Citation Nr: 1144331	
Decision Date: 12/05/11    Archive Date: 12/14/11

DOCKET NO.  09-48 564	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to special monthly compensation based on the need for aid and attendance or due to being housebound.


ATTORNEY FOR THE BOARD

A. Adamson, Counsel


INTRODUCTION

The Veteran served on active duty from July 1962 to August 1962. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Regional Office (RO) that denied the Veteran's claim for entitlement to special monthly compensation based on the need for aid and attendance or due to being housebound. 

The Veteran requested a hearing at a local VA office before a member of the Board by way of his November 2009 VA Form 9.  A hearing was scheduled in May 2011.  The Veteran, however, cancelled his hearing in writing in May 2011 and indicated that due to his declining health, it is "almost impossible to travel such a long distance."  The Board deems this a withdrawal of the Veteran's request for a Travel Board Hearing.  

The issue of whether new and material evidence was submitted to reopen the claim for entitlement to service connection for a back disorder was raised by the Veteran, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over this issue and it is REFERRED to the AOJ for appropriate action.  


FINDINGS OF FACT

The Veteran is not currently service connected for any disability. 


CONCLUSION OF LAW

The criteria for the assignment of special monthly compensation based on the need for aid and attendance or due to being housebound are not met.  38 U.S.C.A. §§ 1114(l), 1114(s) (West 2002); 38 C.F.R. §§ 3.350(b), 3.350(i), 3.352(a) (2011). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board has reviewed all evidence in the Veteran's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate his claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  
See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 

Special Monthly Compensation is payable to a veteran, if the veteran, as a result of service-connected disability, has suffered anatomical loss or loss of use of both feet, or of one hand and one foot, or is blind in both eyes with visual acuity of 5/200 or less, or is permanently bedridden or with such significant disabilities as to be in need of regular aid and attendance of another person.  38 U.S.C.A. § 1114(l) (West 2002); 38 C.F.R. § 3.350(b) (2011). 

Factors considered to determine whether regular aid and attendance is needed include: inability to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need to adjust special prosthetic or orthopedic appliances which by reason of the particular disability requires aid (this does not include adjustment of appliances that persons without any such disability would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect a claimant from the hazards or dangers incident to his daily environment.  38 C.F.R. § 3.352(a) (2011). 

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 decision is permissible.  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 he is so helpless as to need regular aid and attendance, not that there is a constant need.  38 C.F.R. § 3.352(a) (2011); Turco v. Brown, 9 Vet. App. 222 (1996).  It is logical to infer, however, a threshold requirement that "at least one of the enumerated factors be present."  Id. at 224. 

"Bedridden" will be that condition which, by virtue of its essential character, actually requires that the Veteran remain in bed.  The fact that a veteran has voluntarily taken to bed or that a doctor has prescribed rest in bed for a greater or lesser part of the day to promote convalescence or cure is insufficient.  38 C.F.R. § 3.352(a) (2011). 

To establish entitlement to special monthly compensation based on housebound status under 38 U.S.C.A. § 1114(s), the evidence must show that the Veteran has a single service-connected disability evaluated as 100 percent disabling and an additional service-connected disability, or disabilities, evaluated as 60 percent or more disabling that is separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or, the Veteran has a single service-connected disability evaluated as 100 percent disabling and due solely to service-connected disability or disabilities, the Veteran is permanently and substantially confined to his or her immediate premises.  38 C.F.R. § 3.350(i) (2011). 

In this case, service connection has not been established for any disability.  Although the Veteran has argued that he is entitled to special monthly compensation because he injured his back in service, as of this date, service connection has not been established for any condition.  In fact, service connection for a back condition was denied by the RO in September 1994 and June 1995, and by the Board in October 1998.  Because the laws and regulations governing special monthly compensation on the basis of both aid and attendance and of housebound status require the medical condition requiring aid and attendance or housebound status to be a service-connected disability, and because the Veteran has no service-connected disabilities, the law, without consideration of the facts, prevents an award in favor of the Veteran.  Thus, on this record, the Board finds the claim for special monthly compensation is denied as a matter of law.  Sabonis v. Brown, 6 Vet. App. 426   (1994) (where the law is dispositive, the claim should be denied due to a lack of legal merit).  

As a final matter, the Board notes that the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim.  The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain.  38 C.F.R. § 3.159(b) (2011).  Such notice was provided in a December 2007 letter to the Veteran.  However, the Board notes that the VCAA has no effect on an appeal where, as here, the law is dispositive of the matter.  See Manning v. Principi, 16 Vet. App. 534 (2002).  As the Veteran is not service connected for any disability, his claim for special monthly compensation fails as a matter of law.  Thus, no further discussion of VA's duties to notify or assist the Veteran is necessary.


ORDER

Entitlement to special monthly compensation based on the need for aid and attendance or due to being housebound is denied.



____________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs