Citation Nr: 18142635 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 18-31 655 DATE: October 16, 2018 ORDER Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance is denied. FINDING OF FACT The Veteran in need of the regular aid and attendance of another person as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for SMC due to the need for regular aid and assistance are met. 38 U.S.C. §§ 1114(l), 5107 (2012); 38 C.F.R. §§ 3.102, 3.350, 3.52 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service with the United States Marine Corps from March 1962 to March 1965. The matter comes before the Board of Veterans’ Appeals on appeal of a December 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, as part and parcel of acclaim for increased rating. See Akles v. Derwinski, 1 Vet. App. 118 (1991). SMC Based on the Need for Regular Aid and Attendance Under 38 U.S.C. § 1114(1), SMC at the aid and attendance rate 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(1); 38 C.F.R. § 3.350(b). It is this last basis the Veteran argues. Need for aid and attendance means being so helpless as to require the regular aid attendance of another person. 38 C.F.R. § 3.350(b). Under 38 C.F.R. § 3.352(a), the following factors will be accorded consideration 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. In a June 2016 affidavit, the Veteran swore that due to residuals of a traumatic brain injury (TBI), he experiences a lot of memory loss, which presents difficulties for both his wife and himself. He indicated that his forgetfulness extends to simple things, such names and appointment dates. He stated that he has begun to forget things “almost immediately.” As an example, he provides that frequently he walks into rooms only to forget why he is there. Likewise, he begins tasks, such as turning on the shower, “only to forget and walk away.” He finds the frequency and severity of memory loss frustrating and frightening. He requires his wife’s assistance 24 hours a day, 7 days a week because she handles chores, driving, and inducing the Veteran to remember past conversation and events. In her own June 2016 affidavit, the Veteran’s spouse stated that she has been a witness to her spouse’s deteriorating health, noting that the Veteran’s memory and mental capacity have “been going downhill very fast.” Further, other relatives have mentioned that the Veteran seems like a different person, also adding that the Veteran’s memory loss and depression overlap. Recently, she notes that the Veteran increasingly experiences short-term memory loss. Here, she reiterated the Veteran’s account of walking into rooms and forgetting reasons. Further she swore that she “predominantly handles the driving nowadays, as sometimes the Veteran forgets” destinations, adding that this occurred during a recent “mini-trip.” In November 2017, the Veteran was afforded a VA examination. The examiner reviewed the claims file and reported the Veteran’s medical history. The examiner opined that for the Veteran’s service-connected medical conditions, there is no warranted need for aid and assistance. The examiner refrained from commenting about the Veteran’s service-connected MDD, as she was not a specialist. The Veteran was neither permanently bedridden nor currently hospitalized. The examiner further reported that the Veteran was able to travel beyond his current domicile with an accompanying family member. While the Veteran’s typical daily activities were sedentary, he was able to perform his own activities of daily life—including dressing, grooming, and feeding himself. The Veteran indicated that he engaged in artwork through painting. As to limitations, he could not lift heavy objects due to his shoulder disability. Also, the Veteran reported that he could not drive because of memory deficits. The Veteran endorsed dizziness once or more a day and moderate short-term memory loss. However, imbalance never affected his ability to ambulate. Left shoulder subluxation and instability, according to the examiner, would inhibit his ability to protect himself if warranted due to joint weakness. The examiner noted that the Veteran’s spouse reported that the Veteran had received a diagnosis of dementia related to TBI. The spouse also reported that the Veteran had lost 100 pounds over the past three years, and his memory deficit caused him to forget to eat unless prompted to do so. She also added that the Veteran had cognitive difficulty, adding that he was often unaware of his surroundings. However, she indicated that “prompting” ameliorated this. And, the Veteran’s wife stated that the Veteran no longer drove because of his memory deficits. The medical and lay descriptions of the Veteran’s impairments due to service-connected TBI, complicated by service-connected depression and physical limitations, portray a person in need of supervision. His problems with memory, planning, and executive functioning appear to be worsening. He forgets to eat, and has demonstrated a tendency to place himself in potentially harmful situations, as when leaving a shower running or forgetting here he is. He requires assistance to come back to himself and be aware enough to protect from the inherent dangers of his environment. Entitlement to SMC at the aid and attendance rate is warranted. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. J. Komins, Associate Counsel