Citation Nr: 20046834 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 17-31 984 DATE: July 13, 2020 ORDER Special monthly compensation based on a need for aid and attendance is denied. FINDING OF FACT The Veteran’s service-connected disabilities does not cause the anatomical loss or loss of use of both feet or one hand and one foot, cause the veteran to be blind in both eyes, or render him permanently bedridden or so helpless as to be in need of regular aid and attendance. CONCLUSION OF LAW The criteria for special monthly compensation based on a need for aid and attendance (SMC) have not been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.350, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from April 2010 to June 2014. In connection with this appeal, the Veteran testified at a hearing before the undersigned in August 2019. In February 2020, the RO granted a total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU), and also granted special monthly compensation based on housebound criteria. This represents a complete grant of his appeal in regard to these claims. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). These issues are no longer before the Board. SMC Compensation at the aid and attendance rate is payable when a veteran’s service connected disability or disabilities cause the anatomical loss or loss of use of both feet or one hand and one foot, cause the veteran to be blind in both eyes, or render him permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). Determinations as to the need for regular aid and attendance are factual and must be based upon the actual requirements for personal assistance from others. In making such determinations, consideration is given to such conditions as: the inability of the claimant 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 assistance; the inability of the claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; the inability to attend to the wants of nature; or incapacity, either physical or mental, which requires care or assistance on a regular basis to protect a claimant from hazards or dangers incident to one’s daily environment. It is not required that all of the disabling conditions enumerated be present before a favorable rating is made. The particular personal functions that the claimant is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the claimant be so helpless as to be in need of regular aid and attendance, not that there is a constant need. “Bedridden” constitutes a condition which, through its essential character, actually requires that an individual remain in bed. The fact that a claimant has voluntarily taken to bed, or that a physician has prescribed bed rest for a lesser or greater portion of the day, will not suffice. 38 C.F.R. § 3.352(a). In Turco v. Brown, 9 Vet. App. 222, 224 (1996), the Court held that eligibility for SMC by reason of regular need for aid and attendance requires that at least one of the factors set forth in VA regulation is met. In addition, determinations that the claimant 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 or her to be in bed. They must be based on the actual requirement of personal assistance from others. See Turco, 9 Vet. App. at 224. The evidence must show that the claimant is so helpless as to need regular and attendance; constant need for aid and attendance is not required. 38 C.F.R. § 3.352(a). At the August 2019 Board hearing, the Veteran testified that his service-connected hand tremors inferred with his ability to perform daily tasks. As such, the Board found that a claim for SMC was raised and remanded the claim for further development in January 2020. Review of the record shows that since June 2014, the Veteran has been service connected for a number of disabilities and his combined disability rating is 100 percent. He also has been granted SMC for loss of a creative organ and SMC based on housebound criteria. The Veteran’s medical records show that he remains quite active. He reported that he lived alone, drove, went to the store, went to the gym, did pool therapy, and went to a barber shop. He reported that he patrolled his apartment. He reported that he was able to dress, bathe, groom, prepare meals, and wash laundry. He denied having difficulty using the toilet. He reported that he ate out and remained very active. He reported traveling to a casino and Connecticut. Most recently, he lifted heavy speakers throughout a weekend in February 2020. He did report that his lower extremities caused difficulty dressing and bathing. As such, the evidence shows that the Veteran’s service-connected disabilities do not preclude him from caring for his daily personal needs such as dressing, toileting and feeding himself or otherwise protecting himself from the hazards and dangers incident due to his daily environment without the regular assistance of another person. The medical evidence shows that the Veteran is not rendered so helpless as to need regular aid and attendance due to his service-connected disabilities. There is no medical opinion, private or VA, in support of the Veteran’s SMC claim. Accordingly, the evidence is against the claim for entitlement to special monthly compensation based upon the need for aid and attendance and the claim is denied. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berryman, 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.