Citation Nr: 1341302 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 11-26 555 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to special monthly compensation (SMC) for the Veteran's spouse based on the need for regular aid and attendance. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Veteran and her spouse ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran served on active duty from July 1974 to May 1998. The Veteran's spouse in this claim is also a Veteran. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Indianapolis, Indiana, Department of Veterans Affairs (VA) Regional Office (RO), which denied compensation for aid and attendance for the Veteran's spouse. In March 2012, the Veteran and her spouse testified at a videoconference hearing at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record and associated with the claims folder. FINDINGS OF FACT The Veteran's spouse has a factual need for aid and attendance established by the RO during her spouse's rating decision of July 2012, which determined his inability to dress or undress herself, bathe or cook without assistance and his inability to attend to the wants of nature without assistance. CONCLUSION OF LAW The criteria for SMC for the Veteran's spouse based on the need for regular aid and attendance have been met. 38 U.S.C.A. §§ 1114 , 1115, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.350, 3.351, 3.352 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board grants entitlement to SMC for the Veteran's spouse. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. Any Veteran who is entitled to disability compensation at the rates provided in 38 U.S.C.A. § 1114, whose disability is rated not less than 30 percent disabling, and whose spouse is a patient in a nursing home, or helpless or blind, or so nearly helpless or blind as to need or require the regular aid and attendance of another person, is entitled to additional compensation. 38 U.S.C.A. § 1115. Under 38 C.F.R. § 3.351(a)(2), SMC is payable to a Veteran by reason of the Veteran's spouse being in need of aid and attendance. Here, the Veteran is currently rated as 100 percent disabled due to her multiple service-connected disabilities. Under 38 C.F.R. § 3.351(b), the need for aid and attendance means helplessness or being so nearly helpless as to require the regular aid and attendance of another person. The criteria for determining whether such need exists are set forth under 38 C.F.R. § 3.351(c). The criteria for establishing the need for aid and attendance include consideration of whether the spouse is blind or is 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, whether the spouse is a patient in a nursing home because of mental or physical incapacity; or, whether the spouse has a factual need for aid and attendance. 38 C.F.R. § 3.351(c). In determining whether there is a factual need for regular aid and attendance, the following will be considered: whether the spouse is unable to dress or undress himself, or to keep himself ordinarily clean and presentable; whether the spouse requires frequent adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability could not be done without aid; whether the spouse is unable to feed himself through loss of coordination of upper extremities or through extreme weakness; whether the spouse is unable to attend to the wants of nature; or, whether the spouse's incapacity requires assistance on a regular basis to protect him from the hazards or dangers incident to his daily environment. It is not required that all of the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made. The particular personal function that the spouse is unable to perform should be considered in connection with his disability as a whole. It is only necessary that the evidence establish that the spouse is so helpless as to need regular aid and attendance, not that there be a constant need. 38 C.F.R. § 3.352(a). An individual who is bedridden shall also be considered to require regular aid and attendance. "Bedridden" constitutes a condition that through its essential character actually requires that an individual remain in bed. The fact that a claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for a lesser or greater portion of the day to promote convalescence or cure will not suffice. If the criteria for SMC based on the need for regular aid and attendance are not met, SMC can be awarded if a spouse is permanently housebound by reason of disability. 38 U.S.C.A. §§ 1502(c), 1521(e); 38 C.F.R. § 3.351(e). A spouse will be considered to be permanently housebound when he is substantially confined to his house (ward or clinical areas, if institutionalized) or immediate premises by reason of a disability or disabilities reasonably certain to remain throughout his lifetime. 38 U.S.C.A. §§ 1502(c), 1521(e); 38 C.F.R. § 3.351(e). In this case, it is important to note that the spouse of the Veteran in this case is also a Veteran in his own regard. The Veteran and her spouse testified at a videoconference hearing before the undersigned VLJ in March 2012. They tesitied to the spouse's inability to bathe himself, clean himself after attending to the wants of nature, and inability to cook or perform any cleaning in the home. He also is not able to eat sitting up, and requires sitting in a recliner or retiring to bed. During the pendency of this appeal, VA, through the RO, already established that the Veteran's spouse has met the criteria and is entitled to compensation based on his need for aid and attendance. During the pendency of the claim, the Veteran's spouse was granted service connection for numerous disabilities, was also granted total rating based upon individual unemployability (TDIU), and also granted aid and attendance benefits based on his own claim for benefits. (See rating decision of July 6, 2012) As the RO's grant of SMC for aid and attendance benefits was made effective July 13, 2001, this covers the entire period of appeal sought for the same benefits by the Veteran. Based on the findings established by the RO for the Veteran's spouse, the Board concludes that SMC for her spouse based on the need for regular aid and attendance is warranted. ORDER SMC for the Veteran's spouse based on the need for aid and attendance is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs