Veteranclaims’s Blog

June 21, 2022

Single Judge Application; SMC; Prejean v. West, 13 Vet.App. 444, 447-48 (2000) (noting that at least one factor under § 3.352(a) must be present for entitlement to SMC); Board’s failure to discuss the lay statements and favorable aspects of the July 2006 and February 2011 VA examination reports diminished the adequacy of its reasons or bases for denying SMC prior to May 18, 2017. See Thompson, 14 Vet.App. at 188 (noting that the Board must provide an adequate statement of reasons or bases “for its rejection of any material evidence favorable to the claimant”); see also Allday, 7 Vet.App. at 527;

Filed under: Uncategorized — veteranclaims @ 12:26 am

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 21-0201
JESSE O. TRAWICK, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
BARTLEY, Chief Judge: Veteran Jesse O. Trawick appeals though counsel a September
30, 2020, Board of Veterans’ Appeals (Board) decision denying entitlement to an effective date
earlier than May 18, 2017, for the award of special monthly compensation (SMC) based on the
need for regular aid and attendance. Record (R.) at 5-13. For the reasons that follow, the Court
will set aside the September 2020 Board decision and remand the matter for readjudication
consistent with this decision.
I. FACTS
Mr. Trawick served on active duty in the U.S. Marine Corps from February 1953 to October
1955 and retired due to physical disability. R. at 2205.
In October 2004, Mr. Trawick sought to reopen a previously denied claim for service
connection for arthritis, R. at 2187-200, but in March 2005, a VA regional office (RO) denied
reopening, R. at 2150-51. In September 2005, the veteran appealed, R. at 2145, and, following a
May 2006 Statement of the Case (SOC), R. at 2088-98, he perfected an appeal to the Board, R. at
2083-84.
2
A July 2006 VA examiner diagnosed rheumatoid arthritis of the thoracolumbar spine with
ankylosis in the right knee and both feet, and opined that the veteran had difficulty bending,
stooping, listing, prolonged standing, and walking long distances. R. at 2035, 2039, 2044. The
examiner concluded that due to his right knee problem the veteran would be “a limited community
ambulator” without the aid of an assistive device. R. at 2035, 2039, 2044.
In July 2007, Ms. Robin Schilling, now Mr. Trawick’s spouse, reported that she must assist
him putting on his socks because of the veteran’s limited mobility. R. at 1999.
In March 2008, the RO awarded service connection for thoracolumbar ankylosis with
sclerosis, right knee rheumatoid arthritis, and right and left foot diffuse arthritis, each with 10%
initial disability evaluations effective October 6, 2004. R. at 1979-84. Mr. Trawick appealed,
seeking higher initial evaluations, R. at 1962, and, following a November 2008 SOC, R. at 1932-
57, he perfected an appeal to the Board, R. at 1924.
At a June 2010 Board hearing, R. at 1873-96, Mr. Trawick estimated that he could drive a
couple of hours, stand for 3-4 minutes, and walk 100 feet. R. at 1876. He also echoed Ms.
Schilling’s report of requiring help with his socks, but denied problems bathing. R. at 1881-82.
In September 2010, the Board remanded the increased-evaluation claims to obtain VA
examinations. R. at 1864-69. At the resulting February 2011 and March 2011 VA examinations,
Mr. Trawick estimated that he could stand for 15 to 30 minutes but would be unable to walk more
than a few yards. R. at 376. The examiner noted an antalgic gait and moderate problems bathing
and dressing, but found no problems feeding, toileting, or grooming. R. at 376, 378, 382. The
examiner noted that the veteran did not use an assistive device and opined that he would be a
limited community ambulator without such an assistive device. R. at 376, 382.
In August 2011, the RO awarded higher initial evaluations for the back disability (40% as
of October 6, 2004) and right knee disability (40% as of March 8, 2011). R. at 1514-18. The RO
also awarded a total disability evaluation based on individual unemployability (TDIU) as of March
8, 2011. Id.
In January 2012, the Board assigned a 40% evaluation for right knee disability as of
February 18, 2011; denied an evaluation higher than10% for right knee disability prior to February
18, 2011; denied an evaluation higher than 40% for back disability; and denied higher evaluations
for the foot disabilities. R. at 1311-47. Mr. Trawick appealed that portion of the Board decision
that denied a higher evaluation for the back disability to this Court. R. at 1272-76.
3
In January 2012, the RO assigned an earlier effective date of February 18, 2011, for the
award of TDIU. R. at 1305-08. In April 2012, Mr. Trawick appealed the TDIU effective date.
See R. at 1277. In September 2013, the Court affirmed the January 2012 Board decision. R. at
1293-98. However, in November 2013, the parties filed a joint motion to recall judgment and
remand the entire Board decision. See R. at 1275.1
In September 2014, the Board denied a higher evaluation for the back disability; denied
higher evaluation for right knee disability; denied higher evaluations for the foot disabilities; and
denied an earlier effective date for TDIU. R. at 905-49. Mr. Trawick then appealed that portion
of the Board decision that denied an earlier effective date for TDIU to this Court. See R. at 896-900.In September 2015, the Court remanded the September 2014 Board decision. R. at 887-95.
In February 2016, Mr. Trawick argued to the Board that SMC based on the need for regular aid
and attendance is an inferred issue as part of his claims for increased evaluations. R. at 800.
In April 2016, the Board awarded an effective date of October 6, 2004, for the award of
TDIU and remanded the issue of entitlement to SMC to obtain new VA examination. R. at 765-

At the resulting May 2017 VA examination, Mr. Trawick reported that he limits his walking
due to frequent falls and that his spouse prepares his meals and assists with bathing. R. at 248.
The examiner attributed balance problems affecting the veteran’s ability to ambulate safely to
service-connected joint problems, noted marked difficulty bathing and grooming, and opined that
the veteran’s service-connected disabilities required continuous aid and attendance. R. at 248-50.
From May 2005 through June 2016, the VA treatment records include Mr. Trawick’s
characterization of his difficulties to several preventative and primary care nurses. In May 2005,
Mr. Trawick reported that he fell once in the prior 6 months but later denied recent falls or
problems caring for himself on several occasions. R. at 265, 286, 300-01, 313-14, 1559, 1728,
1767, 1792. In December 2008, a VA nurse found no history of falling and no need for a “fall risk
care plan.” R. at 1568-69. In October 2011, Mr. Trawick reported that he requires assistance tying
his shoes and food to be prepared by another person, but later endorsed bathing, dressing, and
feeding himself without assistance on several occasions. R. at 266-67, 285-86, 299-300, 313-14,
324, 345. In March 2013, a nurse noted a balance deficit, but nurses examining the veteran later
found no gait or balance problem. R. at 265, 286, 300-301, 313-14.
1 The parties agreed that remand was necessary to offer the veteran a new Board hearing pursuant to Bryant
v. Shinseki, 23 Vet.App. 488 (2010), but on remand Mr. Trawick declined a new hearing. See R. at 908-09.
4
In December 2017, the Director of Compensation Service found entitlement to SMC based
on the need for regular aid and attendance as of May 18, 2017, which the RO awarded in January

R. at 214, 210-11. In February 2018, Mr. Trawick appealed the effective date of SMC, R.
at 181, and, following an October 2018 SOC, R. at 128-42, he perfected an appeal to the Board,
R. at 121. In a statement accompanying his Substantive Appeal, Mr. Trawick argued for an SMC
effective date back to October 2004 based on Ms. Schilling’s July 2007 statement that she had to
help him put on his socks, and based on his own June 2010 Board hearing testimony concerning
his inability to walk more than a few yards. R. at 124-25.
In a March 2018 statement, Mr. Trawick reported that as early as 2005 he could not handle
the tasks of daily living without assistance and this prompted him to ask Ms. Schilling to move
into his home for assistance with cooking, laundry, driving, and bathing. R. at 95. He specified
that his balance problems cause almost monthly falls and that his spouse’s assistance when he falls
is necessary to safely live in his own home. Id.
In December 2018, the Board denied an earlier effective date for SMC. R. at 106-11. Mr.
Trawick then appealed the Board decision to this Court. In April 2020, the parties agreed to a joint
motion for remand, concluding that the Board’s treatment of the lay statements was inadequate. R.
at 83-86. In April 2020, the Court approved the parties’ motion. R. at 87.
In the September 2020 decision on appeal, the Board found the VA treatment records most
persuasive and relied on them to find that, despite the veteran’s service-connected conditions, he
functioned independently without the need for regular aid and attendance prior to May 18, 2017.
R. at 5, 8-9, 13. The Board reviewed the lay statements by the veteran and his spouse asserting
the need of aid and attendance with most activities since 2004 and acknowledged that some aspects
of the July 2006, February 2011, and March 2011 VA examination reports corroborate these lay
statements. R. at 8. However, the Board noted that other aspects of those reports conflicted with
these lay statements, particularly as to standing and walking without an assistive device. Id. The
Board found the veteran and his spouse competent to provide their lay statements but considered
VA treatment records more reliable in demonstrating that the veteran did not require regular aid
and attendance prior to May 18, 2017. R. at 11. This appeal followed.
5
II. JURISDICTION AND STANDARD OF REVIEW
Mr. Trawick’s appeal is timely, and the Court has jurisdiction to review the September 2020
Board decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is
appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
The Board’s determination whether a veteran is entitled to SMC and the effective date for
an award of SMC are findings of fact reviewed under the “clearly erroneous” standard of review
set forth in 38 U.S.C. § 7261(a)(4). Breniser v. Shinseki, 25 Vet.App. 64, 68 (2011); Evans v.
West, 12 Vet.App. 396, 401 (1999). “A factual finding ‘is “clearly erroneous” when although there
is evidence to support it, the reviewing court on the entire evidence is left with the definite and
firm conviction that a mistake has been committed.'” Hersey v. Derwinski, 2 Vet.App. 91, 94
(1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
The Board must support its factual determinations with adequate reasons or bases that
enable the claimant to understand the precise basis for those determinations and facilitates review
in this Court. 38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). To
comply with this requirement, the Board must analyze the credibility and probative value of
evidence, account for evidence that it finds persuasive or unpersuasive, and provide reasons for its
rejection of material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506
(1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). The Board must also address all
potentially favorable evidence. See Thompson v. Gober, 14 Vet.App. 187, 188 (2000) (per curiam
order).
III. ANALYSIS
Under 38 U.S.C. § 1114(l), SMC is paid to a veteran who, because of a service-connected
disability, is so helpless as to be in need of the regular aid or attendance of another person.
38 C.F.R. § 3.350(b)(3) (2021). Factors that VA may consider in deciding entitlement to SMC
include, but are not limited to, the veteran’s ability to dress or undress, keep ordinarily clean and
presentable, feed oneself, or attend to the wants of nature without assistance; frequent need of
adjustment of special prosthetic or orthopedic appliances, which, by reason of the particular
disability, cannot be done without aid; and physical or mental incapacity requiring care or
assistance on a regular basis to protect the veteran from hazards or dangers incident to his or her
daily environment. 38 C.F.R. § 3.352(a) (2021); see Prejean v. West, 13 Vet.App. 444, 447-48
6
(2000) (noting that at least one factor under § 3.352(a) must be present for entitlement to SMC)
.
Moreover, the evidence need only “establish that the veteran is so helpless as to need regular aid
and attendance, not that there be a constant need.” Id.
Mr. Trawick argues that the Board provided inadequate reasons or bases for denying SMC
prior to May 18, 2017, specifying that VA treatment records support his lay statements as to the
need for aid and attendance. Appellant’s Brief (Br.) at 8-11. He also asserts that the Board failed
to fully account for favorable examination reports corroborating the severity of his limitations. Id.
at 11-13. The Secretary responds that the Board adequately addressed each factor listed at
§ 3.352(a) and the relevant evidence. Secretary’s Br. at 11. The Secretary asserts that the record
shows that the veteran can stand, walk, dress, and bathe independently. Id. at 12-13. The veteran’s
arguments are persuasive.
As Mr. Trawick argues, the evidence of record includes the July 2006 VA examination
report showing difficulty bending and stooping, R. at 2039, which supports Ms. Schilling’s July
2007 statement that she assists him with putting on his socks due to his limited mobility, R. at

Similarly, Mr. Trawick testified in June 2010 that he requires Ms. Schilling’s assistance
with his socks, R. at 1881, and reported to a VA primary care nurse in October 2011 that he requires
assistance tying his shoes, R. at 345. The February 2011 VA examination seems to corroborate
this, listing moderate problems bathing and dressing. R. at 378.
In the September 2020 decision on appeal, the Board conceded that certain evidence tended
to support the veteran’s claim, including lay statements by the veteran and his spouse and the July
2006 and February 2011 VA examination reports. R. at 8. The Board then relied on the aspects
of the July 2006 VA examination report that focused on the veteran’s balance, ability to walk, and
choice not to use an assistive device to find that the July 2006 and February 2011 VA examination
reports generally show that the veteran has not needed assistance dressing or with other activities
of daily living. R. at 8-9. The Board did not explain how the veteran’s balance, ability to walk,
and choice not to use an assistive device support a finding that he can dress or undress himself.
See 38 C.F.R. § 3.352(a). The Board relied on the clinical evidence to support the finding that the
veteran is able to dress himself and keep himself ordinarily clean and presentable, without
addressing the favorable lay statements or the aspects of the July 2006 and February 2011 VA
examination reports that corroborate these lay statements. R. at 9-11. Further, the Board’s
7
credibility analysis is at odds with the Board’s concession that there is consistency between these
lay statements and the July 2006 and February 2011 VA examination reports. R. at 8, 11-12.
Although the Board is presumed to have considered all the evidence of record when making
its decision, Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007), that presumption does
not relieve the Board of its independent obligation to address the potentially favorable, material
evidence of record and to provide the reasons or bases for its weighing of that evidence, Caluza, 7
Vet.App. at 506. The Board’s failure to discuss the lay statements and favorable aspects of the
July 2006 and February 2011 VA examination reports diminished the adequacy of its reasons or
bases for denying SMC prior to May 18, 2017. See Thompson, 14 Vet.App. at 188 (noting that
the Board must provide an adequate statement of reasons or bases “for its rejection of any material
evidence favorable to the claimant”); see also Allday, 7 Vet.App. at 527
. Because the Board did
not consider the above-described evidence concerning Mr. Trawick’s need for assistance with
socks and shoes in finding that the veteran does not need assistance dressing, the Court finds that
the Board provided inadequate reasons or bases for denying SMC prior to May 18, 2017. R. at 8-
10; see Caluza, 7 Vet.App. 506; Gilbert, 1 Vet.App. at 56-57.
IV. CONCLUSION
Upon consideration of the foregoing, the September 30, 2020, Board decision denying
entitlement to an effective date earlier than May 18, 2017, for the award of SMC based on the need
for regular aid and attendance is SET ASIDE, and that matter is REMANDED for readjudication
consistent with this decision.
DATED: June 17, 2022
Copies to:
Zachary M. Stolz, Esq.
VA General Counsel (027)

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