Citation Nr: 1808899	
Decision Date: 02/13/18    Archive Date: 02/23/18

DOCKET NO.  16-51 544	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to special monthly compensation (SMC) on the basis of the need for the regular aid and attendance of another person, or at the housebound rate.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

E. F. Brandau, Associate Counsel


INTRODUCTION

The Veteran is a World War II veteran with active duty service from February 1943 to December 1945.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO).  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDING OF FACT

Resolving doubt in his favor, the service-connected disabilities result in functional impairment that cause the Veteran to be in need of regular aid and attendance of another person because he is unable to walk without assistance, he needs assistance in dressing and undressing and tending to other hygiene needs, and requires assistance in his daily activities such as medication management and meal preparation.


CONCLUSION OF LAW

The criteria for SMC on the basis of the need for the regular aid and attendance of another person have been met.  38 U.S.C. §§ 1114(l), 5107 (2012); 38 C.F.R. §§ 3.102, 3.350(b), 3.352(a) (2017).  


REASONS AND BASES FOR FINDING AND CONCLUSION

SMC is payable under 38 U.S.C. § 1114(l) if, as the result of service-connected disability, a veteran is permanently bedridden or is so helpless as to be in need of regular aid and attendance of another person.  Need for aid and attendance means being so helpless as to require the regular aid and attendance of another person.  38 C.F.R. § 3.350(b).  

As it pertains to the present case, criteria for establishing such need include whether the Veteran was permanently bedridden or was so helpless as to be in need of regular aid and attendance as determined under criteria enumerated under 38 C.F.R. § 3.352(a).  Under 38 C.F.R. § 3.352(a), the following factors will be accorded consideration in determining whether he is in need of regular aid and attendance of another person:  (1) inability 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 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 mental incapacity which requires care or assistance on a regular basis to protect a veteran from the hazards or dangers incident to his daily environment.  

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 which the Veteran is unable to perform should be considered in connection with his former condition as a whole.  It is only necessary that the evidence establish that he was so helpless as to need regular aid and attendance, not that there was a constant need for aid and attendance.  38 C.F.R. § 3.352(a); see Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in § 3.352(a) must be present to grant special monthly compensation based on the 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 a 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.  38 C.F.R. § 3.352(a).

The Veteran contends that he is entitled to SMC because he requires the regular aid and attendance of others (his daughters).  He specifically asserts that the functional impairment caused by the combination of his service-connected disabilities render him unable to dress himself, bathe, prepare meals, and manage his medications without his daughters' assistance.  

The Veteran has received ongoing treatment through VA.  In December 2013, he had an occupational therapy assessment and reported that he was able to feed himself and shave with an electric razor, but that he was dependent on family members for most of his other activities, to include bathing, transportation, meal preparation, laundry, and housekeeping.  His daughter also asserted that she did the grocery shopping for her father.  

The Veteran has a history of mobility problems and in late 2013 he reported that he fell in the home twice in between regular nurse visits and that he injured himself on cement steps.  The Board notes that there were home adaptations made to assist the Veteran.  The physical therapist noted that the Veteran had poor overall endurance and that he required frequent rest periods for activity including ambulation or standing for more than five minutes.  He was noted to spend most of his day either in bed or in a chair.  

In August 2014, the Veteran underwent VA examination in connection with his claim.  On physical examination, he had some limitations in joint strength and range of motion.  At the end of the examination, the examiner concluded that the Veteran had been receiving assistance from his daughter for several years and that he required assistance with meal preparation, housework, shopping, bathing, grooming, and dressing/undressing.  She noted that his service-connected disabilities and aging were leading to deconditioning and would impact his ability to perform activities of daily living independently.

A few months later, the Veteran's private treatment provider submitted a letter indicating that the Veteran needed assistance with medication management, shopping, bathing, washing himself, caring for his feet, and doing laundry and housework.  In June 2015, the private treatment provider completed a more detailed report of the Veteran's limitations and indicated that he had a shuffling gait with poor balance and that he mostly sat in a chair or in bed.  She noted that he could feed himself but could not prepare meals.  The treatment provider indicated that the Veteran's caregiver came up to five times per day to prepare meals, bathe him, wash him, apply compression stockings, assist with shaving, and manage the finances.  

The Veteran continued to have treatment through VA, and when he underwent a VA evaluation for a mental health disability, he was noted to have neglected his hygiene.  His daughters indicated that they had to encourage him to maintain his hygiene habits.  The Veteran began receiving home health aide services in 2015, and as of that time he was no longer driving a car.  

When he met with a social worker in 2016, he reported that he needed assistance with bathing, dressing, preparing meals, performing housework, shopping, transportation, using the phone, and managing medicine and finances.  The social worker recommended an increase in home health aide hours.  Later that year, it was noted that the Veteran could no longer shower independently, and that he needed assistance getting into bed; his daughter reported that he was using a bedside commode at night.  

After a review of the evidence and resolving reasonable doubt in the Veteran's favor, the evidence warrants an award of aid and attendance due to service-connected disabilities.  In this regard, the evidence is in conflict as to whether the service-connected disabilities result in his inability to care for himself or if it is due to aging; however, at least one examiner has attributed it, at least in part, to his service-connected disabilities.  Therefore, the appeal is granted.  

As this is a full grant of the benefit sought, no further duty is assist is required.



ORDER

SMC on the basis of the need for the regular aid and attendance of another person is granted.



____________________________________________
L. HOWELL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs