Case A26039899

M. TENNER · 2026 · Case ID: A26039899

MIXED

Summary

The Veteran, who served in the United States Army from June 1967 through February 1970, was awarded Special Monthly Compensation (SMC) based on the need for regular Aid and Attendance as of April 25, 2024. The claimant, the Veteran's spouse, was substituted after the Veteran's death in July 2024. The Veteran's claim for SMC Aid and Attendance was previously denied in January 2022 and remanded in May 2024 due to an inadequate examination. The Board reviewed evidence from an August 2022 VA examination and affidavits from the Veteran and his spouse dated April 2024. The August 2022 examination found the Veteran largely independent in daily activities, though noting mild extremity restrictions and need for an assistive device. However, the Veteran's and spouse's affidavits described a significant need for assistance with bathing, dressing, meal preparation, and medication management, with the Veteran confined to bed most of the day. The Board found the later affidavits more persuasive, noting additional VA treatment records from May-July 2024 indicating a need for transportation support, wheelchair confinement, and home aide assistance. Consequently, SMC Aid and Attendance was granted from April 25, 2024. The Veteran's appeal for an increased rating for diabetes mellitus beyond the current 20 percent was denied. The Board found that while the Veteran required a restricted diet and some activity restrictions, he did not require daily insulin injections, which is a necessary criterion for the next higher rating level (40 percent). The Board relied on VA treatment records showing no insulin prescription for years prior to death and the January 2023 VA examination, despite prior inadequacy findings, for the probative value regarding the lack of insulin requirement.

Rationale

Later affidavits and VA treatment records indicated need for aid and attendance.; August 2022 VA examination found Veteran largely independent.; Affidavits from Veteran and spouse showed need for assistance with daily activities.

Service Branch

ARMY

Special Benefit

SMC - AID & ATTENDANCE

Docket No.

260223-633055

Full Decision Text

Citation Nr: A26039899
Decision Date: 04/29/26 Archive Date: 04/29/26

DOCKET NO. 260223-633055
DATE: April 29, 2026

ORDER

1. As of April 25, 2024, entitlement to Special Monthly Compensation (SMC) based on the need for regular Aid and Attendance is granted.

2. Entitlement to a disability rating in excess of 20 percent for diabetes mellitus is denied.

FINDINGS OF FACT

1. The evidence of record indicates that as of April 25, 2024, the Veteran was in need of regular aid and attendance of another person due to his service-connected disabilities.

2. Throughout the appeal period, the Veteran's diabetes mellitus is characterized by requiring oral hypoglycemic agents and restricted diet; and is not characterized by requiring one or more daily injections of insulin, restricted diet, and regulation of activities.

CONCLUSIONS OF LAW

1. As of April 25, 2024, the criteria for entitlement to Special Monthly Compensation (SMC) based on the need for regular Aid and Attendance have been met. 38 U.S.C. §§ 1114, 1134, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352.

2. The criteria for entitlement to a disability rating in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321(a), 4.1, 4.3, 4.7, 4.119, Diagnostic Code (DC) 7913.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from June 1967 through February 1970 in the United States Army. In July 2024, VA received notice that the Veteran passed away on July 20, 2024. In August 2024, the Veteran's spouse, the claimant herein, requested to be substituted for the Veteran. This request was granted by the VA Regional Office in January 2025.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2025 rating decision by the Department of Veterans Affairs (VA) Regional Office.

In February 2026, the claimant submitted a Notice of Disagreement: VA Form 10182 and indicated that she wished to appeal the February 2025 rating decision which denied an increased rating for the Veteran's service-connected diabetes as well as special monthly compensation based on the need for regular aid and attendance. VA regulations contain specific time periods when evidence may be submitted and considered by VA when deciding a claim. Relevant here, in the February 2026 Notice of Disagreement, the claimant elected the "Direct Docket." VA rules state that the Board may only consider the evidence of record at the time that the VA Regional Office's decision on appeal was issued. 38 C.F.R. §§ 20.300, 20.301, 20.801. Thus, the Board is limited in its review and may only consider the evidence of record at the time the VA Regional Office issued the February 2025 rating decision. 38 C.F.R. § 3.2601(e). At this time, the Board has found no evidence of record submitted outside the applicable evidence window.

Special Monthly Compensation

For severe types of disability, VA provides a higher or additional rate of VA disability compensation above the 100 percent disability rate. This is referred to as "Special Monthly Compensation" (SMC). SMC is available when a Veteran suffers hardships above and beyond those contemplated by the VA's schedule for rating disabilities as a result of a service-connected disability. 38 U.S.C. § 1114.

Under 38 U.S.C. § 1114, SMC is payable if, as a result of service-connected disabilities, the Veteran has an anatomical loss or loss of use of both feet, or of one hand and one foot; has blindness in both eyes with visual acuity of 5/200 or less; is permanently bedridden; or is so helpless as to be in need of regular aid and attendance of another person. 38 U.S.C. § 1114; 38 C.F.R. § 3.350.

1. As of April 25, 2024, entitlement to Special Monthly Compensation based on the need for regular Aid and Attendance is granted.

Legal Criteria

Under 38 C.F.R. § 3.352, the following will be considered in determining whether a Veteran is in need
result of service-connected disabilities, the Veteran has an anatomical loss or loss of use of both feet, or of one hand and one foot; has blindness in both eyes with visual acuity of 5/200 or less; is permanently bedridden; or is so helpless as to be in need of regular aid and attendance of another person. 38 U.S.C. § 1114; 38 C.F.R. § 3.350.

1. As of April 25, 2024, entitlement to Special Monthly Compensation based on the need for regular Aid and Attendance is granted.

Legal Criteria

Under 38 C.F.R. § 3.352, the following will be considered in determining whether a Veteran is in need of regular aid and attendance of another person: inability to dress and undress themselves or to keep themselves ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliance; inability to feed themselves through loss of coordination of the upper extremities or through extreme weakness; inability to tend to the wants of nature; or incapacity, physical or mental, which requires care and assistance on a regular basis to protect themselves from the hazards or dangers incident to their daily environment.

It is not required that all the disabling conditions enumerated in 38 C.F.R. § 3.352 be found to exist before a favorable rating may be made. The particular personal functions which the Veteran is unable to perform should be considered in connection with their 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 is a constant need. Turco v. Brown,9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in section 3.352 must be present for a grant of SMC based on need for aid and attendance).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. Evidence is not in approximate balance or nearly equal when the evidence persuasively favors one side or the other. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

Analysis

At the time of his death, the Veteran was service connected for the following conditions: major depressive disorder, rated at 70 percent disabling; right upper extremity peripheral neuropathy, rated at 40 percent disabling; left upper extremity peripheral neuropathy, rated at 20 percent disabling; right lower extremity sciatic peripheral neuropathy, rated at 20 percent disabling; left lower extremity sciatic peripheral neuropathy, rated at 20 percent disabling; right lower extremity femoral peripheral neuropathy, rated at 20 percent disabling; left lower extremity femoral peripheral neuropathy, rated at 20 percent disabling; prostate cancer with voiding dysfunction, rated at 10 percent disabling; bilateral cataracts, rated at 0 percent disabling; erectile dysfunction, rated at 0 percent disabling; and diabetes mellitus, rated at 20 percent disabling. The Veteran was in receipt of a 100 percent combined rating as well as a total disability rating due to individual unemployability. Additionally, the Veteran was in receipt of SMC under subsection "k" based on the loss of use of a creative organ. Prior to his death, the Veteran was previously in receipt of SMC under subsection "s" due to being housebound. SMC under subsection "s" was discontinued in December 2020 as the Veteran no longer met the statutory requirements for the benefit.

Preliminarily, the Board notes that the Veteran's claim for SMC based on the need for regular aid and attendance was before the Board in January 2022. At that time, the claim was denied as the Board found that the Veteran was not in need of regular aid and attendance due to service-connected disabilities. The claim was again before the Board in May 2024. At that time, the Board remanded the claim as it was considered to be inextricably intertwined with a separate claim for an increased rating for diabetes mellitus. However, the Veteran unfortunately passed away before new examinations could be conducted in order to determine whether the Veteran was in need of regular aid and attendance based upon his service-connected disabilities.

The Board now looks to the evidence of record to determine if the Veteran was in need of regular aid and attendance for the period between the January 2022 Board decision and the date of the Veteran's death.

In August 2022, the Veteran attended an examination based upon the need for housebound status or for regular aid and attendance. The examiner indicated that the Veteran was able to feed himself independently, able to prepare his own meals, able to bathe independently and attend to other hygiene needs. The examiner also noted that the Veteran was not in need of medication management or nursing home care. Likewise, the examiner found that the Veteran had the mental capacity to manage financial affairs. At the time of the examination, the Veteran experienced mild bilateral upper extremity restrictions and mild to moderate bilateral lower extremity restrictions. The examiner also noted that the Veteran needed an assistive device to help prevent falls. Additionally, the Veteran experienced decreased range of motion in his back and neck which contributed to mild weakness and gait instability due to arthritic pain. The examiner found that the Veteran was able to leave the house at will and could walk 5 to 6 blocks with the use of an assistive device.

On April 25, 2024, VA received affidavits from both the Veteran and his spouse in connection with a claim for SMC due to the need for regular aid and attendance. The Veteran's affidavit notes that he could not bathe, clean, or dress himself, and that he could not prepare his own meals or manage his medication without the assistance of his wife. He also indicated that he had difficulty walking without assistance due to weakness and instability in his legs. He also stated that there are few things that he can do alone and must have assistance with most tasks due to weakness. The affidavit from the Veteran's spouse also indicates a regular need for assistance. She indicates that the Veteran needs help cleaning himself, dressing himself, preparing his meals, and managing his medication. She notes that the Veteran had fallen several times due to instability and weakness in his legs, prompting the need for assistance from her, or others, to get back up. Further, she notes that as he was unable to do most things alone, the Veteran stayed in bed most of the day. She also went on to explain that she was not in the examination room during the August 2022 examination and was thus unaware of what the Veteran reported, but that she had been taking care of his daily needs for years.

The Board finds that during the August 2022 examination the Veteran exhibited the ability to attend to his daily needs without the need for regular aid and attendance. The examiner noted that the Veteran was able to feed himself, prepare his meals, bathe himself, and attend to other hygiene needs independently. While the examiner notes mild to moderate restrictions due to upper and lower extremity weakness, these restrictions were not severe enough to prevent the Veteran from acting independently. While the Board acknowledges the Veteran's wife's statement in April 2024 regarding her providing assistance to the Veteran for years, this contradicts what was reported to the examiner. The Veteran specified his limitations later, in his own affidavit, freely. Thus, the Board presumes that if the Veteran had these limitations during the August 2022 examination, such would have been reported. Further, while the Board does not minimize the care and support the Veteran's wife has provided to him, the regular need for aid and attendance must be found to be necessary rather than provided for comfort. Thus, while the Veteran's wife may have been providing regular support to the Veteran in his daily activities, it would appear that the August 2022 examiner found that the Veteran was able to complete these activities independently should he be required to do so.

The Board also acknowledges the claimant's attorney's argument that the August 2022 examination indicates a need for regular attendance due to the examiner noting that the Veteran should ambulate with care and requires the use of an assistive device due to instability. However, the Board finds that this does not equate to the need for regular aid and attendance by another person. The examiner found that an assistive device was necessary but declined to indicate that the attendance of another person was required. Notably, the examiner indicated that the Veteran could leave his home at will and walk 5 to 6 blocks with the use of an assistive device but did not indicate that the assistive device was also in combination with the assistance of another person. Therefore, the Board finds that the regular or constant use of an assistive device is not, on its own, indicative of the need for regular aid and attendance of another person.

However, while the Board has found that regular aid and attendance was not
instability. However, the Board finds that this does not equate to the need for regular aid and attendance by another person. The examiner found that an assistive device was necessary but declined to indicate that the attendance of another person was required. Notably, the examiner indicated that the Veteran could leave his home at will and walk 5 to 6 blocks with the use of an assistive device but did not indicate that the assistive device was also in combination with the assistance of another person. Therefore, the Board finds that the regular or constant use of an assistive device is not, on its own, indicative of the need for regular aid and attendance of another person.

However, while the Board has found that regular aid and attendance was not shown based on the evidence of record prior to April 2024, the Board also finds that the affidavits of both the Veteran and his spouse indicate that the Veteran did need regular aid and attendance at the time the affidavits were signed. As noted above, the affidavits show that the Veteran needed assistance with bathing, dressing, and preparing his meals. He also needed assistance with medication management and being prompted to attend to his hygienic needs. Both affidavits confirm that the Veteran needed assistance with these activities on a near constant basis. While the Veteran's wife indicates that he has needed this level of care of years, as is noted above, this is contradicted by the August 2022 VA examination which notes not only the examiner's findings but the Veteran's own reports of his abilities.

In addition to the affidavits, the Board notes that several VA treatment records in May, June, and July of 2024 indicate that the Veteran requested transportation support, was confined to a wheelchair for a period of time, and that he and his wife needed extra assistance in order to transport him to and from appointments. Additionally, in June 2024, the Veteran and his spouse requested home aide assistance from the VA due to the need for extra assistance which his wife could not perform on her own.

Accordingly, from April 25, 2024, entitlement to Special Monthly Compensation based on the need for regular aid and attendance is granted.

Increased Rating

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1115; 38 C.F.R. § 4.1.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

2. Entitlement to a disability rating in excess of 20 percent for diabetes mellitus is denied.

Legal Criteria

The rating criteria for Diagnostic Code (DC) 7913 provides a structured scheme of specific, successive, cumulative criteria. Each higher rating includes the same criteria as the lower rating plus distinct new criteria.?Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013).?

A 20 percent rating is warranted when diabetes requires one or more daily injections of insulin and a restricted diet, or an oral hypoglycemic agent and a restricted diet.?A 40 percent rating is warranted when it requires one or more daily injection of insulin, restricted diet, and regulation of activities.?A 60 percent rating is warranted when diabetes requires one or more daily injection of insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is warranted when diabetes requires more than one daily injection of insulin, restricted diet, and regulation of activities, with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities.?

Because Diagnostic Code 7913 contains successive criteria, the criteria for the lower rating must be met before a higher disability rating may be awarded.? A higher rating cannot be granted based on a finding that the Veteran's disability picture more nearly approximates the criteria for the next higher rating.?However, reasonable doubt regarding the presence of a criterion may be resolved in the Veteran's favor.?Johnson v. Wilkie, 30?Vet. App.?245 (2018).

Analysis

For the reasons that follow, the Board finds that the currently assigned 20 percent disability
, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities.?

Analysis

For the reasons that follow, the Board finds that the currently assigned 20 percent disability rating is the most appropriate rating for the Veteran's diabetes mellitus prior to his death.

To begin, the Board notes that in its May 2024 decision, this matter was remanded for a new examination as the most recent, January 2023, VA examination was determined to be inadequate due to its reliance on an inaccurate factual premise. Specifically, the Board noted that the examiner did not indicate the Veteran's other conditions related to his diabetes and therefore did not complete the additional disability benefits questionnaires which correlate to those other conditions. Unfortunately, before a new examination could be conducted, the Veteran passed away. Thus, the Board must rely upon the existing evidence of record to determine the most appropriate rating for the Veteran's diabetes mellitus.

While the Board found inadequacies with the January 2023 examination, it is probative for some issues pertaining to the Veteran's diabetes rating. Pertinent to the issue, the Board must look to whether the Veteran required daily insulin injections, a restricted diet, and restricted activities. To the extent the Board previously found inadequacies with aspects of the earlier VA examination reports, those examination reports are not inadequate as a whole. See Monzingo v. Shinseki, 26 Vet. App. 7, 107 (2012) (holding, "even if a medical opinion is inadequate to decide a claim, it does not necessarily follow that the opinion is entitled to absolutely no probative weight"; "it may be given some weight based upon the amount of information and analysis it contains.") Moreover, the decision here does not rest exclusively on those portions previously deemed inadequate. The Board has also additionally relied upon a thorough review of the Veteran's VA treatment records.

After review of the records, the Board has found no evidence that the Veteran required daily insulin injections. Moreover, the Veteran's VA treatment records indicate that he had not been prescribed insulin for several years prior to his death. As daily insulin injections are a requirement for the next higher rating, the lack of this is dispositive of the issue of whether the Veteran's diabetes warranted a higher rating. In order to receive a 40 percent rating, the Veteran must have needed one or more daily injections of insulin, and a restricted diet, and restricted activities. The rating criteria's use of the conjunction "and" indicates that all listed criteria must be met. The Veteran required a restricted diet, and there is some indication that restricted activities were necessary. However, daily insulin injections are also necessary to meet the criteria for the 40 percent rating. As the Veteran did not require this to treat his diabetes, the currently assigned 20 percent rating is the most appropriate.

Accordingly, the claim for a disability rating in excess of 20 percent for diabetes must be denied.

M. Tenner

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Crain, N.

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.

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