Veteranclaims’s Blog

June 15, 2022

Single Judge Application; SMC; Board conflated the legal criteria for SMC based on aid on attendance with that for housebound status; Board comes dangerously close, once again, to conflating the requirements for entitlement to SMC based on the need for aid and attendance with requirements for entitlement to housebound status. The Board weaves together a discussion of these distinct concepts in it decision.31 For example, the Board states that “the level of impairment [appellant’s] PTSD has caused has not risen to the level of being permanently bedridden or permanently housebound,” and in the very next sentence concludes that “there has not been a showing that such impairment has rendered [appellant] to be so helpless as to be in need of regular aid and attendance.”;

Filed under: Uncategorized — veteranclaims @ 7:21 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 21-1385
DANNY W. BRIGGS, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before ALLEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
ALLEN, Judge: Appellant Danny W. Briggs served the Nation honorably in the United
States Army from February 1969 to November 1970.1 In this appeal, which is timely and over
which the Court has jurisdiction,2 he contests a November 18, 2020, Board of Veterans’ Appeals
decision that denied entitlement to special monthly compensation (SMC) based on (1) the need for
aid and attendance, and (2) housebound status.3 Because the Board failed to provide an adequate
statement of its reasons or bases for denying appellant’s claim concerning SMC based on aid and
attendance, the only matter before the Court, we will set aside the Board’s decision on this issue
and remand the matter for readjudication consistent with this decision.
I. ANALYSIS
1 Record (R.) at 2472.
2 See 38 U.S.C. §§ 7252(a), 7266(a).
3 R. at 5-14. Appellant does not appeal that portion of the Board decision denying entitlement to SMC based on
housebound status, and we consider any appeal as to that issue abandoned. Pederson v. McDonald, 27 Vet.App. 276,
281-86 (2015) (en banc); see Appellant’s Brief (Br.) at 2 n.1.
2
Appellant makes multiple arguments on appeal contending that reversal is warranted.4
First, appellant asserts that the Board erred by providing an inadequate statement of its reasons or
bases for denying appellant’s claim for entitlement to SMC based on regular aid and attendance.5
Specifically, appellant asserts that the Board erred by failing to sufficiently explain how his need
for assistance with medication management does not entitle him to SMC, and that the Board failed
to address favorable evidence.6 Next, appellant argues that the Board conflated the legal criteria
for SMC based on aid on attendance with that for housebound status
.7 Finally, appellant asserts
that the Board member overseeing his hearing failed to elicit meaningful facts and information that
would assist appellant in developing his claim.8 The Secretary defends the Board’s decision in full
and urges affirmance.9 As we will explain, we agree with appellant that the Board provided an
inadequate statement of its reasons or bases, but we ultimately determine that remand is the
appropriate remedy.
A. Legal Landscape
SMC is available to a veteran when he or she suffers hardships beyond those contemplated
by the rating schedule as a result of a service-connected disability or disabilities.10 As relevant to
this appeal, such additional compensation may be warranted when a veteran requires the “regular
aid or attendance” of another11 or is permanently housebound by reason of a service-connected
disability or disabilities.12 To determine the need for aid or attendance, VA regulations provide
that an adjudicator should consider the
incapacity, physical or mental, which requires care or assistance on a regular basis
to protect the claimant from hazards or dangers incident to his or her daily
environment. . . . The particular personal functions which the veteran is unable to
perform should be considered in connection with his or her condition as a whole. It
is only necessary that the evidence establish that the veteran is so helpless as to
need regular aid and attendance, not that there be a constant need. Determinations
that the veteran is so helpless, as to be in need of regular aid and attendance will
4 See Appellant’s Br. at 10-27.
5 See Appellant’s Br. at 10-19.
6 Id.
7 Appellant’s Br. at 19-20.
8 Appellant’s Br. at 21-24.
9 See Secretary’s Br. at 8-26.
10 38 U.S.C. § 1114(k)-(s); see Breniser v. Shinseki, 25 Vet.App. 64, 68 (2011).
11 38 U.S.C. § 1114(l); 38 C.F.R. § 3.352(a) (2021).
12 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i) (2021).
3
not be based solely upon an opinion that the claimant’s condition is such as would
require him or her to be in bed. They must be based on the actual requirement of
personal assistance from others. [13]
The Board’s determination whether a veteran is entitled to SMC is a factual decision that this Court
reviews for clear error.14 We may overturn the Board’s factual findings only if there’s no plausible
basis in the record for the Board’s decision and the Court is “‘left with the definite and firm
conviction'” that the Board’s decision was in error.15 In addition, the Board must include in its
decision a written statement of the reasons or bases for its findings and conclusions, adequate to
enable an appellant to understand the precise basis for the Board’s decision as well as to facilitate
review in this Court.16 If the Board fails to do so, remand is appropriate.17
B. The Board’s reasons or bases are inadequate.
The Court concludes that the Board did not provide an adequate statement of its reasons or
bases when it determined that appellant’s PTSD does not render him so helpless as to need regular
aid and attendance. As an initial matter, appellant asserts that reversal is the appropriate remedy.18
But when the Board’s statement of its reasons or bases is inadequate, as here, remand is the proper
remedy for the Board to make factual determinations in the first instance and provide a rationale
for its decision that facilitates judicial review.19
When determining whether a claimant is entitled to SMC based on aid and attendance, §
3.352(a) requires the Board to consider mental incapacity that “requires care or assistance on a
regular basis to protect the claimant from hazards or dangers incident to his or her daily
environment.”20 In its decision, the Board noted that appellant is service connected for PTSD with
13 38 C.F.R. § 3.352(a).
14 See Prejean v. West, 13 Vet.App. 444, 447 (2000); Turco v. Brown, 9 Vet.App. 222, 224 (1996).
15 See Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395
(1948)).
16 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert, 1 Vet.App. at 56-57.
17 Tucker v. West, 11 Vet.App. 369, 374 (1998).
18 Appellant’s Br. at 25-27. See Deloach v. Shinseki, 704 F.3d 1370, 1380 (Fed. Cir. 2013) (citing U.S. Gypsum Co.,
333 U.S. at 395) (“[W]here the Board has performed the necessary fact-finding and explicitly weighed the evidence,
the Court . . . should reverse when, on the entire evidence, it is left with the definite and firm conviction that a mistake
has been committed.”); Gutierrez v. Principi, 19 Vet.App. 1, 10 (2004) (“[R]eversal is the appropriate remedy when
the only permissible view of the evidence is contrary to the Board’s decision.”).
19 Byron v. Shinseki, 670 F.3d 1202, 1206 (Fed. Cir. 2012) (“When there are facts that remain to be found in the first
instance, a remand is the proper course.”).
20 38 C.F.R. § 3.352(a).
4
an evaluation of 70%, and that appellant’s “PTSD is extremely impairing.”21 Moreover, the
decision conceded that appellant experiences trouble managing his medication as a result of his
PTSD, and that he has hired caregivers in the past to assist him with tasks that include medication
management.22 However, the Board concluded that appellant’s impairment “has not rendered [him]
to be so helpless as to be in need of regular aid and attendance.”23
In reaching its conclusion, the Board found that appellant “self-reported that he
purposefully does not take his psychiatric medication on a regular basis and has also shown enough
awareness of his medication management, that he is able to hide certain medications from his
stepson.”24 First, we fail to understand, and the Board fails to explain, how appellant’s hiding
medication translates to being aware enough of his medication management to not render him so
helpless as to need regular aid and attendance.25 That fact may suggest something about appellant’s
view of his stepson as it concerns prescription medication, but it says little more. Similarly, the
Board does not explain how appellant not wanting to take his medication negates him from
regularly needing aid and attendance. Indeed, it’s conceivable that such views about taking
medication could point in exactly the opposite direction—one needs more help, not less. Simply
put, the Board does not sufficiently explain how these findings connect to its conclusion. After all,
the Board concedes that appellant’s PTSD is “extremely” impairing and that appellant experiences
trouble managing his medication as a result of his PTSD. Without an explanation, the decision
amounts to the Board determining that appellant is not entitled to SMC based on aid and attendance
“because I say so,” which is not acceptable.26
Second, the Board emphasized that the majority of appellant’s caregiver’s duties were
unrelated to appellant’s PTSD.27 For example, a November 2014 letter from appellant’s caregiver
detailed that the caregiver assisted appellant with getting dressed, putting appellant’s back brace
21 R. at 7, 14.
22 R. at 8-11, 14.
23 R. at 11, 12, 13, 14.
24 R. at 11; see R. at 13-14.
25 The Board noted that appellant had “shown enough awareness of his medication management” to hide “certain”
medications to prevent theft. R. at 11; see R. at 13-14. While we are generally concerned by this finding, we also
mention that the record indicates appellant was not so self-aware to hide “certain” medications, but that he would
instead just “hide his medications,” i.e., he would not hide “certain” medications. R. at 1373.
26 See, e.g., Cantrell v. Shulkin, 28 Vet.App. 382, 392 (2017) (citing Hood v. Brown, 4 Vet.App. 301, 303 (1993))
(“The Court simply cannot sanction a statement of reasons or bases that amounts to . . . ‘because I say so.'”).
27 See R. at 9, 10, 11, 14.
5
and shoes on, driving appellant to medical appointments, and assisting appellant with taking his
medications.28 Although the Board found that the caregiver assisted appellant with taking his
medications, the Board determined that the other duties performed “appear to be unrelated to
[appellant’s] service[-]connected PTSD, as they appear to be the result of his non-service
connected disabilities.”29 However, the Board failed to discuss the portion of appellant’s July 2011
VA examination where the examiner determined that appellant’s PTSD and depression “keep him
indoors, anxious, [and] not . . . able to drive.”30 Given that this is contradictory to the Board’s
finding, the Board must address this evidence and what effect it has, if any, on whether appellant’s
PTSD renders him so helpless as to need regular aid and attendance. This is a factual determination
that must be made by the Board in the first instance, and without such, judicial review is frustrated.
Third, the Board comes dangerously close, once again, to conflating the requirements for
entitlement to SMC based on the need for aid and attendance with requirements for entitlement to
housebound status. The Board weaves together a discussion of these distinct concepts in its
decision.31 For example, the Board states that “the level of impairment [appellant’s] PTSD has
caused has not risen to the level of being permanently bedridden or permanently housebound,” and
in the very next sentence concludes that “there has not been a showing that such impairment has
rendered [appellant] to be so helpless as to be in need of regular aid and attendance.”
32 To be sure,
the Board’s apparent conflation of the standards for the two distinct SMC benefits does not rise to
the same level as the Board’s April 2018 decision in which the Board “made a single ‘finding of
fact'” relating “to whether [appellant] was permanently housebound by reason of service-connected
disabilities” and determined that appellant “did not qualify for SMC because he was not
housebound due to service-connected disabilities.”33 But given that the Court remanded the
previous Board decision based on the conflation of the standards applicable to the two distinct
SMC theories, the Board comes far too close to doing so again. While our job is not to dictate how
the Board writes its decisions, we suggest that they should seriously consider making clear in the
way it presents its decision on remand that it understands that SMC based on housebound status
28 R. at 9, 14; see R. at 798.
29 R. at 14.
30 R. at 885 (emphasis added).
31 R. at 8 (“SMC Aid and Attendance and SMC Housebound Status on a Facts-Found Basis”).
32 R. at 11-12.
33 R. at 6; see R. at 73-81.
6
and SMC based on the need for regular aid and attendance of another are distinct. Let’s not have a
third remand that concerns this rather basic point. In any event, taking all these errors into account,
remand is required.34
C. Rights on Remand
Because the Court is remanding the matter to the Board for readjudication, the Court need
not address appellant’s remaining arguments, and appellant can present them to the Board.35 On
remand, appellant may submit additional evidence and argument on this claim and has 90 days to
do so from the date of VA’s postremand notice.36 The Board must consider any such additional
evidence or argument submitted.37 The Board must also proceed expeditiously.38
II. CONCLUSION
After consideration of the parties’ briefs, the governing law, and the record, the Court SETS
ASIDE the November 18, 2020, Board of Veterans’ Appeals decision denying entitlement to
special monthly compensation (SMC) based on (1) the need for aid and attendance, and (2)
housebound status and REMANDS the matter for readjudication consistent with this decision.
DATED: June 13, 2022
Copies to:
Tara R. Goffney, Esq.
VA General Counsel (027)
34 See Tucker, 11 Vet.App. at 371.
35 Best v. Principi, 15 Vet.App. 18, 20 (2001).
36 Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order); see also Clark v. O’Rourke, 30 Vet.App.
92 (2018).
37 Kay v. Principi, 16 Vet.App. 529, 534 (2002).
38 38 U.S.C. §§ 5109B, 7112.

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