Citation Nr: 25004806 Decision Date: 04/09/25 Archive Date: 04/09/25 DOCKET NO. 09-28 537 DATE: April 9, 2025 ORDER From November 24, 1983 to October 9, 2007, special monthly compensation (SMC) at the level of 38 U.S.C. §1114(r)(2) is granted. FINDING OF FACT From November 24, 1983 to October 9, 2007, the Veteran needed higher-level aid and attendance without which he would have required hospitalization, nursing home care, or other residential institutional care. See June 1984 Medical Record, November 1984 Certificate of Medical Feasibility, December 2007 VA Treatment Record, October 2007 Lay Statement, and July 2014 Appellant Statement. CONCLUSION OF LAW From November 24, 1983 to October 9, 2007, the criteria for entitlement to SMC based on the need for higher-level aid and attendance under 38U.S.C. §1114(r)(2) are met. 38 U.S.C. §1114(r)(2), 5107; 38 C.F.R. §§3.102, 3.350, 3.352, 4.3. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1956 to May 1957 and October 1960 to June 1964. This matter comes before the Board of Veteran's Appeal (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Unfortunately, while this appeal was pending, the Veteran passed away in September 2023. The Appellant is the Veteran's surviving spouse. As background, in October 1983, the Veteran filed a claim for compensation based on loss of bowel and bladder function, which included a claim for SMC. In July 1984, the RO granted the Veteran SMC at the level of 38 U.S.C. §1114(r)(1) from July 20, 1983 onward. However, the RO failed to provide the Veteran with a notice of appellate rights or VA Form 21-4107 Appeal Paragraph, which kept the October 1983 SMC claim pending at VA. See December 2022 BVA Decision. More recently, in October 2007, the Veteran filed a claim requesting SMC based on the need for higher-level care. In February 2008, the RO granted SMC at the 38 U.S.C. §1114(r)(2) (SMC (R)(2)) level effective October 10, 2007. Subsequently, in September 2008, the Veteran submitted a notice of disagreement (NOD) contending that he was entitled to the SMC(r)(2) level prior to October 10, 2007. In May 2009, the RO issued a statement of the case, and the Veteran perfected his appeal to the Board in July 2009. Thereafter, the Board remanded this claim for further development in February 2011. In March 2014, the Board denied an effective date before October 10, 2007 for SMC(r)(2). The Veteran appealed the Board's March 2014 decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a November 2015 Court Memorandum Decision, the Court vacated the Board's March 2014 decision and remanded the matter to the Board for further action. Then, in August 2016, the Board remanded this claim for outstanding Social Security Administration records. Thereafter, in April 2020, the Board again denied an effective date before October 10, 2007 for SMC(r)(2). In response, the Veteran appealed the Board's April 2020 decision to the Court. Pursuant to a November 2020 Court Memorandum Decision, the Court vacated the Board's April 2020 decision and remanded the matter to the Board for further action. Thereafter, in December 2022, the Board again denied an effective date before October 10, 2007 for SMC(r)(2). In response, the Veteran appealed the Board's December 2022 decision to the Court. Pursuant to a July 2024 Court Memorandum Decision, the Court vacated the Board's December 2022 decision and remanded the matter to the Board for further action. SMC at the 38 U.S.C. §1114(r)(2) level As noted in the Conclusion of Law section, the Board finds that the Veteran was entitled to SMC payable under 38 U.S.C. § 1114(r)(2) from November 24, 1983 to October 9, 2007. Accordingly, the Appellant's claim is granted. At the outset, the Board finds that the period on appeal is from November 24, 1983 to October 9, 2007. In the December 2022 Board decision, the Board found that Veteran's claim for SMC(r)(2) remained pending since the October 1983 claim. See December 2022 BVA Decision and October 1983 Form 21-4138. Further, in that decision, the Board found that the Veteran was entitled to SMC payable under 38 U.S.C. § 1114(r)(2) from September 28, 1983 to November 23, 1983. In reaching that finding, the Board considered whether the Veteran was entitled SMC payable under 38 U.S.C. § 1114(r)(2) from October 27, 1983, plus the one year look back period, but found that there was no evidence that he required a higher-level of care before September 28, 1983. In the July 2024 Court Memorandum Decision, the Court only set aside the Board's denial of SMC(r)(2) from November 23, 1983 to October 9, 2007 and remanded that issue for further development. Accordingly, the Board finds that the matter remaining before the Board is entitlement to SMC payable at the (r)(2) rate for the period from November 24, 1983 to October 9, 2007. As noted, the Appellant contends that her late husband was entitled to SMC(r)(2). See September 2023 Appellant's Brief. The Appellant reported that after his July 1983 hospital admission, the Veteran was paralyzed from the waist down. See July 2014 Lay Statement. She reported that she helped the Veteran with dressing, administering his medications, his daily range of motion exercises, and bathing. Id. The Veteran also reported that the Appellant and his cousin also assisted him with bowel and bladder activities. See June 2016 Correspondence. Turning to the governing law and regulations, special monthly compensation is payable under 38 U.S.C. § 1114(r) if a Veteran qualifies for a higher level of aid and attendance in certain circumstances. Specifically, if a veteran receiving a higher level of care, he or she is entitled to an additional allowance during periods that he or she is not hospitalized at expense to the United States government. 38 U.S.C. § 1114(r)(1). A greater level aid and attendance allowance is authorized by 38 U.S.C. § 1114(r)(2) and is payable in lieu of the regular aid and attendance allowance authorized by 38 U.S.C. § 1114(r)(1). Id. These allowances are known as R1 and R2 respectively. The need for a higher level of care which necessitates the payment of R2 means that the veteran requires personal health-care services provided on a daily basis in his or her 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. 38 U.S.C. § 1114(r)(2). The existence of the need for such care shall be determined by a physician employed by the Department or, in areas where no such physician is available, by a physician carrying out such function under contract or fee arrangement based on an examination by such physician. 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. Id. 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)(3). Additionally, the terms "under the regular supervision of a licensed health-care professional" means that an unlicensed person is performing personal health-care services by following a regimen of personal health-care services prescribed by a health-care professional, and that the health-care professional consults with the unlicensed person providing the health-care services at least once each month to monitor the prescribed regimen. The consultation need not be in person; a telephone call will suffice. 38 C.F.R. § 3.352(b)(4). Here, the Board finds that the evidence demonstrates that the Veteran was in need of a higher level of care from November 24, 1983 to October 9, 2007. Specifically, a VA physician explained that the Appellant and his son assisted the Veteran daily. See December 2007 VA Treatment Record. The Appellant flushed his bladder weekly and did the Veteran's range of motion exercises three times per week. Id. Additionally, his son did range of motion exercises three times per week. Id. The November 1984 treating clinician opined that it was very improbable that the Veteran would recover from paraplegia with neurogenic bladder and bowel problems. See November 1984 Certificate of Medical Feasibility. This clinician also reported that the Veteran was unable to move around his home. Further, the Veteran's son, who is a paramedic, reported that he had to conduct manual manipulation of accomplish bowel movements, provided the Veteran's daily medication, and assisted with transfers and dressing. See September 2007 Statement and December 2000 VA Treatment Record. Further, during May 2002 VA treatment, the Veteran reported that his wife was his primarily caregiver. See May 2002 VA treatment Record. The record also showed that the Veteran reported upper extremity weakness and numbness, and that he was on a specialized diet and his wife prepared his meals. See December 2000 and May 2002 VA Treatment Record. Based on the December 2007 VA clinician's findings and the other evidence of record, the Board finds that the Veteran was entitled to SMC(r)(2) from November 24, 1983 to October 9, 2007. Specifically, the December 2007 VA treating clinician's opinion demonstrates that the Veteran required a higher level of care for the period on appeal. Notably, the December 2007 VA treating clinician did not limit her opinion to the level of care from 2007 onward. Additionally, neither the Appellant nor the Veteran's son limited their statements regarding the level of care that they were provided to 2007. In fact, both the Veteran and the Appellant reported that he required a higher level of care since 1983. See July 2014 Lay Statement and June 2016 Correspondence. Although these statements were made after 2007, the Board finds that these statements are entitled to significant probative weight because the Appellant and the Veteran are credible and competent to attest to these matters. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (holding that laypersons are competent to report and provide testimony regarding symptoms they experience with their own senses). Moreover, these statements also coincide with medical evidence of record. Specifically, in September 1983, a clinician reported that the Appellant and the Veteran's cousin helped him with exercises, transfers, and showers. See September 1983 Medical Record. In June 1984, Dr. C. Sutton reported that the Veteran was not ambulatory in any way and fecal material had to be removed digitally. See June 1984 Medical Treatment Record. The Board finds that this evidence coupled with the November 1984 Certificate of Medical Feasibility supports the Appellant's and Veteran's lay statements that he has required a higher-level of care from November 24, 1983 to October 9, 2007. Comparatively, there is evidence showing that the Veteran was able to complete some of his activities of daily living (ADLs) on his own. In this reported the October 1997 VA treating clinician noted that he was independent in his ADLs. The December 2000 VA clinician reported that the Veteran drove his car using his hand controls, although he was experiencing severe pain and upper extremity numbness and weakness. At his annual occupational therapy consultations, the Veteran reported being able to groom, eat, and dress without assistance. See May 2002 and June 2007 VA Treatment Records. However, he also reported that he required bowel assistance from the Appellant. Further, the Board finds that these records do not show that he did not require a higher level of care, especially with range of motion exercises, manual bowel manipulation, administering his medication, or cleaning and dressing his skin ulcers. The occupational therapy consultations limited the questions to ADLs, but did not ask about range of motion exercises or bowel manipulation. In Lynch v. McDonough, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, under 38 U.S.C. § 5107 (b), the benefit-of-the-doubt principle may be triggered where the evidence of record is nearly equal. 21 F.4th 776, 781 (Fed. Cir. 2021) (citations omitted). The Federal Circuit further explained that this interpretation of 38 U.S.C. § 5107(b) "necessarily includes scenarios where the evidence is not in equipoise but nevertheless is in approximate balance." Id. The Board finds Lynch to be applicable here as the evidence of record is in approximate balance regarding whether the Veteran required a higher-level of care payable under 38 U.S.C. §1114(r)(2). Resolving all reasonable doubt in the Veteran's favor, the Board grants SMC at the 38 U.S.C. §1114(r)(2) level from November 24, 1983 to October 9, 2007. 38 C.F.R. § 3.102. Accordingly, the Appellant's claim is granted. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Foster, 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.