Citation Nr: 18148035 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 09-01 100 DATE: November 6, 2018 ORDER Special monthly compensation (SMC) based on the need for aid and attendance of another person is denied. FINDING OF FACT The Veteran has not demonstrated a need for the regular aid and attendance of another person due to impairment associated with his service-connected bilateral hearing loss, tinnitus, depressive disorder, and/or headaches. CONCLUSION OF LAW The criteria to establish entitlement to SMC for the regular aid and attendance of another person are not met. 38 U.S.C. §§ 1114, 5107 (2012); 38 C.F.R. §§ 3.350, 3.351, 3.352 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1965 to February 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision dated April 2008 of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston Salem, North Carolina. The issue of entitlement to SMC based on the need for aid and attendance of another or being housebound was denied by the Board in October 2012. The Veteran appealed the Board’s denial to the United States Court of Appeals for Veteran Claims (Court), and in June 2013 the parties submitted a Joint Motion for Partial Remand (JMR), which the Court granted in July 2013. In May 2017, the Board, as pertinent here, remanded the claims for service connection for a psychiatric disorder and SMC for regular aid and attendance of another or being housebound, on the basis that the SMC claim was inextricably intertwined with the psychiatric claim. In a September 2018 rating decision, the RO granted service connection for a psychiatric disorder, and allowed SMC on a housebound basis. The RO’s grant of service connection for a psychiatric disorder is considered a full grant of the benefits on appeal for that claim. As such, the issue is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). However, the RO’s allowance of SMC for being housebound is a partial grant of the SMC claim; therefore, the issue of SMC for aid and attendance remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Pertinent Laws and Regulations The Veteran seeks SMC based on the need for regular aid and assistance of another person. The RO previously denied the claim in its April 2008 rating decision and Supplemental Statements of the Case dated January 2009 and September 2018. The Veteran has been in receipt of a 100 percent rating for bilateral hearing loss, a 10 percent rating for tinnitus, a 70 percent rating for unspecified depressive disorder, and a noncompensable rating for tension headaches. Additionally, he is also in receipt of SMC on account of bilateral deafness for total loss of hearing, and SMC on a housebound basis due to his bilateral hearing loss, tinnitus, unspecified depressive disorder, and headaches. See 38 U.S.C. §§ 1114(k), (s). 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(l); 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). Analysis The Veteran submitted to a June 2005 VA examination for housebound status or permanent need for aid and attendance. The examiner noted diagnoses of labyrinthitis, tinnitus, status post cerebrovascular accident (CVA), and high lipids. The Veteran’s gait was abnormal resulting from walking with a limp caused by left side weakness. The Veteran’s physical limitations were described as left-hand weakness and limited use, and left leg weakness that resulted in a limp. The Veteran reported that he left home only for medical appointments and sometimes for errands. The examiner observed that the Veteran was quite debilitated due to the combined effects of a stroke and vertigo. The examiner concluded that vertigo limited the Veteran’s activities of daily living and the ability to ride in a vehicle, and noted that the Veteran needed a wheelchair for ambulating any significant distance. Additional treatment records dated August 2005 reflect that the Veteran was diagnosed with Meniere’s disease in 2002, which caused dizziness, and was treated with the medication meclizine. In a statement dated June 2007, the Veteran said he suffers from dizziness which can cause him to fall, and that his wife prepares his medicine, meals, and bathes him on a daily basis, and when the dizziness causes illness. In his May 2008 Notice of Disagreement, the Veteran stated that he was unable to put on clothes or bathe himself without his wife’s assistance because of physical weakness. An August 2008 statement for consideration of aid and attendance reflects that the Veteran was unable to do the following without assistance: Prepare and consume meals, dress/redress or bathe himself without assistance, attend to the needs of nature, stand from a sitting position, handling financial matters, or walk. It is noted that the Veteran’s restricted walking distance was 50 feet, and that he used a wheelchair and walker for assistance. VA treatment notes dated September and October 2013 reflect that the Veteran’s thumb was severely injured in a fall he attributed to poor balance. In an August 2015 statement, the Veteran asserted that he needs help getting out his bed to his wheelchair, help getting out of the bath, help washing and cleaning, help dressing, and help with cutting his food and eating. VA treatment notes dated October 2015 reflect that the Veteran was at increased risk for falls because of balance difficulties caused by Meniere’s disease. The October 2015 VA examination reflects diagnoses of CVA, seizures, Meniere’s disease, peripheral neuropathy, and complete hearing loss. It was noted that the Veteran was confined to a wheelchair. The Veteran’s left-side weakness and hearing loss restricted his activities and functions. The examiner further indicated that that the Veteran was not legally blind. He was able to feed himself, but he was unable to prepare his own meals, and he needed assistance with bathing and hygiene needs. The examiner noted that the Veteran did not require nursing home care, but needed medication management. The Veteran was able to manage his financial affairs. Restrictions were noted to occur due to left arm and left leg weakness. He reported dizziness and poor balance. The Veteran was limited to leaving his home because of left side weakness and limitations imposed by use of his wheelchair. The Veteran needed ambulation aids or the assistance of another person for locomotion. The August 2016 VA examination report reflects diagnoses of neuropathy, wheelchair-dependent; status-post cerebrovascular accident (CVA) in 2005 with left-side weakness; Meniere’s disease with constant dizziness; complete hearing loss; and mild memory loss with dependence on his wife for all daily activities. It was noted that the Veteran is able to feed himself, although he is not able to cut his food without assistance, and he needed assistance dressing and undressing, bathing, and hygiene. The examiner further indicated that that the Veteran is not legally blind, and the Veteran is not capable of managing his financial affairs. Restrictions were noted to occur due to severe impairment of the left upper extremity. The examiner indicated that dizziness affected the ability of the Veteran to protect himself from daily hazards. The Veteran’s gait could not be assessed because he was unable to stand or walk. The Veteran was also noted to use assistive devices for ambulation, including a wheelchair. A VA treatment record dated September 2017 reflects that the Veteran has a previous history of Meniere’s disease and dizziness, but dizziness had improved. The Veteran’s physician continued to prescribe meclizine. A January 2018 VA treatment record notes that the Veteran continued to take meclizine for dizziness. Upon review of the evidence of record, the Board finds that the Veteran’s service-connected disabilities have not resulted in his need for regular aid and attendance. The evidence does not establish that the Veteran has 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. Furthermore, the evidence does not show that it is the service-connected disabilities bilateral hearing loss, tinnitus, depressive disorder, or headaches that have resulted in the Veteran’s need for regular aid and attendance. Prejean, supra. Moreover, while a review of the medical evidence reveals that the Veteran has been found to be in need of aid and attendance of another person with activities such as transitioning to and from his wheelchair, walking, dressing, bathing, hygiene, and eating, the record reflects that such assistance is due to physical weakness subsequent to non service-connected CVA in 2005 and imbalance due to Meniere’s disease, and not his service-connected disabilities. In sum, the weight of the evidence of record demonstrates that the Veteran does not need aid and attendance due to his service-connected disabilities. As such, the Board concludes that SMC based upon need for aid and attendance is not warranted. For all the foregoing reasons, the Board finds that special monthly compensation based on need for aid and attendance is not warranted. As the preponderance of the evidence is against this claim, the “benefit of the doubt” rule is not for application, and the Board must deny the claim. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Brad Farrell, Associate Counsel