Citation Nr: 21002345 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 09-47 378 DATE: January 13, 2021 ORDER Entitlement to SMC at the rate specified at 38 U.S.C. § 1114(l) for loss of use of both lower extremities due solely to his service-connected neurological impairment of bilateral lower extremities is granted. Entitlement to special monthly compensation (SMC) at the rate specified at 38 U.S.C. § 1114(r)(1), excluding as due to the loss of use of both lower extremities, is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in his favor, the Veteran had permanent and total service-connected disabilities that effectively resulted in the permanent loss of use of the bilateral lower extremities and so affected the functions of balance or propulsion as to preclude locomotion without the aid of a cane, scooter, and/or wheelchair. 2. The Veteran was entitled to an additional monthly allowance of SMC at the rate under subsection (r)(1) of 38 U.S.C. § 1114, based on entitlement to the maximum rate under subsection (o) and the need for regular aid and attendance due to his service connected disabilities, excluding as due to the loss of use of both lower extremities. 3. The Veteran has been deemed to be in need of 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. CONCLUSIONS OF LAW 1. The criteria for SMC based on the loss of use of both lower extremities have been met. 38 U.S.C. § 1114(l), 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352, 4.3. 2. The criteria for entitlement to SMC based on special aid and attendance (r-1), excluding as due to the loss of use of both lower extremities, have been met. 38 U.S.C. § 1114 (r)(1), 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352, 4.3. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1968 to June 1971, to include service in the Republic of Vietnam. Regrettably, the Veteran died in July 2017. The appellant is his surviving spouse. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of this appeal is currently with the RO in Sioux Falls, South Dakota. By way of background, the Board rendered a decision in September 2018 which granted entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as due to service-connected diabetes mellitus. In that same decision, the Board denied the claims of entitlement to a rating in excess of 40 percent for neurological impairment of the bilateral lower extremities due to Parkinson’s disease, as well as entitlement to SMC based on the need for aid and attendance and for loss of the use of the lower extremities. The issues were then appealed from the Board to the Court of Appeals for Veteran’s Claims Court (Court) and following a Joint Motion for Partial Remand (JMR), the Court issued an order vacating the part of the September 2018 Board decision which denied entitlement to SMC based on the need for aid and attendance and for loss of use of the lower extremities, and remanded the matter to the Board for readjudication. The JMR further found that the September 2018 grants of entitlement to service connection for peripheral neuropathy of the left and right lower extremities should remain undisturbed. The JMR also found that the appellant abandoned her appeal as to the claims of entitlement to a rating in excess of 40 percent for a neurological impairment of the right and left lower extremities. See May 2019 JMR. Then, in October 2019, the Board issued a decision granting “entitlement to special monthly compensation based on the need for aid and attendance and for loss of use of the lower extremities.” That decision was effectuated by the RO in an April 2020 rating decision as entitlement to special monthly compensation based on need for aid and attendance pursuant to 38 U.S.C. § 1114(m). The Veteran appealed that decision to the Court. In an August 2020 Order, the Court granted a Joint Motion for Partial Remand (JMPR) of the parties and remanded the case to the Board for action consistent with the Joint Motion. In the August 2020 JMPR, the parties found that the Board erred by failing to specify what type of SMC was granted and that the Board did not make sufficient findings as to whether the Veteran was entitled to SMC for loss of use of the bilateral lower extremities and SMC based on the need for aid and attendance solely due to service-connected conditions excluding the bilateral lower extremities. In its decision, the Board granted entitlement to SMC based on the need for aid and attendance and for loss of use of the lower extremities. Accordingly, the Court ordered the Board “reexamine the evidence of record,” and provide an adequate statement of reasons or bases for the findings and conclusion on all material issues of law and facts presented on the record. SMC 1. Legal Criteria SMC is authorized in particular circumstances in addition to compensation for service-connected disabilities. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352. SMC is authorized under subsections (k) through (s), with the rate amounts increasing the later in the alphabet the letter appears (except for the “s” rate). SMC at the “k” and “r” rates are paid in addition to any other SMC rates, with certain monetary limits. As relevant to the Veteran’s claim, SMC at the “l” rate is payable when the 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). As set forth under 38 U.S.C. § 1114(m), SMC is warranted if the veteran, as a result of service-connected disability, has suffered the anatomical loss or loss of use of both hands, or of both legs at a level, or with complications, preventing natural knee action with prosthesis in place, or of one arm and one leg at levels, or with complications, preventing natural elbow and knee action with prosthesis in place, or has suffered blindness in both eyes having only light perception, or has suffered blindness in both eyes, rendering such veteran so helpless as to be in need of regular aid and attendance. SMC under 38 U.S.C. § 1114 is payable, in pertinent part, if the veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both feet. The term “loss of use” of a hand or foot is defined by 38 C.F.R. § 3.350(a)(2) as that condition where no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc. in the case of the hand; or balance, propulsion, etc., in the case of a foot, could be accomplished equally well by an amputation stump with prosthesis. Examples under 38 C.F.R. §§ 3.350(a)(2) and 4.63 which constitute loss of use of a foot or hand are extremely unfavorable ankylosis of the knee, or complete ankylosis of two major joints of an extremity, or shortening of the lower extremity of three and one-half inches or more. Also considered as loss of use of a foot under 38 C.F.R. § 3.350(a)(2) is complete paralysis of the external popliteal (common peroneal) nerve and consequent foot drop, accompanied by characteristic organic changes, including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve. Under 38 C.F.R. § 4.124a , Diagnostic Code 8521, complete paralysis also encompasses foot drop and slight droop of the first phalanges of all toes, an inability to dorsiflex the foot, loss of extension (dorsal flexion) of the proximal phalanges of the toes, loss of abduction of the foot, weakened adduction of the foot, and anesthesia covering the entire dorsum of the foot and toes. The Board notes that in addition to regular levels of compensation for aid and attendance as authorized by 38 U.S.C. § 1114(l), 38 U.S.C. § 1114(r) provides for a higher level of benefit (called “special aid and attendance”) in certain circumstances. A veteran receiving the maximum rate under 38 U.S.C. § 1114(o), who is in need of regular aid and attendance or a higher level of care, is entitled to an additional allowance during periods he or she is not hospitalized at United States Government expense. 38 U.S.C. § 1114(r)(1)-(2). A still higher-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). SMC at 38 U.S.C. § 1114(o) level is warranted if the veteran, as the result of service-connected disability, has suffered disability under conditions which would entitle such veteran to two or more of the rates provided in one or more of § 1114(l) through § 1114(n), no condition being considered twice in the determination, or if the veteran has suffered bilateral deafness (and the hearing impairment in either one or both ears in service connected) rated at 60 percent or more disabling and the veteran has also suffered service-connected total blindness with 5/200 visual acuity or less, or if the veteran has suffered service-connected total deafness in one ear or bilateral deafness (and the hearing impairment in either one or both ears is service connected) rated at 40 percent or more disabling and the veteran has also suffered service-connected blindness having only light perception or less, or if the veteran has suffered the anatomical loss of both arms so near the shoulder as to prevent the use of prosthetic appliances, he or she shall receive compensation at the rate found in § 1114(o). 38 U.S.C. § 1114(o). The regulations enacted pursuant to § 1114(o) provide that service-connected paralysis of both lower extremities together with the loss of anal and bladder sphincter control will entitle a veteran to the maximum rate under § 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). Determinations for entitlement under § 1114(o) must be based upon separate and distinct disabilities. That 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. 38 C.F.R. § 3.350(e). If the 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 be taken as entitling the veteran to the maximum benefit. The fact, however, that two separate and distinct entitling disabilities, such as 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). Next, 38 U.S.C. § 1114(p) provides for “intermediate” SMC rates between the different subsections, with the maximum SMC not exceeding that prescribed at the 38 U.S.C. § 1114(o) rate. 38 U.S.C. § 1114(p); 38 C.F.R. § 3.350(f). A veteran receiving the maximum rate under 38 U.S.C. § 1114(o) or (p) who is in need of regular aid and attendance or a higher level of care is entitled to an additional allowance during periods that he or she is not hospitalized at the United States Government’s expense. Determination of this need is subject to the criteria of 38 C.F.R. § 3.352. 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). The amount of the additional allowance payable to a veteran in need of regular aid and attendance is specified in 38 U.S.C. § 1114(r)(1). The amount of the additional allowance payable to a veteran in need of a higher level of care is specified in 38 U.S.C. § 1114(r)(2). The higher level aid and attendance allowance authorized by 38 U.S.C. § 1114(r)(2) is payable in lieu of the regular aid and attendance allowance authorized by 38 U.S.C. § 1114(r)(1). 38 C.F.R. § 3.350(h)(3). The following will be accorded consideration in determining the need for regular aid and attendance: inability of a claimant to dress or undress him or herself, or to keep him or herself 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 aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of a claimant to feed him or herself through loss of coordination of the 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 a claimant from the hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352(a). It is not required that all of the disabling conditions enumerated in the provisions of 38 C.F.R. § 3.352(a) be found in order to establish eligibility for aid and attendance, but that such eligibility required at least one of the enumerated factors be present. Turco v. Brown, 9 Vet. App. 222 (1996). 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. Id.; 38 C.F.R. § 3.352. A veteran is entitled to the higher level aid and attendance allowance authorized by 38 U.S.C. § 1114(r)(2) and 38 C.F.R. § 3.350(h) in lieu of the regular aid and attendance allowance when all of the following conditions are met: (i) the veteran is entitled to the compensation authorized under 38 U.S.C. § 1114 o), or the maximum rate of compensation authorized under 38 U.S.C. § 1114(p); (ii) the veteran meets the requirements for entitlement to the regular aid and attendance allowance § 3.352(a); (iii) the Veteran needs a “higher level of care” (as defined in § 3.352(b)(2)) than is required to establish entitlement to the regular aid and attendance allowance, and in the absence of the provision of such higher level of care the veteran would require hospitalization, nursing home care, or other residential institutional care. 38 C.F.R. § 3.352(b)(1)(i-iii). 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. 38 C.F.R. § 3.352(b)(2). The term “under the regular supervision of a licensed health-care professional” means that an unlicensed person performing personal health-care services is 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. A person performing personal health-care services who is a relative or other member of the Veteran’s household is not exempted from the requirement that he or she be a licensed health-care professional or be providing such care under the regular supervision of a licensed health-care professional. The performance of the necessary aid and attendance service by a relative of the beneficiary or other member of his or her household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352(b)(2-4),(c). The requirements for establishing the need for a higher level of care are to be strictly construed. The higher level aid- and-attendance allowance is to be granted only when the veteran’s need is clearly established and the amount of services required by the veteran on a daily basis is substantial. 38 C.F.R. § 3.352(b)(5). A veteran who has a service-connected disability rated as 100 percent disabling and (1) has an additional service-connected disability or disabilities independently rated at 60 percent or more, or (2) by reason of such service-connected disability or disabilities is permanently housebound, shall receive SMC under the provisions of 38 U.S.C. § 1114(s). 38 C.F.R. § 3.350(h)(3)(i). At the time of his death, the Veteran’s current combined rating for compensation from service connected disabilities was 100 percent, including entitlement to SMC at the “k” rate for loss of use of a creative organ, from December 1, 2014; for SMC at the “l” rate for loss of use of both feet from July 14, 2016; for SMC at the “P-1” rate intermediate between subsection (l) and subsection (m) on the account of entitlement to the rate equal to subsection (l) with additional disability, major depression, posttraumatic stress disorder (PTSD) or other specified trauma and stressor related disorder independently rated at 50 percent or more from July 14, 2016 to June 26, 2017; and for SMC at the “P-2” rate equal to subsection (m) with additional disability, squamous cell carcinoma claimed as lung cancer independently ratable at 100 percent from June 26, 2017. Service connection was in effect for many disabilities; but in pertinent part, service connection was in effect for Parkinson’s disease and such related residuals, to include the loss of use of feet (rated as 100 percent disabling from July 14, 2016), and neurological impairment of the bilateral lower extremities (rated as 40 percent disabling each from February 13, 2013 to July 14, 2016). Additionally, service connection was in effect for major depression, PTSD or other specified trauma and stressor related disorder, panic disorder, agoraphobia, and generalized anxiety disorder (hereinafter an “acquired psychiatric disorder”), rated as, for the applicable appeal period, 70 percent disabling from February 26, 2009. 2. Pertinent Evidence Turning to the evidence, the Veteran was afforded a VA examination in April 2015 for aid and attendance or housebound. At that time, the Veteran was not permanently bedridden, not hospitalized, and could travel beyond his current domicile. He presented to the examination on an accompanied specially equipped van. In pertinent part, the Veteran reported used two canes or a walker inside his home; and his difficulty walking was due to dyspnea and chronic obstructive pulmonary disease (COPD). He reported he fell, usually suddenly and no specific diagnosis as made. He had problems with balance and walking after a fall in 1990. He had difficulty putting on a jacket or long sleeved shirt due to the stiffness of his spine. He mostly refused to have his wife help him shower. He was able to dress himself but left his shoes loosely tied so that he could slip his feet into them because he could not bend over to tie them otherwise. He was told not to drive, but would drive about seven blocks or less. He had a specially equipped van to carry his motorized cart, which he used constantly when outside the home. He had difficulty feeling his feet when walking or on the steps. He did not have bowel or bladder difficulties. The Veteran experienced dizziness weekly but less than daily, mild occasional memory loss and imbalance affecting the ability to ambulate weekly. He was unable to perform bathing. Upon physical examination, the Veteran was not able to walk without the assistance of another person, and required a wheelchair. The Veteran needed two canes or a walk to aid ambulation. He was able to leave the home, and was unrestricted in this regard. His best corrected vision was 5/200 or worse in both eyes. He had thoracolumbar spine limitation of motion or deformity resulting in difficulty bending over that did not interfere with breathing. He did not have cervical spine limitation of motion or deformity. The function of the lower extremities was not normal due to lack of coordination, abnormal weight-bearing, being very unbalanced, having abnormal propulsion requiring assistance with walking, being very unsteady and abnormal balance and the Veteran could only walk 20 feet with two attendants. The Veteran was afforded a VA psychiatric examination in April 2015. At that time, the examiner diagnosed major depressive disorder with anxious distress, and found occupational and social impairment with reduced reliability and productivity. The Veteran reported a good relationship with his wife, children, and grandchildren. He stated he used to enjoy many hobbies but that he was unable to engage in such activities due to mobility issues. He talked on the phone twice per week with a friend from Vietnam who experienced similar health issues. He reported he used to have more friends, but that his physical health issues had negatively impacted his ability to maintain friendships. He reported he had fallen numerous times due to losing his balance and that he experienced significant difficulties standing and maintaining balance. The Veteran reported he had historic suicidal ideation, and was hospitalized in the past and that he again had suicidal thoughts when given terminal status notification. He stated he had suicidal thoughts multiple times per week. He denied any plan or intent on acting on his suicidal thoughts. The Veteran endorsed symptoms of depressed mood, loss of interest, loss of appetite, disrupted sleep, worthlessness, guilt, withdrawal, suicidal thoughts, concentration difficulties, likely due to hypoxia, lack of engagement in valued activities related to physical limitations and possible loss of interest, extreme exhaustion, related to the hypoxia, and a general sense of anxiety and worry about finances and family and he denied panic attacks, nightmares about three times per week, inability to listen to the Vietnamese language and feelings of anger. Symptoms attributable to his psychiatric diagnosis included depressed mood, anxiety, chronic sleep impairment, and mild memory loss, such as forgetting names, directions or recent events. Behavioral observations showed the Veteran arrived early, used a scooter to ambulate to the examination room, casually dressed; appropriately groomed, pleasant, smiling and joking in the examination, stated he felt sad, oriented, and was initially unsure as to the purpose of the examination; closed his eyes through most of the examination, and explained he struggled with focus and shared he often gets “out in left field. The examiner further noted that the Veteran often drifted to other topics and seemed to completely lose his train of thought or to fall asleep, had to be redirected numerous times during the examination, continued to lose focus and fall asleep, that worsened throughout the examination, that his memory intact, that he expressed much frustration as he was struggling to remember things he wanted to tell the examiner, and was having a bad day with focus and that he felt like a “fool” after he left the examination. A July 2015 VA treatment record indicates the Veteran had been on vacation with his family and was feeling well. A March 2016 VA treatment record indicates the Veteran went to a veterans’ organization once a month and socialized with his friends. An April 2016 VA treatment record indicates the Veteran ambulated in the hallways and wore a pull-up. Additional April 2016 VA treatment records indicate that the Veteran had age appropriate range of motion, and his motor strength and gait were intact and had severe chronic sensorimotor polyneuropathy of the left ulnar nerve and the bilateral lower extremities since 2011. A May 2016 VA treatment record that indicates the Veteran lived with his wife and reported concerns of difficulty getting around with his current oxygen tank and that he received daily assistance from a primary caregiver. Type of assistance provided included laundry, cooking, and housekeeping. The Veteran was independent with feeding, bathing, grooming, dressing, toilet use, transfers from bed to chair and back, mobility, and stairs, that he had continent bowels and that he had an incontinent bladder. An additional May 2016 VA treatment record indicates the Veteran denied falling, and was assisted up to his feet and a walker provided and the Veteran ambulated to the bathroom with complaints of dizziness. The Veteran returned to his bed. The Veteran was afforded a VA examination in May 2016 for his Parkinson’s disease. At that time, in pertinent part, the examiner found the Veteran had severe balance impairment, severe bradykinesia or slowed motion, loss of automatic movement, moderate tremor of the bilateral lower extremities, severe muscle rigidity and stiffness of the bilateral lower extremities, severe depression, moderate cognitive impairment or dementia, moderate sleep disturbance, severe difficulty chewing or swallowing, and urinary problems requiring more than four absorbent materials due to incontinence. The examiner noted the Veteran’s shaking would make it difficult for him to work with his hands and that his balance was poor so that walking or standing for prolonged periods would be difficult. The Veteran presented to the examination on a motorized scooter. Pertaining to the loss of use of a foot, the VA examiner noted the Veteran had a slight limp involving the right lower extremity due to decreased flexion of the right foot and noted the Veteran was able to ambulate, but with a limp. There was no ankylosis of the knee, and the Veteran was able to move his knees. There was not complete ankylosis of two major joints of the lower extremities, and the Veteran was able to move his joints. There was not shortening of the lower extremities. There was not complete paralysis of the external popliteal nerve, and the Veteran ambulated with only a slight limp. The examiner found the Veteran had function of the foot and ambulated with a slight limp, and noted the Veteran could ambulate. The Veteran was afforded a VA psychiatric examination in May 2016. At that time, the examiner diagnosed major depressive disorder with anxious distress, and noted depressive symptoms included depressed mood, social withdrawal, low motivation, low energy or fatigue, tearfulness, sleep disturbance, difficulty concentrating, hopelessness, irritability, and suicidal ideation; and diagnosed other specified trauma and stressor related disorder, and noted such symptoms included intrusive trauma related memories with associated distress, feelings of intense anger associated with trauma related stimuli, occasional nightmares, and occasional avoidance of trauma related stimuli. The examiner noted multiple medical issues, including chronic pain, and found that such medical issues and medications were likely to exacerbate several depressive symptoms such as, sleep difficulties, difficulty concentrating, fatigue, and moodiness. The examiner opined the Veteran’s acquired psychiatric disorder manifested in occupational and social impairment with reduced reliability. The Veteran reported, in pertinent part, that he spent most of his time in his room at home due to difficulties with mobility, and that he regularly did the dishes. He reported he occasionally attended church and went on vacation with his family members. He generally reported good relationships with his family, to include his wife, children, and grandchildren and that he spent time with his grandchildren and went to the mall with them. He reported severe psychiatric symptoms that included depressed mood, social withdrawal, low motivation, low energy or fatigue, tearfulness, sleep disturbance, difficulty concentrating, hopelessness, irritability, chronic suicidal ideation, occasional nightmares, feelings of intense anger when confronted with certain reminders of trauma experiences, avoiding discussing Vietnam experiences due to feelings of distress when discussing them, and exaggerated startle response. Symptoms attributable to his acquired psychiatric disorder included depressed mood, anxiety, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events and suicidal ideation. Behavioral observations by the May 2016 VA examiner showed the Veteran arrived on time; used an electric scooter for mobility, that he wore a nasal cannula for oxygen, that he was dressed appropriately with no problems with grooming or hygiene noted, that he was alert and oriented and that he was in a good mood. The examiner further noted that the Veteran had an euthymic affect, though he was briefly tearful at times when discussing health concerns, that he was friendly, pleasant and cooperative, that his memory grossly intact, with no problems with cognition or evidence of psychotic symptoms observed, that he had normal speech, that his answers often tangential, including excessive or minimally related details, and was occasionally apologetic regarding this, that he had difficulty hearing at times, and that he overall was able to provide adequate information for the purposes of this evaluation. The Veteran reported chronic suicidal ideation but denied any plants or intent to act, and cited his family and noted that he “wish[ed] assisted suicide was legal.” The examiner found the Veteran should be considered an increased, but not current or imminent risk. Of record is a June 2016 private psychiatric evaluation by Dr. J.M. At that time, the Veteran was cooperative and projected a noticeable and significant quiver and tremor in his voice due to Parkinsonism and noted the Veteran seemed to have some confusion over particular dates, but was otherwise very helpful and reliable, and was motivated for the interview. A summary of daily activities showed that the Veteran was able to bathe and dress himself, but stated he was demotivated and that most days he stayed in his pajamas. He stated he could perform light tasks at home, including washing a few dishes, folding clothes, using a microwave, making a sandwich, and making up a bed; but that he was demotivated most of the time and had to push himself. He stated he could not complete these tasks in a reasonable period due to his anergasia which was related to his depression and concentration/focus issues. He possessed basic communication and social skills, and stated that he related well with others most of the time. However, he qualified that people said he wanted to be left alone or that he left when people came around; and Dr. J.M. noted this statement was consistent with the records. The Veteran was unsure if he had panic attacks. He visited outside of the home infrequently and stated he did not leave his house because he could not drive. He watched television but could not recall what he had seen, does not read but used to, and was basically anhedonic without any hobbies or past time activities. The only public function he attended was a veterans’ organization with friends on a monthly basis. He could use a telephone without assistance, and managed his own money. He could make few purchases with a short list if he was taken by someone else; and he was able to schedule and keep doctor’s appointments. Mental status summary showed the Veteran was oriented in all spheres, that he had anxiety, that his overall emotional state appeared to be one of moderate to severe depression, that he had a sad affect, that he had sleep impairment and that he reported only two or three hours of sleep each night. The provider noted that the Veteran had suicidal thoughts with historical attempts reported and noted in the record, that he had a poor appetite, that historical hallucinations reported, that crying spells occurring monthly, that there were explosive outbursts occurring less than monthly, that his thoughts connected and logical and that psychomotor activity marked by Parkinson’s disease. The June 2016 private psychiatric evaluator further noted that the Veteran reported depressed mood most of the day, a markedly diminished interest in activities or pleasures, that he had psychomotor agitation at times, that he had fatigue and anergia; and that he had feelings of worthlessness and decreased concentration. The provider further noted that the Veteran had intrusions of memories and dreams, that he had flashbacks with exposure to stress and physiological reaction to stressors, that he had avoidance related to internal and external reminders, that his memory was impaired due to traumas and that he had negative self-worth, decreased concentration, detachment and emotional numbness, an exaggerated startle response, irritability, hypervigilance and impaired concentration and sporadic sleep disturbance. The provider noted that the Veteran reported he could not leave his house, that he constantly wanted to be alone, that he had marked fear or anxiety about certain situations, that he avoided of social situations, and that he wanted to be alone most of the time due to fears and anxieties. The provider further noted that the Veteran had sleep difficulty, was isolated, that he avoided of crowds, that he had difficulty relating with family and loss of interest, that he was restless, that he was easily fatigued, that he had difficulty concentrating, that he had bouts of irritability, that he had muscle tension and that he had sporadic sleep disturbance. A July 2016 VA treatment record indicates the Veteran was a high fall risk, used ambulatory aid and had a weak gait. The Veteran was stooped, used short steps, and may shuffle and had difficulty rising from a chair, head was down, watched the ground when walking, had poor balance, grasped furniture, and shuffled. He was oriented to his own ability. He had weakness in the bilateral legs. An additional July 2016 VA treatment record indicates the Veteran had lower extremity swelling that persisted, generalized weakness of moderate severity, intermittent dizziness and mild to moderate nausea. An additional July 2016 VA treatment record indicates the Veteran used a walker, cane, and was approved for a motorized scooter for locomotion. The Board notes that the Veteran typically presented with assistive aids for locomotion as evidenced by the treatment records associated with the record. Extensive VA treatment records from October 2016 to December 2016 indicate the Veteran used a scooter for locomotion, moved all extremities without difficulty, was anxious, complained of bilateral leg spasms, ambulated with creased deviation with gait, walked stairs in the house, used walkers or powered scooter, had normal range of motion in the knees and hips bilaterally with some reduced muscle strength in the hips and had poor balance. The records further note that the Veteran had decreased balance and functional ambulation, experienced generalized weakness, full strength of the lower extremities, lost balance on occasion to include when bending over and falling backwards in the bathtub, was able to complete all of his activities of daily living and had multiple hospitalizations due to heart failure. The records further note that two or three spells of suspected seizure activity, unexplainable muscle spasms causing him to jump out of his scooter and causing the scooter to crash, pain in his legs so intense, significant respiratory distress, unable to communicate effectively due to shortness of breath, difficulty walking to the bathroom due to dyspnea and mild Parkinsonism. See generally October 2016 VA treatment records; see generally December 2016 VA treatment records. Notably, a December 2016 VA treatment record indicates the treatment provider suggested the Veteran enter hospice care, and encouraged the Veteran to consider how he wanted to spend his remaining time. The Veteran indicated he would consider entering hospice care if he would receive more consistent pain management, and noted the intense pain in his bilateral legs. See VA treatment record, December 15, 2016, psychology note. However, the Veteran seemed reticent to enter hospice care because he believed this would be “giving up.” Id. Extensive VA treatment records from January 2017 to May 2017 indicate that the Veteran had limited range of motion of the bilateral lower extremities, wore protective padding for continence (Depends), reported not feeling well generally and overall, without specificity and did not have atrophy in the extremities. The records indicate that newly onset bilateral shaking, independently completed all activities of daily living, indicated pain significantly interfered with his ability to walk, carry or handle everyday objects, ability to climb stairs, required the use of assistive devices and negatively impacted his self-esteem or self-worth was negatively impacted, and resulted in significant depression and anxiety. The records further indicate that he had worry about reinjuring himself and problems concentrating; was independent with feeding, had impaired mobility and activity intolerance related to shortness of breath and gross weakness, had pain, attended church occasionally, bilateral weak legs with mild atrophy proximally, could walk a few steps when needed, could fix himself food and do some light prep for food preparation; ambulated in an electric chair, had difficulty with intermittent edema, slowly ambulated with steady gait, could ambulate to the toilet, felt weak all over, independent feeding and was able to move all extremities. See generally January 2017 to May 2017 VA treatment records. 3. Analysis - Entitlement to SMC for Loss of Use of Bilateral Lower Extremities The appellant and her attorney contend that the Veteran warranted a higher SMC rating due to his various disabilities. Specifically, the appellant’s attorney has argued that the Veteran was entitled to SMC at the rate under 38 U.S.C. § 1114(l). See Third Party Correspondence, November 30, 2020; see also VA Form 9, August 19, 2016. In this regard, the appellant’s attorney argues the Veteran could not maintain balance, propel himself, and walk without the use of prosthetic appliances constituting loss of use of the bilateral lower extremities. Id. Specifically, the appellant’s attorney points to the evidence indicating the Veteran had severe muscle rigidity and stiffness in his bilateral lower extremities, that he had difficulty ambulating, that he used a scooter and/or cane to move around, that the Veteran’s multiple falls sustained, that he had a limp and decreased flexion of the right foot, that that he had severe balance impairment, that he had severe difficulty initiating movement, that he had “freezing,” and short shuffling steps. Id. Essentially, the appellant and her attorney argue that the Veteran had no effective function left in his bilateral lower extremities warranting SMC, although the Veteran was able to ambulate and/or move his extremities to some extent. Based on the foregoing, the Board finds that the criteria for SMC based on loss of use of the bilateral lower extremities are met. Specifically, the Board initially notes that service connection was in effect for loss of use of the feet as well as neuropathy of the bilateral lower extremities and that the Veteran was essentially bound to a wheelchair and/or electric scooter as a result of such disabilities. Although the Board notes that the Veteran was able to somewhat ambulate a few steps, his medical history includes multiple emergency notes and hospital visitations, frequent falls as a result of his severely unsteady ability to walk, and often required assistance in using the bathroom. While some VA examinations and treatment notes indicate that the Veteran has the ability to walk, it was generally never more than a few feet, and often resulted in significant breathing difficulty. His mobility was consistently described as poor, and while he had some minor use of his lower extremities, all motion was described as painful. Notably, the Veteran considered entering hospice care due to the intense pain he felt in his bilateral legs. Additionally, the Veteran reported falling, suddenly and without explanation as early as April 2015, and that he had to use either two canes, a walker, or a motorized cart for locomotion. He also reported difficulty feeling his feet when walking or on the steps. Although the Veteran was found to be able to leave his home unrestricted, he also had to use a specially equipped van to carry his motorized cart at all times, and used the motorized cart constantly when outside the home. Moreover, beginning April 2015, the Veteran’s function of the bilateral lower extremities was shown to be abnormal due to lack of coordination, abnormal weight-bearing, being very unbalanced, abnormal propulsion requiring assistance with walking and being very unsteady and abnormal balance. Moreover, the Veteran could only walk 20 feet with two attendants. After a thorough review of the medical evidence, the Veteran’s physical limitations continue to degrade from April 2015 until his death. In this regard, the Veteran began suffering from severe balance impairment, severe bradykinesia or slowed motion, loss of automatic movement, moderate tremor of the bilateral lower extremities, severe muscle rigidity and stiffness of the bilateral lower extremities, severe depression, moderate cognitive impairment or dementia, moderate sleep disturbance, severe difficulty chewing or swallowing and urinary problems requiring more than four absorbent materials due to incontinence as noted at his May 2016 VA examination. He also complained of bilateral leg spasms, poor balance, reduced muscle strength, decreased balance, and generalized weakness that resulted in numerous falls. Notably, the Veteran experienced such unexplainable muscle spasms on occasion that caused him to jump out of his scooter and caused his scooter to crash. Further, the Veteran had bilateral weakness in the legs with mild atrophy, and could only walk a few steps when needed; and felt weak all over in 2017. For these reasons, SMC based on loss of use of the lower extremities is warranted. In sum, the credible medical evidence of record shows that the Veteran did not maintain effective function of the bilateral lower extremities, in that he could no ambulate freely without the use of traditional devices; and that the Veteran’s ambulation would be equally well served by an amputation with prosthesis. The Board notes that it is the Board’s responsibility to determine whether “loss of use” exists. Tucker v. West, 11 Vet. App. 369 (1998). This determination has been confirmed through the greater weight of evidence consisting of reliable medical statements discussed above. This determination was made after a review of the Veteran’s complete medical file, his claims folder, and physical examinations. As there is no medical evidence to suggest improvement is possible, the Board concludes that the loss of use of the legs was permanent. Accordingly, the Board will resolve reasonable doubt in the Veteran’s favor and grants special monthly compensation based on loss of use of the bilateral lower extremities. 4. Analysis - Entitlement to SMC at the Rate Specified at 38 U.S.C. § 1114(r)(1) The appellant and her attorney contend that the Veteran warranted a higher SMC rating due to his various disabilities. Specifically, the appellant’s attorney has argued that the Veteran was entitled to SMC at the rate under 38 U.S.C. § 1114(r)(1), excluding as due to the loss of use of both lower extremities. See Third Party Correspondence, November 30, 2020, see also VA Form 9, August 19, 2016. In this regard, the appellant’s attorney argues that the evidence shows the Veteran was incapable of exercising sound judgment and listening to the advice of his doctors, such that he was unable to protect himself from the hazards or dangers incident to his daily environment as a result of his severe cognitive limitations due to psychiatric symptoms and Parkinsonism; and the remaining physical residuals of his Parkinsonism. Id. Additionally, the appellant’s attorney argues that the Veteran was entitlement to SMC for the loss of use of both lower extremities and was entitled to additional SMC for the separate and distinct need for regular aid and attendance due to the remaining service-connected disabilities. Id. In this case, as of the date of this decision, the Board grants SMC benefits for loss of use of the bilateral lower extremities under 38 U.S.C. § 1114(l). The remaining question presented for the Board is now whether the Veteran’s service connected disabilities, excluding the loss of use of the bilateral lower extremities, satisfies the criteria for an award of aid and attendance benefits under 38 U.S.C. § 1114(l). If so, the Veteran would meet the criteria for an award of benefits under 38 U.S.C. § 1114(o), and since the Veteran also needs aid and attendance benefits, it would entitle him to the benefit authorized by 38 U.S.C. § 1114(r)(1). Based on the foregoing, the Board finds that the criteria for SMC based on special need for aid and attendance, excluding the loss of use of the bilateral lower extremities, are met. Specifically, the Board notes that the evidence demonstrated that the Veteran’s Parkinson’s disease, in particular, as well as his PTSD, result in the regular aid and attendance. In this regard, the evidence shows the Veteran required assistance in bathing, dressing, and driving as a result of his Parkinsonism beginning in April 2015. At his April 2015 VA examination, the Veteran reported he had difficulty putting on a jacket or long sleeved shirt due to his spine, and refused the help of his wife to shower; and although he was told not drive, he would drive several blocks. Due to his Parkinsonism, the Veteran developed bilateral shaking and tremors, muscle rigidity and stiffness, severe depression, moderate cognitive impairment or dementia, moderate sleep disturbance, severe difficulty chewing or swallowing and urinary problems requiring more than four absorbent materials due to incontinence. Additionally, in April 2015, the Veteran’s PTSD manifested in reduced reliability and productivity, and he reported that he could no longer engage in hobbies or activities due to his mobility issues, and that he had difficulty maintaining friendships. Throughout the period on appeal, the Veteran consistently reported suicidal ideation, that worsened with his physical health. Notably, the Veteran could not maintain consciousness at his April 2015 VA psychiatric examination, and had such difficulty focusing that he would often drift to other topics and lose his train of thought before falling asleep. Further, the evidence of record indicates the Veteran had difficulty getting around with his oxygen tank, and received daily assistance from his caregiver and wife. The Veteran routinely reported demotivation, social isolation, anxiety, depressed mood, and thoughts of suicide. The Board finds that based on the Veteran’s overall picture due to the combination of his service-connected disabilities, excluding the loss of use of the bilateral lower extremities, he needed the assistance of his wife, and frequently needed assistance from hospital staff. The evidence indicates that the Veteran required assistance on a regular basis to protect himself from the hazards or dangers incident to his daily environment. Specifically, the Veteran’s Parkinsonism resulted in the Veteran requiring significant assistance with physical activities, to include dressing and toileting; and his PTSD caused significant mental symptoms, to include severe demotivation and inability to focus; and in combination, such disabilities would have prevented the Veteran from protecting himself from the hazards or dangers incident to his daily environment. Affording the late Veteran the benefit of all reasonable doubt, it must be concluded that it is at least as likely as not that he has met the criteria set forth at 38 C.F.R. § 3.352(a) due to his service-connected disabilities. Thus, because the Veteran has suffered disability under conditions that would entitle him to two or more of the rates provided for in 38 U.S.C. § 1114(l)-(n), he is entitled to SMC at the 38 U.S.C. § 1114(o) rate. For these reasons, SMC at the rate specified at 38 U.S.C. § 1114(r)(1) is warranted. In sum, the evidence of record shows that the Veteran required assistance on a regular basis to protect himself from the hazards or dangers incident to his daily environment. This determination has been confirmed through the greater weight of evidence consisting of reliable medical statements discussed above. Accordingly, the Board will resolve reasonable doubt in the Veteran’s favor, and it must be concluded that it is at least as likely as not that he has met the criteria set forth at 38 C.F.R. § 3.352(a) due to his service-connected disabilities. Thus, because the Veteran has suffered disability under conditions that would entitle him to two or more of the rates provided for in 38 U.S.C. § 1114(l)-(n), he is entitled to SMC at the 38 U.S.C. § 1114(o) rate. (Continued on the next page) As noted, 38 U.S.C. § 1114(r)(1) provides for increased SMC if a Veteran is entitled to SMC at the 38 U.S.C. § 1114(o) rate and is in the need of regular aid and attendance. Here, the Veteran has been found entitled to SMC at the “o” rate, and as being in need of regular aid and attendance. Accordingly, entitlement to increased SMC at the 38 U.S.C. § 1114(r)(1) is granted. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mariah N. Sim, 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.