined disability rating was 90 percent and he was granted a TDIU rating effective June 11, 1997. A March 2016 VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, shows the Veteran was hospitalized, he had been admitted to the Portland VA Medical Center (VAMC) on November 20, 2015. His diagnoses were diabetes, osteoarthritis, PTSD, hypertension, history of heart attack with stent placement and critical illness polyneuropathy. The examiner noted that the Veteran was able to feed himself using adapted utensils and required set up at meals; he was unable to prepare his own meals, needed assistance in bathing and tending to other hygiene needs and was not legally blind. The Veteran did not require nursing home care; however, he required "heavy care from wife or other caregivers." He required medication management but was able to manage his own financial affairs. Regarding posture and general appearance, the examiner commented that the Veteran was obese and used a power wheelchair for mobility; he required "heavy assist or mechanical lift for transfers." Regarding upper extremity restrictions, the examiner noted shoulder flexion was limited, there was severe right shoulder arthritis, decreased motor ability or the right shoulder/arm due to residual effects of critical illness polyneuropathy. Regarding lower extremity restrictions, the examiner noted the Veteran's lower extremities were weak and he was unable to walk or bear his own weight (he could use a slide board for transfers with assistance.) Restrictions of the spine, trunk and neck were described as chronic degenerative joint disease/stenosis of the lumbar spine. The examiner commented that the Veteran required assistance transferring to a bedside commode, with hygiene and pant management. The Veteran was able to leave home only in his power wheelchair, required wheelchair van transportation and was mobile for 5 or 6 blocks using a power wheelchair. VA treatment records include an April 2016 HBPC (home based primary care) nurse admission report which includes the assessment that the Veteran had chronic joint pain (leg exercises were more painful than helpful due to no cartilage in the knee), depression (directly related to pain, dependence and burden on his wife and others), PTSD (he reported being easily angered and anxiety attacks which exacerbate feeling of helplessness due to inability to seek some helpful interventions, i.e., get outside), and mobility issues due to pain and neuropathy which interfered with safe mobility. This report shows the Veteran had low function/was dependent for ADLs (bathing, dressing, toileting, transferring, continence and feeding). His ability to walk was "severely limited or nonexistent" because he could not bear his own weight, required assistance into a chair or wheelchair. He also required assistance to ambulate to the bathroom and use the toilet. A May 2016 VA PTSD examination report shows diagnoses of PTSD; depression secondary to multiple medical conditions, including service-connected back condition; and rule out neurocognitive disorder based on reports of memory loss following coma. The examiner noted that it is not possible to differentiate what symptoms are attributable to each diagnosis. The examiner noted the Veteran would continue to be serviced by HBPC, with home visits by a psychologist. An October 2016 Care Expense Statement shows the Veteran's in-home care began on March 30, 2016, and he requires assistance with bathing, dressing, eating and/or drinking, mobility and personal hygiene needs for an indefinite period of time. The assistance provider was not a licensed health professional, charged $40 per hour, and provided assistance for 12 hours per week. An August 2016 VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, shows the Veteran was not hospitalized. His diagnoses were spinal stenosis of the lumbar region, bedridden, atherosclerotic heart disease and diabetes mellitus with diabetic nephropathy. The examiner noted that the Veteran was able to feed himself, was not able to prepare his own meals (he was "dependent on family for meal prep due to obesity and lower back pain"), needed assistance in bathing and tending to other hygiene needs (he needed "hands on assist with hygiene care due to obesity and back pain"), required nursing home care (he needed "hands on support with all ADLs due to obesity, pain and osteoarthritis"), required medication management (administration and supervision of medication due to confusion of multiple medications), and did not have the ability to manage his financial affairs (spouse primarily did the bills but Vet was able to assist). He was not legally blind. Regarding posture and general appearance, the examiner noted the Veteran had "morbid obesity, poorly controlled DM [diabetes mellitus], severe chronic PTSD, HTN [hypertension], sleep apnea on BiPAP, significant chronic pain secondary to severe OA [osteoarthritis]/lumbar stenosis, LE [lower extremity] neuropathy, chronic narcotic use, CAD seen today after request by wife for urgent visit." Regarding upper extremity restrictions, the Veteran needed assistance "in getting in and out of bed with hoyer support" and "hands on assist with dressing and grooming;" he was "able to use bathroom but need[ed] pericare." Regarding lower extremity restrictions, the Veteran's service-connected intervertebral disc syndrome with lumbar spinal stenosis impaired his "mobility with pain and restriction." The examiner commented that the Veteran had service-connected combat related PTSD and intervertebral disc syndrome "impacting pain and medical conditions exacerbated with aging and weight gain." The Veteran was "dependent on powered wheel chair use," did "not leave home unless with ambulance (emergency) or powered wheel chair transport" and had "in-home PCP [primary care provider] for healthcare in home." VA treatment records include a February 2017 follow-up report which notes the Veteran had morbid obesity, poorly controlled diabetes mellitus, severe chronic PTSD, hypertension, sleep apnea on CPAP, significant chronic pain secondary to severe osteoarthritis/lumbar stenosis, lower extremity neuropathy, chronic narcotic use and CAD. During her March 2020 Board hearing, the Appellant testified the Veteran couldn't leave the home and was stuck in bed for two years prior to his passing (in February 2017) due to his service-connected back disability, which had been rated 60 percent. A November 2021 VA medical advisory opinion includes the following: (1) PTSD had "no effect" on the Veteran's ability to care for himself. (2) Spondylolisthesis and arthritis of the lumbar spine would have "no effect on his ability to care for himself in regards to his ADL's and IADL's [instrumental activities of daily living]" because the Veteran's "most recent" VA back examination report showed he was "still able to walk 1 block, but standing was difficult unless he shifted his weight" and, "when caring for himself, he would be able to shift his weight." Notably, the most recent VA spine examination was in November 1999, 22 years prior to this medical advisory opinion. (3) Hearing loss would have no effect on his ability to care for himself. (4) Scar on left lower leg related to shrapnel wound would have no effect on his ability to care for himself. (5) The Veteran had diabetes and related complication of neuropathy of lower extremities. (6) No complications related to CAD. The examiner summarized that, "due to his Spondylolisthesis and arthritis of the Lumbar spine and his Diabetic neuropathy, [the Veteran's] ability to stand for prolonged periods of time might have been somewhat reduced, and due to the Spondylolisthesis and arthritis of the Lumbar spine his lumbar ROM would most likely have been somewhat reduced, but these conditions would not have been expected to affect his ability to perform either his Basic Activities of Daily living or Instrumental Activities of Daily Living, and so would not have been expected to have affected his ability to care for himself prior to his death or result in him needing the assistance of another person to care for him." The examiner further opined that the "Veteran's Morbid Obesity condition, which is not SC [service-connected] and is not attributed to his SC conditions by this Examiner, appears to have been the greatest factor in his ability to care for himself" and the Veteran "was also noted to have findings related to Emphysema, which is attributed to a long and heavy tobacco use history, which also most likely contributed to his ability to care for himself." Based on the above, the record shows the Veteran had not lost use of both feet or one hand and one foot and he was not blind in both eyes. As such, the question before the Board is whether, during the appeal rating period prior to the Veteran's death, his service-connected disabilities, individually or collectively, rendered him permanently bedridden or so helpless as to have required regular aid and attendance under the criteria defined in 38 C.F.R. § 3.352(a) described above. The medical evidence clearly shows that the Veteran was so helpless as to need regular aid and attendance. The medical evidence, including the VA examinations for housebound status or permanent need for regular aid and attendance, are clear that the impact of the service-connected disabilities were such that the Veteran was unable to protect himself from the hazards inherent in the environment and, without assistance, would be unable to perform such basic self-care functions as eating, taking medication, and tending to hygiene. Specifically, the August 2016 examiner opined that the Veteran had service-connected combat related PTSD and intervertebral disc syndrome "impacting pain and medical conditions exacerbated with aging and weight gain." Although the record shows the Veteran's morbid obesity played a significant role in his requirement for A&A, the evidence is at least in equipoise that, collectively, the Veteran's service connected disabilities rendered him permanently bedridden or so helpless as to have required regular aid and attendance under the criteria defined in 38 C.F.R. § 3.352(a). The Board acknowledges that the November 2021 medical advisory opinion determined that the Veteran's lumbar spine and diabetic neuropathy conditions would not have been expected to affect his ability to perform either his ADLs or IADLs, and so would not have been expected to have affected his ability to care for himself or result in him needing the assistance of another person to care for him and that his morbid obesity, which was not service connected, "appears to have been the greatest factor in his ability to care for himself." However, as this opinion is based on a 22 year old VA back examination report in determining that the Veteran was able to walk (when subsequent records throughout the appeal period showed he was bedridden and/or chairbound and had restricted mobility due to obesity, lower back pain and neuropathy), it is of diminished probative value and is outweighed by the examination reports which are based on more contemporaneous medical treatment and examination. In addition, in finding that the Veteran's PTSD had no effect on the Veteran's ability to care for himself, this opinion is in contrast to the May 2016 PTSD examination report showing diagnoses of multiple mental health disorders (PTSD; depression secondary to multiple medical conditions, including service-connected back condition; and rule out neurocognitive disorder base on reports of memory loss following coma) and including the finding that it is not possible to differentiate what symptoms are attributable to each diagnosis as well as the August 2016 VA examination finding that the Veteran required medication management (administration and supervision of medication due to confusion of multiple medications). Notably, the Court held that if it is possible to separate symptoms between a nonservice-connected and a service-connected disorder, then for rating purposes VA may (indeed must) ignore the symptoms associated with the nonservice-connected condition. Mittleider v. West, 11 Vet. App. 181 (1998). Here, because on the current record, the separate effects of his service-connected PTSD, low back disability, diabetes mellitus and related lower extremity neuropathy and CAD from any nonservice-connected conditions (such as obesity) have not been disassociated, the Board resolves all reasonable doubt in the Veteran's favor and finds that all such signs and symptoms will be attributed to the service-connected conditions. Accordingly, the Board finds that the evidence is at least in equipoise that the criteria for establishing entitlement to SMC at the aid and attendance rate are met throughout the appeal period since receipt of the Veteran's March 30, 2016, claim for SMC based on A&A. The Board has considered the application of the one-year look-back period; however, as the record shows the Veteran required aid and attendance of another person for over one year prior to his March 30, 2016, claim (and the Appellant has testified he was bedridden for 2 years prior to his death), the one year look back period is not applicable. See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). This award of SMC based on aid and attendance effectively renders moot the issue of entitlement to SMC at the housebound rate, as the latter is a lesser included benefit of the former. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K Hughes 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.