Citation Nr: 18100455 Decision Date: 04/13/18 Archive Date: 04/13/18 DOCKET NO. 14-25 771 DATE: April 13, 2018 ISSUES DECIDED: 1 ISSUES REMANDED: 0 ORDER Entitlement to special monthly compensation based on the need for aid and attendance is granted. FINDING OF FACT With resolution of doubt in favor of the Veteran, the evidence demonstrates that the Veteran is in need of regular aid and attendance of another person as a result of her service-connected disabilities. CONCLUSION OF LAW The criteria for special monthly compensation based on the need for aid and attendance have been met. 38 U.S.C. §§ 1114, 5107 (2012); 38 C.F.R. § 3.350 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1977 to January 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a January 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In November 2017, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. Entitlement to Special Monthly Compensation (SMC) The Veteran asserts that she is in need of regular aid and attendance of others due to her service-connected disabilities. Specifically, the Veteran testified that she needs aid and attendance preparing meals, bathing, dressing and going to sleep. See, November 2017 Board hearing transcript. SMC is payable in addition to the basic rate of compensation otherwise payable on the basis of degree of disability. See 38 U.S.C. § 1114; 38 C.F.R. § 3.350. To receive a special monthly compensation based on the need for aid and attendance, the claimant must be a patient in a nursing home on account of mental or physical incapacity; or be blind or so nearly blind as to have corrected visual acuity in both eyes of 5/200 or less or concentric contraction of the visual field to 5 degrees or less; or have a factual need for regular aid and attendance of another person. 38 U.S.C. §§ 1114 (l), 1502, 1521; 38 C.F.R. §§ 3.350 (b) (3), 3.351(b). Factors considered to determine whether regular aid and attendance is needed include: inability to dress or undress oneself, or to keep oneself ordinarily clean and presentable; frequent need to adjust special prosthetic or orthopedic appliances which by reason of the particular disability requires aid (this does not include adjustment of appliances that persons without any such disability would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability to feed oneself through loss of coordination of upper extremities or through extreme weakness; inability to attend to wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect a claimant from the hazards or dangers incident to her daily environment. 38 C.F.R. § 3.352 (a). 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 decision is permissible. Particular personal functions which the Veteran is unable to perform should be considered in connection with her condition as a whole. It is only necessary that the evidence establish that she is so helpless as to need regular aid and attendance, not that there is a constant need. 38 C.F.R. § 3.352 (a); Turco v. Brown, 9 Vet. App. 222 (1996). It is logical to infer, however, a threshold requirement that “at least one of the enumerated factors be present.” Turco, 9 Vet. App. at 224. “Bedridden” will be that condition which, by virtue of its essential character, actually requires that the claimant remain in bed. The fact that a claimant has voluntarily taken to bed or that a doctor has prescribed rest in bed for a greater or lesser part of the day to promote convalescence or cure is insufficient. 38 C.F.R. § 3.352 (a). Where a Veteran does not meet the qualifications for aid and attendance, housebound benefits may be applicable. Housebound benefits are warranted if, in addition to having a single permanent disability rated at 100 percent disabling under the VA Schedule for Rating Disabilities (not including ratings based upon unemployability under 38 C.F.R. § 4.17 ), a Veteran: Has additional disability or disabilities independently ratable at 60 percent or more, separate and distinct from the permanent disability rated as 100 percent disabling and involving different anatomical segments or bodily systems, or, is “permanently housebound” by reason of disability or disabilities. 38 C.F.R. § 3.351 (d). The housebound requirement is met when a Veteran is substantially confined to her dwelling or the immediate premises or, if institutionalized, to the ward or clinical area, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout her lifetime. 38 C.F.R. § 3.351 (d). The Veteran is currently service-connected for six disabilities; most important for this determination is her service-connected cervical spinal cord injury C2-C3, C4-C5 with no feeling in the bilateral upper extremities. At the November 2017 Board hearing, the Veteran testified that due to her service-connected disabilities she is unable to bathe, feed or dress herself. The Veteran testified that she is unable to cook since she is not able to handle knives or anything hot due to her cervical spinal cord injury with no feeling in her bilateral upper extremities. She testified that home health aides come to her house three times a week to cook for the week. The Veteran further testified that she takes a bath three times a week when the home health aides visit since she is not able to get in and out of the bath tub. Additionally, the Veteran testified that she needs assistance pulling up her pants and putting on socks and shoes. At the November 2017 Board hearing, M. H. also testified. M. H. testified that he lives with the Veteran and assists her four to five times per night after she falls. In July 2014, the Veteran was provided a VA examination for housebound status or permanent need for regular aid and attendance. The examiner noted the Veteran’s service-connected non-healing incision of left inguinal fold and service-connected cervical spine disability with no feeling in bilateral upper extremities. The examiner stated that the Veteran is not able to prepare her own meals and needs assistance with cutting up foods and with heavy meal preparation. The examiner further stated that the Veteran needs assistance in bathing and tending to other hygiene needs due to poor posture and decreased balance. The examiner noted that the Veteran has upper extremity sensory deficit which results in difficulty with fine motor tasks. In November 2017, the Veteran was provided a second VA examination for housebound status or permanent need for regular aid and attendance. The examiner noted that the Veteran needs assistance in bathing and tending to other hygiene needs. The examiner stated that the Veteran is able to prepare her own meals but she is at high risk for falling and would benefit from assistance. The examiner noted that the Veteran has significant sensory loss that affects her fine motor upper extremity function. The examiner further noted that the Veteran is not currently hospitalized or legally blind. The record reflects that the Veteran is not in a nursing home and is not legally blind. Therefore, the Veteran is only eligible for aid and attendance benefits if the evidence shows that she has a factual need for the regular aid and attendance of another person. Such need is shown. Factors to consider in determining whether regular aid and attendance is needed include an inability to dress or undress oneself, inability to keep oneself ordinarily clean and presentable, inability to feed oneself, an inability to attend to the wants of nature, and an incapacity which requires care or assistance to protect the Veteran from the hazards or dangers incident to her daily environment. 38 C.F.R. § 3.352 (a). The evidence shows that the Veteran meets these criteria. With regard to ability to dress herself, the Veteran testified in November 2017 that she requires assistance in order to pull up her pants and to put on socks and shoes. Additionally, at the November 2017 Board hearing the Veteran testified that she can only bathe with the assistance of another person. Additionally, the July 2014 and November 2017 examiners stated that the Veteran needs assistance in bathing and tending to other hygiene needs. The Veteran further testified that she is unable to prepare her own food due to her service-connected cervical spine disability since she is not able to be around knives or heat. The July 2014 VA examiner stated that the Veteran needs assistance with cutting up food and meal preparation and the November 2017 examiner stated that the Veteran would benefit from assistance in preparing her own meals since she is at a high risk for falling. The evidence also shows that these problems stem from the Veteran’s service-connected disabilities, most notably her service-connected cervical spine disability with no feeling in bilateral upper extremities and service-connected non-healing incision of left inguinal fold. Thus, the Board finds that the evidence of record is at least in equipoise as to whether the Veteran requires the regular aid and attendance of another person due to her service-connected disabilities. Accordingly, resolving any doubt in favor of the Veteran, the Board finds that the Veteran is in need of the regular aid and attendance of another person due to her service-connected disabilities. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As such, special monthly compensation based on regular need for aid and attendance of another person is warranted. Because the Board is awarding special monthly compensation based on aid and attendance, the claim for special monthly compensation at the housebound rate is moot as special monthly compensation at the aid and attendance rate set forth at 38 U.S.C. § 1114 (l) is greater than the rate set forth at 38 U.S.C. § 1114 (s) based on being housebound. VA’s Duty to Notify and Assist With respect to the Veteran’s claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156 (a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Counsel