Citation Nr: 23021079 Decision Date: 04/05/23 Archive Date: 04/05/23 DOCKET NO. 18-18 423 DATE: April 5, 2023 ORDER The clam of entitlement of special monthly compensation based on the need for aid and attendance is granted. FINDING OF FACT The Veteran's service-connected disabilities, particularly his service-connected schizophrenia, render him so incapable of performing the activities of daily living that he requires care or assistance on a regular basis. CONCLUSION OF LAW The criteria for special monthly compensation based on the need for regular air and attendance are met. 38 U.S.C. §§ 1114, 5107(b); 38 C.F.R. §§ 3.350, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served on active duty in the United States Army from May 2000 to February 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2017 rating decision issued by a Department of Veteran Affairs (VA) Regional Office (RO). The Veteran filed a notice of disagreement (NOD) on August 11, 2017. In September 2017 the RO issued a statement of the case (SOC). In March 2018 the Veteran filed a VA Form in April 2018. In September 2018 the RO issued a supplemental statement of the case (SSOC). In September 2018, the Veteran filed a new VA Form 9 and requested to have a hearing before a Veterans' Law Judge (VLJ). In October 2021, the Veteran was afforded a hearing before the undersigned VLJ, the transcript of which has been associated with the claims file. This matter was previously before the Board and the Board issued a denial for the Veteran's claim for SMC in February 2022. The Veteran appealed the Board's decision to the Court of Appeals for Veterans Claims (CAVC). CAVC granted a joint motion for partial remand (JMPR) on December 7, 2022. This matter is now properly before the Board. 1. Entitlement to Special Monthly Compensation. Special monthly compensation is available when, as the result of a service-connected disability (or disabilities), "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). Generally, claims for special monthly compensation are governed by the provisions set forth in 38 U.S.C. § 1114 (k) through (s), which provide various rates according to the nature of the service-connected disabilities. VA has promulgated regulations implementing section 1114. 38 C.F.R. §§ 3.350, 3.352. Under VA laws and regulations, special monthly compensation is payable if, as the result of a service-connected disability (or disabilities), the Veteran has: (1) anatomical loss or loss of use of both feet, or of one hand and one foot; (2) has blindness in both eyes with visual acuity of 5/200 or less; (3) is so helpless as to be in need of regular aid and attendance of another person; or (4) is permanently bedridden. 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). Generally, "[w]here possible, determinations should be on the basis of permanently bedridden rather than for need of aid and attendance." 38 C.F.R. § 3.350 (b)(4). "Bedridden" means a condition which, through its essential character, requires that the Veteran remain in bed. 38 C.F.R. § 3.352 (a). The fact that a veteran has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure does not suffice. Id. "Aid and attendance" means that a veteran is so helpless as to be in need of regular aid and attendance based on the criteria in 38 C.F.R. § 3.352 (a). Section 3.352(a) provides that the following "will be accorded consideration" in determining the need for regular aid and attendance: (1) the inability to dress or undress oneself, or to keep oneself ordinarily clean and presentable;(2) the frequent need of adjustment of any special prosthetic or orthopedic appliances, which by reason of the particular disability cannot be done without aid (not including the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); (3) the inability of the claimant to feed oneself through loss of coordination of upper extremities or through extreme weakness; (4) the inability to attend to the wants of nature; or (5) 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. Importantly, "[i]t is not required that all of the disabling conditions enumerated... be found to exist before a favorable rating may be made." 38 C.F.R. § 3.350 (b)(2) (emphasis added). "The particular personal functions which 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." Id. It is mandatory for VA to consider the enumerated factors within the regulation. Turco v. Brown, 9 Vet. App. 222, 22425 (1996). Eligibility requires at least one of the enumerated factors to be present. Id. The "particular personal function" refers to the enumerated factors. Id. If at least one of the factors is present, special monthly compensation should be awarded. Prejean v. West, 13 Vet. App. 444, 448 (2000); Turco, 9 Vet. App. at 225. The Board has carefully and sympathetically reviewed the Veteran's entire claims file for the period on appeal. In May 2017, the Veteran was evaluated for housebound status or permanent need for regular aid and attendance. The May 2017 examiner noted that the Veteran is unable to feed himself, that his family and girlfriend cook his meals, that the Veteran has poor hygiene and bathing. The examiner noted that the Veteran's girlfriend helps him in his needs. The examiner also noted that the Veteran is a hazard and danger to himself and others due to his suicidal thoughts. The examiner noted that the Veteran's girlfriend reminds him to take medications, that the Veteran suffers from memory loss, misplaces things, and can't remember names. The examiner also noted that the Veteran stares at the sky and often looks down. The examiner noted that the Veteran's girlfriend assists him in cooking and preparing his meals, personal care, and cleaning of his nature. In an August 2017 psychiatric note, it was noted that the Veteran has chronic suicidal thoughts and hears voices telling him to commit suicide. It was further noted that this was a chronic symptom that lasted about 4-5 months. The Veteran indicated that he would not act on the thoughts because he wants to be able to take care of his dogs. In April 2018, the Veteran submitted a lay statement that indicated he has suicidal thoughts daily. The Veteran stated that he needs care and assistance on a regular basis to protect him from hazards and dangers to his daily environment. The Veteran stated that he is mentally and physically handicapped. The Veteran also indicated that he had homicidal attempts toward his ex-girlfriend, and he believes he is a hazard to himself. In May 2018, the Veteran was afforded a VA examination. The May 2018 examiner noted the Veteran had a history of chronic delusions or hallucinations. The examiner noted that the Veteran can maintain minimal personal hygiene and other basic activities of daily living. The examiner noted that the Veteran does independently perform all activities of daily living (ADL) and he is oriented to person place and time. In May 2018, the RO increased Veteran's service-connected schizophrenia was increased to 100 percent. In April 2021, the Veteran was afforded a new examination for aid and attendance. The examiner noted that the Veteran was able to leave his home and attend his appointments for his health visits, but as the Veteran has difficulty with his ADLs, he may need assistance going outside of the home and will need support. The exam for aid and attendance indicated that the Veteran is physically able to go outside but needs assistance when going out. It was also noted that the Veteran requires medication management, assistance with bathing, hygiene, dressing, grooming and feeding. The Veteran also reported tremors. In an April 2021 VA examination, the examiner noted that the VA treatment providers indicated that the Veteran can do ADLs and they were contacted to verify as the Veteran was claiming he was too weak to shower or feed himself. The examiner ultimately determined that the Veteran's medical history did not indicate a need for assistance for his daily living activities. The Board has considered all pertinent evidence of record and finds that there is evidence of record that both supports and is against the Veteran's claim. The Board finds that the May 2018 and April 2021 examinations offered negative opinions and indicated the Veteran is capable of conducting ADLs. The remaining evidence discussed herein primarily indicates that the Veteran requires aid and assistance for his ADLs. The Board finds that the Veteran's lay statements are highly probative as they appear to be consistent throughout the period on appeal. Additionally, the Veteran's schizophrenia is rated at 100 percent disabling and the nature of his symptoms do indicate he is a hazard to himself and to others. The Board takes note of the Veteran's contentions of suicidal and homicidal ideation. The Board acknowledges that while the medical records indicate that the Veteran is physically able to function without assistance, the Veteran's service-connected schizophrenia renders him mentally incapacitated. The Veteran's medical records indicate that he has chronic suicidal ideation and requires assistance in preparation of meals and taking medication. The Board acknowledges that there is a medical opinion that indicates the Veteran can do his ADLs. The Board also acknowledges the medical opinion that indicates the Veteran's statements are inconsistent and for the sole purpose of obtaining aid and attendance. The Board has considered all this evidence of record. VA is responsible for determining whether the evidence supports the claim or is in approximate balance, i.e., "nearly equal". When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). This benefit-of-the-doubt rule applies if the competing evidence is nearly equal but does not apply when the evidence persuasively favors one side or the other. See Lynch v. McDonough, 21 F. 4th 776 (Fed. Cir. 2021). (Continued on the next page) ? In considering aid and attendance, 38 C.F.R. § 3.352(a), provides that 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 following "will be accorded consideration" in determining the need for regular aid and attendance. In considering the Veteran's medical records and lay statements of record, the Board finds that the Veteran's service-connected schizophrenia makes his daily environment hazardous as discussed herein. There is both positive and negative evidence of record and the Board finds that the evidence is in approximate balance or nearly equal. Therefore, the Veteran is entitled to the benefit of the doubt. Therefore, the Board finds that due to his service-connected disabilities, particularly service-connected schizophrenia, the Veteran was, and is, in need of regular aid and attendance. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Hailu, 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.