Citation Nr: 1619376 Decision Date: 05/12/16 Archive Date: 05/19/16 DOCKET NO. 13-05 169 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to special monthly compensation benefits based on the need for the regular aid and attendance of another person or on account of housebound status. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J.A. Williams, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1944 to May 1947. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In June 2015, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A transcript of this hearing was prepared and associated with the claims file. A July 2015 Board decision remanded the Veteran's claim for additional development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT The evidence shows that the Veteran is in need of regular aid and attendance by reason of his service-connected disabilities. CONCLUSION OF LAW The criteria for special monthly compensation based on the need for regular aid and attendance of another person have been met. 38 U.S.C.A. § 1114 (West 2014); 38 C.F.R. §§ 3.350, 3.352 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist Under the VCAA, VA is required to advise a claimant of the information and evidence not of record that is necessary to substantiate a claim. See 38 U.S.C.A. § 5103 (West 2014); 38 C.F.R. § 3.159(b)(1) (2015). VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim, unless no reasonable possibility exists that such assistance would aid in substantiating that claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2014). In light of the favorable disposition below, the Board finds that any deficiency in VA's VCAA notice or development actions is harmless error with respect to the issue adjudicated in this decision. General Legal Principles Special monthly compensation (SMC) is warranted if, as a result of a service-connected disability, a veteran is permanently bedridden or so helpless as to be in need of regular aid and attendance of another person. 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.352(a). SMC is warranted if a veteran has a service-connected disability rated as total and has additional service-connected disabilities independently rated as 60 percent or more, or by reason of such service-connected disabilities is permanently housebound. 38 U.S.C.A. § 1114 (s); 38 C.F.R. § 3.350(i). The need for aid and attendance means helplessness or being so nearly helpless as to require the regular assistance of another person. In order to establish entitlement to an increased compensation based on the need for regular aid and attendance, a veteran must have an anatomical loss or loss of use of both feet, one hand and one foot, blindness in both eyes of 5/200 or less or have a factual need for regular aid and attendance of another person. 38 U.S.C.A. § 1114 (l); 38 C.F.R. § 3.351(b), (c). Determinations as to need for aid and assistance 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 appellant 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 appellant 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 hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). Performance of the necessary aid and attendance service by a relative of the beneficiary or other member of his household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352 (c). VA must consider the enumerated factors under 38 C.F.R. § 3.352(a); that eligibility requires at least one of the enumerated factors to be present; and that, because the regulation provides that the "particular personal function" which a veteran is unable to perform should be considered in connection with his condition as a whole, the "particular personal function" must be one of the enumerated factors. Turco v. Brown, 9 Vet. App. 222 (1996). Permanently housebound by reason of service-connected disabilities is warranted when a veteran is substantially confined to his dwelling and the immediate premises or, if institutionalized, to the ward or clinical area and it is reasonably certain that the disability and resultant confinement will continue throughout his lifetime. 38 C.F.R. § 3.351. Analysis The Veteran is service-connected for valvular heart disease with mitral stenosis, evaluated as 30 percent disabling; right knee replacement, evaluated as 30 percent disabling; degenerative arthritis and chondromalacia of the left knee, evaluated as 30 percent disabling; and bilateral pes planus, evaluated as 10 percent disabling. The Veteran has been in receipt of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) since June 20, 2000. The Board finds that the evidence supports granting the Veteran's claim of entitlement to special monthly compensation based on the need for aid and attendance of another person. The Veteran contends that he is entitled to special monthly compensation because he is completely dependent on family members for his activities of daily living. During the June 2015 Board hearing, the Veteran testified that he has instability in his knees as a result of his service-connected disabilities. He further reported he is unable to cook for himself because he often falls and losses balance as a result of his service-connected knee disabilities. Thus, he relies on his daughter to cook in order to protect him from the hazards or dangers incident to his daily environment. The Veteran also reports that he wears knee braces, which his daughter helps him to put on. The Veteran reports that the combination of his service-connected knee and foot disabilities make it difficult for him to move around his house without assistance. The Veteran was afforded a VA Aid and Attendance or Housebound status examination in October 2015. The examiner indicated that the Veteran's imbalance constantly or near constantly affected the Veteran's ability to ambulate. The examiner indicated that the Veteran is only able to walk within the home without the assistance of another person. The examiner reported that the Veteran required two canes and a walker for ambulation and that his activities were limited when no help was available. The examiner also reported that the Veteran's lower extremities had limitation of joint motion, and instability of the left knee resulting in a tendency to fall. The Board finds that the frequent falling and loss of balance caused by the Veteran's service-connected knee and foot disabilities constitute physical incapacity requiring the care or assistance on a regular basis to protect the Veteran from hazards or dangers incident to his environment. See 38 C.F.R. § 3.352(a). Thus, special monthly compensation based on the need for regular aid and attendance is warranted. In reaching its decision, the Board recognizes that the Veteran has serious nonservice-connected disabilities which contribute to his need for assistance, including severe osteoarthritis, frozen shoulder, spinal stenosis, multiple joints with osteoarthritic changes in advanced stages, and osteoarthritis in both hips. See January 2014 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance; June 2015 Hearing Transcript. Nevertheless, the Board finds the VA examiner who provided the October 2015 opinion of record concerning the Veteran's need for aid and attendance and the Veteran's credible lay statements persuasive. This evidence, taken together, are to the effect that the Veteran is so helpless as to require the regular aid and attendance of another person and is unable to complete his activities of daily living without such assistance as a consequence of his service-connected disabilities. The Board is persuaded that there is sufficient evidence that shows that the impairment that renders the Veteran in need of aid and attendance is substantially due to his service-connected knee and feet disabilities. In summary, because at least one of the criteria enumerated in 38 C.F.R. § 3.352(a) are met, the Board finds that special monthly compensation based on the need for the regular aid and attendance of another person is warranted. See 38 U.S.C.A. § 1114(l); 38 C.F.R. §§ 3.350(b)(3), 3.352(a). Also, because the Board is awarding special monthly compensation based on aid and attendance, the claim for special monthly compensation at the housebound rate is moot as special monthly compensation at the aid and attendance rate set forth at 38 U.S.C.A. § 1114(l) is greater than the rate set forth at 38 U.S.C.A. § 1114(s) based on being housebound. ORDER Entitlement to special monthly compensation based on the need for aid and attendance is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs