Citation Nr: 1603693	
Decision Date: 02/03/16    Archive Date: 02/11/16

DOCKET NO.  11-26 603A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to special monthly compensation (SMC) on the basis of the need for the regular aid and attendance of another person, or at the housebound rate.


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

Scott W. Dale, Counsel


INTRODUCTION

The Veteran served on active duty from December 1964 to April 1983.  

This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.  

In October 2011, the Veteran requested a hearing before a Decision Review Officer (DRO); however, a June 2013 Report of General Information reflects that the Veteran conveyed to an RO employee that he no longer wished to participate in such a hearing.


FINDING OF FACT

The most probative evidence reflects that the Veteran's service-connected disabilities result in functional impairment that causes the Veteran to be in need of regular aid and attendance of another person because he is unable to walk without assistance, needs assistance in bathing and tending to other hygiene needs, has difficulty eating, and requires assistance in the frequent adjustment of his knee braces.


CONCLUSION OF LAW

The criteria for special monthly compensation on the basis of the need for the regular aid and attendance of another person have been met.  38 U.S.C.A. §§ 1114(l), 5107 (West 2002); 38 C.F.R. §§ 102, 3.350(b), 3.352(a) (2015).  


REASONS AND BASES FOR FINDING AND CONCLUSION

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2015).  In this decision, the Board grants entitlement to SMC on the basis of the need for the regular aid and attendance of another person, which represents a complete grant of the benefit sought on appeal.  Thus, any deficiency in VA's compliance with this issue is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary.

Special Monthly Compensation - Aid and Attendance / Housebound

Special monthly compensation is payable under 38 U.S.C.A. § 1114(l) if, as the result of service-connected disability, the Veteran is permanently bedridden or is so helpless as to be in need of regular aid and attendance of another person.  38 U.S.C.A. § 1114(l) (West 2002); 38 C.F.R. § 3.350(b) (2015). 

Need for aid and attendance means being so helpless as to require the regular aid and attendance of another person.  38 C.F.R. § 3.350(b).  As it pertains to the present case, criteria for establishing such need include whether the Veteran is permanently bedridden or is so helpless as to be in need of regular aid and attendance as determined under criteria enumerated under 38 C.F.R. § 3.352(a).  Under 38 C.F.R. § 3.352(a), the following factors will be accorded consideration in determining whether the Veteran is in need of regular aid and attendance of another person:  (1) inability of the Veteran to dress or undress himself, or to keep himself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without such aid; (3) inability of the Veteran to feed himself because of the loss of coordination of upper extremities or because of extreme weakness; (4) inability to attend to the wants of nature; or (5) physical or mental incapacity 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) (2015).

It is not required that all of the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found to exist before a favorable rating may be made.  The particular personal functions which the Veteran 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 Veteran is so helpless as to need regular aid and attendance not that there is a constant need for aid and attendance.  38 C.F.R. § 3.352(a); see Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in § 3.352(a) must be present to grant special monthly compensation based on the need for aid and attendance).

For the purposes of 38 C.F.R. § 3.352(a), "bedridden" will be a proper basis for the determination of whether the Veteran is in need of regular aid and attendance of another person.  "Bedridden" will be that condition which, through its essential character, actually requires that the claimant remain in bed.  The fact that claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice.  38 C.F.R. § 3.352(a).

Analysis

The Veteran contends that he is entitled to special monthly compensation because he requires the regular aid and attendance of another person (his wife).  He specifically contends that the functional impairment caused by his service-connected disabilities render him unable to dress himself, feed himself, and perform his activities of daily living without his wife's assistance.  

In the instant case, service connection is in effect for carpal tunnel syndrome and peripheral neuropathy of the right arm, rated as 30 percent disabling; diabetes mellitus, type II, with erectile dysfunction and bilateral cataracts, rated 20 percent disabling; carpal tunnel syndrome and peripheral neuropathy of the left arm, rated 20 percent disabling, peripheral neuropathy of the right and left legs, each rated 20 percent disabling; bilateral hearing loss, rated 10 percent disabling; tinnitus, rated 10 percent disabling; and hypertensive vascular disease, rated 10 percent disabling.  The Veteran has been in receipt of an 80 percent combined evaluation, including bilateral factor, a total evaluation based on individual unemployability due to service-connected disabilities, and SMC under 38 U.S.C.A. § 1114(l) (West 2002) for loss of use of a creative organ since November 14, 2006.  

The Board finds that the evidence supports granting the Veteran's appeal for SMC based on the need for aid and attendance of another person.  The Veteran contends that he is entitled to this award because his service-connected disabilities render him completely dependent on his wife for his activities of daily living, to include dressing and undressing himself, preparing and eating meals, ambulation, donning and adjusting his knee braces, and attending to his daily hygiene.  In support of these assertions, he has submitted three VA Forms 21-2680 (Examination for Housebound Status or Permanent Need for Regular Aid and Attendance) completed by his VA primary care physician on March 2011, March 2012, and October 2015.  

The Board has reviewed the complete record and concludes that the most probative evidence supports the Veteran's assertions.  Specifically, the Board observes that the three forms submitted by the Veteran clearly show his difficulties with bathing, walking, standing, stooping, gripping, dressing, undressing, driving and adjusting his knee braces.  However, it is unclear whether the VA physician who completed these forms attributed the above functional impairment on his nonservice-connected degenerative joint disease of the knees and spine or his service-connected diabetes mellitus, type II, with moderate-to-severe peripheral neuropathy of the arms and legs.  The United States Court of Appeals for Veteran's Claims (the Court) has firmly held that VA is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so.  Mittleider v. West, 11 Vet. App. 181, 182 (1998); Mitchem v. Brown, 9 Vet. App. 136, 140 (1996).  

Clarification was offered by the July 2013 VA examiner, who, after a review of the complete record and a thorough interview with and physical examination of the Veteran, confirmed the above-stated function impairment, stated the Veteran's need for regular aid and attendance of another, and opined, that the Veteran needs help with aid and attendance because of his service-connected conditions.

Based on the foregoing legal criteria, the Board finds that, given the particular circumstances of this case, the weight of the evidence warrants an award of aid and attendance due to service-connected disabilities.  In this regard, the Board considers it worthy of note that the Veteran requires help dressing and undressing himself, fixing and eating his own meals, bathing, housework, donning and adjusting his knee braces, and other activities of daily living, to include walking, standing, stooping, and gripping. 

The evidence is, at the very least, in equipoise as to whether the Veteran is in need of the regular aid and attendance of another person due to his service-connected disabilities.  Although the relationship between service-connected and non-service connected disabilities in rendering the Veteran's current physical state is somewhat nebulous, specifically the Veteran's nonservice-connected arthritis as cited by his VA primary care physician, the evidence strongly suggests that due to functional impairment of his upper and lower extremities, all secondary to service-connected diabetes mellitus, type II, he is in the need of the regular aid and attendance of another.  

Accordingly, and resolving all reasonable doubt in favor of the Veteran, the preponderance of the evidence demonstrates that the Veteran requires aid and attendance due to his service-connected disabilities.  38 C.F.R. §§ 3.102 (2015); see also Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990).


ORDER

Entitlement to special monthly compensation on the basis of the need for the regular aid and attendance of another person is granted.



____________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs