Citation Nr: 1639378 Decision Date: 09/30/16 Archive Date: 10/13/16 DOCKET NO. 14-29 146 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an award of aid and attendance benefits. REPRESENTATION Appellant represented by: Joseph R. Moore, Esq. ATTORNEY FOR THE BOARD A. Gibson, Counsel INTRODUCTION The Veteran served on active duty from May 1962 to July 1966. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of Department of Veterans Affairs (VA) Regional Offices (RO). FINDINGS OF FACT The appellant suffers from serious functional limitations; medical evidence also documents the Veteran's increasing reliance on assistive devices, as the weakness from both his fibromyalgia and his lumbar spine disability make him prone to frequent falls. This causes him to require the care or assistance of another person on a regular basis. CONCLUSION OF LAW The criteria for an award of aid and attendance benefits for the appellant have been met for the entire appeal period. 38 U.S.C.A. §§ 1541, 5103, 5103A, 5107, 5121 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.351, 3.352, 3.1000 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Director of Compensation conducted an Administrative Review of Extraschedular Consideration for Special Monthly Compensation, Aid and Attendance under the provisions of 38 C F R § 3 352(a), in March 2013. The Director noted that the Veteran has a combined rating of 50 percent. He is service-connected for fibromyalgia, evaluated at 40 percent and lumbosacral strain with degenerative disc disease evaluated at 20 percent. The Director also noted the Veteran is in receipt of total disability due to individual unemployability, effective February 25, 1995. However, the Director determined that entitlement to aid and attendance on an extra schedular basis (since the Veteran is not at schedular 100 percent) was not warranted. Need for aid and attendance means helplessness or being so nearly helpless as to require the regular aid and attendance of another person. A surviving spouse will be considered in need of regular aid and attendance if she: 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 filed to 5 degrees or less; or, is a patient in a nursing home because of mental or physical incapacity; or, 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(a)(5), (b), (c). Pursuant to 38 C.F.R. § 3.351(c)(3), the following factors will be accorded consideration in determining the need for regular aid and attendance: inability of a claimant to dress or undress herself, or to keep herself 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 (this will not include the adjustments of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of a claimant to feed herself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, either physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to her daily environment. 38 C.F.R. § 3.352(a). In Turco v. Brown, 9 Vet. App. 222 (1996), the United States Court of Appeals for Veterans Claims (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 claimant 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 claimant is so helpless as to need regular aid and attendance, not that there be a constant need. The Veteran, through his representative, argues that the medical and lay evidence supports a finding by VA that, as a result of his service-connected lumbar spine and fibromyalgia disabilities, he "requires care or assistance on a regular basis" due to his inability to maintain basic daily activities such as, "to dress or undress himself, or to keep himself ordinarily clean and presentable," and the ability or capacity "to attend to the wants of nature." The Board agrees. Importantly, 38 C.F.R. §3.352(a) does not require a Veteran to exhibit all of the disabling conditions enumerated in the regulation. Rather, the evidence of record need only "establish that the veteran is so helpless as to need regular aid and attendance, not that there be a constant need." Since VA's April 2011 decision, the Veteran has attended three VA exams. These support a finding that he requires aid and attendance due to the severe functional limitations caused by his service-connected disabilities. The report of the December 2012 VA exam report states the following: [the Veteran] also needs assistance fastening clothing, bathing, shaving, and toileting. He is able to walk less than 10 yards with the use of a cane and he uses a wheelchair frequently. ...[he is diagnosed with fibromyalgia and] degenerative disk disease with degenerative joint disease of the lumbar spine causing the Veteran to be in need of aid and attendance despite not being home bound. See 12/17 /12 VA Exam Report, page 1-2. A January 2013 exam contains the following language, the Veteran's "lumbar condition alone warrants the need for aid and attendance." See 11/16/13 VA Exam Report, page 3. This conclusion is echoed in the report of VA's March 2014 exam, which provides more details about the Veteran's day to day life, including a description of how the Veteran requires "assistance in bathing and tending to other hygiene needs/' and how his daughter "prepares his meals" for him. See 3/3/14 VA Aid and Attendance Exam Report. The Veteran's representative has noted that the Veteran predominantly uses a wheelchair in his home, and that he requires assistance with other activities of daily living, as noted above. The Board agrees with the Veteran that just because he can complete a fraction of an activity does not mean he is able to be on his own and care for himself. He still requires the assistance of another to make it through each day, just as an individual who is completely wheelchair bound would require the aid of another. Moreover, a January 2013 VA Exam Report directly states that the Veteran is unable to perform certain activities of daily living, including "unable to perform: dressing and undressing." See 1/21/13 VA Exam Report. There is additional evidence that supports the Veteran's claim. For example, a May 1995 SSA disability report notes that the Veteran needs his 'Wife to "help me [the Veteran] up and down, and clean me after excrement" due to the severity of his lumbar spine and fibromyalgia and that he would have to be served "some meals in bed" due to an inability to present himself at the table. See 5/16/95 SSA Disability Report. A December 2002 VA treatment report documents that the Veteran had been in bed for "90% of the past two weeks secondary to pain," a situation which by definition requires the assistance of others, and that his "level of function has remained the same" which the VA provider stated meant ''he spends most of his time in bed secondary to pain.'' See 12/19/02 VA Pain Management Note. More recently, a November 2014 VA treatment report states that the Veteran is "unable to leave home without help (wheelchair, walker, special transportation, another person)." See 11/20/14 VA Consult Note. This is supported by a statement from the Veteran's son, who became his full time caregiver after the Veteran's wife passed away in 2011. This statement notes how his son assists his father in completing everyday tasks of ''preparing meals," "washing dishes'' and clothes, filling medication, and "dressing, bathing, and other hygiene efforts" his father requires. See 1/5/12 Statement from K.M.M. In addition to the multiple notations of functional limitations throughout the record, medical evidence also documents the Veteran's increasing reliance on assistive devices, as the weakness from both his fibromyalgia and his lumbar spine disability make him prone to frequent falls. For example, an April 2011 VA exam report documents "his falling has increased due to weak legs" as he ''fell just last night, and states that he ''cannot ambulate in a manner that will help him avoid danger situations.'' See 4/19/11 VA Exam Report. These same concerns are noted in a recent November 2014 hospitalization note, which documents a history of "multiple falls" and states that "given history of serious fall risk he was seen in house (in the hospital] by physical therapy to strengthen'' his muscles. See 11/20/14 AnMed Health Discharge Summary. This risk is reiterated in a June 2013 statement from the Veteran's adult daughter and current caregiver, which states that he is "having difficulties standing to the point he is falling at any point of the day. [sic]or night." See 6/14/13 Statement from A.M.D. Given the above, the Board finds that, on a facts found basis and extraschedular basis, the evidence is at least in equipoise as to the facts underlying entitlement to aid and attendance benefits, for the entire appeal period. Accordingly, entitlement to aid and attendance benefits is granted for the entire appeal period. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2015). ORDER An award of aid and attendance benefits is granted. ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs