Citation Nr: 1332712 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 13-14 214 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUE Entitlement to special monthly compensation based upon a demonstrated need for aid and attendance. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran served on active duty from July 1968 to July 1970, to include service in Vietnam. He was awarded the Vietnam Campaign Medal, among other decorations. This matter comes before the Board of Veterans' Appeals (Board) from a May 2012 RO decision. The Veteran requested a hearing before a Veterans Law Judge. Such a hearing was scheduled in October 2013, and he was provided with notice of the scheduled time and date. However, in several letters he indicated he was unable to travel and desired to let another Veteran have his hearing spot. Under these circumstances, the request for a hearing is considered to have been withdrawn. 38 C.F.R. § 20.702(e). The Board will therefore proceed to review the appeal based upon all the evidence currently of record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2). FINDING OF FACT The veteran is in need of the regular aid and attendance of another person due to impairment from his service-connected disabilities. CONCLUSION OF LAW The criteria for an award of special monthly compensation based on the need for the regular aid and attendance of another person are met. 38 U.S.C.A. §§ 1114, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.350, 3.352 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends he is terminally ill and needs to have someone with him at all times. He is requesting that the VA award special monthly compensation based upon a need for aid and attendance. Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C.A. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board must consider all the evidence of record and discuss in its decision all "potentially applicable" provisions of law and regulation. See 38 U.S.C. § 7104(a); Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). The Board is also required to provide a statement of reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for its decision, as well as to facilitate further appellate review. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet. App. 517, 527 (1995); Gilbert, 56 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Review of the record shows that the service connection has been established for coronary artery disease, status post myocardial infarction, rated as 100 percent disabling; post-traumatic stress disorder, rated as 70 percent disabling; diabetes mellitus with erectile dysfunction and postoperative cataracts, rated as 20 percent disabling; residuals of a right foot fracture associated with peripheral neuropathy of his right foot, rated as 20 percent disabling; and peripheral neuropathy of all four extremities, each one separately rated as 10 percent disabling. His combined disability rating is 100 percent. He is also in receipt of two different types of special monthly compensation. Special monthly compensation is payable in addition to the basic rate of compensation otherwise payable on the basis of degree of disability. 38 U.S.C.A. § 1114; 38 C.F.R. § 3.350. As above, the Veteran is seeking special monthly compensation based on the need for regular aid and attendance of another person. 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. A veteran being "bedridden" will be a proper basis for the determination. "Bedridden" is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. 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). In Turco v. Brown, 9 Vet. App. 222 (1996), the Court held that it was not required that all of the disabling conditions enumerated in the provisions of 38 C.F.R. § 3.352(a) be found to exist to establish eligibility for aid and attendance and that such eligibility required at least one of the enumerated factors be present. The Court added that the particular personal function which the Veteran was unable to perform should be considered in connection with his or her condition as a whole and that it was 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. In this case, the evidence shows that the Veteran has great difficulty leaving his home. Multiple doctor statements attest to the Veteran's homebound state and to his requirement for regular assistance. A VA examination reported dated in January 2013 reflects that the Veteran's balance is precarious and affects his ability to ambulate. It also shows that the Veteran is unable to bathe without assistance. His functional limitations were described as permanent. The Veteran's need for assistance is not in question here. Rather, the RO has denied the claim on the basis that the Veteran's need for assistance is precipitated by his chronic obstructive pulmonary disease and his need for near-constant oxygen supplementation. Chronic obstructive pulmonary disease is not a service-connected disability, and thus, the RO held that special monthly compensation was not warranted. Upon careful review, the Board determines that the interpretation of the facts is too narrow. Although chronic obstructive pulmonary disease is one of the Veteran's major problems, and is not related to service, it is not his only serious problem. The VA has recognized the total impairment related to the Veteran's coronary artery disease with the 100 percent disability rating assigned. The seriousness of the Veteran's PTSD is acknowledged by the award of a 70 percent disability rating. The Veteran's diabetes with the complications together combine to a 70 percent disability rating. 38 C.F.R. § 4.25. For example, that the Veteran has already fallen and fractured his right foot on account of his peripheral neuropathy (a service connected problem) provides a concrete example of his need for aid and regular assistance. Thus, even leaving out the Veteran's nonservice-connected obstructive pulmonary disease, his physical and mental state related to his service-connected disabilities is quite precarious. A finding that he requires aid and attendance on account of his service-connected disabilities is entirely reasonable under these circumstances. In sum, the evidence supports the grant of special monthly compensation based upon a demonstrated need for regular aid and attendance. The appeal is therefore granted. Duties to notify and assist When an application for benefits is received, VA has certain notice and assistance requirements under the law. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). All relevant records and contentions have been carefully reviewed, including all records contained in the Veteran's physical paper file and in his virtual VA electronic file. In light of the positive outcome reached above, the Board deems that an exhaustive account of how the VA has satisfied the duties to notify and assist the Veteran is unnecessary. ORDER Special monthly compensation based upon a demonstrated need for regular aid and attendance is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs