Citation Nr: 1308219 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 10-35 150 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to special monthly compensation based on the need for aid and attendance/housebound status prior to March 18, 2009. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD S.J. Janec, Counsel INTRODUCTION The Veteran had active military service from January 1968 to January 1972 and from March 2002 to February 2004. This matter comes before the Board of Veterans' Appeals (Board) from an October 2008 rating decision of the Jackson, Mississippi, Regional Office (RO) of the Department of Veterans Affairs (VA) that, in relevant part, denied entitlement to special monthly compensation based on aid and attendance/housebound status. The Veteran filed a notice of disagreement with the determination. In a May 2010 rating decision, the RO granted entitlement to special monthly compensation based on the need for aid and attendance effective February 6, 2010. In an August 2010 rating decision, the RO granted entitlement to special monthly compensation based on the need for aid and attendance effective March 18, 2009. FINDING OF FACT From January 17, 2008, the medical evidence establishes that the Veteran is so helpless as to require the need for aid and assistance of another person on a regular basis. CONCLUSION OF LAW The criteria for special monthly compensation based upon the need for regular aid and attendance have been met from January 17, 2008. 38 U.S.C.A. §§ 1114, 5107 (West 2002); 38 C.F.R. §§ 3.350, 3.352 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act 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 the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). In light of the decision herein allowing the benefit sought on appeal, the Board finds that a discussion VA's duties to notify and assist is not necessary. Special Monthly Compensation 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) (West 2002); 38 C.F.R. § 3.350(b)(3) (2012). Relevant factors for consideration as to the need for aid and attendance are the inability of the claimant 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 claimant 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 claimant from the hazards or dangers inherent in his/her daily environment. The term "bedridden" actually requires that the claimant remain in bed. The particular personal functions which the veteran is unable to perform should be considered in connection with the claimant's condition as a whole. The evidence need only establish that the veteran is so helpless as to need regular aid and attendance, not constant need. Determinations that the veteran is so helpless as to need regular aid and attendance will not be based solely upon an opinion that the veteran's condition requires the veteran to be in bed. They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352(a) (2012) (emphasis added). The veteran must be unable to perform one of the enumerated disabling conditions, but the veteran's condition does not have to present all of the enumerated disabling conditions. Turco v. Brown, 9 Vet. App. 222, 224 (1996). The assignment of effective dates of awards is governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. The effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2012). The Veteran's application for special monthly compensation based on the need for aid and attendance was received on January 17, 2008. Upon VA aid and attendance examination in October 2008, the examiner concluded that the Veteran needed the aid and attendance of another person to help protect him from the ordinary hazards of daily living and assist with many of his activities of daily living due to amyotrophic lateral sclerosis. At a neurological examination in the same month, it was noted that the Veteran rode in a motorized scooter and he was unable to rise from the chair. He required assistance cutting food, getting dressed, etc. The assessment was advanced amyotrophic lateral sclerosis with no use of the lower extremities and moderate impairment of the upper extremities. It was noted that he was somewhat independent in many activities of daily living, but he required assistance with many as well. He also required the presence of another to help protect him from danger or in case of emergency. In a March 2009 letter, E.S.R., MD, a neurologist, reported that the Veteran's spouse left work to take care of him and that he needed assistance for eating, bathing and other activities of daily living. He was no longer able to transfer himself and was becoming increasingly dependent on his wife for assistance. In a June 2010 statement, the Veteran's spouse reported that she helped the Veteran with most of his activities of daily living, including shaving, eating, bathing, brushing teeth, combing hair, etc. The Veteran was no longer able to speak and required someone to be with him all the time to adjust his ventilator, clear the airway if necessary, and transfer him. A July 2010 VA treatment report noted that the Veteran was using a home ventilator and in August 2010 a peg was placed for feeding purposes. In considering the evidence of record, the Board finds that the Veteran met the criteria for entitlement to special monthly compensation based on the need for aid and attendance as of the date of his claim, January 17, 2008. Hence, benefits are payable from that date. As detailed above, the initial VA examination the Veteran was afforded in conjunction with his application for the benefit was conducted in October 2008, and the examiner clearly stated that the Veteran needed the aid and attendance of another person to help protect him from the ordinary hazards of daily living and assist with many of his activities of daily living due to amyotrophic lateral sclerosis - a debilitating, neurological disease that renders a person physically incapacitated. The Board concludes that this statement comports with the requirements outlined in 38 C.F.R. § 3.352 emphasized above. Hence, the benefit may be paid from the date the Veteran's claim was received in accordance with 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. ORDER Special monthly compensation based on the need for aid and attendance is granted effective January 17, 2008, subject to the regulations governing the payment of monetary awards. ____________________________________________ FRANK J. FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs