Citation Nr: 20013402 Decision Date: 02/20/20 Archive Date: 02/20/20 DOCKET NO. 18-21 514 DATE: February 20, 2020 ORDER Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is granted. FINDING OF FACT Due to his service-connected disabilities it is at least as likely as not that the Veteran is unable to meet most of his daily personal needs without regular aid and attendance from another individual. CONCLUSION OF LAW With resolution of reasonable doubt in the Veteran’s favor, the criteria for SMC based on the need for regular aid and attendance have been met. 38 U.S.C. §§ 1114 (l), 1502(b) (2012); 38 C.F.R. §§ 3.159, 3.350, 3.352 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from September 1958 to August 1962 and in the U.S. Coast Guard from May 1972 to June 1972. A hearing was conducted by video conference in January 2020 before the undersigned Veteran’s Law Judge, at which the Veteran and his spouse testified; a transcript is of record. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance The Veteran seeks entitlement to SMC based on the need for aid and attendance. Under 38 U.S.C. § 1114 (l), special monthly compensation is payable if, as the result of service-connected disability, 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 regular aid and attendance of another person. 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). 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). Under 38 C.F.R. § 3.352 (a), the following factors will considered in determining whether the Veteran is in need of regular aid and attendance of another person: inability of the claimant to dress and undress himself or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliance; inability of the claimant to feed himself through loss of coordination of the upper extremities or through extreme weakness; inability to tend to the wants of nature; or incapacity, physical or mental, which requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his daily environment. All of the disabling conditions enumerated in 38 C.F.R. § 3.352 (a) do not have 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. The evidence should establish that the Veteran is so helpless as to need regular aid and attendance, not that there is 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 special monthly compensation 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 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). In this case, the Veteran had a TDIU assigned from January 18, 2011 to May 29, 2015. Thereafter, a schedular 100 percent rating was assigned. Service connection is in effect for a mental condition associated with degenerative disc disease (DDD) (70 percent disabling); degenerative disc disease with spinal stenosis (40 percent disabling); neurogenic bladder associated with DDD (40 percent disabling); radiculopathy sciatic nerve, lower left extremity associated with DDD (40 percent disabling); radiculopathy sciatic nerve, right lower extremity associated with DDD (40 percent disabling); left lower extremity radiculopathy femoral nerve associated with DDD (20 percent disabling); bilateral hearing loss (10 percent disabling); neurogenic bowel associated with DDD (10 percent disabling); left ankle sprain (10 percent disabling); erectile dysfunction associated with DDD (noncompensable); and surgical scar, lumbar spine (noncompensable). The Board observes that the Veteran receives VA treatment for his various service-connected disabilities. A July 2016 aid and attendance examination indicates that the Veteran is able to feed himself, however, he is unable to prepare his own meals. The examiner found that the Veteran needs assistance in bathing and tending to other hygiene needs. Further, the Veteran requires the assistance of his wife for his financial affairs. The examiner noted that the Veteran’s gait is stooped with mild sensory ataxia and he is dependent on a walker and assistance to walk. The Veteran demonstrated a significant sensory deficit in his bilateral lower extremity and atrophy of thigh extensors, which were more pronounced on the left side. Also, the Veteran had some mild bilateral motor deficit. Further, the examiner observed that the Veteran had limited movement of the bilateral lower extremities due to pain and weakness. The Veteran reported multiple falls in the last few months due to deficit in sensory and motor coordination secondary to spine disease. The Veteran reported episodes of urine and bowel incontinence, mild memory problems, and that he is a high risk of falls. The examiner noted that the Veteran is able to leave the immediate premises of the house, but he is dependent on others when walking for long distances and he requires assistance. In February 2018, the Veteran was again examined for housebound status or permanent need for regular aid and attendance. The examiner noted the Veteran’s diagnosis as significant sensory ataxia and balance problem related to spine degenerative joint disease. The Veteran was noted to be able to feed himself, but unable to prepare his own meals. The examiner noted that the Veteran needs assistance in bathing and tending to other hygiene needs, requires nursing home care, and requires medication management. Further, the Veteran is unable to manage his own financial affairs. The examiner noted that the Veteran has significant weakness of both lower extremities with no visible deformities. The Veteran demonstrated difficulty with balance with risk of falls, particularly when it is dark or he closes his eyes. Moreover, the examiner remarked that due to dizziness, poor balance, and an inability to ambulate independently, the Veteran’s daily activities are restricted to home activities as he is unable to travel without assistance. The examiner noted that the Veteran is able to leave is house at least once a week for hospital appointments with his wife’s assistance. At the January 2020 Board hearing, the Veteran testified that due to his service-connected DDD with spinal stenosis, he has been labeled as a fall hazard from both his VA and his private providers. In the 12 months preceding the hearing, the Veteran testified that he has fallen approximately 12 to 14 times. Further, the Veteran testified that he is unable to manage his medications, get himself out of bed, or cook any meals for himself. The Veteran’s spouse manages the Veteran’s medications due to the Veteran’s memory problems. Also, the Veteran’s spouse testified that her assistance is required daily to move the Veteran from his bed to either his wheelchair or to another chair in the house. Both the Veteran and his spouse confirmed that the Veteran spends most of his day either in a wheelchair or in a chair. His spouse assists him with preparing his daily meals and with the upkeep of his personal hygiene. The Veteran testified that neither physical nor occupational therapy are treatment options for him. He stated that due to his acute pain, such therapies would only agitate him to the point where he would require medication to even lie down. The Veteran testified that he does not currently have complete control of his bowels or his urine, rather he experiences frequent leakage. Based on a thorough review of the record, the Board concludes that, with resolution of reasonable doubt in his favor, the Veteran is in need of aid and attendance. He requires assistance with ambulation, activities of daily living, transportation, and medication administration. It appears that because of his service-connected lower extremity impairment he is as likely as not unable to protect himself from the hazards and incidents of his daily environment. It is noted that the prior denial is predicated on a finding that aid and attendance benefits could not be awarded as the Veteran did not have a single 100 percent disability rating needed for housebound benefits. While that is a regulatory provision for the award of housebound benefits, it is not a statutory or regulatory prerequisite to awarding aid and attendance benefits. As such, it is not a bar to this grant. As noted above, the Veteran need not have all of the disabling conditions mentioned by 38 C.F.R. § 3.352, and furthermore, the evidence must show only that the Veteran is so helpless as to need regular aid and attendance, not that there   is a constant need. 38 C.F.R. § 3.352 (a). Consequently, giving the Veteran the benefit of the doubt, the criteria for SMC based on the need for the regular aid and attendance of another person have been met. See 38 U.S.C. § 1114 (l); 38 C.F.R. §§ 3.350 (b), 3.352(a). MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Scanlan, Associate 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.