Citation Nr: A24005980 Decision Date: 02/09/24 Archive Date: 02/09/24 DOCKET NO. 220811-267958 DATE: February 9, 2024 ORDER A basic entitlement to the Dependency and Indemnity Compensation (DIC) based on service connection for cause of death (COD) under 38 U.S.C. § 1310 is granted. An enhanced DIC compensation under 38 U.S.C. § 1311(a)(2) is granted. The claim for the DIC compensation based on a total disability rating prior to the Veteran's death under 38 U.S.C. § 1318 is dismissed. Special monthly compensation (SMC) under 38 U.S.C. § 1114(l), as an accrued benefit based on the Veteran's need for aid and attendance, but not higher, is granted, subject to the laws and regulations governing the awards of monetary benefits. The increased rating claim for the Veteran's bilateral knee chondromalacia with traumatic arthritis and bilateral knee subluxation is dismissed. REMANDED The claim for enhanced DIC compensation under 38 U.S.C. § 1311(c) based on the appellant's need for regular aid and attendance or under § 1311(d) based on her housebound status is remanded. FINDINGS OF FACT 1. The evidence of record persuasively favors the finding that the disabilities that substantially contributed to the Veteran's death are etiologically related to service. 2. The Veteran's service-connected bilateral knee disability was continuously rated as totally disabling for at least 8 years immediately preceding his death. 3. An award of the DIC benefits under § 1310 moots the DIC claim under § 1318. 4. The evidence of record persuasively favors the finding that it is at least as likely as not that the Veteran had required regular aid and attendance of another person assisting him with his very basic daily living necessities. 5. An appellate review of the assigned schedular ratings for the Veteran's bilateral knee disability would not yield any additional VA benefit to his surviving spouse. CONCLUSIONS OF LAW 1. The criteria for the basic DIC compensation have been met. 38 U.S.C. §§ 1110, 1310; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312. 2. The criteria for the enhanced DIC compensation on the basis of the Veteran's total disability rating have been met. 38 U.S.C. § 1311(a)(2); 38 C.F.R. § 3.10(c). 3. The criteria for dismissal of the DIC claim under 38 U.S.C. § 1318 have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 4. The criteria for the award of SMC A&A, as an accrued benefit, have been met. 38 U.S.C. § 1114(l); 38 C.F.R. §§ 3.350, 3.352. 5. The criteria for dismissing the increased rating claim for bilateral knee disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran honorably served on active duty from November 1971 to September 1973. In a May 2019 rating decision, the Regional Office (RO) denied his claim for rating bilateral knee chondromalacia with post-traumatic arthritis in excess of 20 percent per each joint and knee subluxation in excess of 20 percent per each joint. The RO also denied special monthly compensation (SMC) based on housebound status or need for aid and attendance (A&A). In November 2019, the Veteran died. In a July 2020 rating decision, the RO denied his surviving spouse's claim for survivor benefits, to include dependency and indemnity compensation (DIC) and SMC compensation based on her own need for aid and attendance or housebound status. In July 2021, she requested a higher-level review of the July 2020 decision on her own behalf and of the May 2019 decision on the Veteran's behalf. Although by the time of her July 2021 request more than one year had elapsed since the RO's May 2019 rating decision, the RO noted that the Veteran's surviving spouse has not been properly notified as to her status as the substitute appellant and how she may exercise her appeal rights in that role. Those omissions rendered the RO's notice of the decision inadequate and thus the decision did not become final and the claim was deemed pending. Cook v. Principi, 318 F.3d 1334, 1340 (Fed. Cir. 2002) (en banc). By implication, upon recognizing the Veteran's surviving spouse as the proper substitute appellant on behalf of the diseased Veteran, her request for a higher-level review of the May 2019 rating decision is timely. In September 2021, upon the requested higher-level review, the RO denied the claim for accrued and survivor benefits, apart from the claim for cause of death, which was denied in December 2021. The Veteran's surviving spouse (appellant) disagreed with both decisions, electing the Board's Evidence Submission Lane. Survival Benefits The DIC compensation benefits are granted based on service connection for cause of death under 38 U.S.C. § 1310, so long as the disabilities that primarily or contributorily caused the veteran's death are shown to be etiologically related to his or her service, regardless of whether such disabilities were actually service connected prior to his or her death. See 38 C.F.R. § 3.312(a). The November 2019 autopsy report (received in May 2020) reflects a pathologist's opinion that the Veteran's cause of death was acute pulmonary thromboembolism, complicated by his multiple medical conditions including clinically significant cardiovascular disease, severely elevated blood glucose levels, and renal failure requiring dialysis. The pathologist explains that pulmonary embolism is a known complication in patients, like the Veteran, who already suffer from the underlying cardiac disease and are immobilized for long periods, each of which contributes to hypercoagulable state and frequently contributes to the formation of the thrombus. The November 2021 VA examination reports reflect the confirmed diagnoses of coronary artery disease (CAD) consistent with ischemic heart disease (IHD), diabetes mellitus (DM), and chronic kidney disease (CKD). The Veteran's VA and private treatment records are further replete with the diagnoses of bilateral knee disability, renal hypertension, and dementia. Given the RO's concession that the Veteran is presumed to have been exposed to herbicide agents during his service, his CAD and DM are further presumed to have been caused by such an exposure. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). His CKD and renal hypertension are well-known complications of DM, while CKD is also among the well-known high-risk factors for developing dementia, often referred to as "renal" dementia. 38 C.F.R. § 3.310. As such, the cluster of the Veteran's disabilities, albeit not service connected during his lifetime, clearly was etiologically related to service either on direct or secondary basis and at minimum substantially and materially, if not primarily, caused his death. The Board acknowledges the VA examiner's opinion that the Veteran's service-connected knee disability did not materially or substantially contribute to his death. However, the examination report is devoid of any apparent consideration given to the synergistic impact of the Veteran's non-service-connected disabilities which, as found by the Board, are etiologically related to his service. This is why this opinion is not particularly persuasive. Absent any other evidence to the contrary, the Board finds that all legal criteria for service connection for cause of death are met. Therefore, the basic DIC compensation based on now service-connected cause of death is granted. Given this favorable finding, the Board must consider the appellant's entitlement to every benefit within the scope of claim entitlement to which is supported in law, to include consideration of an enhanced DIC compensation, which the appellant may but needs not to expressly assert. 38 C.F.R. § 3.155(d)(2). The amount of DIC payable to the surviving spouse at basic monthly rate, as set forth in 38 U.S.C. § 1311(a)(1) and subject to periodic cost of living adjustments, may be increased or "enhanced" in cases of a veteran who, at the time of death on or after January 1, 1993, was in receipt of compensation for a service-connected disability that was rated totally disabling for a continuous period of at least eight years immediately preceding death, as shown in this case. 38 U.S.C. § 1311(a)(2); 38 C.F.R. § 3.10(c). The Veteran's continuous total disabling rating from May 2011 to November 2019 squarely meets the criteria for the enhanced DIC compensation under 38 U.S.C. § 1311(a)(2), which thus is granted. However, the claim for the DIC compensation under § 1318 is moot. To this end, the caselaw in point is clear in that the DIC benefits under § 1318 should be considered only if, unlike here, the DIC under § 1310 is denied. See Timberlake v. Gober, 14 Vet. App. 122 (2000). Moreover, the DIC under §1318 may be awarded only if, unlike here, a veteran died of non-service-connected causes. See Rodriguez v. Peake, 511 F.3d 1147, 1148 (2008). Of final note here, the DIC compensation awarded under § 1310 also provides greater benefits than does the DIC award under § 1318. For example, pursuant to 38 U.S.C. § 2307, the appellant may be entitled to certain burial benefits available under § 1310, but not under § 1318. See Mintz v. Brown, 6 Vet. App. 277, 282-83 (1994). As such, the Board's grant of service connection for cause of death under § 1310 ultimately moots the claim of entitlement to the DIC benefits under § 1318, which therefore is dismissed. Accrued Benefits In seeking accrued benefits, to include the increased evaluations of the Veteran's bilateral knee disability and his entitlement to special monthly compensation, the appellant has not advanced any specific contention apart from emphasizing the Veteran's actual need for regular assistance with his daily living necessities. SMC A&A is warranted in cases where service-connected disabilities are of such a severity that is sufficient to render a veteran so helpless as to require the regular aid and attendance of another person. See 38 U.S.C. § 1114(l). To this end, the Board's consideration is given to such factors as: (1) the inability of a veteran to dress or undress, or to keep him- or herself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without such aid; (3) inability of a veteran to feed because of the loss of coordination of upper extremities or because of extreme weakness; (4) inability to attend to the wants of nature; or (5) incapacity, physical or mental, which requires care or assistance on a regular basis to protect a veteran from the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). Of particular note, at least one of the factors outlined above must be shown before the SMC A&A may be awarded but the regulation certainly does not demand that every relevant factor must be present. See id. Simply put, the SMC A&A is warranted, so long as the evidence of record shows that a veteran is unable to take care of at least some of the rudimentary daily necessities without regular assistance of another person. This is the case before the Board. Here, an April 2019 VA examination report reflects that the Veteran is wheelchair bound and is unable to ambulate on his own due to his bilateral knee degenerative joint disease. Given this limitation he is unable to do bathing, grooming, household chores, and meal preparation. His limited mobility further coupled with his chronic kidney disease with urinary incontinence further placed him in need of assistance with toileting. His cognitive decline due to his dementia further impeded his ability to manage his medications and finances. As discussed, although these disabilities apart from the Veteran's knees were not service connected during his life, the Board has found them to be etiologically related to his service. Besides, his service-connected bilateral knee disabilities alone rendered him unable to do bathing, grooming, household chores, meal preparation, and toileting, without assistance of another person. The April 2019 medical opinion is supported by both lay and medical evidence of record viewed as a whole. For example, in her multiple statements in support of claim, the appellant describes in great detail the Veteran's physical and mental limitations in his ability to take care of himself. The VA primary care evaluations are also replete with the medical evidence of the Veteran's inability to take care of his very basic daily necessities without aid and attendance of another person. For example, the September 2019 primary care and community care evaluation reports note that the Veteran needs assistance with three or more daily living necessities, to include bathing, dressing, grooming, feeding, toileting, cooking/meal preparation, laundry, housekeeping, grocery shopping, and community mobility, or otherwise he could require institutionalized nursing home placement. These are the precise circumstances, as contemplated by Congress, were a special monthly compensation based on the Veteran's regular need for aid and attendance is warranted. Absent any evidence to the contrary, the Board finds that all legal criteria for SMC at A&A rate are met, but not higher. Given that the SMC rate based on regular need for aid and attendance is greater than the SMC rate based on housebound status, while both may not be assigned concurrently, entitlement to the lesser rate is subsumed by the greater benefit. See 38 U.S.C. § 1114 (l), (s). As such, without any benefit to be gained, the claim for housebound status SMC is moot and therefore is dismissed. 38 C.F.R. § 20.205. The Board has further considered that in cases, like this, where a veteran is so significantly disabled as to be in need of regular aid and attendance, the monthly compensation may be payable at a higher rate under certain circumstances but ultimately found no such circumstances in this case. See 38 U.S.C. § 1114(m)-(r), (t). For example, unlike here, the Veteran had not suffered the requisite loss of use of both legs with factors preventing natural knee action and with prostheses in place. Id. at § 1114(m). Likewise, the evidence of record fails to support the legal basis for a higher rate that may be payable in cases, unlike here, where a veteran suffered actual anatomical loss of both legs. Id. at § 1114(n). Nor are inapplicable here the statutory provisions for circumstances which would entitle a veteran to two or more independent bases for the special rates provided under subsections (l) through (n). Id. at § 1114(o). A higher rate also may be paid in lieu of the basic aid and attendance rate on the basis of requiring a higher-level of care such as by the licensed medical staff, which has been suggested by the Veteran's VA treatment records noting that he could have required institutionalized nursing home care. This benefit, however, requires a more concrete finding that the Veteran, in the absence of the provision of higher-level of care, would rather than could require hospitalization, nursing home care, or other residential institutional care, which has been suggested but ultimately not shown. Otherwise, neither the Veteran, nor his representative, nor the appellant, nor her representative expressly raised the Veteran's entitlement to compensation at a rate greater than the basic SMC A&A rate. Accordingly, the basic SMC A&A under § 1114(l), but not higher, is granted. Upon turning to the increased rating claim for bilateral knee disability, the Board notes that this lone disability service-connected during the Veteran's life had been comprehensively covered by the permanent and total rating based on individual unemployability, to include the dependents' educational benefits, which had been in effect throughout the rating period on appeal. The Board's award of the SMC A&A leaves no other conceivable monetary and non-monetary accrued benefits that may be gained by the appellant, which ultimately renders the increased rating claim for knee disability moot. In these circumstances, where no additional benefit can be gained, no question of law and of fact remains for the Board to resolve. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). In other words, even if the Board were to revisit and review the Veteran's schedular ratings based on the separate and discrete symptoms of his bilateral knee disability, such a review would not yield a rating any higher than total (100 percent) already in effect throughout the rating period on appeal. Accordingly, the claim for increase compensation for the Veteran's bilateral knee disability is dismissed. See 38 C.F.R. § 20.205. REASONS FOR REMAND In addition to the enhanced DIC compensation under § 1311(a)(2) awarded by the Board, the appellant may be entitled to additional compensation under § 1311(c) based on her need of aid and attendance or under subsection (d) based on being permanently housebound. To this end, the evidence of record suggested that she may be entitled to the sought benefits. For example, the April 2019 Veteran's VA primary care notes reflect that his wife is suffering from caretaker fatigue and July 2019 notes reflect that she is hospitalized with heart problems. This evidence was constructively before the agency adjudicators at the time of the July 2020 and thus has triggered the VA's duty to provide a medical examination which was not done. This pre-decisional duty to assist error must be corrected. Accordingly, the matters are REMANDED for the following action: Provide a medical examination as to the appellant's need for aid and attendance and/or housebound status. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alex Bardin, 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.