Citation Nr: A23006917 Decision Date: 04/10/23 Archive Date: 04/10/23 DOCKET NO. 230215-324513 DATE: April 10, 2023 ORDER A higher level of special monthly compensation (SMC) based on the need for regular aid and attendance for service-connected residuals of traumatic brain injury (TBI) is denied. FINDING OF FACT The Veteran does not require a higher level of care as a result of his service-connected PTSD with residuals of TBI such that he would be hospitalized or in a nursing home or residential institution without it. CONCLUSION OF LAW The criteria for a higher level of SMC based on the need for regular aid and attendance for service-connected residuals of TBI have not been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1967 to February 1969. This matter originated with his January 2023 supplemental claim for SMC(p) (pursuant to 38 U.S.C. § 1114(p)) as well as SMC(t) (pursuant to 38 U.S.C. § 1114(t)), which is based on the need for regular aid and attendance for service-connected residuals of TBI. A February 2023 rating decision denied a higher level of SMC based on aid and attendance. The reasons for that decision discuss only SMC(t), however. SMC(p) was not adjudicated, in other words. As such, the Board of Veterans' Appeals (Board) cannot adjudicate that issue herein. The Veteran may resubmit his claim for it to the agency of original jurisdiction (AOJ) or notify the AOJ that it is still pending. With respect to SMC(t), the February 2023 rating decision did not address whether new and relevant evidence had been received to warrant readjudication. Readjudication on the merits simply was undertaken. This is construed as an implicit favorable finding of receipt of new and relevant evidence. The Board is bound by that finding. 38 C.F.R. §§ 3.104(c); 20.801(a). There accordingly is no need to discuss new and relevant evidence herein; starting directly with the merits rather is appropriate. Specifically, the February 2023 rating decision denied SMC(t). The Veteran appealed to the Board, requesting the direct review docket. Only the evidence of record at the time of the rating decision thus is for consideration. 38 U.S.C. § 7113(a); 38 C.F.R. § 20.301. The Board observes at the outset that the Veteran has filed multiple claims seeking SMC(t), with the instant matter concerning only the most recent. The result of the older claims was a complicated procedural history. Relevant here is that the Board denied SMC(t) in an April 2022 decision. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court), however, which issued an Order granting the parties Joint Motion to Remand. The result was vacatur of the Board's decision and remand of the issue back to the Board for readjudication. It was while this readjudication was pending that the instant claim was received. Generally, concurrent jurisdiction is prohibited by 38 C.F.R. § 3.2500(b). This regulation has been partially invalidated, however. A supplemental claim now may be filed at any time after an adverse Board decision, even if that decision is under appeal. Military-Veterans Advocacy v. Secretary of Veterans Affairs, 7 F.4th 1110, 1142 n. 14 (Fed. Cir. 2021). This matter therefore may continue. Notably, the Board's readjudication at the direction of the Court occurred in a February 2023 decision which once again denied SMC(t). That decision and this one (as well as the April 2022 decision) are very similar, given the overlap in the bulk of the evidence considered, but they are not the same. SMC(t) - Regular Aid and Attendance for Residuals of TBI A higher level of SMC is payable if a veteran is in need of regular aid and attendance for service-connected residuals of TBI, is not eligible for compensation under 38 U.S.C. § 1114(r)(2), and would require hospitalization, nursing home care, or other residential institutional care in the absence of such regular aid and attendance. 38 U.S.C. § 1114(t); 38 C.F.R. § 3.350(j). The veteran must meet the criteria for regular aid and attendance and need an even higher level of care, such as daily personal health care services provided by a licensed person or by one regularly supervised by a licensed person, in order to stay home, in other words. 38 C.F.R. §§ 3.352(b)(2-3). For regular aid and attendance, factors to consider include: inability to dress/undress or keep ordinarily clean and presentable; frequent need to adjust any special prosthetic or orthopedic appliances which due to the particular disability cannot be done without aid (does not include appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability to feed through loss of coordination of the upper extremities or extreme weakness; inability to attend to the wants of nature; incapacity, physical or mental, which requires care or assistance on a regular basis to protect from the hazards or dangers incident to the daily environment; and being bedridden. 38 C.F.R. § 3.352(a). At least one of these factors, but not all, must be present. Id.; Turco v. Brown, 9 Vet. App. 222, 224 (1996). A constant need for regular aid and attendance also is not required. Id. Regarding an even higher level of care, personal health care services include, but are not limited to, physical therapy, administration of injections, placement of indwelling catheters, 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 professionals 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). Being under the regular supervision of a licensed health care professional means following the regimen prescribed by that professional and consulting with them, whether in person or via telephone, at least once per month to monitor that regimen. 38 C.F.R. § 3.352(b)(4). The claimant is afforded the benefit of the doubt when there is an approximate balance of positive and negative evidence on any given point. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Although all the evidence must be reviewed, only the most relevant evidence must be discussed. Gonzales v. West, 218 F.3d 1378, 1380-1381 (Fed. Cir. 2000). First, the Board finds that the Veteran meets the threshold criteria for SMC(t). He is service-connected for PTSD with residuals of TBI. He also is service-connected for atherosclerotic cardiovascular disease, diabetic nephropathy with hypertension, migraines, diabetes mellitus type II with erectile dysfunction, pes planus, bilateral recurrent tinnitus, bilateral hearing loss, peripheral neuropathy of the right and left lower extremities (both sciatic and femoral nerves), and hemorrhoids. The Veteran is not receiving SMC(r)(2) (special aid and attendance). Since August 2010, however, he has been in receipt of SMC(s) (statutory housebound). He also has been in receipt of SMC(k) (loss/loss of use of - here of a creative organ) since August 2011, and SMC(l) since May 2018. SMC(l) is payable in a variety of circumstances, to include when a veteran is so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). The March 2019 rating decision which granted SMC(l) specifies that here, the Veteran is in need of regular aid and attendance due to the combined effects of all his service-connected disabilities. What remains is to determine whether the Veteran is in need of regular aid and attendance due solely to his service-connected PTSD with residuals of a TBI, that he further needs a higher level of care as a result of this disability, and that without which he would require hospitalization, nursing home care, or other residential institutional care. The Veteran, with the assistance of his representative, contends this is the case. He highlights in various statements, particularly a September 2021 statement, that he has struggled for years with his balance, dizziness, headaches, pain, a heart disorder, diabetes, psychiatric symptoms including anxiety, and a subdural hematoma which was treated in July 2021. As a result, he relates needing his wife's help with supervision, protection and instruction as well as to perform activities of daily living (ADLs). These activities include: showering/bathing, personal hygiene, grooming, dressing, toileting, ambulation, transferring from bed to chair and other mobility, managing medications, attending doctor's appointments, and emotional support. The Veteran's wife indicated in September 2021 that he has seizures/blackouts/ lapses in mental awareness, is in danger of falls, and has hallucinations, delusions, as well as difficulty sleeping and moderating his moods. Thus, she helps him with showering/bathing to include checking the water temperature, washing his hair, and soaping and rinsing his body. She also assists him with dressing/undressing, keeping ordinarily clean and presentable, wiping after he uses the toilet, walking, getting in/out of the car, transferring, and managing his medications. In May 2022, the Veteran's wife noted he had gotten worse. Loss of consciousness for minutes to hours, persistent headache with constant nausea, getting confused easily, forgetfulness, constant sadness, frequent disorientation, anti-social behavior, and unsteadiness, all of which she attributed to his TBI residuals, were referenced. Yet other than combing his hair and walking behind him if he is not using his walker, she discussed providing him with the same assistance as in September 2021. The Veteran's wife finally stated that his care providers give her guidance and made clear that she thinks he would need nursing home care if not for her. Turning to the medical evidence, an August 2021 letter from VA Dr. C.S. notes that the Veteran requires help from his wife with dressing, personal hygiene and grooming, bathing, toileting, transferring from bed to chair, mobility, and emotional support. However, it was opined that he is unable to perform these ADLs due to a combination of his service-connected PTSD with residuals of TBI, atherosclerotic cardiovascular disease, diabetic neuropathy, and pes planus as well as his recent surgery for a subdural hematoma. Dr. C.S. next completed a medical form (VA 21-2680) regarding regular aid and attendance in December 2021. The Veteran's diagnoses of history of TBI, PTSD, chronic headaches, ischemic heart disease, atrial fibrillation, subdural hematoma status-post Burr Holes surgery, chronic weakness/imbalance, depression, cervical and lumbar radiculopathy, and osteoarthritis of the hands and shoulders were acknowledged. Findings then were made that he has an unsteady gait, difficulty with balance and ambulation due to his cervical and lumbar radiculopathy, is deconditioned, and has difficulty with dexterity due to osteoarthritis in his upper extremities and hands. Dr. C.S. stated that the Veteran can feed himself, but she deemed him unable to prepare his own meals due to all the above diagnoses. His need for assistance with medication management due to memory problems and with bathing and tending to other hygiene needs due to chronic pain and deconditioning, as well as his use of a wheelchair, further was noted. Dr. C.S. thus opined that he needs help with ADLs, ambulation, emotional support, meals, and medication management due to bilateral upper extremity weakness, chronic pain, and PTSD/TBI/memory loss. Finally, Dr. C.S. indicated that the Veteran did not require nursing home care. An amended VA medical form regarding regular aid and attendance from Dr. C.S. was submitted in January 2022, however. The only difference between it and the December 2021 examination is that now she indicated the Veteran does require nursing home care. Her reasoning was that due to his history of TBI, subdural hematoma, deconditioning, and chronic pain, he needs assistance with ADLs and ambulation. Without aid and attendance, he therefore would require nursing home care. At a series of VA medical examinations in October 2021, which included review of the Veteran's claims file, he was found to have tinnitus, dizziness, weight bearing and balance deficits in his lower extremities, decreased range of motion in his neck and back, and deficits in short term memory, language, attention, visuospatial skills, social interaction, and communication. He had to be accompanied to the examination, could not stand for any significant amount of time, needed a walker to walk around the house or up to 1 block without assistance from another person, and had difficulty remembering his VA benefit payments or to pay bills. The Veteran's wife additionally assisted him with dressing, hygiene, grooming, bathing, toileting, and transferring from bed to chair. His need for aid and attendance was recognized, but it was opined that this need was due to multiple disabilities and not just his residuals of TBI. The August 2021 letter was referenced in support of this opinion. Regarding the subdural hematoma, the Veteran's biggest risk factor was identified as Apixiban (blood thinner) use for atrial fibrillation. This means it has no relationship to his PTSD with residuals of TBI. VA treatment records document that the Veteran's wife applied for VA's Program of Comprehensive Assistance for Family Caregivers (PCAFC). To qualify, he must need personal care services for at least 6 continuous months based on an inability to perform an ADL or a need for supervision, protection, or instruction. A functional assessment was performed in April 2022, which consisted of an interview of him and his wife. Regarding ADLs, the Veteran reportedly is independent in eating, oral hygiene, toilet hygiene, sitting to lying, chair/bed to chair transfer, toilet transfer, walking 10 feet, and walking 50 feet with 2 turns (with a cane; also has a walker). He needs partial or moderate assistance with showering/bathing, dressing, his prosthetics (a back brace, though he seldom wears it), and lying to sitting on the side of the bed. He requires supervision or touch assistance with putting on/taking off footwear, sitting to standing, navigating 4 steps, walking indoors, and walking across the street. Finally, the Veteran is dependent with walking 150 feet, navigating 12 steps, picking up objects from standing, carrying something in both hands, and walking for 15 minutes. Concerning supervision, protection, and instruction, the Veteran reportedly needs help with his medications. He was noted to have minimal judgment and physical ability to cope, make appropriate decisions, and take action in a changing environment or potentially harmful situation, and he was deemed to be at risk of self-neglect. While he can be left at home alone for 1-2 hours, his wife does not like to do so more because of physical instead of cognitive issues. The Veteran always needs someone with him when he is out, however. This was to assist with remembering (including directions), decision making, and judgment. Twice a week, the Veteran needs cues due to engaging in markedly inappropriate behavior attributable to his hallucinations. He also needs redirection daily given his tendency to get easily agitated and anxious. Yet he has no propensity for impulsive decisions or actions and is able to identify his needs and provide and/or arrange for his health and safety. Subsequent April 2022 VA treatment records reflect that his wife is involved with his ADLs, such as bathing, clothing, cooking, ambulation, and medication assistance. More than once in these subsequent April 2022 VA treatment records, it was determined that the Veteran's care needs can be safely provided in a home setting and that he is not being recommended for institutional care. His wife's PCAFC application was approved, because he "may require hands on assistance with bathing due to history of subdural hematoma with evacuation, chronic obstructive pulmonary disease, lumbar stenosis, and neuropathy. Furthermore, … he may need supervision due to the above conditions and due to his fall risk and need for cues for safety during ADLs and mobility." A certificate has been submitted revealing that the Veteran's wife completed the program in May 2022. From August to December 2022, VA treatment records continue to document his unsteady balance and gait, low back pain, limited range of motion in all extremities, bilateral lower extremity weakness, migraines, memory problems, ongoing anxiety, and some depression. They also continue to document his episodes of dizziness, though they were significantly improved. His mobility was deemed limited, and he used a walker and/or a cane. Private Dr. H.K. completed a medical form regarding regular aid and attendance in January 2023. The Veteran's diagnoses of TBI, chronic headaches, confusion, and dysequilibrium were acknowledged. So was his use of ambulatory aids, which allow him a maximum distance of 5-6 blocks. His was found able to feed himself, but it was noted that he cannot prepare his own meals due to his inability to stand with enough steadiness, getting confused easily, and inability to reliably use the stove or recipe ingredients. Also noted was that he needs assistance with bathing/hygiene because of his unsteadiness, especially in wet/slippery conditions, compounded by dizziness. Further, he needs help with medication management and managing his VA benefit payments and finances because of his forgetfulness, confusion, and difficulty processing information. The Veteran next can leave his home, but only with a chaperone given his risk of falling due to dizziness and risk of getting lost due to cognitive dysfunction. Finally, it was indicated the Veteran does require nursing home care. The reasoning is that without family care, he could not live alone safely and would need 24/7 care in a facility. Coupled with the medical form, Dr. H.K. provided a report in January 2023. The conclusion, after review of the claims file, was that the Veteran more likely than not needs regular aid and attendance for his residuals of TBI and that, absent such, he would require hospitalization, nursing home care, or other residential institutional care. It was explained that he needs help with ADLs like preparing meals, taking medications, bathing, grooming, hygiene/dressing, driving to appointments, and managing his financial affairs. Unreliable cognitive functions, including concentration and decreased focus abilities, specifically were noted to result in not attending to the stove and forgetting to turn off tools or even how to use them (apraxia). In recognizing that the Veteran's family helps him with ADLs, Dr. H.K. stated that his "incapacities, physical or cognitive, require regular care or assistance 24/7 to protect from hazards or dangers incident to the daily environment." His cannot live independently and would need some sort of residential arrangement if it were not for his family, in other words. This was deemed true since his July 2021 surgery for subdural hematoma. The Board finds that the evidence is persuasively against the Veteran's claim. Indeed, none of the remaining determinations to be made are favorable to him. The first determination, to reiterate from above, is whether he is needs regular aid and attendance due solely to his service-connected PTSD with residuals of TBI. He and his wife believe this to be the case, but there is no indication either has a medical background. They accordingly are laypersons who lack the medical knowledge and training to answer medical questions. This is even more so true when the medical question is complex, as is the case here given the number of disabilities impacting the Veteran's functional abilities. Neither he nor his wife is competent to render an opinion regarding the aforementioned, in other words. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); Kahana v. Shinseki, 24. Vet. App. 428, 435 (2011). Concerning the competent medical evidence, it is undisputed that the Veteran needs regular aid and attendance. Yet nearly all this evidence is in agreement that his need is attributable to several disabilities and not just his PTSD with residuals of TBI. In particular, the August 2021 letter, December 2021 medical form regarding regular aid and attendance, and amended January 2022 medical form from Dr. C.S. identify multiple service-connected disabilities along with some nonservice-connected disabilities as the reasons for the Veteran's need for regular aid and attendance. The October 2021 VA medical examinations did the same, in addition to concluding that his subdural hematoma is not related to his residuals of TBI. There is no competent medical evidence contradicting this conclusion and linking his subdural hematoma to his residuals of TBI. What worsening the Veteran experienced following the July 2021 surgery for it accordingly cannot be taken into account here, where only the residuals of TBI are for consideration. VA treatment records discuss his ongoing problems with attributable to multiple disabilities, both service-connected and nonservice-connected. This includes those regarding the PCAFC program, which expressly identify four disabilities in approving his wife's application. PTSD with residuals of TBI was not among them. Dr. H.K.'s January 2023 report, in contrast to the above, identifies only the Veterans PTSD with residuals of TBI as the reason he needs regular aid and attendance. It appears that Dr. H.K.'s January 2023 medical form regarding regular aid and attendance does as well, since the only disabilities addressed were TBI, residuals attributed to TBI of confusion and dysequilibrium, and migraines which VA recognizes as associated with TBI. However, the probative value of this favorable medical evidence is reduced for several reasons. First, there was no explanation for why the Veteran's dysequilibrium is entirely or even largely a residual of his TBI. Such is especially important as the other medical evidence, as set forth above, indicates it is attributable to his cervical and lumbar radiculopathy or weight bearing and balance deficits in his lower extremities. Second, indicating he would have needed some sort of residential arrangement absent care from his family since his subdural hematoma surgery means the worsening due to it has been taken into account. It is reiterated, however, that such is not for consideration here since the subdural hematoma is not related to the Veteran's residuals of TBI. Along with lacking sufficient explanation and factoring in prohibited considerations, Dr. H.K.'s medical form third was based solely on a telemedicine visit. There was never any in-person interaction with the Veteran or his wife, whereas Dr. C.S. was his treating VA physician and the October 2021 VA medical examiner met with him in-person. It follows that Dr. H.K. did not ever actually assess the Veteran, whereas Dr. C.S. did multiple times and the VA medical examiner did once. Dr. H.K. was not in as good a position to complete the medical form regarding regular aid and attendance, in other words. This means the corresponding opinion, despite being based on a review of the claims file just like the October 2021 VA medical examination opinion, also was less informed. Simply put, this other medical evidence is significantly more probative than the medical evidence from Dr. H.K. particularly when it is viewed collectively. That the medical evidence from everyone other than Dr. H.K. is unfavorable whereas that from Dr. H.K. finally is not dispositive, but it is notable. (Continued on the next page) ? The second determination is whether the Veteran need not just regular aid and attendance but a higher level of care as a result of his service-connected PTSD with residuals of TBI. Since he does not need even regular aid and attendance due to that disability alone, discussion in this regard is unnecessary. Nevertheless, the Board observes in brief that there is no indication he needs daily personal health care services provided by a licensed person or one regularly supervised by a licensed person. The medical evidence does not reflect the Veteran's participation in physical therapy, apart from after the surgery for his subdural hematoma which cannot be considered. It also does not reflect that he needs injections, placement of an indwelling catheter, sterile dressing changes, or similar at all, let alone daily. His wife's completion of the PCAFC program was not to learn a regimen to handle such personal health care services. Additionally, nothing confirms or even suggests she is supervised by a licensed health care professional at least once per month post-completion of the program. Finally, the third and final determination is whether the Veteran would require hospitalization, nursing home care, or other residential institutional care but for his receipt of a higher level of care for his service-connected PTSD with residuals of TBI. Discussion in this regard once again is unnecessary because he does not need even regular aid and attendance due solely to that disability. Yet the Board once again makes observations in brief. It is undisputed that the Veteran could not remain at home if it were not for the care provided by his wife (or others). Dr. H.K.'s opinion that this is attributable only to his TBI residuals suffers from the same flaws as aforementioned. It further must be weighed against Dr. C.S.'s more probative amended opinion that this is due to multiple disabilities, of which PTSD with residuals of TBI is only one. The provisions for higher levels of SMC based on the need for regular aid and attendance like SMC(t), in conclusion, are to be strictly construed. 38 C.F.R. § 3.352(b)(6). It is to be granted only when the veteran's need is clearly established and the amount of services required by him on a daily basis is substantial. Id. This is not the case here. SMC(t) is denied. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Becker 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.