Citation Nr: 18148060 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 16-34 259 DATE: November 6, 2018 ORDER Entitlement to 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 not so severe as to render him in need of regular aid and attendance. CONCLUSION OF LAW The criteria for entitlement to 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 served on active duty in the United States Army from February 1970 to February 1973, and from November 1990 to May 1991. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The matter was previously before the Board in May 2016, at which time it was remanded for issuance of a Statement of the Case. That development having been completed, and an appeal perfected by the Veteran, the matter has been returned to the Board for appellate review. The Board notes that the Veteran averred in a July 2016 statement that his appeal was not of the RO denial of entitlement to SMC for aid and attendance, but for “back pay” owed for housebound status between 2007 and 2011. The Veteran is directed to the May 2016 Board decision denying entitlement to SMC by reason of being housebound for the period between February 2007 and February 2011. That decision is final. The Veteran and his representative are advised that they may file a challenge of clear and unmistakable error to that final Board decision. Moreover, the record shows the Veteran has in fact perfected an appeal on the issue of entitlement to SMC for aid and attendance, and a June 2018 brief submitted by his representative on the Veteran’s behalf confirms his pursuit of that claim. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance 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 or 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 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 has been service connected for coronary artery disease, homonymous hemianopsia, posttraumatic stress disorder (PTSD) and panic disorder with major depression in remission, a gastrointestinal disability associated with coronary artery disease, a lower back disability, a left knee disability, prostatitis, night sweats due to an undiagnosed illness associated with service in the Persian Gulf, right occipital stroke, tinnitus, hearing loss, abdominal scarring, and a pectoralis muscle strain associated with coronary artery disease. The Veteran has been in receipt of a total disability rating due to individual unemployability (TDIU) since February 2011. Despite the broad range of service-connected disabilities by which the Veteran is affected, the evidence does not suggest the degree of limitation required for SMC for aid and attendance. For instance, private treatment records show the Veteran has been ambulatory and capable of showering independently throughout the appeal period. See, e.g., January 2013 Moore Medical Center treatment notes. More recent VA treatment records do not reflect significant diminution in the Veteran’s mobility or capacity for basic self-care. Further, there is no evidence, and the Veteran has not argued, that he is incapable of dressing or feeding himself, or of protecting himself from the hazards or dangers of his daily environment. Rather, VA and private treatment records show the Veteran has been able to attend appointments independently. Finally, there is no significant evidence the Veteran has been bedridden as that term is defined in the regulations for any significant period of time, and again, the Veteran has not claimed to be limited thus. As noted in the introductory section of this decision, the Veteran has submitted contradictory statements in this matter, averring in July 2016 that he did not require aid and attendance and did not intend to appeal the decision denying the same. In sum, there is little doubt that the Veteran faces significant limitations due to his many service-connected disabilities. However, the record suggests he has been compensated adequately for those disabilities and limitations. There is no significant evidence that the requirements for entitlement to SMC based on the need for regular aid and attendance have been met in this case. (Continued on the next page)   There is no evidence the Veteran’s service connected disabilities prevent 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, the claim for SMC based on the need of regular aid and attendance must be denied. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Z. Sahraie, Associate Counsel