Citation Nr: 21001632 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 17-55 128 DATE: January 11, 2021 ORDER Entitlement to special monthly compensation (SMC) based on the need for regular air and attendance is granted, subject to the laws and regulations governing the award of monetary benefits. FINDING OF FACT The evidence is at least in equipoise that the Veteran is in need of the regular aid and attendance of another person to perform the routine activities of daily living due to his service-connected right leg amputation. CONCLUSION OF LAW The criteria for entitlement to SMC based on the need for regular aid and attendance have been met. 38 U.S.C. §§ 1114(l), 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1955 to October 1957. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In a January 2018 decision, the Board denied entitlement to SMC based on the need for aid and attendance. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2019 Memorandum Decision, the Court set aside the Board’s decision and remanded the matter to the Board for readjudication. The Board remanded this claim in August 2019 for additional development. As the actions specified in the remand have been substantially completed, the matter has been properly returned to the Board for appellate consideration. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to SMC based on the need for regular aid and attendance The Veteran contends that he is entitled to SMC based on the need for regular aid and attendance of another person due to his service-connected right leg amputation. The Board notes that the Veteran is currently in receipt of SMC at the (k)(1) level on account of the anatomical loss of one foot from April 3, 2013, and at the (s)(2) level on account of a single disability upon which a total individual unemployability rating is based and being permanently housebound from July 1, 2013. However, a higher level of compensation at the (l) level is payable to eligible veterans who, by reason of service-connected disability, require the regular aid and attendance of another person. SMC at the aid and attendance rate is warranted if a veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both feet, or of one hand and one foot, or is blind in both eyes, or is 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). In determining the need for regular aid and attendance, consideration is given to: (1) inability of the veteran to dress or undress himself, or to keep himself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without such aid; (3) inability of the veteran to feed himself because of the loss of coordination of upper extremities or because of extreme weakness; (4) inability to attend to the wants of nature; or (5) physical or mental incapacity 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). A finding that the veteran is “bedridden” also provides a proper basis for the determination. Bedridden will be that condition which, through its essential character, actually requires that the veteran remain in bed. The fact that a veteran has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. 38 C.F.R. § 3.352(a). 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 that the veteran is unable to perform must be considered in connection with the veteran’s condition as a whole. The evidence need only establish that the veteran is so helpless as to need regular aid and attendance, not that there be 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 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. 38 C.F.R. § 3.352(a); Turco v. Brown, 9 Vet. App. 222, 225 (1996). In this case, service connection is in effect for right leg amputation, rated 60 percent disabling, and osteomyelitis of the right knee, rated noncompensable. The Veteran is in receipt of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from May 1, 1997. As noted above, the Veteran is also in receipt of SMC at the (k)(1) level from April 3, 2013 and at the (s)(2) from July 1, 2013. The Veteran contends that he requires the regular aid and attendance of his wife and adult children to complete activities of daily living (ADLs) due to his service-connected right leg amputation. VA treatment records show that the Veteran underwent an above-the-knee amputation of the right leg in April 2014. Since the amputation, the Veteran has reported to his treating physicians that he has difficulty taking care of himself due to an inability to stand, walk, or get in and out of his wheelchair without assistance. The Board notes that the Veteran is unable to tolerate a prosthesis and is wheelchair bound. In April 2013 statements the Veteran’s wife and daughter attested that the Veteran requires their help getting in and out of bed, going to the bathroom, getting dressed and undressed, eating, and being driven to appointments as a result of his right leg amputation. At a November 2014 VA primary care visit, the Veteran was noted to require assistance with ADLs such as dressing, toileting, transferring, cooking, bathing, and going to medical appointments due to his right leg amputation. The treating physician remarked that the Veteran’s functional status has deteriorated and his ability to perform ADLs is “limited.” A September 2016 VA primary care note states that the Veteran is wheelchair bound and is able to do a few ADLs such as feeding and dressing, but that he must depend on his wife for other ADLs and all instrumental ADLs, such as finances. In October 2017, the Veteran reported to his VA social worker that his wife and daughter assist him with his personal care needs, including bathing, dressing, and grooming. He also reported that his wife prepares his meals, as well as assists him with medication management, and provides his transportation. He states that because he is wheelchair bound, he depends on family to help transfer him from his bed to his chair. He underwent a functional screening in which he reported being dependent on another person for bathing, dressing, toileting, transferring, and continence. Based on his responses, he was assigned a Katz score of 1, which is indicative of a high level of dependence for completing ADLs. During the pendency of the appeal, the Veteran has submitted aid and attendance examination reports (VA Form 21-2680) from May 2014, September 2016, October 2017, and September 2018, completed by his longtime VA primary care physician. These examination reports indicate that the Veteran has difficulty performing some ADLs, such as bathing and tending to other hygiene needs (he must be lifted in and out of the bathtub by family members), due to his right leg amputation. However, the reports also indicate that nonservice-connected disabilities, such as degenerative disc disease of the cervical and lumbar spine, osteoarthritis of the left knee, and hand tremors, contribute to the Veteran’s need for regular aid and attendance. For instance, the Veteran is noted to be unable to feed himself or shave by himself due to bilateral hand tremors. Moreover, the Veteran’s wife is noted to manage his medications and finances, but it is unclear whether this is due solely to his service-connected right leg amputation, or some other nonservice-connected disability. The RO has referred the Veteran’s claim to the Director of Compensation Service for a medical opinion twice. In July 2017 and November 2020 opinions, the Director opined that a review of the Veteran’s record failed to demonstrate that his service-connected right above the knee amputation rendered him in need of regular aid and attendance. Rather, the Director explained that, while the Veteran’s service-connected disability affects his mobility and causes other functional impairments, the record reveals that other nonservice-connected conditions contribute to the need for regular aid and attendance. Pursuant to the Board’s August 2019 remand, the Veteran was afforded a VA aid and attendance or housebound examination in October 2019. The examination report indicates that the Veteran spends most days in bed where his wife and children bring him his meals and help him to the bathroom as needed. He is unable to walk, stand, or otherwise ambulate without assistance. He only leaves the bed if his two sons are available to carry him to his wheelchair. The Veteran no longer leaves his home except to attend medical appointments, which requires his sons to lift him in and out of a vehicle. The examination report also notes that the Veteran has difficulty feeding himself or grasping items due to tremors and nerve damage in his hands; he suffers from other mobility issues due to degenerative joint disease of the spine; and his wife handles his financial affairs due to memory and judgment issues. Upon examination of the Veteran and after review of his claims file, the VA examiner opined that it is as likely as not that the Veteran is so helpless or so nearly helpless as a result of his service-connected right knee amputation so as to require the regular aid and attendance of another person. In making this finding, the examiner determined that the Veteran is permanently bedridden and requires total care on a constant basis to protect him from the hazards or dangers incident to his daily environment. The examiner noted that the Veteran is unable to use any sort of prothesis due to pain and nerve damage and therefore requires assistance from family member preparing meals, dressing and undressing, and going to the bathroom for toileting and grooming. After careful consideration of the above medical and lay evidence, the Board finds that entitlement to SMC based on the need for regular aid and attendance of another person is warranted. In this regard, the evidence is at least in equipoise that the Veteran requires the regular aid and attendance of another person to perform routine activities of daily living due solely to his service-connected disability of right leg amputation. In making this finding, the Board recognizes that the Veteran has been found on VA examination to have other, nonservice-connected disabilities, such as hand tremors and degenerative disc disease of the spine, which contribute to his overall disability picture and interfere with his ability to perform certain ADLs, such as feeding himself or shaving. Nonetheless, the evidence also establishes that, by reason of his right leg amputation alone, the Veteran requires the personal assistance of others to perform many other critical ADLs, such as getting in and out of bed, preparing meals, bathing, toileting, and dressing. He also requires assistance getting in and out of his wheelchair, as well as getting in and out of a vehicle so that he can attend medical appointments. Significantly, there is no evidence of record to suggest that the Veteran’s inability to perform these ADLs is due to any other, nonservice-connected disability. The Board notes that if at least one of the factors listed in 38 C.F.R. § 3.352(a) is present, special monthly compensation may be awarded. See Turco, 9 Vet. App. at 225. Thus, the Board finds that SMC based on the need for regular aid and attendance is warranted. In sum, the evidence is at least in equipoise as to whether the Veteran has difficulty performing the activities of daily living without the aid and assistance of another person as a result of his service-connected right leg amputation. Therefore, reasonable doubt must be resolved in the Veteran’s favor and entitlement to SMC based on the need for the regular aid and attendance of another person is warranted. The appeal is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Melissa Barbee, Associate 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.