Citation Nr: 1644173 Decision Date: 11/21/16 Archive Date: 12/01/16 DOCKET NO. 08-34 493 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to special monthly compensation (SMC) based on the need for aid and attendance. REPRESENTATION Veteran represented by: North Carolina Division of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his brother ATTORNEY FOR THE BOARD T. Minot, Associate Counsel INTRODUCTION 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). The Veteran served on active duty in the United States Air Force from May 1961 to May 1965. He contends that he had additional active service from July 1989 to May 1990; however, personnel records indicate that he had verified active service only from July 1989 to August 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, which denied entitlement to SMC based on the need for aid and attendance. In April 2010, the Veteran testified before the undersigned regarding the issue of entitlement to SMC. A transcript of the hearing is of record. FINDING OF FACT Due to his service-connected disabilities, the Veteran requires assistance with dressing and bathing and requires regular care or assistance against dangers in his daily environment. CONCLUSION OF LAW The criteria for SMC based upon the need for regular aid and attendance of another person have been met. 38 U.S.C.A. §§ 1114(l), 1134, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.350 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that he is entitled to SMC based on the need for regular aid and attendance. He specifically contends that his service-connected disabilities require him to seek the aid and attendance of another person on a daily basis. SMC is payable where the Veteran has a single service-connected disability rated as 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C.A. § 1114(s) (West 2014); 38 C.F.R. § 3.350(i) (2015). In this case, the RO awarded the Veteran SMC at the (s)(1) level in September 2015. A higher level of compensation is payable to eligible Veterans who, by reason of service-connected disability, require the regular aid and attendance of another person. SMC at the aid and attendance rate is warranted if the Veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both feet, or of one hand and one foot, or is blind in both eyes, or is permanently bedridden or 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). Determinations as to the need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to: (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). 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. Id.; see also 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 SMC 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 the 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). In this case, service connection is in effect for chronic renal disease (100 percent disabling from September 23, 2014); hypertensive heart disease (60 percent disabling from September 23, 2014); residuals of left shoulder dislocation (30 percent disabling); status post fracture of right tibia and patella with allograft replacements (40 percent disabling prior to March 17, 2008; 100 percent disabling prior to May 1, 2009; and 30 percent disabling thereafter); synovitis, left knee with degenerative arthritis (10 percent disabling); residuals of coccyx fracture (10 percent disabling); hypertension (noncompensable); and cerebrovascular accident (noncompensable from September 23, 2014). The Veteran has had a combined rating of 70 percent prior to March 17, 2008; 100 percent prior to May 1, 2009; 60 percent prior to September 23, 2014; and 100 percent thereafter. He was in receipt of a TDIU from July 9, 1998 to March 17, 2008, and from May 1, 2009 to September 23, 2014. As noted above, he is also in receipt of SMC at the (s)(1) rate from September 23, 2014. The Veteran filed the instant claim for SMC in March 2007, in conjunction with an application to reopen a previously denied claim for hypertension. In May 2007, he indicated that he had a stroke in August 2006, which he believed was directly related to his hypertension. He stated that he was "unable to perform my activities of daily living without assistance from others." The Veteran submitted a signed report from a private physician in May 2007, attesting to his need for the aid and attendance of another. In the report, the physician noted that the Veteran could not walk or leave home without assistance, and was unable to get in and out of the tub by himself. He was also unable to dress without assistance, as he could not reach behind his back. He remained in bed 16-18 hours per day. The physician noted that the Veteran's impairment came as a result of the August 2006 stroke, as well as chronic knee deterioration and pain. At his Board hearing, in April 2010, the Veteran testified that his sister had moved in with him earlier in the year following a second stroke, and that she was helping him with activities such as dressing, bathing, cooking meals, and driving him around. He reported that his brother (who was present at the hearing) also lived nearby and helped out. He testified that someone was with him 24 hours a day. The Veteran indicated that he required aid and attendance based on a "combination of" symptoms, including residuals from his strokes and service-connected orthopedic problems. In July 2010, the Veteran submitted another report from a private physician noting that the Veteran had "severe mobility problems" due to extensive in-service trauma to his lower back and extremities requiring multiple surgeries. In addition, the physician described various impairments resulting from then-nonservice-connected disabilities, including recurrent strokes. The physician noted that the Veteran's activities of daily living were restricted, as he was dependent on others for bathing, dressing, and toileting. In November 2012, the Veteran submitted another report from a private physician. The report noted that the Veteran used a motorized scooter to get around and was unable to walk unaided. He was also unable to prepare his meals and needed assistance in bathing and tending to the needs of nature. He was able to travel but not without assistance. The physician concluded that the Veteran was in need of the aid and attendance of another, although the report did not specify whether such need was due exclusively to service-connected disabilities. VA examinations performed in July 2015 and August 2015 revealed that the Veteran had end-stage kidney disease which required dialysis three times per week, as well as hypertensive heart disease. Notes from the examination reports reflected that the Veteran was wheelchair-bound and dependent on a home health aide, and that he had severe mobility problems due to his service-connected bilateral knee conditions. Based on the foregoing, the Board finds that the evidence is 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. In so finding, the Board recognizes that the Veteran was not service-connected for cerebrovascular accident, renal failure, or hypertensive heart disease until September 2014. In addition, the Board is aware that the relationship between the Veteran's service-connected and non-service connected disabilities in rendering his overall disability picture has been somewhat nebulous throughout the appeal period. Nevertheless, the evidence strongly suggests that that the Veteran's service-connected orthopedic disabilities, particularly his bilateral knee disabilities, have rendered him essentially immobile since filing his claim in March 2007. Moreover, as the Veteran's recurrent strokes have been linked to his service-connected hypertension (for which service connection has been in effect since March 2007, and which the Veteran identified in May 2007 correspondence, as noted above), the Board is inclined to consider these symptoms as part of the Veteran's overall disability picture, even prior to the effective date of the awards of service connection. In sum, when viewing the entire record in the light most favorable to the Veteran, the Board finds that the evidence is at least evenly balanced as to whether his service-connected conditions have resulted in the need for regular aid and attendance. Accordingly, the Board finds that the Veteran requires regular aid and attendance due to his service-connected disabilities. See Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). ORDER Entitlement to SMC based on the need for regular aid and attendance is granted. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs