Citation Nr: 0514892	
Decision Date: 06/02/05    Archive Date: 06/15/05

DOCKET NO.  03-05 027	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to special monthly compensation on account of the 
need for regular aid and attendance.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

Veteran and spouse


ATTORNEY FOR THE BOARD

David S. Nelson, Counsel


INTRODUCTION

The veteran served on active duty from September 1974 to 
September 1976.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a June 2002 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Waco, Texas.


FINDINGS OF FACT

1.  The veteran's service-connected disabilities include 
arthritis of the spine, knees, ankles, hands, wrists, and 
shoulders, evaluated as 90 percent disabling; the veteran has 
been granted a total rating on the basis of individual 
unemployability due to service-connected disability (TDIU), 
effective August 1996.

2.  The veteran's service-connected disabilities have been 
shown to result in limitations such as his need for the help 
of another person in dressing himself, his inability to hold 
objects, and the necessity of using a cane for walking, so as 
to raise a doubt as to whether he is able to tend to the 
daily requirements of living without the ongoing assistance 
of another person.


CONCLUSION OF LAW

The criteria for entitlement to special monthly compensation 
by reason of being in need of regular aid and attendance of 
another person have been met.  38 U.S.C.A. §§ 1114, 5107 
(West 2002); 38 C.F.R. §§ 3.350, 3.351, 3.352 (2004).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

In light of the following decision, there is no prejudice to 
the veteran by the Board proceeding with the issue on appeal 
at this time without reviewing the provisions of the Veterans 
Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C. §§ 5103, 
5103A; 38 C.F.R. §§ 3.102, 3.159.

Special monthly compensation is payable to a veteran who is, 
as a result of his service-connected disabilities, so 
helpless as to need or require the regular aid and attendance 
of another person.  38 U.S.C.A. § 1114(l); 38 C.F.R. § 
3.350(b)(3).  A veteran will be considered in need of regular 
aid and attendance if he or she: (1) is blind or so nearly 
blind as to have corrected visual acuity of 5/200 or less, in 
both eyes, or concentric contraction of the visual field to 
five degrees or less; (2) is a patient in a nursing home 
because of mental or physical incapacity; or (3) establishes 
a factual need for aid and attendance under the criteria set 
forth in 38 C.F.R. § 3.352(a).  38 C.F.R. § 3.351(c).

The following criteria will be considered in determining 
whether the veteran is in need of the regular aid and 
attendance of another person: the inability of the veteran to 
dress or undress himself, or to keep himself ordinarily clean 
and presentable; frequent need of adjustment of any special 
prosthetic or orthopedic appliances which, by reason of the 
particular disability, cannot be done without such aid; the 
inability of the veteran to feed himself through the loss of 
coordination of upper extremities or through extreme 
weakness; the inability to attend to the wants of nature; or 
an incapacity, physical or mental, which requires care or 
assistance on a regular basis to protect the veteran from the 
hazards or dangers incident to his daily environment.  38 
C.F.R. § 3.352(a).

It is not required that all of the disabling conditions 
enumerated in the provisions of 38 C.F.R. § 3.352(a) be found 
to exist to establish eligibility for aid and attendance and 
that such eligibility required at least one of the enumerated 
factors be present.  The particular personal function which 
the veteran is unable to perform should be considered in 
connection with his or her condition as a whole and 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.  Turco v. Brown, 9 Vet. App. 
222 (1996).

The veteran's service-connected disabilities include 
arthritis of the spine, knees, ankles, hands, wrists, and 
shoulders, evaluated as 90 percent disabling; the veteran has 
been granted TDIU, effective August 1996.

In May 2002 the veteran underwent a VA Aid and Attendance 
examination.  The examiner reviewed the veteran's claims file 
and noted his pertinent medical history and service-connected 
disabilities.  The examiner commented that the veteran was 
unable to do any cooking and was unable to hold on to 
objects.  The examiner provided an opinion stating that the 
veteran did need assistance in some areas of daily living.

In October 2002 a physician indicated "yes" to the question 
of whether the veteran was in need of the aid and attendance 
of someone else in ordinary activities of daily living.  The 
examiner noted that the veteran was unable to dress (due to 
swelling of the hands) or walk (without a cane) unassisted.

Upon a review of the evidence in this case (including the 
testimony presented at the June 2004 RO hearing), and after 
resolving all doubt in the veteran's favor, the Board 
concludes that the veteran meets the definition of needing 
the regular aid and attendance of another person for the 
ordinary activities of daily living.  A significant factor in 
this regard is the veteran's need for the help of another 
person in dressing himself.  Further, while the veteran can 
"feed himself," he essentially can not hold any objects 
that would be necessary for the self-preparation of meals.  
The Board here observes that opinions provided by the two 
most recent physicians that reviewed the veteran's case have 
essentially indicated that the veteran was in need of the aid 
and attendance of someone else in the ordinary activities of 
daily living.

The question thus becomes whether the veteran's status is 
attributable to service-connected disabilities.  The Board 
notes that the findings from the May 2002 VA physician and 
the October 2002 physician derived almost exclusively from 
the veteran's service-connected orthopedic disabilities.

The Board notes that the veteran does not contend, and the 
evidence does not show, that he is entitled to special 
monthly compensation by reason of being housebound.

Accordingly, after resolving all doubt in the veteran's 
favor, the Board concludes that entitlement to special 
monthly compensation by reason of being in need of the 
regular aid and attendance of another person has been shown 
by the clinical evidence of record and confirmed by two 
physicians.


ORDER

Subject to the laws and regulations governing the payment of 
monetary benefits, entitlement to special monthly 
compensation by reason of being in need of regular aid and 
attendance of another person is granted.




	                        
____________________________________________
	V. L. Jordan
	Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs