Citation Nr: 18149537 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 16-35 647A DATE: November 9, 2018 ORDER Entitlement to special monthly compensation (SMC), based on the need for regular aid and attendance of another person for purposes of accrued benefit is denied. FINDING OF FACT The Veteran’s bilateral hearing loss did not result in the need for aid and attendance. CONCLUSION OF LAW The criteria for SMC based on aid and attendance have not been met. 38 U.S.C. §§ 1114 (l), (s); 38 C.F.R. §§ 3.350, 3.351, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1943 to May 1946. The Veteran died in October 2013 and the Appellant is his surviving spouse. Upon the death of a veteran, his lawful surviving spouse may be paid periodic monetary benefits to which he was entitled at the time of his death, and which were due and unpaid, based on existing rating decisions or other evidence that was on file when he died. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. The Veteran died in October 2013. At the time of his death, the Veteran was seeking SMC based on the need for regular aid and attendance. The Appellant timely filed a claim for accrued benefits. The Appellant has standing to file a claim for accrued benefits because the Veteran had the claim pending at the time of his death, and the claim for accrued benefits was timely filed. Therefore, the Board will proceed to adjudicate the claim on accrued basis. SMC SMC is payable at a specified rate if the veteran, as the result of service-connected disability, is in need of regular aid and attendance. Need for aid and attendance means helplessness or is so nearly helpless as to require the regular aid and attendance of another person. A veteran will be considered to be in need of regular aid and attendance if he or she is blind or is 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; if the veteran is a patient in a nursing home because of mental or physical incapacity; or if the evidence establishes a factual need for aid and attendance or “permanently bedridden” status under the criteria set forth in 38 C.F.R. § 3.352 (a). 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.351 (b). Although a veteran need not show all of the disabling conditions identified in 38 C.F.R. § 3.352 (a) to establish entitlement to aid and attendance, the Court has held that it is logical to infer there is a threshold requirement that “at least one of the enumerated factors be present.” Turco v. Brown, 9 Vet. App. 222, 224 (1996). In this case, at the time of his death, the Veteran’s was service-connected for bilateral hearing loss, which was rated as 100 percent disabling. He did not have any other disabilities service connected. The record does not show nor does the Appellant contend that the Veteran was blind or nearly blind or that he was a patient in a nursing home because of mental or physical incapacity. Considering hearing loss was the only service-connected disability, SMC would only be warranted if the evidence reflect that the Veteran was permanently bedridden because of his bilateral hearing loss. To that end, the Veteran underwent an in-home examination for housebound status or permanent need for regular aid and attendance in April 2013. The examination report shows the Veteran’s mobility was severely impaired and he also had cognitive impairment, which were not conditions that were service-connected. Because of these conditions he was unable to prepare his own meal and he needed assistance bathing and going to the bathroom. He also required medication management, and he was unable to manage his finance. The exam also reflects that the Veteran needed assistance when walking. Based on this evidence, the Board acknowledges that the Veteran needed constant aid and assistance with daily living. Unfortunately, the Veteran’s orthopedic and cognitive impairments—which are not service-connected disabilities—were the reasons for his need for assistance rather than his service-connected bilateral hearing loss. Under such circumstances, the Board cannot grant SMC based on the need for regular aid and attendance   The Board is sympathetic to the Appellant’s assertion that the Veteran’s bilateral hearing loss made it difficult to care for him. The Board does not doubt the difficulty the Appellant described nor the severity of the Veteran’s medical conditions prior to his death. However, the Board is bound by the law and regulations governing entitlement for SMC, which requires evidence showing need for aid and attendance due to service-connected disability. Absent evidence that that his service-connected bilateral hearing loss resulted in need of aid and attendance, the claim must be denied. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.SOLOMON