Citation Nr: 1756418	
Decision Date: 12/07/17    Archive Date: 12/15/17

DOCKET NO.  14-07 718	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUE

Entitlement to special monthly compensation based on the need for aid and attendance.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Scott Shoreman, Counsel


INTRODUCTION

The Veteran had active service from July 1958 to May 1960 and from June 1966 to September 1987.

This matter comes before the Board of Veterans' Appeals (Board) from a June 2011 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDING OF FACT

The Veteran is in need of regular aid and attendance of another person for certain activities of daily living due to his service-connected disabilities.


CONCLUSION OF LAW

The criteria for an award of special monthly compensation based on the need for the regular aid and attendance of another person have been met.  38 U.S.C. §§ 1114, 5107 (2012); 38 C.F.R. §§ 3.350, 3.352 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran is seeking special monthly compensation based on the need for the regular aid and attendance of another person.  His service-connected disabilities and the associated rating assigned thereto are: left hand tremors, rated 70 percent disabling; right hand tremors, rated 40 percent disabling; tinnitus, rated 10 percent disabling; hypertension, rated 10 percent disabling; head tremors, rated 10 percent disabling; right ear hearing loss, rated 0 percent disabling; hemorrhoids, rated 0 percent disabling; and right middle finger laceration scar, rated 0 percent disabling.  In addition, he is in receipt of individual unemployability as a result of his service-connected disabilities, effective from September 15, 2000.

Increased compensation at the aid and attendance rate is payable when a veteran is helpless or so nearly helpless as the result of service-connected disability that he requires the regular aid and attendance of another person.  38 U.S.C. § 1114(l) (2012); 38 C.F.R. § 3.350(b) (2017).  To establish a need for regular aid and attendance, the veteran must, as a result of service-connected disability, (1) be 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; (2) be a patient in a nursing home because of mental or physical incapacity; or (3) show a factual need for aid and attendance.  Id.

Determinations as to need for aid and attendance must be based on actual requirements of personal assistance from others.  In making such determinations, consideration is given to such conditions as the following: the inability of the claimant to dress or undress himself or to keep himself ordinarily clean and presentable; the frequent need of the adjustment of any special prosthetic or orthopedic appliance which by reason of the particular disability cannot be done without aid; the inability of the claimant to feed himself through loss of coordination of the upper extremities or through extreme weakness; the 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) (2017).

"Bedridden" will be a proper basis for the aid and attendance determination and is defined as 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.  It is not required that all of the disabling conditions enumerated above be found to exist before a favorable rating may be made.  The particular personal functions that the claimant 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 claimant is so helpless as to need regular aid and attendance, not that there be a constant need.  Determinations that the Veteran is so helpless, as to be in need of regular aid and attendance will not be based solely on an opinion that the claimant's condition is such as would require him to be in bed.  They must be based on the actual requirement of personal assistance from others.  38 C.F.R. § 3.352(a).  The performance of the necessary aid and attendance service by a relative of the claimant or other member of his or her household will not prevent the granting of the additional allowance.  38 C.F.R. § 3.352(c) (2017).

A private treating physician wrote in February 2010 that the Veteran had a severe and disabling intention tremor.  The Veteran was dependent on his wife to feed him and medication limited the degree of the tremor but not enough for the Veteran to function normally.

The Veteran's wife wrote in March 2010 that his tremors had gotten progressively worse to the point that she had to feed him and help him fix things.  She also shaved him and brushed his teeth.  Without her he would have to hire someone for these tasks.  The Veteran wrote in March 2010 that he had no controlled use of either hand.  He was totally dependent on his wife to feed him, shave him, and brush his teeth.  The Veteran was able to take a shower and dress himself, except that he could not button shirts.  He also wore slip on shoes because he could no longer tie laces.  

A private treating neurologist wrote in March 2010 that she treated the Veteran for a disabling tremor.  His spouse served as a caregiver for him, including food preparation, although it was noted that the Veteran could eat finger food on his own and could drink beverages in a travel mug with a lid.  His wife also assisted with personal care such as shaving and oral care.  The Veteran was not able to manage on his own without help.

The Veteran had a VA neurological examination in July 2010 at which he said that he could no longer use a spoon, screwdriver, or pliers.  Although his wife cut his food and also fed him the Veteran could eat with his fingers with some difficulty.  Using a computer mouse and doing home maintenance had become difficult.  On examination the Veteran had visible shaking and a tremor in both hands with rest and activity.  He was able to take his shoes and socks off and on and could use the Velcro closures on his shoes.  There was considerable shaking on grip strength testing.

In November 2010 the Veteran had a VA aid and attendance or housebound status examination.  It was noted that the Veteran was independent in toileting and bathing, but that his wife cut his food and helped feed him, and that the Veteran could not open a can, prepare a piece of toast, fry an egg, or do other food preparation.  He was able to drive, was not bedridden, his vision was better than 5/200, and could avoid hazards and dangers in his daily environment.  The examiner noted that the Veteran had a distinctive and visible tremor in his hands.

The Veteran wrote in December 2011 that he could not feed himself, including not being able to hold silverware or a glass, and could not button a shirt, attach a belt, tie a shoelace, or shave himself.  The Veteran wrote in February 2014 that he had outside help with activities of daily living including feeding, shaving, house cleaning, written correspondence, and transportation.

Resolving any doubt in the appellant's favor, the Board concludes the evidence supports special monthly compensation based on a need for regular aid and attendance of another person.  38 U.S.C.A. § 5107(b).  The record shows that the Veteran needs assistance with activities of daily living due to the service-connected hand tremors.  Furthermore, to the extent that nonservice-connected disabilities may contribute to the need for aid and attendance, it is not possible to distinguish the extent to which only the service-connected disabilities contribute need for aid and attendance.  See Mittleider v. West, 11 Vet. App. 181, 182 (1998).
 







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ORDER

Special monthly compensation based on the need for aid and attendance is granted.




____________________________________________
Michael J. Skaltsounis
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs