Citation Nr: 1802925	
Decision Date: 01/12/18    Archive Date: 01/23/18

DOCKET NO.  12-03 170	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office and Insurance Center in 
St. Paul, Minnesota


THE ISSUE

Entitlement to special monthly pension (SMP) based on the need for regular aid and attendance of another person.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Joshua Castillo, Associate Counsel

INTRODUCTION

The Veteran served on active duty from June 1962 to June 1966.

This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in St. Paul, Minnesota.

In August 2016, the Board remanded the case for further development.


FINDING OF FACT

The Veteran is not 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; he is not a patient in a nursing home because of mental or physical incapacity; and he does not otherwise demonstrate a need for the regular aid and attendance of another person.


CONCLUSION OF LAW

The criteria for SMP based on the need for the regular aid and attendance of another person are not met.  38 U.S.C.A. §§ 1502, 1521 (West 2014); 38 C.F.R. §§ 3.351, 3.352 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran seeks SMC based on the need for regular aid and attendance of another person.  SMP 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).

In this case, the Veteran does not contend, and the evidence does not suggest that he is unable to dress, keep clean, or tend to the wants of nature or that he lacks the mental or physical capacity to protect himself from the hazards or dangers of his daily environment.  Most recently, a December 2016 VA examination report shows that he is able to walk several hundred yards, use public transportation without assistance, live alone in a second story apartment, walk his dog, and perform self-care, basic housekeeping chores, and grocery shopping.  The examination report further shows that his best corrected vision is not 5/200 or worse in both eyes.

Historically, VA treatment records show that the Veteran has been able to regularly ride his bicycle (April 1, 2013; June 16, 2009), walk his dog (June 25, 2012; September 8, 2011; February 8, 2010), and even carry his bicycle down stairs (June 27, 2011).

Based on the evidence of record, the Board finds that the Veteran is not 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; he is not a patient in a nursing home because of mental or physical incapacity; and he does not otherwise demonstrate a need for the regular aid and attendance of another person.  Accordingly,  SMP based on the need for regular aid and attendance of another person is not warranted.


ORDER

SMP based on the need for regular aid and attendance of another person is denied.





____________________________________________
STEVEN D. REISS 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs