Citation Nr: 1107672 Decision Date: 02/25/11 Archive Date: 03/09/11 DOCKET NO. 09-38 384 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to special monthly compensation based on a need for the regular aid and attendance of another person or by reason of being housebound. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Pflugner INTRODUCTION The Veteran served on active duty from October 1942 to November 1945. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri (RO). This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2010). FINDING OF FACT The Veteran is in need of care or assistance on a regular basis to protect him from the health hazards and dangers of daily living, including misunderstanding prescription medication instructions and other medical instruction. The Veteran also requires care or assistance on a regular basis to assist him with meal preparation; dressing; bathing; performing household chores; and using the toilet. CONCLUSION OF LAW The requirements for special monthly compensation on account of being in need of aid and attendance of another person have been met. 38 U.S.C.A. §§ 1114, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.351, 3.350, 3.352 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has certain statutory and regulatory duties to notify and assist veterans. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2010). Without deciding whether the notice and development requirements of VCAA have been satisfied in the present case, the Board is not precluded from adjudicating the claim of entitlement to special monthly compensation based on need for the regular aid and attendance of another person, because the claim is granted. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). At present, service connection is in effect for tinnitus, rated as 10 percent disabling since February 24, 2005; low back sprain with low back weakness, rated as 40 percent disabling since November 22, 1999; and bilateral hearing loss, rated as 100 percent disabling since February 24, 2005. The Veteran seeks entitlement to special monthly compensation based on the need for the regular aid and attendance of another person or by reason of being housebound. Generally, with respect to claims of entitlement to special monthly compensation based on the need for the regular aid and attendance of another person, such claims will be granted when the Veteran, due to a service-connected disability, has the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to be in need of regular aid and attendance. See 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b). Determinations 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 the following: inability of the veteran to dress or undress himself/herself or to keep himself/herself 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 aid; inability of the veteran to feed himself/herself through loss of coordination of upper extremities or through extreme weakness; 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 inherent in his/her daily environment. "Bedridden" will be a proper basis for the determination, and is defined as that condition which, through its essential character, actually requires that the veteran remain in bed. It is not required that all of the disabling conditions listed above be found to exist before a favorable rating may be made. The particular personal functions that a veteran is unable to perform should be considered in connection with his/her 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 be a constant need. 38 C.F.R. § 3.352(a). In support of his claim, the Veteran submitted or the RO obtained private treatment reports dating from March 2002 to April 2009. These private treatment reports demonstrated complaints of and treatment for a variety of non-service-connected disorders, including basal cell carcinoma, coronary artery disease, gastroesophageal reflux disease, and hypertension, among others. These treatment reports did not, however, address whether the Veteran was in need of the regular aid and attendance of another person due to his service-connected disabilities. In January 2009, the Veteran underwent a VA examination to ascertain whether he required the regular aid and attendance of another person due to his service-connected disabilities. He also underwent a VA general medical examination. The same examiner conducted both examinations and, as the result of the examinations, the examiner opined: Due to the Veteran's service[-]connect[ed] back condition and hearing loss[,] he requires the aid and attendance of another person[,] specifically his son[,] to protect him from the hazards of daily living and for meal preparation, medical administration, dressing, bathing[,] and toileting. Hearing loss affects his ability to assist with medication needs and to attend to normal environmental hazards. In April 2009, the Veteran underwent a VA examination to determine his housebound status or his permanent need for regular aid and attendance. At the conclusion of this examination, the examiner failed to indicate whether the Veteran required the daily personal health care services of a skilled provider without which the Veteran would require hospital, nursing home, or other institutional care. In May 2009, the Veteran asserted that he required the regular aid and attendance of another person due to his hearing loss in order to effectively receive and place telephone calls and in arranging medical appointments. The Veteran asserted that he required the regular aid and attendance of another person due to his service-connected back disability in order to get in and out of his wheelchair; get to and from medical appointments; open doors; get up after falling; bathe; get dressed; accomplish tasks that require medium to heavy lifting; wash clothes; prepare meals; and perform household chores. A VA treatment report, dated in May 2009, demonstrated that the Veteran was instructed to take one 7.5-milligram dose of Warfarin, and then take a 5-milligram dose on a daily basis thereafter. The Veteran misunderstood the instructions and proceeded to take a 7.5-milligram dose on a daily basis, which was determined to be a 24 percent overdose by the time the mistake was discovered. The Veteran's misunderstanding was attributed to his hearing loss and, thus, it was noted that he required extra counseling. After five days of Warfarin overdosing, the Veteran's prescription was discontinued and he was treated for bleeding of the colon. The evidence of record demonstrated that, without regular aid and attendance of another person, the Veteran's service-connected hearing loss and tinnitus effectively exposed him to the health hazards or dangers of daily living, especially those associated with misunderstanding prescription medication instructions and other medical instructions. Further, the Veteran's service- connected back disability contributed to his inability to prepare meals; get dressed; bathe; perform household chores; and use the toilet. While the evidence of record clearly demonstrated that the Veteran experienced difficulties due to non-service-connected disorders, the only opinion of record addressing whether the Veteran requires the regular aid and attendance of another person due to his service-connected disabilities is positive to the Veteran's claim. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board is not free to substitute its own judgment for that of an expert). The Board finds that the evidence of record is at least in equipoise as to whether the Veteran requires the regular aid and attendance of the another person due to his service-connected disabilities. Accordingly, with application of the doctrine of reasonable doubt, the Board finds that the Veteran is in need of the regular aid and attendance of another person due to his service-connected disabilities. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As such, special monthly compensation based on regular need for aid and attendance is warranted. Special monthly compensation based on the need for regular aid and attendance is a greater benefit than special monthly compensation on account of being housebound. 38 U.S.C.A. § 1114(l), (s). In view of the Board's grant of special monthly compensation based on the need for regular aid and attendance herein, the issue of entitlement to special monthly compensation on account of being housebound is moot. ORDER Special monthly compensation based on the need for regular aid and attendance of another person is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs