Citation Nr: 1312447 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 12-10 606 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance, or on the basis of being housebound. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Meawad, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran served on active duty from September 1950 to February 1957. He was awarded the Combat Infantryman's Badge (CIB) and the Purple Heart Medal. This matter is before the Board of Veterans' Appeals (Board) on appeal of a May 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction of the matter was subsequently transferred to the RO in Honolulu, Hawaii. In July 2012, the Board remanded the case for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDING OF FACT The Veteran requires the regular aid and attendance of another because of his service-connected posttraumatic stress disorder (PTSD). CONCLUSION OF LAW The criteria for entitlement to SMC based on the need for aid and attendance have been met. 38 U.S.C.A. §§ 1114(l), 1114(s), 1502(b) (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.350, 3.351, 3.352 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. The appellant asserts that he is unable to perform his functions of daily living without the aid and assistance of another due to his service-connected PTSD and nonservice-connected dementia. SMC is payable in addition to the basic rate of compensation otherwise payable on the basis of degree of disability. See 38 U.S.C.A. § 1114; 38 C.F.R. § 3.350. The appellant has been denied SMC based on the need for regular aid and attendance of another person and housebound status as a result of service-connected disability based on a finding that he requires such services due to nonservice-connected disabilities. A Veteran will be considered to be in need of aid and attendance if he: (1) is blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; or (2) is a patient in a nursing home because of mental or physical incapacity; or (3) establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). 38 C.F.R. § 3.351(c). Under 38 C.F.R. § 3.352(a), 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 such conditions as: inability of the claimant to dress or undress himself or to keep himself 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 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 daily environment. It is not required that all of 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 establish that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. 38 C.F.R. § 3.352(a). The Veteran is service connected for PTSD, rated 70 percent disabling; irritable bowel syndrome, rated noncompensable; a shell fragment wound scar of the right buttock, rated noncompensable; and a shell fragment wound scar of the left shoulder, rated noncompensable. The Veteran has also been awarded a total disability rating based on individual unemployability (TDIU) since February 2003. The appellant has also been diagnosed with multiple disabilities for which service connection has not been awarded, including advanced glaucoma; legal blindness; history of cerebrovascular accident (CVA) with right hemiparesis; bilateral pseudophakic; hypertension; left intraventricular tumor, status-post craniotomy with resection of the left intraventricular tumor; vascular dementia; major depressive disorder; and hyperlipidemia. The salient question in this SMC claim is whether the appellant requires the aid and attendance of another person and is housebound solely as a result of his service-connected disabilities. Neither the April 2010 VA Form 21-2680 nor the August 2010 VA Form 21-2680, mentions the Veteran's PTSD. The former report mentions in passing that the appellant suffers from cognitive impairment and occasional agitation. The latter report indicated that appellant's limitations were due primarily to nonservice-connected pathology (right hemiplegia). The appellant was afforded a VA medical examination in April 2011. The examiner noted that the appellant was restricted to a nursing home and that the appellant was unable to transfer out of bed due, in part, to confusion. On physical examination, the Veteran was described as confused. The examiner stated that the appellant was in need of aid and attendance due to his confusion, as well as his CVA with hemiparesis, and right femur fracture. The examiner also stated that the appellant was not competent to manage his financial affairs due to confusion. In a February 2013 addendum, the April 2011 examiner stated that the Veteran's PTSD is not a significant factor with his confusion, which was more related to his vascular dementia; however, he was not able to separate all of his disabilities due to vascular dementia or PTSD as they overlap (e.g. confusion, performing activities of daily living and instrumental activities of daily living, etc.). The examiner opined that the Veteran's need for aid and attendance was at least as likely as not caused by or the result of his service-connected PTSD as well as his nonservice-connected conditions. Based on the aid and attendance examination reports, the evidence shows that the Veteran is in need of aid and attendance of another due to in part to his PTSD symptoms. As the examiner was unable to separate the disabilities due to the service-connected PTSD from his nonservice-connected dementia, it must be assumed that all impairment is due to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998). Therefore, based on the examiner's February 2013 opinion and the evidence of record, SMC based on the need for aid and attendance is warranted. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). ORDER SMC based on the need for aid and attendance is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs