Citation Nr: 1804077	
Decision Date: 01/22/18    Archive Date: 01/31/18

DOCKET NO.  14-31 145	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUE

Entitlement to special monthly compensation (SMC) based on aid and attendance.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran, his spouse, and his nephew


ATTORNEY FOR THE BOARD

Y. Taylor, Associate Counsel


INTRODUCTION

This appeal 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).

The Veteran served on active duty from March 1951 to March 1953.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California.

In a September 2013 rating decision, the RO determined that the Veteran is not competent to handle disbursement of funds.  Subsequently, the evidence of record indicates that his wife has been appointed as his fiduciary.  

The Veteran testified before the undersigned Veterans Law Judge during a November 2017 videoconference hearing; a transcript is of record. 

This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system.  Accordingly, any future consideration of the Veteran's case should take into account the existence of this electronic record.  


FINDING OF FACT

The evidence of record demonstrates it is as likely as not that the Veteran's service-connected disabilities render him so helpless as to be in need of regular aid and attendance.  



CONCLUSION OF LAW

With resolution of reasonable doubt in the Veteran's favor, the criteria for SMC due to the need for regular aid and attendance have been met.  38 U.S.C. § 1114(l) (2012); 38 C.F.R. § 3.102, 3.159, 3.350, 3352(a) (2017).  


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016).  If the VCAA is applicable, the Board must ensure that the required notice and assistance provisions of the law have been properly applied.

Here, the Board is granting in full the benefit sought on appeal.  Therefore, the Board need not discuss whether there has been compliance with the VCAA because any noncompliance ultimately amounted to no more than harmless error.  38 C.F.R. § 20.1102 (2016).  See also Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

II. SMC

Under 38 U.S.C.§ 1114 (l), special monthly compensation (SMC) is payable if, as the result of service-connected disability, the Veteran has an anatomical loss or loss of use of both feet, or of one hand and one foot; has blindness in both eyes with visual acuity of 5/200 or less; is permanently bedridden; or is so helpless as to be in need of regular aid and attendance of another person. 38 U.S.C.§ 1114 (l); 38 C.F.R.§ 3.350 (b).

Need for aid and attendance means being so helpless as to require the regular aid and attendance of another person. 38 C.F.R. § 3.350 (b).  Under 38 C.F.R. § 3.352 (a), the following factors will considered in determining whether the Veteran is in need of regular aid and attendance of another person: inability of the claimant to dress and undress himself or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliance; inability of the claimant to feed himself through loss of coordination of the upper extremities or through extreme weakness; inability to tend to the wants of nature; or incapacity, physical or mental, which requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his daily environment.

All of the disabling conditions enumerated in 38 C.F.R. § 3.352 (a) do not have 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.  The evidence should establish that the Veteran is so helpless as to need regular aid and attendance, not that there is a constant need.  38 C.F.R. § 3.352 (a); see also Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in section 3.352(a) must be present for a grant of SMC based on 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 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).

The Veteran contends that he is entitled to SMC based on need for aid and attendance, as he claims that he needs assistance with activities of daily living, to include bathing, dressing, transportation and medication administration.

The Veteran is service-connected for left knee status post arthroplasty, rated as 30 percent disabling since August 2009; right knee status post arthroplasty with limited motion associated with left knee status post arthroplasty, rated as 30 percent disabling since August 2009; degenerative arthritis of both ankle joints associated with right ankle status post fusion and limited motion, rated as 20 percent disabling since August 2009; left instability associated with left knee status post arthroplasty, rated as 20 percent disabling since August 2009; right ankle status post fusion and limited motion, rated as 20 percent disabling since August 2009; traumatic arthritis, left hip, rated as 10 percent disabling since April 1953; muscle atrophy, left quadriceps muscles, rated as 10 percent disabling since April 1953; post-operative scars, right ankle, rated as 10 percent since April 1953; post-operative scars, left thigh, rated as 10 percent disabling since April 1953; degenerative arthritis of right hip joints associated with traumatic arthritis, left hip, residuals of fractures, rated as 10 percent disabling since August 2009; right knee instability associated with left knee status post arthroplasty, rated as 10 percent disabling since August 2009; right knee scar associated with right knee status post arthroplasty with limited motion, rated as 10 percent disabling since August 2009; and post-operative scars, left knee, rated as 10 percent disabling since August 2009.  

A July 2011 private physician's report of the examination for housebound status or permanent need for regular air and attendance indicates that the Veteran is unable to feed himself independently without assistance.  The Veteran needs assistance in bathing and tending to other hygiene needs because the examiner considered the Veteran "unsafe physically and unable to perform those tasks secondary to dementia."  Further, the Veteran needs nursing home care because he requires assistance in all activities of daily living and medication administration.  It is noted that his wife manages all financial matters for the Veteran.  His grip is strong, but shaky; as a result, when he feeds himself, more food would end up being on the floor without being taken in by the Veteran.  The Veteran's lower extremities are weak with history of multiple falls, and he needs use of front wheel walker to ambulate safely.  The Veteran requires full stand-by assistance when using walking aids.  The Veteran stays with his wife or caregiver unless he is accompanied out of the home for medical appointments or haircuts.  The Veteran is able to travel for 200 feet with assistance of walking devices or of another person.  The Veteran's impaired gait restricts the activities and functions that were considered in the examination.  

A November 2013 letter provided by a private physician states that due to the Veteran's significant medication problems, including dementia, Parkinson's disease, heart failure, osteoarthritis of the knees and ankles, and prostate cancer, his wife was not able to safely take care of him at home, and thus, it was necessarily for her to place him in an assisted living facility. 

A November 2013 letter provided by a VA physician indicates that the following service connected conditions-limited motion of the ankle, knee and thigh, thigh muscle injury with limited flexion-necessitate assisted living services.  It is also noted that the Veteran underwent bilateral total knee replacement and has an old femur fracture.  

The Veteran, his wife, and his nephew were present at the November 2017 videoconference hearing.  His wife testified that she has been providing 10 years of assistance with the Veteran and he has been in a full-time nursing home for 3 to 4 years.  She states that the Veteran falls quite a bit and he would hit his head.  His nephew states that the Veteran was self-sufficient up until about 5 or 6 years ago.  According to his wife, the Veteran can't help himself get up due to his arthritis and artificial knees and his ankle disorders.  The Veteran states that he is essentially confined to his bed because of the pain and swelling most of the time about 2 weeks a month.  His wife further testified that the Veteran cannot lift his arms to clothe himself.  The Veteran has significant instability in the knees and loses his balance, requiring assistance from someone in walking.  The Veteran has a lot of pain in his hips and states that the pain never goes away.  The Veteran testified that he needs assistance from a nurse to help him out of the bed in the morning.  

Based on a thorough review of the record, the Board concludes that, with resolution of reasonable doubt in his favor, the Veteran is in need of aid and attendance.  He requires assistance with ambulation, activities of daily living, transportation, and medication administration.  It appears that because of his service connected lower extremity impairment he is as likely as not unable to protect himself from the hazards and incidents of his daily environment. 

The examination reports as well as one of the physician's letters reflect that dementia and Parkinson's disease are also contributing factors to the Veteran's need for aid and attendance.  However, the evidence of record provides no analysis to separate effects of one disability over another.  Where it is unclear what condition is caused by a particular symptom or disability, VA must apply the benefit of the doubt to attribute the symptoms to a service-connected condition.  Mittleider v. West, 11 Vet.App. 181, 182 (1998).  

Accordingly, resolving all reasonable doubt in the Veteran's favor, entitlement to special monthly compensation based upon the need for aid and attendance is granted.  See 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.159, 3.350(b)(3), 3.352(a).  


ORDER

Entitlement to special monthly compensation based on the need for regular aid and attendance is granted, subject to the law and regulations governing the award of monetary benefits.  


____________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs