Citation Nr: 1339963 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 12-27 277A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to automobile and adaptive equipment. 2. Entitlement to special monthly compensation based on aid and attendance. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from April 1954 to October 1957. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of the Detroit, Michigan, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a video conference hearing before the undersigned Acting Veterans Law Judge in February 2013. A transcript of the hearing is associated with the claims file. At the hearing, he submitted additional evidence with a waiver of initial RO consideration. See 38 C.F.R. § 20.1304. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. At his October 2013 hearing, prior to the promulgation of a decision in the appeal, the appellant notified the Board that he wished to withdraw his appeal on the issue of entitlement to automobile and adaptive equipment. 2. The Veteran has a factual need for aid and attendance demonstrated by inability to prepare his meals, dress and undress himself from the waist down, and protect himself from the hazards and dangers of his daily environment. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal by the appellant have been met with respect to the issue of entitlement to automobile and adaptive equipment. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204(b), (c) (2013). 2. The criteria for an award of special monthly pension based on the need for regular aid and attendance of another person has been met. 38 U.S.C.A. §§ 1114(l), 5103, 5103A, and 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.350, 3.352 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal of Claim Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. See 38 C.F.R. §§ 20.202, 20.204(b) (2013). Withdrawal may be made by the appellant or by his or her authorized representative, except that a representative may not withdraw a Substantive Appeal filed by the appellant personally without the express written consent of the appellant. See 38 C.F.R. § 20.204(c). At his October 2013 hearing, the Veteran withdrew his claim of entitlement to automobile and adaptive equipment both on the record and in writing. Hence, the appellant has withdrawn this issue and there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal with regard to this issue and it is dismissed without prejudice. Special Monthly Compensation - Aid and Attendance The Veteran contends that he is entitled to Special Monthly Compensation (SMC) on account of being in need of regular aid and attendance of his wife due to his service connected bilateral knee disabilities. SMC is payable to for anatomical loss or loss of use of both feet, anatomical loss or loss of use of one hand and one foot, statutory blindness (visual acuity of 5/200 or less) in both eyes, being permanently bedridden, or being so helpless as to be in need of regular aid and attendance. 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b). In determining whether the veteran is in need of regular aid and attendance of another person, the following factors will be considered: the inability of the veteran 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 such aid; inability of the veteran to feed himself through the 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 incident to his daily environment. 38 C.F.R. § 3.352(a). There is no requirement that all of these factors be present; the evidence need only establish that the veteran is so helpless as to need regular aid and attendance, not that there is a constant need. Id. In the present case, the September 2011 VA examiner found that the Veteran required aid and attendance as he was unable to prepare his meals or dress and undress himself from the waist down, had difficulty getting up and down from the toilet, and had difficulty protecting himself from hazard of his daily environment. This examiner also noted that the Veteran's left knee disability was a safety risk as his associated symptoms would render him unable to escape from a home emergency without assistance. Additionally, the Veteran has reported that he requires supervision to climb stairs and bath in order to prevent falls. He testified that he is only able to ambulate short distances when he has something to hold on to, like a railing or furniture. He is only able to leave home with assistance and his motorized scooter. As a result of his limitations, his wife is unable to leave him unattended for more than one hour. Finally, in an October 2013 letter, the Veteran' doctor stated that the Veteran was housebound, requiring a scooter, due to his bilateral knee arthritis and bilateral total knee replacement. While the issue before the Board is SMC based on aid and attendance, not based on being housebound, this opinion is highly probative as it relates the Veteran's functional limitations to his service connected disabilities. See also 38 U.S.C.A. § 1114(l), (s) (allowing for a lesser benefit when a veteran is permanently housebound but does not qualify for special monthly pension at the aid and attendance rate). The record shows that the Veteran also has non-service connected heart, hip, and back conditions that further limit his mobility. In order to warrant an award of SMC, the evidence must show that a service-connected disability has resulted in the Veteran's need of regular aid and attendance. As detailed above, the Veteran's service connected bilateral knee disability has been credited with his loss of mobility, difficulty bathing, and difficulty toileting. Moreover, his most recent hip and back complaints were related to an injury when his porch collapsed in November 2011, six months after the Veteran submitted this claim and two months after the September 2011 VA examination. The Veteran's mobility limitations prior to that time are of record. As the record supports a finding that the Veteran required the regular aid and attendance of another based on his service connected bilateral knee disabilities, the presence of additional factors further reducing the Veteran's functionality does not prevent the award of SMC. Based on the above, the Board finds that the evidence of record establishes a need for the regular aid and attendance of another based on his service connected bilateral knee disabilities. As such, SMC based on regular need for aid and attendance of another person is warranted. (CONTINUED ON NEXT PAGE) ORDER The appeal on the issue of entitlement to automobile and adaptive equipment is dismissed. Special monthly compensation based on aid and attendance is granted. ____________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs