Citation Nr: 20021381 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 18-06 838 DATE: March 25, 2020 ORDER Entitlement to special monthly compensation (SMC) due to the need of regular aid and attendance of another person is denied. FINDING OF FACT The evidence of record does not show that the Veteran’s service-connected posttraumatic stress disorder (PTSD) renders him so helpless as to be in the need of regular aid and attendance. CONCLUSION OF LAW The criteria for SMC based on the need for regular aid and attendance are not met. 38 U.S.C. § 1114(1), 5107; 38 C.F.R. §§ 3.350, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1969 to December 1970 and again from October 1990 to May 1991. In August 2016, the Veteran originally applied for special monthly compensation (SMC) based on aid and attendance/housebound, which the Agency of Original Jurisdiction (AOJ) denied in January 2017. In April 2017, the Veteran submitted a timely Notice of Disagreement (NOD), specifically disagreeing with the AOJ’s denial of entitlement to SMC based on aid and attendance, SMC based on housebound was not addressed in this or subsequent correspondence from the Veteran or his representative. Thus, this issue is not before the Board of Veterans’ Appeals (Board) at this time. Entitlement to special monthly compensation (SMC) due to the need of regular aid and attendance of another person The Veteran has applied for SMC based on the need for aid and assistance. The Veteran contends that he is entitled to SMC and his need is more mental and emotional than it is physical. Specifically, the Veteran contends that he is somewhat calmer and slightly more at ease in public or crowds since he remarried in May 2016. The Veteran additionally contends that since being with his new wife, he does not have as much anxiety or suffer from panic, his sleep is less troubled and nightmares are fewer, she is a stabilizing force for him in most situations and he needs SMC based on needing her company and support. A veteran who, as the result of a service-connected disability, has suffered the anatomical loss or loss of use of both feet, one hand and one foot, or is blind in both eyes, with 5/200 visual acuity or less or is permanently bedridden or so helpless as to be in need of regular aid and attendance under the criteria set forth in 38 C.F.R. § 3.352 (a) shall receive the provided level of compensation. 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). Under the provisions of 38 C.F.R. § 3.352 (a), the criteria to establish a factual need for aid and attendance include the inability of the veteran to dress or undress himself; to keep himself ordinarily clean and presentable; whether he requires frequent adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; inability to feed himself; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect a veteran from the hazards or dangers inherent in 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 condition as a whole. It is only necessary that the evidence 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 § 3.352(a) must be present for a grant of SMC based on need for aid and attendance). An individual who is bedridden meets the criteria for aid and attendance. The regulation provides that being “bedridden” means that the condition which, through its essential character, actually requires that the claimant remain in bed. Determinations that the veteran is 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 to be in bed. They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352 (a). Entitlement to the SMC benefits sought requires that the conditions described be due to a service-connected disability. In this case, the only disability for which service connection was granted is PTSD and a TDIU has been assigned for the Veteran’s service-connected PTSD, effective May 2, 2014. For the following reasons, the Board finds that entitlement to SMC based on the need for aid and attendance is not warranted. The medical evidence of record does not demonstrate that the Veteran needs regular aid and attendance or is severely limited or unable to care for himself and requires the assistance of his wife to attend to many of his daily functions and protect himself from the hazards and dangers of his daily environment. The Board notes that in January 2011, the AOJ issued a rating decision finding the Veteran competent to handle his affairs for VA purposes, to include disbursement of funds. This determination remains in effect. In May 2014, the Veteran was afforded a VA examination to determine the nature and etiology of the Veteran’s PTSD. The examiner noted that the Veteran’s PTSD results in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The May 2014 examiner noted that the Veteran lived alone at that time and that he tends to withdraw. In November 2014, the Veteran was afforded another VA examination by the May 2014 examiner. The examiner maintained that the Veteran’s PTSD has remained unchanged since the May 2014 VA examination. The Board notes that the November 2014 examiner noted that the Veteran lived alone at that time, he did not want company, limited activity, and he stays at home. While the May and November 2014 examination reports reflect that the Veteran has social and occupational impairment, there is no evidence found in these reports indicating that the Veteran requires care or assistance on a regular basis to protect him from the hazards or dangers inherent in his daily environment due to his service-connected PTSD. In fact, the Veteran had been living and operating alone during this time. In August 2016, the Veteran submitted an Examination for Housebound Status or Permanent Need for Regular Aid and Attendance form from his VA physician. The physician who completed the form noted the Veteran’s diagnoses of chronic bilateral knee pain, lower back pain, hypothyroidism, glaucoma, sleep apnea, and PTSD. The physician noted that the Veteran is able to feed himself, able to prepare his own meals, does not need assistance in bathing or tending to other hygiene needs, he is not legally blind or requires nursing home care or medication management. The physician also noted that the Veteran has the ability to manage his own financial affairs, as previously mentioned. Additionally, the physician noted that the Veteran is independent with his activities at present, he does self-care, ambulate and travel, he is independent with driving at present. The above evidence reflects that the Veteran is not in need of aid and attendance due to his service-connected disability, specifically PTSD. The weight of the medical and lay evidence reflects that he does not have physical or mental incapacity from his service-connected PTSD that results in incapacity requiring the care or assistance of another on a regular basis, and he is not bedridden. While the Board appreciates that he is calmer and more at ease, and finds some additional control with his new spouse, these are not elements provided for under the benefit sought. Thus, he does not meet the criteria for SMC based on aid and attendance. Based on the foregoing, the Board finds that the most probative evidence of record shows that the Veteran did not require care or assistance on a regular basis due to his service-connected disability, either with the activities of daily living or to protect himself from hazards or dangers incident to his daily environment. The record also does not show that the Veteran was bedridden. The preponderance of the evidence is against the Veteran’s claim for SMC based on aid and attendance under the ruling criteria. The benefit of the doubt doctrine is therefore not for application and the claim must be denied. Therefore, the claim for SMC based on the need for aid and attendance is denied. 38 U.S.C. § 1114 (l), 5107 (b); 38 C.F.R. §§ 3.102, 3.350 (b), 3.352(a). MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Frazier, Associate Attorney 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.