Citation Nr: A20007315 Decision Date: 04/30/20 Archive Date: 04/30/20 DOCKET NO. 190702-15258 DATE: April 30, 2020 ORDER Special monthly compensation (SMC) based on the need for aid and attendance is granted. FINDING OF FACT The Veteran requires care and assistance to protect him from the hazards of daily environment due to his service-connected disabilities. CONCLUSION OF LAW The criteria for an award of SMC based on the need for aid and attendance have been met. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1972 to August 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2019 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is deciding the claim for entitlement to SMC based on the need for aid and attendance, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Special Monthly Compensation (SMC) The Legal Criteria As relevant, SMC based on the need for aid and attendance of another is payable when the veteran, due to service-connected disability, is permanently bedridden or so helpless as to require regular aid and attendance. See 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). The following criteria are to be considered for determining whether a veteran is in need of the regular aid and attendance of another person: (1) the inability of the claimant to dress himself or herself or to keep himself or herself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliance which, by reason of the particular disability, cannot be done without aid (not to include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); (3) the inability of the claimant to feed himself or herself through the loss of coordination of the upper extremities or through extreme weakness; (4) the inability to attend to the wants of nature; or, (5) a physical or mental incapacity that requires care and assistance on a regular basis to protect the claimant from the hazards or dangers of daily environment. See 38 C.F.R. § 3.352(a). There is no statutory or regulatory requirement that the service-connected disability resulting in the need for aid and attendance be rated as 100 percent disabling. 38 U.S.C. § 1114(l); compare 38 U.S.C. § 1114(s) (requiring that a service-connected disability be rated as 100 percent disabling in order to grant benefits based upon being permanently housebound). Analysis The Veteran generally contends that he regularly requires aid and attendance for activities of daily living due to his service-connected disabilities. See December 2018 Claim. The Board resolves all reasonable doubt in the Veteran’s favor and finds that SMC based on the need for regular aid and attendance is warranted. The totality of the evidence of record suggests that the Veteran requires care and assistance to protect him from the hazards of daily environment. See 38 C.F.R. § 3.352(a). In this regard, in an April 2019 Aid and Attendance VA examination, the examiner found that the Veteran often experienced “dizziness with positional changes” and that he “forgets where he is going and has to use the GPS to get back home” due to his service-connected disabilities, including traumatic brain injury residuals and headaches, which indicates the need for assistance from dangers of daily environment. Further, in a June 2019 private neuropsychiatric evaluation (received in July 2019), Dr, G.J.H. opined “with high degree with medical certainty” that the Veteran required the need for regular aid and attendance due to his service-connected TBI residuals and headaches. As rationale, the private physician explained the Veteran had “a complex injury [in association with his service-connected disabilities] that tends to fluctuate and has risks for further dysfunction and injury without predictability of dysfunction.” Such medical condition was likely to cause “seizures, further syncope, or encephalopathy that poses an ongoing threat to his well-being . . . [and] required immediate medical attention,” suggesting the Veteran’s regular need for care and assistance to protect him from the hazards and dangers of daily environment. This opinion was based on the private physician’s full consideration of all pertinent medical records, clinical interview of the Veteran, and the physician’s clinical expertise and experience and was supported by a complete rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board assigns significant probative weight to the June 2019 private physician’s opinion. The evidence of record indicates that the Veteran’s service-connected TBI residuals and headaches cause his need for regular aid and attendance. See 38 C.F.R. § 3.352(a). SMC based on need for aid and attendance is granted. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Kim, 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.