Citation Nr: 18156387 Decision Date: 12/11/18 Archive Date: 12/07/18 DOCKET NO. 10-48 059 DATE: December 11, 2018 ORDER Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance of another is granted subject to the controlling regulations governing monetary awards. FINDING OF FACT Affording the Veteran the benefit the doubt, service connected disabilities render him so helpless as to require the regular aid and attendance of another person to perform activities of daily living, such dressing, undressing, or bathing. CONCLUSION OF LAW The criteria for the assignment of SMC based on the need for regular aid and attendance of another are met. 38 U.S.C. §§ 1114(l), 5107 (2012); 38 C.F.R. §§ 3.350(b), 3.350(i), 3.352(a) (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1940 through August 1945. He is in receipt of a Silver Star medal, which denotes participation in combat. In June 2016, the Veteran filed a claim, in pertinent part, for SMC based on the need for regular aid and attendance. In October 2017, this matter was remanded by the Board of Veterans’ Appeals (Board) for a VA examination to address whether the Veteran is in need of aid and attendance or is housebound as a result of his service-connected disabilities. It has been returned to the Board for further appellate consideration. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Special monthly compensation is payable to individuals who are permanently bedridden or are so helpless as a result of service-connected disability as to be in need of the regular aid and attendance of another person under the criteria set forth in 38 C.F.R. § 3.352(a). 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b)(3). Determinations as to need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to such conditions as the following: inability of the claimant to dress or undress himself or to keep himself ordinarily clean and presentable; the frequent need of the adjustment of any special prosthetic or orthopedic appliance which by reason of the particular disability cannot be done without aid; 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, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a).   It is not required that all of the disabling conditions enumerated above be found to exist before a favorable rating may be made. The particular personal functions that the claimant is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that the claimant is so helpless as to be in need of regular aid and attendance will not be based solely on an opinion that the claimant’s condition is such as would require him to be in bed. They must be based on the actual requirement of personal assistance from others. See 38 C.F.R. § 3.352(a); Turco v. Brown, 9 Vet. App. 222 (1996). The Veteran contends that he is so helpless, as a result of service-connected disability, as to be in need of the regular aid and attendance of another person. See January 2017 affidavit. He has asserted that his wife must dress and bathe his feet and legs because he can no longer bend over and she must follow him to make sure he does not fall or need assistance. See January 2017 affidavit. The Veteran is service-connected for left knee replacement, rated as 60 percent disabling; degenerative joint disease of the lumbosacral spine, rated as 40 percent disabling; hearing loss, rated as 40 percent disabling; anxiety disorder, rated as 30 percent disabling; osteoarthritis of the left hip, rated as 10 percent disabling; osteoarthritis of the left middle finger, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; left knee instability, rated as 10 percent disabling; loss of extension of left knee, rated as 10 percent disabling; radiculopathy of the left lower extremity, rated as 10 percent disabling; malaria, rated as zero percent disabling; left tibia-fibular fracture, rated as zero percent disabling; and a left knee scar, rated as zero percent disabling. See October 2017 rating decision. Resolving all doubt in favor of the Veteran, the Board finds the Veteran is in need of regular aid and attendance based on the actual requirement of personal assistance from others. In January 2018, the Veteran received a VA aid and attendance or housebound examination. The Veteran reported that he must constantly use a walker inside the house and a wheelchair outside the house due to his hip and knee disabilities. Upon examination, the Veteran’s posture was swayed back, and he had to use a walker or wheelchair to ambulate due to his severe hip and knee disabilities. The VA examiner assessed that the Veteran was not permanently bedridden, but that his ability to protect himself from daily hazards and dangers were limited by dizziness once or more per day, and constant or nearly constant imbalance, which affected his ability to ambulate. Moreover, the examiner determined that the Veteran was unable to perform self-care skills, such as dressing, undressing, or bathing. As rationale, the examiner noted limitations caused by the Veteran’s disabilities. Specifically, the Veteran’s limitations included an inability to walk without assistance of another person outside the home, and the need for a walker for ambulation. The Veteran could leave the home, but only for medical care - these limitations were permanent. The Board finds that the January 2018 VA aid and attendance or housebound examiner’s assessment that the Veteran cannot perform dressing, undressing, or bathing is generally consistent with the evidence of record, and is therefore of significant probative value. Regarding an inability to dress or undress without aid or assistance from another, in April 2016, the Veteran submitted a private medical statement from Dr. WL. The Veteran reported that, primarily due to his left knee disability, he could not bend to put on his shoes or socks. Dr. WL noted that the Veteran could not dress himself because of the limited range of motion by his left knee joint. In December 2016, the Veteran received a VA knee examination. At that time the Veteran reported that he could not dress himself, but that his wife helped him. In January 2017, the Veteran submitted an affidavit, asserting that he required constant aid in his daily life, and that if not for his wife he would need to pay someone to assist him with every aspect of his daily functioning. He further contended that his wife had to dress him and bathe his feet and legs due to an inability to bend over. In July 2017, VA treatment records show the Veteran needed help dressing or needed to be completely dressed. Finally, in January 2018 the Veteran received several VA examinations for his service-connected disabilities.   In a January 2018 VA knee examination, the examiner noted that the Veteran’s left lower extremity disability limited joint motion due to muscle weakness and lack of coordination. The Veteran’s ability to bear weight or propel himself were limited, and he had to use a walker or wheelchair to ambulate. In a separate January 2018 VA hip and thigh examination, the examiner noted a significant decrease in left hip range of motion that would affect daily activities. The examiner assessed functional impacts, to include moderate to significant pain with standing, walking, or prolonged sitting. In another January 2018 VA back examination, the Veteran’s forward flexion was limited to 40 degrees, which was noted to be a significant decrease in range of motion that would affect daily activities. In both examinations, the examiner could not perform repetitive use testing due to the Veteran’s significant pain with single range of motion testing. These records are consistent with the VA aid and attendance or housebound examiner’s assessment that the Veteran is unable to perform dressing, undressing, or bathing. Regarding protection against hazards, in March 2014 the Veteran reported that he could not stand for any length of time and could not walk very far. From June 2014 through June 2015 the Veteran reported having two or more falls and stated that his hip, knee, and back pain had progressed to the point where he could not get the mail. During the January 2018 VA knee examination, the Veteran reported that his knees gave way and caused chronic severe pain, which rendered him wheelchair bound – he was steadily losing bilateral lower extremity strength. The examiner noted functional loss of the knees, to include standing and prolonged sitting with worsened pain, as well as swelling, disturbances of locomotion, and interference with sitting and standing. As addressed above, during the January 2018 VA hip and thigh; knee; and back examinations, the examiner concluded that weight bearing testing for range of motion could not be performed because the Veteran was wheelchair bound and one range of motion testing caused significant pain. This is consistent with the January 2018 VA aid and attendance or housebound examiner’s report that notes the Veteran’s ability to protect himself from daily hazards and dangers is limited by constant or near constant imbalance. Considering the foregoing, the Board resolves any reasonable doubt in the Veteran’s favor and finds that the evidence supports a grant of SMC based on aid and attendance of another. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Martinez, Associate Counsel