Citation Nr: 1753872 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 05-01 988 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance or being housebound. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Joshua Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1977 to November 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Board notes that while this case is maintained in a rebuilt folder, the evidentiary record appears intact and the Board's decision to grant the benefit sought does not prejudice the Veteran. In November 2009 and March 2012, the Board remanded the case for further development. In March 2012, the Board remanded the issues of entitlement to specially adapted housing or a special home adaptation grant and special monthly compensation (SMC) based on the need for regular aid and attendance or being housebound to obtain outstanding medical records and remanded the following issues for the RO to issue a Statement of the Case: entitlement to service connection for a left leg disability, bilateral shoulder disabilities, and a cervical spine disability and entitlement to rating in excess of 60 percent for degenerative disc disease, status post anterior interbody fusion at L5-S1 and decompression L5-S1. In September 2016, the RO awarded specially adapted housing. As such, this issue is no longer before the Board. In September 2016, the RO issued the requested Statement of the Case and the Veteran perfected an appeal later that month. As the Veteran requested a hearing before a member of the Board, these issues will be adjudicated in a separate decision. Accordingly, the only issue before the Board at this time is entitlement to SMC based on the need for regular aid and attendance or being housebound. FINDING OF FACT Due to his service-connected disabilities, the Veteran is so helpless as to be in need of regular aid and attendance of another person. CONCLUSION OF LAW The criteria for SMC based on the need for the regular aid and attendance have been met. 38 U.S.C.A. § 1114 (West 2014); 38 C.F.R. §§ 3.102, 3.350, 3.352 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION SMC is payable where a veteran suffers from service-connected disability that renders him permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C.A. § 1114; 38 C.F.R. § 3.350(b). A veteran shall be considered to be in need of regular aid and attendance if: he/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 field 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). See also 38 C.F.R. § 3.351(c). Determinations as to the need for aid and attendance are based on the actual requirements of personal assistance from others. In determining the need for regular aid and attendance, consideration will be given to the inability of the veteran and his or her spouse to dress or undress themselves, or to keep clean; frequent need of adjustment of any prosthetic which by reason of the disability cannot be done without aid; inability of the veteran or his or her spouse to feed themselves; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect themselves from the hazards or dangers of the daily environment. Bedridden will be that condition which, through its essential character, actually requires that the claimant remain in bed. 38 C.F.R. § 3.352(a). It is mandatory for VA to consider the enumerated factors within the regulation, and at least one of the enumerated factors be present. Turco v. Brown, 9 Vet. App. 222 (1996). In order for the Appellant to prevail in the claim, the evidence must show that it is a service-connected disability that has resulted in the Veteran's need for regular aid and attendance. Prejean v. West, 13 Vet. App. 444 (2000). The record reflects that since December 27, 2001, the Veteran has been service-connected for radiculopathy with loss of use of the bilateral lower extremities, rated 100 percent disabling; degenerative disc disease of the lumbar spine, rated 40 percent disabling; residuals of fractured left clavicle, rated 20 percent disabling; hypertension, rated 10 percent disabling; and hearing loss and impotence, rated noncompensable. From that date, he was also awarded a TDIU and SMC under 38 U.S.C. 1114 subsections (p) and (l). Since July 7, 2011, the Veteran has also been service-connected for depression, rated 70 percent disabling. The Veteran has also been service-connected for status post myocardial infarction since June 18, 2007, and SMC for loss of use of a creative organ from December 9, 2008. The Board finds that the lay and medical evidence of record sufficiently establishes that due to his service-connected disabilities, the Veteran is so helpless as to be in need of regular aid and attendance of another person. Indeed, the Veteran, his wife, his neighbor, family members, and several of his treating physicians have provided consistent, detailed accounts of how the Veteran, who has been wheelchair-bound since 2000, requires 24-hour care for nearly every activity of daily living, to include, dressing; toileting; bathing; tending to personal hygiene; managing and administering medication; preparing food; putting on and adjusting prosthetics (i.e., leg braces); transferring from his wheelchair to his bed or a vehicle; administering medication. See, e.g., Dr. Rockwell (October 3, 2005); VA examination (July 2009); Lay statement (April 13, 2011); Dr. Buchanan (October 11, 2011); Disability Benefits Questionnaire (December 2013). The Board finds that the opinions from the Veteran's treating clinicians (Dr. Rockwell and Dr. Buchanan) and July 2009 VA examiner to be adequate, persuasive, and entitled to significant probative value. The Board acknowledges that in September 2011 and October 2016, the VA examiners found that the Veteran's service-connected disabilities are not so severe as to necessitate regular aid and attendance. Significantly, the October 2016 VA examiner acknowledged that the Veteran requires regular aid and attendance, but found that such was due to a combination of service-connected and non-service-connected disabilities. Critically, the examiner failed to specify which disabilities necessitated regular aid and attendance. Accordingly, as the examiner failed to differentiate between symptomatology attributed to nonservice-connected and service-connected disabilities, the principle of reasonable doubt dictates that such signs and symptoms, here, the need for regular aid and attendance, be attributed to the service-connected disorders. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). The Board also notes that the law mandates resolving all reasonable doubt in favor of the claimant, to include degree of disability. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7. In view of the foregoing, the Board finds the competent lay and medical evidence reflects that the Veteran has required the regular aid and attendance of another person due to his service-connected disabilities throughout the pendency of this case. Thus, SMC based upon the need for regular aid and attendance is warranted. As this represents a complete grant of the benefit sought on appeal, no discussion of SMC based on being housebound (which is a lesser benefit) is necessary. ORDER Subject to the law and regulations governing payment of monetary benefits, SMC based upon the need for regular aid and attendance is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs