Citation Nr: 18159832 Decision Date: 12/20/18 Archive Date: 12/20/18 DOCKET NO. 17-03 466 DATE: December 20, 2018 ORDER Entitlement to special monthly compensation (SMC) based upon the need for regular aid and attendance is denied. FINDING OF FACT The Veteran is not shown to have the anatomical loss or loss of use of both feet, or of one hand and one foot, or to be blind in both eyes, with 5/200 visual acuity or less, or to be permanently bedridden as a result of service-connect disability, or to otherwise be so helpless as to need regular aid and attendance as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for SMC based upon the need for regular aid and attendance have not been met for any period on appeal. 38 U.S.C. §§ 1114(l); 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.350(b); 3.352(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1984 to July 1987 and from September 1990 to November 1991. Entitlement to special monthly compensation (SMC) based upon the need for regular aid and attendance. An increased rate of compensation in the form of special monthly compensation (SMC) is provided at the rates set forth in 38 U.S.C. § 1114 (2012) under certain circumstances as specified in that section. Relevant to this claim, SMC at the rate provided under 38 U.S.C. § 1114(l) is payable when a Veteran due to service-connected disability is permanently bedridden, blind or with visual acuity of 5/200 or less in both eyes, or in need of regular aid and attendance. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b) (2017). The following factors will be accorded consideration in determining whether the Veteran is in need of regular aid and attendance of another person: (1) inability of the Veteran to dress or undress himself, or to keep himself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without such aid; (3) inability of the Veteran to feed himself because of the loss of coordination of upper extremities or because of extreme weakness; (4) inability to attend to the wants of nature; or (5) physical or psychiatric incapacity which requires care or assistance on a regular basis to protect the Veteran from the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a) (2017). It is not required that all of the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found to exist before a favorable rating may be made. 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 evidence establish that the Veteran is so helpless as to need regular aid and attendance, not that there is a constant need for aid and attendance. For the purposes of 38 C.F.R. § 3.352(a), “bedridden” will be a proper basis for the determination of whether the Veteran is in need of regular aid and attendance of another person. “Bedridden” will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. The Veteran is service connected for posttraumatic stress disorder (PTSD) (rated as 100 percent disabling from April 7, 2008), bilateral tinnitus (rated as 10 percent disabling from April 7, 2008), moderate osteoarthritis of the right foot second toe (rated as 10 percent disabling from October 21, 2009) and bilateral hearing loss (rated as noncompensable from January 21, 2010). Initially, the Board finds that the probative evidence of record does not document that the Veteran is permanently bedridden, blind, or with visual acuity of 5/200 or less in both eyes due to his service-connected disabilities; as such, SMC is not warranted based upon these circumstances. Turning to the relevant inquiry of whether the Veteran’s service-connected disabilities have resulted in the need of regular aid and attendance, the Board notes that the Veteran’s November 2014 claim reported that his service-connected PTSD resulted in a wide range of impairments, including severe memory loss and the inability to keep up with finances, to cook, to remember to take medication, and to brush his teeth or bathe. He stated that his wife was his caregiver, nurse, cook, housemaid, and “security blanket,” and that he could not function without her constant care. In conjunction with his claim, the Veteran submitted a November 2014 VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance. Therein, a VA physician noted that the Veteran was able to feed himself and prepare his own simple, ready-to-eat meals (including sandwiches), and that he had the ability to manage his financial affairs, but that he needed assistance with bathing and tending to other hygiene needs, medication management (due to short term memory loss), and basic grooming (due to PTSD symptoms). Additionally, the physician noted that the Veteran was not legally blind and did not require nursing home care, but that his anxiety limited his ability to talk on the telephone, attend to simple and complex business matters, and to leave the house by himself or more than two to three times per week only to visit the doctor or his mother. A subsequent VA aid and attendance examination was conducted in February 2015 in conjunction with the Veteran’s claim. At that time, he asserted that his need for aid and attendance stemmed from his PTSD, so a concurrent psychiatric examination was also completed. The Veteran’s wife reported that the Veteran could not be left alone for any extended period because of his PTSD and anxiety. She stated that she had to quit her full-time job to stay with him, as she was responsible for fixing all his meals, assisting him with grooming, preparing his medications, and taking care of his finances. The examiner noted that the Veteran was not permanently bedridden, not currently hospitalized, and could travel beyond his current domicile. Additionally, the examiner found that the Veteran could perform all functions of self-care skills, did not require aide for ambulation, was unrestricted in leaving the home, and could prudently handle finances (though he did not personally do so). Finally, the examiner noted that the Veteran’s service-connected DJD in his right foot second toe did not impact his ability to care for himself, limit his ability to complete activities of daily living, or hinder his ability to protect himself from the hazards of daily life. During the concurrent February 2015 VA PTSD examination, the Veteran’s wife reported that the Veteran was able to drive and attend his appointments by himself. The Veteran appeared alert and oriented, with intact cognition and age appropriate memory, judgment, and insight. The examiner noted that the Veteran’s PTSD was moderate to severe, with social limitations, but concluded that he was able to drive and handle activities of daily living, that his ability to protect himself from the hazards of daily life was unaffected, and that he was not housebound. A VA audio examination conducted that same month noted that the Veteran experienced impaired communication due to his service-connected hearing loss, which required the use of hearing aids. In September 2015, the Veteran’s wife submitted a statement in conjunction with the Veteran’s notice of disagreement (NOD) which reported that the Veteran had been diagnosed with cancer and absolutely needed regular aide and attendance, as he was now required to be accompanied to all his treatments and doctor visits. A December 2015 VA examination documents that the Veteran was diagnosed with cancer of the larynx, and the examiner stated that the Veteran would benefit greatly from daily assistance of his spouse as a result of his condition. Following a review of the evidence of record, and as discussed further below, the Board finds that the preponderance of evidence weighs against the Veteran’s claim of entitlement to SMC based upon the need for aid and attendance for the entire period on appeal. The Board acknowledges the probative evidence of record, which documents that the Veteran has required some assistance with activities of daily living due to his service-connected PTSD. Specifically, the November 2014 aid and attendance examination completed by a VA physician documents that the Veteran was capable of feeding himself and preparing simple meals and had the ability to manage finances, but required assistance with bathing, hygiene and grooming, and medication management. However, the additional probative evidence, including the subsequent February 2015 VA PTSD and aid and attendance examinations document that the Veteran was not limited in his activities of daily living and was not housebound by his service-connected disabilities. As such, the Board finds that the preponderance of the evidence is against a finding that the Veteran requires the regular aid and assistance of another person. The Board is mindful that the Veteran’s current disability rating for his service-connected PTSD contemplates a high level of functional impairment, including total occupational and social impairment; however, the preponderance of the probative evidence of record does not otherwise establish that the Veteran is in need of the regular aid and attendance of another person to dress or undress himself, to keep himself ordinarily clean and presentable, to attend to the wants of nature, and to protect himself from the hazards or dangers incident to his daily environment. To the extent that the Veteran and his wife have submitted lay statements that report that his wife is unable to work and provides near-constant care for the Veteran, such statements have been considered by the Board. Given the probative findings of the VA examinations discussed above, the Board finds that the Veteran’s choice to rely on the assistance of his spouse does not equate to a finding that his service-connected disabilities mandate such assistance. Additionally, to the extent that the Veteran’s larynx cancer has resulted in additional required care, the Board notes that he is not service connected for such condition; therefore, it cannot serve as a basis for entitlement to regular aid and attendance for the purposes of SMC. In conclusion, the Board is sympathetic to the Veteran’s overall declining health condition and the contributions of his spouse to provide care for him; however, based upon the above, SMC based on the need for the regular aid and attendance of another person is not warranted. As such, there is no reasonable doubt to be resolved, and the claim is denied. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Chad Johnson, Counsel