Citation Nr: 21002259 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 19-09 097A DATE: January 13, 2021 ORDER Entitlement to special monthly compensation (SMC) for a spouse based on the need for aid and attendance is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s spouse has a factual need for aid and attendance. CONCLUSION OF LAW The criteria for entitlement to SMC for a spouse based on the need for aid and attendance have not been met. 38 U.S.C. §§ 1502(b), 1521(d); 38 C.F.R. §§ 3.23, 3.351(b) and (c), 3.352(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from September 1980 to September 1983. This appeal to the Board of Veterans’ Appeals (Board) arose from a September 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran generally contends that his spouse’s disabilities require regular aid and attendance of another person. See August 2016 VA examination for housebound status or permanent need for regular aid and attendance. SMC benefits are payable to a veteran by reason of the veteran’s surviving spouse being in need of aid and attendance. 38 U.S.C. § 1521(d); 38 C.F.R. § 3.351(a)(2). Requiring aid and attendance means that a person is so helpless or nearly helpless as to require the regular aid and attendance of another person. As a threshold requirement, any veteran entitled to compensation at the rates provided in section 1114 of this title, and whose disability is rated not less than 30 percent, shall be entitled to additional compensation for dependents if the spouse is considered to be in need of aid and attendance. 38 U.S. Code § 1115. The Veteran filed his claim for SMC for a spouse based on the need for aid and attendance in October 2016. The record reflects that during the pendency of the appeal, the Veteran was granted service connection for posttraumatic stress disorder rated as 30 percent disabling since October 13, 2015, and 70 percent from July 8, 2019. See December 2020 rating decision. Therefore, he meets the initial requirements for this provision for the entire period on appeal. The spouse will be considered to be in need of regular aid and attendance if he or she: (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 5 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 38 C.F.R. § 3.352(a). 38 C.F.R. § 3.351(b), (c). The criteria to be considered in establishing a factual need for aid and attendance include: (1) The inability of claimant to dress or undress himself or herself, or to keep himself or herself 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 with aid (this will not 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) Inability of the spouse to feed himself or herself through loss of coordination of upper extremities or through extreme weakness; (4) Inability to attend to the wants of nature; or (5) Incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352(a). Being bedridden is a proper basis for the determination. “Bedridden” is the condition which, through its essential character, actually requires that the spouse remain in bed. The fact that a spouse 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 the disabling conditions enumerated be found to exist before a favorable rating may be made. Moreover, it is only necessary that the evidence establish that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that a claimant is so helpless as to need regular aid and attendance will not be based solely upon an opinion that the claimant’s condition would require her to be in bed. They must be based on the actual requirement of personal assistance from others. Id. A January 2016 private treatment record noted the Veteran’s spouse, B.S., presented with worsening numbness, tingling, paresthesias, and weakness in both lower extremities. The physician noted she has a history of arthritis of both knees and was taking Klonopin, aspirin, and Advair. An EMG study was conducted, which revealed moderately severe acute and chronic denervating changes at bilateral L4-5 and L5-S1 root including primary dorsal rami and no evidence of peripheral sensorimotor neuropathy or nerve compression of myelopathy. An August 2016 VA Form 21-2680 (examination for housebound status or permanent need for regular aid and attendance) noted B.S. had diagnoses of spinal stenosis in the lumbar region and osteoarthritis of the bilateral knees. The physician indicated she is able to feed herself, prepare her own meals; she needs assistance with bathing and tending to other hygiene needs due to back pain and leg weakness; she is not legally blind; she does not require nursing home care; she is able to manage her own financial affairs; she was in good appearance; she was unable to stand due to leg weakness and gait was wide and ataxic; there were no restrictions of the upper extremities; regarding restrictions of the lower extremities, she had bilateral leg weakness due to severe spinal stenosis; she is unable to ambulate up and down stairs or exercise by herself due to limb weakness, she is able to leave the home; she has no restriction of the spine, trunk, and neck; she uses a wheelchair and walker and can walk a distance of 50 feet. In an October 2016 lay statement, an acquaintance explained that she saw B.S. on several occasions and witnessed B.S.’s difficulty with rising from a sitting position into a standing position and that B.S. grimaced and made sounds of pain. She stated that on another occasion, while on their way to a restaurant, B.S. was unable to ambulate to the car and that B.S. proceeded to place herself on the ground. She stated that the Veteran and another individual attempted to help B.S. off the ground, however, with no success. The acquaintance wrote that B.S. scooted herself to the car where she was assisted from a sit-to-stand position. After arrival back to the home, she stated that the Veteran assisted B.S. into the house. She further stated that she overheard B.S. was incontinent because she could not make it to the bathroom in a timely manner. B.S. reportedly stated that her physical condition had greatly interfered with her activities of daily living and her ability to participate in social activities. She also indicated that B.S. reported that her pain level along with her decreased ability to ambulate freely causes disruption to B.S. having a normal life. In a November 2016 lay statement from B.S.’s relative, he stated that while staying with the Veteran and B.S., he witnessed the rapid decline of B.S.’s health. He reported that B.S. cried a lot due to pain, she crawled on the floor to get around their three-bedroom trailer home. He further stated B.S. tried to keep up with her personal housework and three dogs at that time, but it was hard for her to scoot on the floor to do things. The Board finds the preponderance of the evidence is against a finding that the Veteran’s spouse’s symptoms rose to the level of requiring regular aid and attendance of another person. Most probative, the August 2016 examination submitted by the Veteran specifically documented that the Veteran’s spouse did not need help preparing meals or feeding herself, and she was able to manage her own financial affairs. Although, she needs assistance bathing and tending to other hygiene needs due to back pain and leg weakness, and has difficulty with ambulation, the examination report noted there was no restriction with leaving the home, she can walk up to 50 feet with her wheelchair and walker, she was not legally blind, she was well groomed, and she did not receive nursing home care. Further, the lay statements indicate she can go to restaurants with assistance, despite her bilateral leg weaknesses. While the Board acknowledges that the Veteran’s spouse may require some assistance with activities of daily living, such evidence does not establish that the Veteran’s spouse is in need of regular aid and attendance of another person to dress or undress herself, to keep herself ordinarily clean and presentable, to attended to the wants of nature, as she is able to go to the bathroom despite the report that she is incontinent because she does not make it to the bathroom in time, and to protect herself from the hazards or dangers incident to her daily environment. Therefore, the Board finds the Veteran’s spouse’s functional limitations due to her disabilities do not rise to the level of a factual need for aid and attendance based on the criteria listed above. Although the Veteran, his spouse, and acquaintances and relatives are competent to report observable symptoms, such as observed leg and back pain, and B.S.’s difficulty with ambulation, the Board does not finds that such descriptions are indicative of her requiring the aid and attendance of another person. Nonetheless, the August 2016 examination report does not document such restrictions that would require the need for regular aid and attendance for the Veteran’s spouse. For example, the examiner wrote that B.S. was able to feed herself, prepare her own meals, had the ability to manage her affairs, was not legally blind, and did not require nursing home care. While the examiner wrote B.S. needed assistance in bathing and tending to other hygiene needs, that is not the equivalent or similar to the inability to dress or undress herself or to keep herself ordinarily clean and presentable. She had no restrictions when it came to her upper extremities, and she can use a wheelchair and walker. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim for entitlement to aid and attendance benefits for the Veteran’s spouse, B.S., is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski; 1 Vet. App. 49, 53-56 (1990). A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sarah Campbell, 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.