Citation Nr: 18153476 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 14-43 969 DATE: November 27, 2018 ORDER The claim of entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, he requires the regular aid and attendance of another due to his service-connected disabilities. CONCLUSION OF LAW The criteria for SMC based on the need for aid and attendance have been met. 38 U.S.C. §§ 1114, 5107 (2012); 38 C.F.R. §§ 3.102, 3.350, 3.352 (2018).   REASONS AND BASES FOR FINDING AND CONCLUSION Preliminary Matters The Veteran had honorable active duty service in the United States Marine Corps from August 1965 to April 1967. The Veteran received the Vietnam Campaign Medal, Vietnam Service Medal, and the Purple Heart Medal with one Gold Star, among other commendations. The Board of Veterans’ Appeals (Board) notes that subsequent to the September 2014 statement of the case (SOC), additional VA treatment records discussing the Veteran’s disabilities were added to the claims file. A rating decision was issued in November 2017 instead of a supplemental statement of the case (SSOC), as the local Regional Office (RO) appears to have mistakenly believed that the Veteran had filed a new claim, despite the fact that an appeal of the January 2013 rating decision was still pending. While 38 C.F.R. § 19.37 (2018) requires a SSOC to be issued, there is no prejudice to the Veteran in adjudicating the claim, as the full benefit sought on appeal is granted herein. The Board notes that a February 2018 rating decision awarded SMC based on housebound status, effective as of February 12, 2018. However, as SMC based on the need for regular aid and attendance of another person is a higher benefit than SMC at the housebound rate, the issue remains on appeal. In September 2015, the Veteran testified at a hearing before a Decision Review Officer (DRO). A transcript of that hearing is associated with the claims file. As a final matter, the Board notes that in his October 2014 substantive appeal (VA Form 9), the Veteran requested a hearing before the Board. In April 2016, the Veteran withdrew his request for a hearing. See 38 C.F.R. § 20.702(e) (2018). Therefore, a hearing has not been conducted and the Board will proceed to adjudicate the claim. Entitlement to SMC based on aid and attendance The Veteran contends that he is entitled to SMC based on the need for aid and attendance. Compensation at the aid and attendance rate is payable when a Veteran’s service-connected disability or disabilities cause the anatomical loss or loss of use of both feet or one hand and one foot, cause the Veteran to be blind in both eyes, or render him permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114(l) (2012); 38 C.F.R. § 3.350(b) (2018). Determinations as to the need for regular aid and attendance are factual and must be based upon the actual requirements for personal assistance from others. In making such determinations, consideration is given to such conditions as: the inability of the claimant to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without assistance; the inability of the claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, either physical or mental, which requires care or assistance on a regular basis to protect a claimant from hazards or dangers incident to one’s daily environment. It is not required that all of the disabling conditions enumerated be present before a favorable rating is made. 38 C.F.R. § 3.352 (2018). The particular personal functions that the veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the veteran be so helpless as to be in need of regular aid and attendance, not that there is a constant need. “Bedridden” constitutes a condition which, through its essential character, actually requires that an individual remain in bed. The fact that a veteran has voluntarily taken to bed, or that a physician has prescribed bed rest for a lesser or greater portion of the day will not suffice. Id. In Turco v. Brown, 9 Vet. App. 222, 224 (1996), the United States Court of Appeals for Veterans Claims (Court) held that eligibility for special monthly compensation by reason of regular need for aid and attendance requires that at least one of the factors set forth in VA regulation is met. In addition, determinations that the veteran is so helpless as to be in need of regular aid and attendance will not be based solely upon an opinion that the veteran’s condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others. See Turco, 9 Vet. App. at 224. The evidence must show that the veteran is so helpless as to need regular and attendance; constant need for aid and attendance is not required. 38 C.F.R. § 3.352(a) (2018). Here, the Veteran is currently service-connected for: bone cancer, metastatic prostatic adenocarcinoma, posttraumatic stress disorder (PTSD), diabetes mellitus with diabetic neuropathy, amputation below the left knee, residuals of a gunshot wound to the abdomen, lumbosacral strain, degenerative arthritis of the right knee (limited flexion, instability, and limited extension), scar on the left thigh, scar on the back, hypertension, and erectile dysfunction. Upon a review of the record and resolving all reasonable doubt in the Veteran’s favor, the Board finds that the Veteran is entitled to SMC based on the need for aid and attendance. The evidence indicates that the Veteran has abnormal function due to his left lower extremity amputation and associated disabilities and requires the regular aid and attendance another person in dressing and undressing himself, keeping himself clean and presentable, adjusting his prosthetic, attending to the wants of nature, and managing his medications. In an August 2013 private treatment record, Dr. M. T. noted that the Veteran had a prosthesis on the left leg due to his service-connected below the left knee amputation. Dr. M. T. further noted that, as the Veteran’s physician for the last ten years, he had visited the Veteran’s home on several occasions and witnessed the progressive nature of his conditions. Dr. M. T. stated that on daily basis the Veteran was totally dependent on his wife for almost everything, including getting in and out of the shower; a remembering to take his medications; getting and emptying his urinal at night; removing and putting back on his artificial leg, putting his shoe on his artificial leg; putting neck ties on for church; climbing the stairs; applying lotion to the stump every morning and evening so that it will not dry out and get prone to open sores; getting medication, food, and water at night once his artificial leg is removed when going to bed; removing the artificial leg before showering and putting it back on afterwards; getting breakfast ready every morning before taking medications; and, keeping the bed clean and washing his clothes. A February 2014 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance shows that the Veteran needs assistance with bathing, as well as with toileting at night when his prosthetic is removed. An August 2017 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance again shows that the Veteran needs assistance with bathing, as well as with toileting at night when his prosthetic is removed. Dr. R. F. noted that due to limited mobility after removal of his leg prosthesis, the Veteran was at an increased risk of falling, resulting in the need for aid and assistance with bathing and tending to his other hygiene needs. Dr. R. F. also noted that the Veteran was unable to prepare his own meals and needed medication management. Additionally, throughout the period on appeal, the Veteran has consistently asserted that his wife assists him with almost all daily activities, as his service-connected amputation below the left knee and associated disabilities affect his mobility. See August 2011 Veteran statement, August 2013 notice of disagreement, and October 2014 VA Form 9. The Board finds no reason to doubt the credibility of the Veteran’s lay statements regarding the need for regular aid and attendance by his wife. Based on the foregoing, the Board finds that the Veteran’s service-connected impairments result in the need for regular aid and attendance of another person to dress, undress, bathe, tend to other hygiene needs, attend to the wants of nature, and manage his numerous medications. Accordingly, after consideration of the competent, credible, and probative lay and medical evidence of record, and resolving all reasonable doubt in the Veteran’s favor, the Board finds that, collectively, the evidence indicates that the Veteran’s service-connected disabilities render him so helpless as to need regular aid and attendance of another person to perform his activities of daily living. 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As such, the claim of entitlement to SMC based on the need for regular aid and attendance is granted. J. A. Anderson Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Y. MacDonald, Associate Counsel