Citation Nr: 0813202 Decision Date: 04/22/08 Archive Date: 05/01/08 DOCKET NO. 06-02 459 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance of another person. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Rose, Counsel INTRODUCTION The veteran served on active duty from June 1969 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office in Jackson, Mississippi (RO), which denied the benefit sought on appeal. FINDING OF FACT The veteran requires the regular assistance of another to perform activities of daily living due to his service- connected disabilities. CONCLUSION OF LAW The criteria for SMC based on the need for the regular aid and attendance have been met. 38 U.S.C.A. §§ 1114, 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.350(b), 3.352 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Analysis The veteran claims entitlement to SMC based on the need for regular aid and attendance of another person, or on account of being housebound. At the time the claim was filed, the veteran was service-connected for post-traumatic stress disorder (PTSD), rated as 100 percent disabling, effective August 21, 1990, and scar, pungi stick, right upper thigh, rated as noncompensable, effective September 3, 1980. In a March 2004 rating decision, the RO granted entitlement to SMC based on housebound status, effective April 18, 2003. The law regarding the issue of SMC based on the need for regular aid and attendance is governed by provisions of 38 U.S.C.A. § 1114 (l), (s); and 38 C.F.R. § 3.350(b), (i). Under 38 U.S.C.A. § 1114(l), SMC is payable if as the result of service-connected disability, 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.A. § 1114(l); 38 C.F.R. § 3.350(b). There is no evidence or claim of any service-connected anatomical loss or loss of use of any extremity, or of blindness or visual acuity of 5/200, to warrant further consideration of these conditions. Need for aid and attendance means being so helpless as to require the regular aid and attendance of another person. 38 U.S.C.A. § 3.350(b). As it pertains to the present case, criteria for establishing such need include whether the veteran is blind; is permanently bedridden; or is so helpless as to be in need of regular aid and attendance as determined under criteria enumerated under 38 C.F.R. § 3.352(a). Under 38 C.F.R. § 3.352(a), the following factors will be accorded consideration in determining whether the veteran is in need of regular aid and attendance of another person: (1) the inability of the veteran to dress or undress himself, or to keep himself 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 the veteran to feed himself because of the loss of coordination of upper extremities or because of extreme weakness; (4) inability to attend to the wants of nature; or 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 38 C.F.R. § 3.352(a) 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 his 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. 38 C.F.R. § 3.352(a); see also Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in § 3.352(a) must be present for a grant of SMC based on need for aid and attendance). For the purposes of 38 C.F.R. § 3.352(a), "bedridden" will be a proper basis for the determination of whether the veteran is in need of regular aid and attendance of another person. "Bedridden" will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. 38 C.F.R. § 3.352(a). Second, under 38 U.S.C.A. § 1114(s), SMC is payable if the veteran has a single service- connected disability rated as 100 percent and, (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service- connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service- connected disability or disabilities. This requirement is met when the veteran is substantially confined as a direct result of service-connected disabilities to his dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his lifetime. 38 U.S.C.A. 1114(s); 38 C.F.R. § 3.350(i)(2). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), it was observed that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Upon review, the veteran meets the SMC requirements for the need of aid and attendance under 38 U.S.C.A. 1114(l) and 38 U.S.C.A. § 1114(s). Reviewing the claim under 38 U.S.C.A. § 1114(s), the veteran is 100 percent service-connected for PTSD and according to the RO in a March 2004 rating decision, met the criteria for being permanently housebound based on the same service-connected disability. As such, the criteria for SMC under 38 U.S.C. 1114(s) are met. The veteran also meets the SMC requirement for the need of aid and attendance under 38 U.S.C.A. § 1114(l). There is probative, favorable evidence in support of the veteran's claim. In a June 2004 private medical statement, Dr. Tramontana indicated that his psychological condition does cause him, especially when in a state of depression, to not care about taking care of his daily needs, so he may go long periods of time without bathing, dressing, or feeding himself. Dr. Tramontana indicated that the veteran would benefit from Aid and Attendance in grocery shopping, cooking, cleaning, and other domestic chores on a periodic basis. Other positive evidence includes findings from a March 2005 VA examination report for purposes of evaluating the veteran based on the need for regular aid and attendance. Here, the examiner indicated that the veteran has created fires using the kitchen stove and suffered severe cuts on hands because of careless use of knives. The examiner opined that the veteran required care and assistance on a regular basis to protect him from hazards. An April 2005 VA examination report indicated that the veteran would benefit from aid and attendance for safety reasons. The examiner concluded that the veteran was unable to be left unattended because of his mental health condition, which was diagnosed as PTSD. The record demonstrates no probative medical evidence contradicting the above findings. Based upon this and other evidence of record, the Board finds that due to the veteran's service-connected PTSD, he requires care or assistance on a regular basis to protect himself from the hazards or dangers incident to his daily environment. Accordingly, the criteria for increased rate of compensation for SMC based on the need for regular aid and attendance of another person are met. 38 U.S.C.A. §§ 1114(l), 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.350, 3.352 (2007). Because SMC at the aid and attendance rate set forth at 38 U.S.C.A. § 1114(l) is greater than special monthly compensation at the rate set forth at 38 U.S.C.A. § 1114(s), the fact that the veteran meets the criteria under 38 U.S.C.A. § 1114(s) is moot. ORDER Entitlement to SMC based on need for aid and attendance under 38 U.S.C.A. § 1114(l) is granted, subject to the laws and regulations governing payment of monetary benefits. ____________________________________________ C. TRUEBA Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs