Citation Nr: 1034546 Decision Date: 09/14/10 Archive Date: 09/21/10 DOCKET NO. 09-36 466 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to special monthly compensation (SMC) on the basis of the need for the regular aid and attendance of another person, or at the housebound rate. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Thomas H. O'Shay, Counsel INTRODUCTION The Veteran had active service from August 1942 to March 1944. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. Although the Veteran also seeks special monthly compensation at the housebound rate, given the disposition of the case below (in which the greater SMC benefit is being awarded), that issue is moot. In July 2010, the Veteran enlisted the assistance of an attorney in helping to prepare his appeal. Both he and the attorney made clear, however, that the attorney was not the Veteran's representative before VA. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran is so helpless as to be in need of the regular aid and attendance of another person. CONCLUSION OF LAW The criteria for entitlement to special monthly compensation based on the need for the 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, 3.352(a) (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2009), VA has certain duties to notify and assist the veteran in his appeal. Given, however, the favorable actions taken hereinbelow, further discussion explaining how VA complied with those laws is unnecessary. Factual background The Veteran contends that his service-connected disorders render him so helpless as to be in need of the regular aid and attendance of another person. VA and private treatment records on file covering the period from 2007 through 2009 document that the Veteran was felt to be in the need of aid and attendance primarily because of his back disorder and osteoporosis, and the associated immobility. The records do, however, reference periods of disorientation where he failed to recognize his spouse. The records indicate that the Veteran was not psychotic. In a February 2008 statement "prepared by" a VA social worker, it was indicated that the Veteran was bed bound and almost exclusively cared for by his spouse. The social worker noted that he required assistance for everything due to his back problems. She nevertheless noted that he experienced periods of confusion, during which time he was dependent on his spouse. On file is the report of an Examination for Housebound Status or Permanent Need for Regular Aid and Attendance prepared by a VA physician and received in June 2008. The Veteran was noted to be bedridden, very weak, malnourished and unable to stand. He was unable to walk without the assistance of another person, and unable to leave the house. The examiner diagnosed the Veteran as having metastatic prostate cancer, spinal fracture, and depression. The physician concluded that the Veteran required the daily personal health care services of a skilled provider. In a May 2009 statement, B. Gray, R.N., indicated that the Veteran reported having prostate cancer, osteoporosis, and hypertension. She noted that he relied on his spouse for all of his care, and was not able to leave his home. She concluded that he was housebound and required assistance with his care. Analysis An award of special monthly compensation is warranted where, inter alia, a Veteran, as the result of service-connected disability, is in need of regular aid and attendance. 38 U.S.C.A. § 1114(l) (West 2002); 38 C.F.R. § 3.350(b) (2009). Determination as to the need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to such conditions as: inability of a claimant to dress himself or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliance which by reasons of the particular disability cannot be done without aid; inability of the claimant to feed himself through the loss of coordination of the upper extremities or through extreme weakness; inability to tend to the wants of nature; or incapacity, physical or mental, that requires care and assistance on a regular basis to protect claimant from the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a) (2009). "Bedridden" will be a proper basis for the determination and is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. It is not required that all the disabling conditions enumerated above be found to exist before a favorable rating may be made. The particular personal functions that the claimant is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establishes that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. Id. The Veteran is service-connected for schizophrenia, evaluated as 100 percent disabling; and for astigmatism, paralysis of the left external rectus muscle, deviated nasal septum, and myocarditis, each evaluated as noncompensably disabling. After carefully reviewing the evidence, the Board finds that the Veteran's service-connected disabilities, and his schizophrenia in particular, have rendered him helpless in the performance of his activities of daily living. The treatment records, February statement by the social worker, June 2008 examination report by a VA physician, and May 2009 statement by Ms. Gray all indicate that the Veteran is in the need of the aid and attendance of another. Although the veteran's non service-connected disorders clearly have a significant impact on his need for such assistance, the June 2008 examination report and the February 2008 social worker statement made it clear that the Veteran's psychiatric disorder was also responsible to some extent. It remains unclear to what extent the service-connected psychiatric disorder is responsible for the need for aid and attendance. The precise effect of the disorder on his activities of daily living is also unclear. The RO never attempted to examine the Veteran to ascertain the contribution of the psychiatric disorder to the need for aid and attendance. Given the June 2008 opinion implicating the psychiatric disorder in the determination of the need for aid and attendance, and as the record does not otherwise contain a medical opinion distinguishing the effects of the nonservice connected disorders from those of the psychiatric disability on the determination of the need for aid and attendance, the Board is satisfied that the psychiatric disorder is independently responsible for the need for aid and attendance in the Veteran's case. See generally, Mittleider v. West, 11 Vet. App 181 (1998) (holding that when it is not possible to separate the effects of the service-connected condition from a nonservice-connected condition, 38 C.F.R. § 3.102, clearly dictates that such signs and symptoms be attributed to service-connected condition). The evidence shows that the Veteran experiences periods of disorientation or confusion. A VA physician believes the service-connected psychiatric disability is at least partially responsible for the need for skilled care in the Veteran's case, and the VA social worker believes the confusion symptoms require assistance from another as well. Although the Veteran clearly has nonservice-connected disorders, most notably his back disability, which also impact severely on his mobility, the Board finds that his service-connected psychiatric disability, alone, renders him so helpless as to be in need of the regular aid and attendance of another person. Given the above evidence suggesting that the Veteran needs help in protecting himself from the hazards or dangers incident to his daily environment, and the medical opinions consistently indicating the need for the aid and attendance of another person, the Board finds, resolving reasonable doubt in favor of the Veteran, that his service-connected disorders render him so helpless as to be in need of regular aid and attendance. Further, the record reflects that he is actually receiving aid and assistance from his spouse. Accordingly, the Board finds that the Veteran is entitled to special monthly compensation based on the need for regular aid and attendance of another person. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2009); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to special monthly compensation based on the need for the regular aid and attendance of another person is granted, subject to the controlling regulations applicable to the payment of monetary benefits. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs