Citation Nr: 20078043 Decision Date: 12/09/20 Archive Date: 12/09/20 DOCKET NO. 94-27 333 DATE: December 9, 2020 ORDER Entitlement to special monthly compensation (SMC) based upon the need of regular aid and attendance is granted. FINDING OF FACT The Veteran’s service-connected disabilities result in the need for regular aid and attendance. CONCLUSION OF LAW The criteria for SMC for aid and attendance have been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.352, 3.350, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1974 to August 1976. This appeal has a long complicated procedural history chronicled in the July 2017 Board remand which is incorporated herein by reference. While in remand status, the claim for service connection for an acquired psychiatric disorder was granted effective August 29, 1991. Entitlement to individual unemployability and special monthly compensation based on housebound criteria being met were granted effective March 28, 2017. Entitlement to SMC based upon the need of regular aid and attendance Under 38 U.S.C. § 1114(l), SMC (as opposed to special monthly pension, which would be based on all disabilities rather than only those which are service connected) is payable if, as the result of service-connected disabilities, the Veteran has an anatomical loss or loss of use of both feet, or of one hand and one foot, has blindness in both eyes with visual acuity of 5/200 or less, is permanently bedridden, or is so helpless as to be in need of the regular aid and attendance of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). The need for aid and attendance equates to being so helpless as to require the regular aid and attendance of another person. 38 U.S.C. § 3.350 (b). As it pertains to the present case, criteria for establishing such need include whether the Veteran was permanently bedridden or so helpless as to have required regular aid and attendance, during the pendency of his original appeal, as determined under criteria enumerated under 38 C.F.R. § 3.352(a). Pursuant to 38 C.F.R. § 3.352 (a), the following factors will be accorded consideration in determining whether the Veteran was 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 incapacity, physical or mental, which requires care or assistance on a regular basis to protect the Veteran from the hazards or dangers incident to his daily environment. It is not required that all 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 condition as a whole. It is only necessary that the evidence establish that the Veteran was so helpless as to need regular aid and attendance, not that there was a constant need. 38 C.F.R. § 3.352 (a); see also Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in section 3.352(a) must be present for a grant of SMC based on 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 the Veteran had voluntarily taken to bed or that a physician had 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 claims folder reflects that during the pendency of the claim, the Veteran has been in need of aid and attendance. Specifically, the medical evidence reflects the Veteran was in need of assistance from another person in attending to the daily activities of daily life (ADL). In a May 2011 VA treatment report, it was noted that the Veteran needed assistance with ADL’S and uses a wheelchair when legs give out. A VA Form 21-2680, Examination for Housebound Status or Need for Permanent Regular Aid and Attendance received in July 2011 reflects the Veteran was restricted due to lumbar spine degenerative changes and possible stenosis. According to a June 2012 rating decision, the RO determined that special monthly pension based on need for aid and attendance was established effective July 11, 2011. At that time, it was determined that due to the Veteran diagnosed lumbar spinal stenosis, the Veteran was wheelchair bound and did not have functional use of his feet. It was further noted that the Veteran required assistance bathing and tending to other hygiene needs. At the time of the June 2012 rating decision, service connection was not in effect for a lumbar spine disability. However, service connection for a thoracolumbar spine disability effective March 6, 2008 was granted in a February 2017 rating decision. More recent 2020 VA treatment records reflect that the Veteran needed moderate assistance with toileting, bathing, dressing, and ambulation; although it was noted that no assistance is needed with feeding. Importantly, the objective medical evidence reflects that the Veteran’s need for an aid and attendance is a result, at least in part, of the service-connected lumbar spine disability. Under 38 U.S.C. § 1114 (l), SMC is payable if, as the result of service-connected disabilities is so helpless as to be in need of the regular aid and attendance of another person. In this instance, the Veteran’s need was due, at least in part, to his service-connected disabilities. As such, the Board finds that the criteria for aid and attendance is warranted. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Williams, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.