Citation Nr: 1807255	
Decision Date: 02/05/18    Archive Date: 02/14/18

DOCKET NO. 14-04 820	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUE

Entitlement to special monthly compensation (SMC) based on the need for aid and attendance.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

R. Husain, Associate Counsel



INTRODUCTION

The Veteran served on active duty in the United States Marine Corps from January 1967 to March 1967.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois.

During the pendency of this appeal, the Veteran passed away and his spouse has been substituted as the appellant in this claim.


FINDING OF FACT

During the appeal period, the Veteran was not blind, or nearly blind, or institutionalized in a nursing home on account of service-connected disabilities; his service-connected disabilities had not rendered him unable to care for most of his daily personal needs without the regular aid and attendance of another person.


CONCLUSION OF LAW

The criteria for special monthly compensation based on the need for aid and attendance have not been met. 38 U.S.C. §§ 1114, 5107(b) (2012); 38 C.F.R. §§ 3.350(b), 3.352(a) (2017).



REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duty to Notify and Assist

Neither the Appellant nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

The Board has thoroughly reviewed all the evidence in the Veteran's VA file. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, it is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra.

II. SMC - Aid and Attendance 

Compensation at the aid and attendance rate is payable when the veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or 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).

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; the 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.

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 claimant 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 claimant 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. 38 C.F.R. § 3.352(a).

In Turco v. Brown, 9 Vet. App. 222, 224 (1996), the United States Court of Appeals for Veterans Claims 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 claimant was so helpless as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant'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 Veteran was service connected for the following disabilities: depressive-anxiety disorder, peripheral neuropathy of the left lower extremity, peripheral neuropathy of the right lower extremity, positive albuminuria, peripheral neuropathy of the left upper extremity, peripheral neuropathy of the right upper extremity, and type II diabetes mellitus.

Following a review of the evidence of record, and as discussed below, the Board finds that the preponderance of evidence weighs against the Appellant's claim of entitlement to SMC based on the need for aid and attendance.

In December 2009, the Veteran received a VA examination in connection with his claim for SMC benefits. The examiner noted that the Veteran attended the examination with his wife. The Veteran stated that he was able to drive a car occasionally by himself. When asked if the Veteran's best corrected vision was 5/200 or worse in both eyes, the examiner responded, "No." The examiner stated the Veteran was able to manage his benefit payments, but noted some difficulty writing due to neuropathy. The Veteran was noted to have poor balance, and to require the use of a scooter or cane, but he had no incontinence, or dizziness, and only mild cognitive impairment. The Veteran reported being able to dress himself, transfer, use the toilet, feed himself, and bathe himself.  The Veteran expressed difficulty with climbing stairs and fine motor tasks such as writing, cutting food or buttoning clothes. The Veteran stated during the examination that he typically stayed at home but was able to go on errands, and that he could take 15 steps before experiencing difficulty.

In April 2010 and May 2010, VA received letters from two different staff members at the Hines VA Hospital that stated that the Veteran required assistance with fine motor skills, showering, bathing, and feeding because of his service-connected disabilities. While the evidence does indicate that the Veteran requires some assistance on these tasks, the weight of the evidence is against a finding that the Veteran was so helpless as to be in need of regular aid and attendance.

The May 2010 letter noted that the Veteran left the house only to attend medical appointments and dining appointments at a frequency of approximately one to two times every two weeks.

A May 2010 VA examination report noted that the Veteran was able to feed himself, but that food must be cut up for him, and that the Veteran was unable to prepare his own meals. The examination report stated that the Veteran required assistance to bathe, shave, and dress. Lay statements submitted in May 2010 revealed that the Veteran had difficulty with buttons and zippers, but that he had begun wearing clothes that did not have buttons or zippers, to facilitate independence in wearing clothes. The May 2010 examination report also noted that the Veteran did not require nursing home care due to support received by his wife and other family members, and that the Veteran's wife performed medication management for the Veteran. 

The examination results tend to show that the Veteran is able to care for himself, manage his budget, dress, feed, and bathe, with some assistance. The fact that the Veteran is able to perform these tasks with a great degree of independence, is evidence against a finding that the Veteran was so helpless as to be in need of regular aid and attendance. Furthermore, the fact that the Veteran was able to drive on his own and attend medical appointments and go to restaurants on a regular basis is evidence against a finding that the Veteran is bedridden. 

Based upon the evidence of record, the Board concludes that the preponderance of evidence weighs against the Veteran's claim of entitlement to SMC based on the need for aid and attendance. While the Board acknowledges that the Veteran required assistance during the day from his wife, such evidence does not establish that the Veteran was in need of 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, or to protect himself from the hazards or dangers incident to his daily environment. Moreover, the Veteran was able to leave the house by driving to various places, such as restaurants, medical appointments, and stores to perform errands, demonstrating his independence and weighing against a finding that the Veteran was in need of regular aid and attendance. 

In summary, the Board finds that SMC based on the need for the regular aid and attendance of another person is not warranted. See 38 U.S.C. § 1114(l), (s); 38 C.F.R. §§ 3.350(b)(3), 3.352(a). As such, there is no reasonable doubt to be resolved, and the claim is denied. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

SMC based on the need for aid and attendance is denied.




____________________________________________
A. P. SIMPSON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs