Citation Nr: 20023048 Decision Date: 04/02/20 Archive Date: 04/02/20 DOCKET NO. 16-04 488 DATE: April 2, 2020 ORDER 1. The portion of the December 2018 Board of Veterans’ Appeals (Board) decision which denied aid and attendance and/or housebound special monthly compensation for the Veteran is vacated. 2. Special monthly compensation for the Veteran being permanently bedridden under 38 U.S.C. § 1114(l) (SMC-L) is granted. FINDINGS OF FACT 1. Based on the February 2019 Motion for Partial Reconsideration, the Board finds that partial vacatur of the December 2018 Board decision which denied aid and attendance and/or housebound special monthly compensation for the Veteran is proper. 2. Giving the benefit of the doubt to the Appellant, the Veteran was permanently bedridden from the beginning of the appeal until his death. CONCLUSIONS OF LAW 1. The criteria for vacating part of the December 2018 Board decision which denied aid and attendance and/or housebound special monthly compensation for the Veteran have been met. See 38 U.S.C. § 7104; 38 C.F.R. § 20.904. 2. Giving the benefit of the doubt to the Appellant, the criteria for special monthly compensation for the Veteran being permanently bedridden under SMC-L have been met. See 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1953 to November 1953. The Veteran died in May 2015. The Appellant is the surviving spouse. This matter originally came before the Board from a December 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. A December 2018 Board decision denied the Appellant’s claim. That decision was appealed to the United States Court of Appeals for Veteran Claims (CAVC), where a motion to remand was granted in July 2019. The matter is again before the Board. This matter has been advanced on the docket pursuant to 38 C.F.R. § 20.902(c). 1. Partial vacatur of the December 2018 Board decision is warranted. The Appellant submitted a Motion for Partial Reconsideration in February 2019, which argued that the Board denied aid and attendance and/or housebound special monthly compensation for the Veteran despite the fact that the Appellant had informed the Board that additional evidence and argument would be submitted in lieu of a Board video-conference hearing. Had the Board allowed the additional evidence and argument to be submitted before denying the claim, the Appellant believed that the Board would have granted the claim. See February 2019 Motion for Reconsideration. The Board may vacate an appellate decision or part of an appellate decision at any time upon request of the appellant or his or her representative, or on the Board’s own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. See 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. Based on the Appellant’s arguments in the February 2019 Motion for Partial Reconsideration, the Board finds that partial vacatur of the December 2018 Board decision is proper. At this time, the Board will reconsider aid and attendance and/or housebound special monthly compensation for the Veteran. 2. Special monthly compensation for the Veteran being permanently bedridden under SMC-L is granted. The Appellant believes that aid and attendance and/or housebound special monthly compensation for the Veteran is warranted. See March 2020 Statement in Support of Claim. If the veteran, as the result of service-connected disability, is permanently bedridden or has such significant disability as to require regular aid and attendance, additional monthly compensation is available. See 38 U.S.C. § 1114(l). When determining the need for regular aid and attendance, consideration is given to the veteran’s: inability to dress or undress, or to keep ordinarily clean and presentable; inability to feed self through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect from hazards or dangers incident to the daily environment. Being bedridden is a proper basis for the determination. “Bedridden” requires that a veteran 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 is not enough. It is not required that all the disabling conditions 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 or her 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 be a constant need. Determinations that the veteran is so helpless, as to require regular aid and attendance will not be based solely upon an opinion that the veteran’s condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others. See 38 C.F.R. § 3.352. Where possible, determinations should be made on the basis of being permanently bedridden rather than the need of aid and attendance to avoid reduction during hospitalization where aid and attendance is provided. See 38 C.F.R. § 3.350. At the time the Veteran filed the claim for aid and attendance and/or housebound special monthly compensation, the Veteran stated that he was housebound; needed the assistance of another person to leave the house; needed assistance for activities of daily living such as bathing, eating, dressing, and attending to the wants of nature; and needed the regular aid and attendance of others. See September 2014 Statement in Support of Claim. A September 2014 examination found that the Veteran had service-connected and non-service-connected disabilities. The service-connected disability was paranoid schizophrenia. As a result of these disabilities, the Veteran was confined to bed day and night, was not able to feed himself, was not able to prepare his own meals, needed assistance in bathing and other hygiene needs, did not have the ability to manage his own financial affairs, and could leave the house between zero and one day per week when accompanied. See September 2014 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance. The Appellant pointed out that the examination did not state which limitations were solely due to service-connected disability. See October 2016 VA 646. As such the Board finds the September 2014 examination inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). However, the Board will take examination findings favorable to the Appellant into consideration. The Appellant reported that it was the Veteran’s service-connected schizophrenia which required aid and attendance and kept the Veteran from leaving the house throughout the entire appeal period until the Veteran’s death. The Veteran could not prepare meals or feed himself, needed help with bathing and other hygiene needs, and was unable to manage his own financial affairs. Schizophrenia caused the Veteran to be delusional and mentally distraught all the time. The Veteran did not leave home and was confined to bed with a barrier attached. The barrier was attached to all sides of the mattress so the Veteran would not get out of bed and hurt himself. The Veteran had tried to jump out the window multiple times, but someone was able to stop him. The Veteran needed help with all activities of daily living such as cooking, cleaning, bathing, feeding, dressing, laundry, going to the bathroom and back, and having diapers changed. At the time of his passing, the Veteran was bedridden in the hospital. See March 2020 Appellate Brief; March 2020 Statement in Support of Claim. The Board finds the Veteran and the Appellant competent to testify to the facts above. The Board has no reason to doubt the credibility of these statements. The Board gives them great probative weight. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The Board finds that the evidence is at least in relative equipoise as to whether the Veteran was permanently bedridden from the beginning of the appeal until his death due to service-connected schizophrenia. Giving the benefit of the doubt to the Appellant, the Board finds that the Veteran was permanently bedridden from the beginning of the appeal until his death due to service-connected schizophrenia. Specifically, the September 2014 examination stated that the Veteran was confined to bed day and night. Additionally, the Appellant stated that schizophrenia caused the Veteran to be delusional and mentally distraught all the time; caused the Veteran to be confined to bed with a barrier attached; and that the Veteran had to stay in bed, so he did not attempt to harm himself. The Board notes that for the same period of time, the Veteran also met the requirements for aid and attendance under SMC-L. However, since the evidence suggests that the Veteran was hospitalized during the pendency of the appeal, the Board has granted the claim for being permanently bedridden under SMC-L to avoid a reduction in compensation during any hospitalization. See 38 C.F.R. § 3.350. The Board also notes that it did not consider whether the Veteran met the requirements of 38 U.S.C. § 1114(s) (SMC-S) for being permanently housebound during the same period of time. This is because SMC-L is a higher award and an appellant is presumed to seek the maximum available benefit. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In conclusion, giving the benefit of the doubt to the Appellant, special monthly compensation for the Veteran being permanently bedridden under SMC-L is granted, subject to the laws and regulations governing payment of monetary benefits. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Dougan 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.