Citation Nr: 18145719 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 16-03 255 DATE: October 29, 2018 ORDER Special monthly compensation (SMC) based on the need for regular aid and attendance is denied. FINDING OF FACT The Veteran’s service-connected disabilities are no so severe as to render him in need of regular aid and attendance. CONCLUSION OF LAW The criteria for SMC based on the need for regular aid and attendance have not been met. 38 U.S.C. §§ 1114(l), 5107 (2012); 38 C.F.R. § 3.350 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from June 1974 to January 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. 1. SMC based on the need for regular aid and attendance is denied. SMC 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. § 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). Here, the Veteran is in receipt of service connection for tinnitus and osteoarthritis of the left and right knees, each rated 10 percent disabling. The Veteran is also in receipt of special monthly pension based on the need for regular aid and attendance. Unlike SMC, special monthly pension is based the level of functional impairment resulting from all disabilities, that is, service-connected and nonservice-connected disabilities. Indeed, the evidence, shows that the Veteran’s nonservice-connected disabilities, to include those affecting his vision, render him in need of regular aid and attendance. See, e.g., Examination for Housebound Status or Permanent Need for Regular Aid and Attendance (August 2014). However, the Veteran’s service-connected disabilities—tinnitus and left and right knee disorders—are not, by themselves, so disabling as to render him in need of regular aid and attendance. For instance, on VA knee examination in March 2015, the Veteran was able to achieve normal range of motion on the left and right knees, albeit with pain, and additional functional impairment during flare-ups, which the Veteran described as increased pain while running, walking, weightbearing, and during cold weather. Even considering the Veteran’s additional reported functional impairment, none of the lay or medical evidence of record shows that his service-connected tinnitus and knee disabilities preclude him from dressing, keeping clean, feeding himself, tending to the wants of nature, or protecting himself from the hazards or dangers of his daily environment without help from another. See Turco, 9 Vet. App. 222. Accordingly, as the evidence shows that the Veteran’s service-connected disabilities are not so severe as to render him in need of regular aid and attendance, SMC based on the need for regular aid and attendance is not warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joshua Castillo, Counsel