Citation Nr: 1751061 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 17-22 252A ) 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 a need for the regular aid and attendance of another person. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran served on active duty from December 1954 to December 1957. This appeal is before the Board of Veterans' Appeals (Board) from a June 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). It has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). In his May 2017 substantive appeal, the Veteran appears to assert that he is entitled to aid and attendance benefits for his war time service. The issue of entitlement to nonservice-connected pension has thus been raised by the record, and has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). FINDING OF FACT The Veteran is not so helpless as to be in need of regular aid and attendance due to his service-connected disabilities. CONCLUSION OF LAW The criteria for SMC for being so helpless as to be in need of regular aid and attendance due to service-connected disabilities have not been met. 38 U.S.C.A. §§ 1114(l), 5107 (West 2014); 38 C.F.R. §§ 3.350(b), 3.352(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Special monthly compensation provided by 38 U.S.C. § 1114(l) is payable for being so helpless as to be in need of regular aid and attendance due to service-connected disability or disabilities. 38 C.F.R. § 3.350(b). The criteria for determining whether a veteran is so helpless as to be in need of regular aid and attendance are listed in 38 C.F.R. § 3.352(a). 38 C.F.R. § 3.350(b)(3). Under 38 C.F.R. § 3.352(a), the following is accorded consideration in determining the need for regular aid and attendance: inability of claimant to dress or undress himself (herself), or to keep himself (herself) ordinarily clean and presentable; inability to attend to the wants of nature; and incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. It is not required that all of these disabling conditions be found to exist before a favorable rating may be made. The particular personal functions which a veteran is unable to perform should be considered in connection with his or her 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 be a constant need. Determinations that a veteran is so helpless as to be in need of regular aid and attendance are based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352(a). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). In this case, SMC under 38 U.S.C. § 1114(l) must be denied. The Veteran's only service-connected disabilities are tinnitus, rated 10 percent, and bilateral hearing loss, rated noncompensable (0 percent). The record does not reflect disabilities meeting the criteria for showing need regular aid and attendance. While, as reflected on December 2014 VA examination, the Veteran has reported that his hearing loss often impacts him socially, especially while in noisy situations, there is no indication that his service-connected hearing loss or tinnitus in any way meet the criteria described in 38 C.F.R. § 3.352(a). The record does not indicate, and the Veteran has not explained, how such service-connected disability might meet any such criteria. Rather, as reflected in his June 2016 notice of disagreement and May 2017 substantive appeal, the Veteran asserts entitlement to aid and attendance based on other, nonservice-connected disabilities such as mental issues, urological problems, and vision problems. The Board notes a January 2016 note from the Veteran's VA geriatrics and extended care physician indicating that the Veteran presented with an aid and attendance letter, but that the physician did not believe that he met any of the requirements. The aid and attendance form, filled out by the VA physician, dated in January 2016, was submitted by the Veteran. The January 2016 form does not appear to show that the Veteran meets the 38 C.F.R. § 3.352(a) criteria for any disability; moreover, it does not relate either of the Veteran's service-connected disabilities to the criteria in any way. The Veteran also submitted a March 2016 memorandum from a home health care giver, V.V., indicating that V.V. would begin providing certain home care services to the Veteran beginning the next month; again, the document in no way relates either of the Veteran's service-connected disabilities to the criteria for aid and attendance SMC. Thus, a preponderance of the evidence is against a finding that the Veteran is so helpless as to be in need of regular aid and attendance due to his service-connected disabilities. Accordingly, SMC under 38 U.S.C. § 1114(l) must be denied. ORDER SMC based on a need for the regular aid and attendance of another person is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs