Citation Nr: 18142377 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 18-30 956 DATE: October 15, 2018 ORDER Entitlement to a special monthly compensation (SMC) based on special aid and attendance (R-1), but not higher, prior to October 3, 2017; and thereafter, entitlement to SMC based on a higher level of special aid and attendance (R-2); is granted. FINDING OF FACT 1. The Veteran is in receipt of SMC (l) based on loss of use of both feet because of the severity of his service-connected peripheral neuropathy in his right and left lower extremities. 2. Separate from his peripheral neuropathy in his right and left lower extremities, the Veteran’s other service-connected disabilities render him so helpless he requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. 3. As of October 3, 2017, the Veteran had a need for personal health-care services provided on a daily basis in the 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. On October 3, 2017, the Veteran began to receive daily hospice care sessions at his home with a licensed medical professional. CONCLUSION OF LAW The criteria for entitlement to SMC based on special aid and attendance (R-1) at prior to October 3, 2017, and thereafter, entitlement to SMC based on a higher level of special aid and attendance (R-2) have been met. 38 U.S.C. § 1114 (2012); 38 C.F.R. §§ 3.350, 3.352 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from March 1966 to February 1970. 1. Entitlement to a higher level of special monthly compensation (SMC) at the R1-rate prior to October 3, 2017, and thereafter, entitlement to a higher level of SMC at the R2-rate. 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. See 38 U.S.C. § 1114 (2012); 38 C.F.R. §§ 3.350, 3.352 (2017). The rate of SMC varies according to the nature of the Veteran’s service-connected disabilities. Basic levels of SMC are listed at 38 U.S.C. § 1114 (k). Higher levels of SMC are provided at 38 U.S.C. § 1114 and the subsections following subsection (k). Service connection is in effect for the following disabilities: posttraumatic stress disorder; peripheral neuropathy in the right and left lower extremities; peripheral neuropathy in the right and left upper extremities; diabetes mellitus; bilateral hearing loss; hypertension; coronary artery disease; residuals of shell fragment wound (SFW) of the right thigh; residuals of SFW on the left thigh; and residual scars. The Veteran is currently in receipt of SMC (k) for loss of use of a creative organ, SMC (l) for loss of use of both feet, and SMC (p) at a rate equal to (m) on account of additional disability, PTSD, independently ratable at 100 percent. The question at issue in this case is whether the Veteran is entitled to additional compensation for a higher level of aid and attendance based on 38 U.S.C. § 1114 (r). There are two parts to subsection (r): special aid and attendance that is identified by (r)(1), and a higher level of special aid and attendance that is discussed in (r)(2). 38 U.S.C. § 1114 (r); 38 C.F.R. §§ 3.350 (h), 3.352. Both parts are prefaced by the requirements that a veteran be entitled to SMC at the rate authorized under subsection (o), the maximum rate authorized under subsection (p), or at the intermediate rate authorized between the rates authorized under subsections (n) and (o) and at the rate authorized under subsection (k). 38 U.S.C. § 1114 (r). The Veteran contends that he is entitled to a higher level of aid and attendance at least at the SMC (r-1) rate on the basis that he should meet the criteria for the maximum rate under SMC (o) and meets the criteria for regular aid and attendance under 38 C.F.R. § 3.352 (a). SMC provided by 38 U.S.C. § 1114 (o) is payable for any of the following conditions: (i) Anatomical loss of both arms so near the shoulder as to prevent use of a prosthetic appliance; (ii) Conditions entitling to two or more of the rates (no condition being considered twice) provided in 38 U.S.C. § 1114 (l) through (n); (iii) Bilateral deafness rated at 60 percent or more disabling (and the hearing impairment in either one or both ears is service connected) in combination with service-connected blindness with bilateral visual acuity 20/200 or less; (iv) Service-connected total deafness in one ear or bilateral deafness rated at 40 percent or more disabling (and the hearing impairment in either one of both ears is service-connected) in combination with service-connected blindness of both eyes having only light perception or less. 38 C.F.R. § 3.350 (e)(1). Paralysis of both lower extremities together with loss of anal and bladder sphincter control will entitle to the maximum rate under 38 U.S.C. § 1114 (o), through the combination of loss of use of both legs and helplessness. The requirement of loss of anal and bladder sphincter control is met even though incontinence has been overcome under a strict regimen of rehabilitation of bowel and bladder training and other auxiliary measures. 38 C.F.R. § 3.350 (e)(2). The Board finds that SMC at the (o) rate is warranted for combinations. Determinations must be based upon separate and distinct disabilities. This requires, for example, that where a Veteran who had suffered the loss or loss of use of two extremities is being considered for the maximum rate on account of helplessness requiring regular aid and attendance, the latter must be based on need resulting from pathology other than that of the extremities. If the loss or loss of use of two extremities or being permanently bedridden leaves the person helpless, increase is not in order on account of this helplessness. Under no circumstances will the combination of “being permanently bedridden” and “being so helpless as to require regular aid and attendance” without separate and distinct anatomical loss, or loss of use, of two extremities, or blindness, be taken as entitling to the maximum benefit. The fact, however, that two separate and distinct entitling disabilities, such as anatomical loss, or loss of use of both hands and both feet, result from a common etiological agent, for example, one injury or rheumatoid arthritis, will not preclude maximum entitlement. 38 C.F.R. § 3.350 (e)(3). The maximum rate, as a result of including helplessness as one of the entitling multiple disabilities, is intended to cover, in addition to obvious losses and blindness, conditions such as the loss of use of two extremities with absolute deafness and nearly total blindness or with severe multiple injuries producing total disability outside the useless extremities, these conditions being construed as loss of use of two extremities and helplessness. 38 C.F.R. § 3.350 (e)(4). For SMC (r)(2), once the aforementioned threshold is met, the Veteran must show that, in addition to the need for regular aid and attendance, he is in need a higher level of care as specified. See 38 U.S.C. § 1114 (r)(2). Need for a higher level of care shall be considered to be need for personal health-care services provided on a daily basis in the Veteran’s 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 indwelling catheters, and the changing of sterile dressings, or like 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 physical therapist licensed to practice by a State or political subdivision thereof. 38 C.F.R. § 3.352 (b)(2). The provisions of 38 C.F.R. § 3.352 (b) are to be strictly construed. The higher level aid-and-attendance allowance is to be granted only when the need is clearly established and the amount of services required on a daily basis is substantial. 38 C.F.R. § 3.352 (b)(5). The regular or higher level aid and attendance allowance is payable whether or not the need for regular aid and attendance or a higher level of care was a partial basis for entitlement to the maximum rate under 38 U.S.C. § 1114 (o) or (p), or was based on an independent factual determination. 38 C.F.R. § 3.350 (h)(1). Determinations as to need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to such conditions as the following: inability of the claimant to dress or undress himself or to keep himself ordinarily clean and presentable; the frequent need of the adjustment of any special prosthetic or orthopedic appliance which by reason of the particular disability cannot be done without aid; the inability of the claimant to feed himself through loss of coordination of 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 the claimant from hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352 (a). “Bedridden” will be a proper basis for the aid and attendance determination and is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that the claimant 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 will not suffice. In Turco v. Brown, 9 Vet. App. 222 (1996), the United States Court of Appeals for Veteran Claims (Court) held that it was not required that all of the disabling conditions enumerated in the provisions of 38 C.F.R. § 3.352 (a) be found to exist to establish eligibility for aid and attendance, but that such eligibility required at least one of the enumerated factors be present. The Court added that the particular personal function that a Veteran is unable to perform should be considered in connection with his or her 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. See Turco, supra; 38 C.F.R. § 3.352. Determinations that the Veteran is so helpless, as to be in need of regular aid and attendance will not be based solely on an opinion that the claimant’s condition is such as would require him to be in bed. They must be based on the actual requirement of personal assistance from others. Id. In June 2017, the Veteran filed his claim for higher level of SMC. In support of his claim, the Veteran’s spouse wrote that the Veteran was entitled to a higher level aid and attendance because his PTSD disability renders him confused and disoriented and leaves him unable to manage his copious amounts of medications. His wife reported that the Veteran’s medications are manage by herself or a nurse, and she administers his daily insulin injections that are needed regulate his diabetes mellitus. She also reported that his PTSD symptoms infer with his ability to safely operate his electric wheelchair. See June 2018 affidavit from the Veteran’s spouse. The Veteran’s wife also reported that because of his generalized weakness from his service-connected diabetes mellitus disability and the severity of his peripheral neuropathy in his bilateral upper extremities the Veteran needs regular assistance with toileting, bathing, dressing, meal preparation, and administration of his insulin injections. Lastly, the Veteran’s wife reported that the Veteran was currently resides at a hospice care facility that provides round-the-clock care because of the severity of his service-connected disabilities. See Id. Unfortunately, the Veteran was unable to attend the scheduled VA examination in November 2017, and information obtained from that examination may have been beneficial to the Veteran’s claim. Although the Veteran’s representative initially indicated the Veteran’s willingness to attend a rescheduled examination in his December 2017 notice of disagreement, the Board notes that Veteran currently resides at a hospice care facility since February 2018. Moreover, his health has significantly deteriorated since then, and he is unlikely to attend an examination at a VA medical facility. See July 2018 statement in support of the case and May 2018 hospice care medical record. A prior March 2014 VA peripheral neuropathy examination showed that the Veteran had moderate to severe neuropathy in his right and left upper extremities, and due to the severity of his disabilities in his upper extremities, he was unable to use arms and hands for any work requiring grasping, pinching, and manipulation. It was further noted that the Veteran was unable to use manually propelled wheelchair due to upper extremity peripheral neuropathy but he could control power scooter. A review of the Veteran’s VA treatment records during the pendency of the appeal shows that he received VA home based primary care on at least monthly up to a weekly basis because of the severity of his diabetes mellitus and PTSD disability, and for management of his medications. The VA home based primary care treatment reports consistently show that the Veteran received assistance from a home health aide and his wife for his personal care and his wife assisted him in administration of his insulin injections. These VA treatment records also note the Veteran had a high risk of falls due to generalized weakness and unsteady gaits. VA treatment record reflect that the Veteran’s diabetes mellitus had caused diabetic nephrology that had resulted in end-stage renal disease and symptomatic congestive heart failure, which left him in generalized weakened state. The Veteran had required emergency treatment three times between June 2016 and August 2016 because of falls. The Veteran was hospitalized for five days following a fall in August 2016. While the Veteran was hospitalized, he began to receive dialysis for his end-stage renal disease, and he received dialysis three times a week. In July 2017, the Veteran sought emergency treatment for injuries sustained when he rolled over this power wheelchair on his ramp. VA mental health treatment records in March 2017 note that the Veteran sought to receive inpatient mental health treatment for increasing PTSD symptoms, but he declined admission after being advised that he would be placed on a locked unit. VA treatment records later note that on March 28, 2017, the Veteran was found unresponsive in his home and required emergency medical treatment. It was determined that the Veteran had inadvertently taken an old prescription opiod medication and he was admitted into inpatient hospital for seven days because of demand ischemia secondary to respiratory distress from opiate intake and generalized weakness. VA treatment records show that on September 20, 2017, the Veteran terminated his dialysis treatment and indicated his desire to enroll in hospice home care. On October 3, 2017, the Veteran received his first hospice care session at his home with a licensed medical professional. He received hospice home care on a daily basis at his home until he was admitted into a hospice care facility in February 2018. See VA treatment records dated in October 2017 and November 2017, and May 2018 hospice care medical record. After a review of the evidence of record, the Board finds that the Veteran experienced disability under conditions that entitled him to two SMC awards at the (L) rate, without consideration of any disability twice, which, in turn, entitled him to SMC at the (O) rate. The Board further finds that the evidence reflects that the Veteran was in need of special aid and attendance, and as of October 3, 2017, he is entitled to SMC at the (R-2) rate for higher level of special aid and attendance. As stated above, the Veteran receives SMC at the (L) rate for loss of use of both feet due service-connected peripheral neuropathy in his right and left lower extremities. Based on the foregoing medical evidence, the Board finds that the Veteran is so helpless so as to need regular aid and attendance due to his service-connected diabetes mellitus, PTSD, peripheral neuropathy in the upper extremities, hypertension, and coronary artery disease disabilities, which support an additional SMC at the (L) rate. In this regard, the Board notes that the severity of the Veteran’s diabetes mellitus involves diabetic nephropathy that requires he receives dialysis three times a week and renders him in a generalized weakened state. The Veteran’s treatment records show he is at great risk of falls and he regularly needs assistance in and out of the house and vehicles and loading and unloading him from the walker, wheel chair, and scooter. The severity of his service-connected peripheral neuropathy in his upper extremities significantly limits his ability to grasp, pinch, and manipulate items with his hands. Further, the Veteran’s wife has attested that his PTSD disability results in confusion and disorientation, which renders him helpless to the dangers of his environment and in need of regular assistance of another, to include management of his copious amount of medications. Such need for another management of his medication was exemplified when the Veteran was hospitalized after he inadvertently took an old medication. Further, the VA home based primary care notes consistently reflect that the Veteran requires assistance with his personal care and management of his medications because of the severity of his diabetes mellitus and PTSD disabilities. It is clear from competent lay and medical evidence that the Veteran requires regular assistance from another in bathing, dressing, feeding, and avoiding hazards in his daily environment due to service-connected disabilities, even without considering his peripheral neuropathy in his bilateral lower extremities. Resolving any doubt in the Veteran’s favor, the Board finds that the evidence of record demonstrates that the severity of the Veteran’s service-connected disabilities, apart from his peripheral neuropathy in his bilateral lower extremities, is so severe as to render him so helpless so as to need regular aid and attendance and support a separate award of SMC at the (L) rate. Accordingly, as evidence of record demonstrates that the severity of the Veteran’s service-connected disabilities supports the assignment of SMC at (L) rate based on loss of use of both lower extremity as well as an additional SMC at (L) based on need regular aid and attendance (with no condition being considered twice), the criteria for SMC at the (O) rate are met. 38 U.S.C. § 1114 (o). Having found that the Veteran met the SMC (O) rate, and given that he was already in receipt of SMC for “regular aid and attendance,” the requirements for the (R1) rate based on special need for aid and attendance have been met. In addition, as of October 3, 2017, the VA treatment records show that the Veteran needed personal health-care services provided on a daily basis in his 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 so as to warrant increased SMC based on the need for a higher-level aid and attendance. Further, as of February 2018, the level of aid and attendance needed by the Veteran is so substantial as to require residential institutional care. See May 2018 hospice care treatment note. As such, the evidence demonstrates that the Veteran has requires special aid and attendance at a higher level due to his service-connected conditions since October 3, 2017; accordingly, aid and attendance under 38 U.S.C. § 1114 (r)(2) is warranted as of that date. (Continued on the next page)   In sum, the Board finds that the requirements for SMC at the (R1) rate, but no higher, have been met prior to October 3, 2017; and thereafter, the requirements for SMC at the (R2) rate have been met. Biswajit Chatterjee Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Murray, Counsel