Citation Nr: 18152486 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 14-40 977 DATE: November 23, 2018 ORDER Entitlement to special monthly compensation based on the need for aid and attendance is denied. FINDING OF FACT During the pendency of this claim and prior to the Veteran’s death, he required assistance with cooking, showering and medication management due to his non-service connected emphysema/COPD and advancing age, but not due to any service-connected disability. CONCLUSION OF LAW The criteria for an award of special monthly compensation by reason of the need for regular aid and attendance of another person are not met. 38 U.S.C. §§ 1114, 1502, 5107, 5121 (2012); 38 C.F.R. §§ 3.102, 3.350, 3.352, 3.1000 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran died in January 2012. In February 2012, within one year of the Veteran’s death, the appellant filed a request with the RO to be substituted as the appellant. The RO granted the appellant’s request to be substituted in May 2018. Accordingly, the appellant has been substituted as the claimant for the purposes of the special monthly compensation issue on appeal. In this regard, the appellant’s own claim for accrued benefits, which was filed in June 2012, is rendered moot by the appellant’s substitution as the claimant for the issue on appeal. While substitution is a form of accrued benefits claim, it is potentially more favorable to the appellant because it allows him to continue to submit evidence in support of the appealed issues, whereas the evidence in an accrued benefits claim under 38 U.S.C. § 5121 is limited to evidence in the claims file as of the date of a veteran’s death. In this case, the RO initially adjudicated this issue as an accrued benefits claim. The Board remanded the matter in May 2018 for re-adjudication in light of the substitution determination, and the re-adjudication occurred in September 2018. The matter is now again before the Board for adjudication. Entitlement to Aid and Attendance Benefits Prior to his death, the Veteran claimed he was entitled to special monthly compensation (SMC) based upon his need for aid and attendance. SMC may be granted to a Veteran on the basis of the need for regular aid and attendance from another person or by reason of being housebound. In other words, a Veteran may receive SMC for either needing the regular aid and attendance of another person or for being housebound, but not for both simultaneously. SMC by reason of the need for regular aid and attendance of another person is a greater monthly benefit than SMC by reason of being housebound. 38 U.S.C. §§ 1114(l), (s). SMC by reason of the need for regular aid and attendance of another person is payable if a Veteran, as a result of the service-connected disability, either: (1) has suffered the anatomical loss or loss of use of both feet, (2) has suffered the anatomical loss or loss of use of one hand and one foot, (3) is blind in both eyes, (4) is permanently bedridden, or (5) is with such significant disabilities/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). In this case, the evidence does not show and the Veteran did not claim that he had suffered the anatomical loss or loss of use of both feet, had suffered the anatomical loss or loss of use of one hand and one foot, was blind in both eyes, or was permanently bedridden. Further, the evidence does not show and the Veteran did not claim that he was housebound. Therefore, the claim and the analysis below is directed to the matter of whether SMC is warranted based upon the need for aid and attendance. In determining the need for regular aid and attendance of another person, several factors are for consideration. These include: (1) the inability of the Veteran to dress or undress himself or to keep himself ordinarily clean and presentable, (2) the frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the Veteran’s particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.), (3) the inability of the Veteran to feed himself through loss of coordination of his upper extremities or through extreme weakness, (4) the inability of the Veteran to attend to the wants of nature, (5) incapacity, physical or mental, which requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment, and (6) the Veteran being bedridden. Id. Granting SMC by reason of the need for regular need for aid and attendance of another person requires that at least one of the above disabling factors be met. Turco v. Brown, 9 Vet. App. 222 (1996). Regarding being bedridden, however, a favorable determination will not be based solely upon an opinion that the Veteran’s condition is such as would require him to be in bed. 38 C.F.R. § 3.352(a). Such a determination instead must be based on the actual requirement of personal assistance from others. Id. As implied from above, it is not required that all of the disabling factors be found to exist before a favorable determination is made. Id. The particular personal functions that the Veteran is unable to perform should be considered in connection with his condition as a whole. Id. It is only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance, not that there is a constant need. Id. The performance of the necessary aid and attendance service by a relative or other member of the Veteran’s household will not prevent a favorable determination. 38 C.F.R. § 3.352(c). A review of the record shows that the Veteran, during his lifetime and at the time of his aid and attendance claim, was service-connected for the following disabilities: gunshot wound, muscle group XX, right to include low back pain; gunshot wound, muscle group XX, left; malaria; gunshot wound, popliteal space, left mild; and hearing loss. The Veteran reported the need for aid and attendance in April 2011. He lived at an assisted living facility and suggested he required physician ordered assistance and needed the aid and attendance benefit to pay for such care. An Examination for Housebound Status or Permanent Need for Regular Aid and Attendance was submitted in August 2011. At this time, the Veteran resided at the Twin Oaks Estates. The physician completing this report noted the Veteran’s diagnoses as including hypertension, COPD, atrial fibrillation, emphysema, colon cancer, hearing loss, and a psychotic disorder. The only service connected condition listed was hearing loss. The physician completing the report noted that the Veteran’s meals were prepared for him, but that he was able to feed himself. The physician noted that the Veteran was unable to safely cook for himself due to his advancing age. The physician also noted that the Veteran required nursing staff to assist him with bathing due to his decreased strength and endurance. The physician noted that the Veteran also requires medication management assistance due to his advanced age and deconditioning. In particular, the report shows the Veteran required assistance of nursing staff in administering medications due the deconditioning associated with his COPD. As to the function of his upper extremities, the physician noted the Veteran to be able to button his clothing and feed himself, although he requires verbal cuing for hygiene. He was noted to be able to ambulate with a wheeled walker for safety with his gait and steadiness. The physician confirmed that the Veteran had unrestricted movement of his spine, trunk and neck. The physician summarized and concluded that due to advanced age and decreased endurance related to emphysema/COPD, the Veteran required assistance with meals and medication management, as well as assistance in shower for safety. The Veteran was also noted to be able to leave the facility to visit relatives and go to medical appointments with the supervision of family. This report includes no reference to any of the Veteran’s limitations being due to his service-connected conditions. The only service-connected disability mentioned was the hearing loss and it was not noted as the cause of any of the needs for assistance. Following the Board’s remand, the RO obtained an opinion as to whether the Veteran’s service-connected gunshot wounds were the cause of or contributed to the Veteran’s decreased endurance, which led to his inability to safely cook or shower without assistance. The VA physician providing the opinion noted the clinical records within the year of the Veteran’s aid and attendance claim, which showed the Veteran as independent and not in the need of assistance. April 2011 clinical notes, the same month the Veteran filed his claim, show he was independent in activities of daily living, with no gross motor or sensory deficit, a steady gait and no muscle weakness. The remaining evidence for review included only the August 2011 report noted above. Based upon a review of the evidence, the VA physician found the Veteran’s decreased endurance, inability to safely cook and inability to shower without assistance were not caused by or contributed to by his service connected gunshot wound residuals. The physician explained that group XX muscles are located on either side of the spine and they control spine extension and lateral bending. The records available do not show the Veteran had any muscle weakness related to this service-connected condition. Given the VA physician’s August 2018 conclusion, coupled with the evidence submitted by the Veteran during his lifetime, which shows his age and non-service connected emphysema/COPD were the reported reasons for his limitations, the Board finds that entitlement to SMC by reason of the regular aid and attendance of another person is not warranted. The requirements for this benefit are not met. The record does not include any evidence that the Veteran’s service-connected disabilities required the assistance he needed, included assistance with cooking, showering, and medication management. The record shows it was non-service connected conditions that caused this need for assistance. The appellant was afforded an opportunity to provide other pertinent evidence in support of this claim by way a June 2018 letter. No response was received. It is clear the Veteran had significant health problems and needed assistance during the pendency of this claim and prior to his death. However, even with all of the Veteran’s difficulties, the record does not show he required the regular aid and attendance of another by reason of his service-connected disabilities. As such, the claim must be denied. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Adamson, Counsel