Citation Nr: 18142243 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 18-38 177 DATE: October 15, 2018 ORDER Special monthly compensation (SMC) based on the need for aid and attendance is granted. SMC at a higher rate based on housebound status is denied. FINDINGS OF FACT 1. The competent and probative evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities render him so incapable of performing the activities of daily living that he requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. 2. The weight of the competent and probative evidence is against finding that the Veteran’s service-connected disabilities, separate and distinct from those which render him in need of aid and attendance, result in anatomical loss or loss of use of the hands, arms, feet, and/or legs, or blindness. CONCLUSIONS OF LAW 1. The criteria for SMC based on the need for regular aid and attendance have been met. 38 U.S.C. §§ 1114, 5107(b); 38 C.F.R. §§ 3.350, 3.352. 2. The criteria for an award of SMC at a higher rate based on housebound status have not been met. 38 U.S.C. § 1114; 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1957 to June 1978. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in April 2018, at which time they were remanded for issuance of statement of the case (SOC). As the requested development has been completed, no further action to ensure compliance with the remand directives is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Special Monthly Compensation 1. Entitlement to SMC based on the need for aid and attendance. “SMC is available when, ‘as the result of service-connected disability,’ a veteran suffers additional hardships above and beyond those contemplated by VA’s schedule for rating disabilities.” Breniser v. Shinseki, 25 Vet. App. 64, 68 (2011) (citing 38 U.S.C. §1114(k)-(s)). Section 1114(l) provides five distinct ways for a veteran, “as the result of service-connected disability,” to qualify for this rate of SMC: (1) anatomical loss or loss of use of both feet; (2) anatomical loss or loss of use of one hand and one foot; (3) blindness in both eyes with 5/200 visual acuity or less; (4) being permanently bedridden; or (5) having “such significant disabilities as to be in need of regular aid and attendance.” 38 U.S.C. § 1114(l). The following basic considerations are critical in determining the need for the regular aid and attendance of another person: inability of a veteran to dress or undress him or herself, or to keep him or herself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of claimant to feed him or herself through loss of coordination of upper extremities or through extreme weakness; 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 or her daily environment. 38 C.F.R. § 3.352(a). Determinations as to the need for aid and attendance must be based on actual requirements of personal assistance from others. Id. It is not required that all of the disabling conditions enumerated in 38 C.F.R. § 3.352(a) 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 a veteran is so helpless as to need regular aid and attendance, not that there is a constant need. Id. After review of the record, the Board finds that the criteria for SMC based on the need for aid and attendance have been met. A September 2017 private examination indicates that the Veteran’s service-connected major depressive disorder (to include dementia) and disorders impacting the left hip and left lower extremity result in functional impairment regarding the Veteran’s ability to perform his activities of daily living (ADLs) safely and independently. The Veteran requires assistance in preparing meals, bathing and tending to hygiene needs, medication management, and financial affairs due to dementia and imbalance. The examiner noted that the Veteran requires constant assistance due to his inability to transport himself to his multiple medical appointments per week and limited mobility, requiring a walker, wheelchair, or motorized scooter. The examiner stressed that the Veteran is a fall risk. 10/12/2017, VA 21-2680. An August 2017 treatment note indicates that the Veteran experienced a fall at his assisted living facility resulting in a fractured sternum, and an April 2018 treatment note reflects the Veteran’s daughter’s report that the Veteran has been in an assisted living facility for the past several years. 05/08/2018, CAPRI. In light of the foregoing, the Board finds that the competent and probative evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities render him so incapable of performing the activities of daily living that he requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment; thus, SMC based on the need for aid and attendance is warranted. See 38 U.S.C. § 1114; 38 C.F.R. § 3.352. 2. Entitlement to SMC based on housebound status. Under 38 U.S.C. § 1114(s), SMC is payable at the housebound rate if the Veteran has a single service-connected disability rated as 100 percent and either of the following are met: (1) there is additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems (statutory housebound); or (2) he or she is permanently housebound by reason of service-connected disability or disabilities (housebound in fact). 38 U.S.C. 1114(s); 38 C.F.R. § 3.350(i). The requirement of “permanently housebound” will be considered to have been met when the veteran is substantially confined to his or her house (ward or clinical areas, if institutionalized) or immediate premises due to a service-connected disability or disabilities which it is reasonably certain will remain throughout his or her lifetime. Id. SMC at the aid and attendance rate is a greater monetary benefit than at the housebound rate. Compare 38 U.S.C.§ 1114(l), with 38 U.S.C. § 1114(s). The grant of SMC at the aid and attendance rate thus renders the question of entitlement to SMC on account of being housebound moot. However, if a veteran is in receipt of SMC based on the need for aid and attendance, the veteran may be entitled to an award of SMC at a higher rate if the evidence demonstrates that the veteran is rendered housebound by his or her service-connected disabilities, but only if those service-connected disabilities are separate and distinct from those which render the veteran eligible for aid and attendance. A higher rate of SMC is warranted where a veteran’s service-connected disabilities result in anatomical loss or loss of use of the hands, arms, feet, and/or legs, or blindness, and those disabilities are separate and distinct from those that render the veteran in need of aid and attendance. See 38 U.S.C.§ 1114(m)-(p); 38 C.F.R. §§ 3.50(c)-(f), 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994); see also Breniser, 25 Vet. App. at 77-78. As previously explained, the award of SMC based on the need for aid and attendance is premised, at least in part, on the service-connected disabilities of the left hip and leg resulting in limitation of mobility. Thus, to the extent the Veteran’s service-connected disabilities arguably result in loss of use of the left leg, they cannot provide the basis for an increased rate of SMC, as they are not separate and distinct from the disabilities upon which the finding of aid and attendance is based. In light of the foregoing, the Board finds that the weight of the competent and probative evidence is against finding that the Veteran’s service-connected disabilities, separate and distinct from those which render him in need of aid and attendance, result in anatomical loss or loss of use of the hands, arms, feet, and/or legs, or blindness. Accordingly, the Veteran is not entitled to SMC at a rate higher than the aid and attendance rate awarded under 38 U.S.C.§ 1114(l). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Gelber, Associate Counsel