Citation Nr: 20022575 Decision Date: 04/01/20 Archive Date: 04/01/20 DOCKET NO. 17-57 581 DATE: April 1, 2020 ORDER Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance of another person is granted. FINDING OF FACT The evidence establishes that the Veteran required the regular aid and attendance of another as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for special monthly compensation based on the need for aid and attendance of another person have been met. 38 U.S.C. §§ 1114 (l), 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.350(b)(3), 3.352(a), 4.3 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1956 to September 1958, from October 1958 to October 1962, and from August 1963 to January 1981. He died in January 2018 with his claim pending on appeal. The appellant is his surviving spouse, and she was properly substituted in an October 2019 VA memorandum. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which denied entitlement to SMC based on the need for aid and attendance or being housebound. The Veteran timely perfected an appeal. See May 2016 Notice of Disagreement; September 2017 Statement of the Case; October 2017 VA Form 9. Special Monthly Compensation The Veteran sought entitlement to SMC based on the need of aid and attendance of others. Special monthly compensation at the aid and attendance rate is payable to a Veteran who, as a result of his service-connected disabilities: (1) is blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to five degrees or less; (2) is a patient in a nursing home because of mental or physical incapacity; or (3) establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350 (b)(3). Pursuant to 38 C.F.R. § 3.350 (b)(3) and (4), the criteria for determining that a Veteran is so helpless as to be in need of regular aid and attendance, including a determination that he is permanently bedridden, are contained in 38 C.F.R. § 3.352 (a). That regulation provides that the following criteria will be considered in determining whether the Veteran is in need of the regular aid and attendance of another person: the inability of the Veteran to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which, by reason of the particular disability, cannot be done without such aid; the inability of the Veteran to feed himself through the loss of coordination of upper extremities or through extreme weakness; the inability to attend to the wants of nature; or an 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. 38 C.F.R. § 3.352 (a). It is not required that all of the above disabling conditions be found to exist before a favorable rating may be made. The particular personal functions that a 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 a Veteran is so helpless as to need regular aid and attendance, not that there is a constant need. Determinations that a Veteran is so helpless as to be in need of regular aid and attendance will not be based solely upon an opinion that his condition is such as would require him to be in bed. They must be based on the actual requirement of personal assistance from others. See 38 C.F.R. § 3.352 (a). After careful review of the relevant medical evidence, the Board finds that the Veteran met the criteria for special monthly compensation at the aid and attendance rate. The Veteran was service-connected for the following disabilities: PTSD, evaluated as 70 percent disabling; prostatitis, evaluated as 40 percent disabling; bilateral hearing loss, evaluated as 30 percent disabling; diabetes mellitus, evaluated as 20 percent disabling; Parkinson’s disease, evaluated as 20 percent disabling; balance impairment, muscle rigidity, bradykinesia of the left upper extremity, evaluated as 20 percent disabling; tinnitus, evaluated as 10 percent disabling; peripheral neuropathy of the right lower extremity, evaluated as 10 percent disabling; peripheral neuropathy of the left lower extremity, evaluated as 10 percent disabling; and tuberculosis, dermatitis, erectile dysfunction, speech changes, and loss of automatic movements, all evaluated as noncompensable. The Veteran was also in receipt of a TDIU rating from June 2004, and he had a combined 100 percent rating from September 24, 2015. A March 2015 examination for housebound status or permanent need for regular aid and attendance shows diagnoses of Parkinson’s disease, degenerative joint disease, and diabetic neuropathy. The examiner noted that the Veteran’s gait was impaired in that he shuffled with a cane and had restricted arm and leg movement. The examiner indicated that the Veteran needed assistance getting in and out of bed, required medication management, and did not have the ability to manage his own financial affairs. The examiner stated that the Veteran was able to feed himself, but he could only minimally prepare his own meals. The examiner indicated that the Veteran had impaired fine motor skills in his right hand and leg. The examiner also noted that the Veteran had poor balance and a shuffling gait and that he had multiple falls over the past year. The examiner indicated that the Veteran could only leave his house with assistance and that he was unable to drive or use public transportation. An October 2015 VA treatment record shows that the Veteran was a high fall risk and that he had fallen “a few times.” A November 2015 VA diabetes examiner opined that the Veteran was able to dress himself with assistance and that he was able to attend to all other ADLs. The examiner also indicated that the Veteran could drive and do yard work. Private and VA treatment records dated in October 2016 show that the Veteran fractured his right hip after falling in his driveway. A May 2017 VA treatment record shows that the Veteran was a high fall risk and that he was in a wheelchair. A July 2017 private treatment record shows that the Veteran had an “insidious onset of a change in gait and balance about 4 yrs ago: his gait slowed, with a shuffle, and posture became more stooped.” The physician noted that as the Veteran’s gait worsened, he started having increasing number of falls. The physician also noted that the Veteran needed help from his wife for dressing and grooming. On examination, the Veteran had very poor balance, very decreased stride length, and a mild stoop. An August 2017 VA treatment record shows that the Veteran required assistance in bathing and dressing, that he was “completely unable to shop,” that he needed meals prepared and served, that he could not perform housekeeping or laundry, and that he could not travel without the assistance of another. A September 2017 VA treatment record shows that the Veteran qualified for in-home healthcare due to Parkinson’s disease. Specifically, the form shows that due to Parkinson’s disease, the Veteran was deemed “homebound,” required the assistance of another for out of home trips, and had medical restrictions for driving. An October 2017 examination for housebound status or permanent need for regular aid and attendance shows diagnoses of Parkinson’s disease and status-post right hip fracture. The examiner noted that the Veteran’s appetite was good, but he had some coughing and choking. The examiner indicated that the Veteran could only walk with assistance and that he could not prepare his own meals. The examiner noted that the Veteran needed assistance with bathing and tending to other hygiene needs and that he required medication management. The examiner also noted that the Veteran needed help with ADLs, that he was a fall risk, and that he was at risk of choking when eating. Given the above, the Board finds that entitlement to SMC by reason of the need for regular aid and attendance from another person is warranted. The evidence of record demonstrates that the Veteran needed assistance with activities of daily living including preparing meals, ambulation, bathing, medication management, and tending to other hygiene needs due to his service-connected disabilities. He was also unable to protect himself from hazards or dangers incident to his daily environment as shown by his documented gait and balance problems that made him a high fall risk and actually resulted in a broken hip. Thus, he met the criteria for aid and attendance from another. See generally Turco v. Brown, 9 Vet. App. 222 (1996). In sum, the Board finds that the Veteran required the regular aid and assistance of others to protect the Veteran from the hazards or dangers incident to his daily environment as a result of his service-connected disabilities. Consequently, the criteria for SMC pursuant to 38 U.S.C. § 1114 (l) have been met, and entitlement to a higher level of compensation based on the criteria regarding aid and attendance is granted. The grant of SMC at the aid and attendance rate renders the question of entitlement to SMC on account of being housebound moot, as it is the greater benefit. See 38 U.S.C. § 1114. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Kipper, 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.