Citation Nr: 21002376 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 16-14 661 DATE: January 13, 2021 ORDER Entitlement to special monthly compensation based on aid and attendance is granted. Entitlement to special monthly compensation based on housebound criteria is dismissed as moot. FINDINGS OF FACT 1. The Veteran required regular aid and attendance of another person due to his service-connected disabilities. 2. In the decision herein, the Veteran is granted entitlement to special monthly compensation, based on the need for aid and attendance, a greater benefit than special monthly compensation based on being permanently housebound. CONCLUSION OF LAW The criteria for entitlement to special monthly compensation based on regular aid and attendance have been met. 38 U.S.C. §§ 1114, 1154, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the Marines from November 1953 to May 1973, during which he was awarded a Combat Action Ribbon. He died in March 2017; his surviving spouse has been substituted as the Appellant in this case. In January 2021, the Appellant testified at a hearing before the undersigned Veterans Law Judge. A transcript of this hearing has not yet been associated with the claims file. The absence of the transcript is not prejudicial to the Appellant because the Board is granting the benefit sought on appeal. The Appellant seeks special monthly compensation due to the Veteran’s service-connected disabilities. In December 2013, the Veteran underwent an VA examination that showed he was unable prepare his own meals, required medication management, and was unable to manage his own financial affairs. The examiner noted that the Veteran was experiencing increasing memory loss, falling “a lot,” and roaming “a lot” at night. The Veteran reported that he was not driving and reported that he “never” leaves his home or immediate premises. Special monthly compensation is payable at a specified rate if the veteran, as the result of service-connected disability, is in need of regular aid and attendance. Need for aid and attendance means helplessness or is so nearly helpless as to require the regular aid and attendance of another person. A veteran will be considered to be in need of regular aid and attendance if he or she is blind or is 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; if the veteran is a patient in a nursing home because of mental or physical incapacity; or if the evidence establishes a factual need for aid and attendance or “permanently bedridden” status under the criteria set forth in 38 C.F.R. § 3.352(a). 38 U.S.C. § 1114(l); 38 C.F.R. § 3.351(b). The following will be accorded consideration in determining the need for regular aid and attendance: inability of 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 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.); inability of claimant to feed himself 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 the claimant from hazards or dangers incident to his or her daily environment . “Bedridden” will be a proper basis for the determination. 38 C.F.R. § 3.352(a). A veteran will be found to be bedridden if the condition actually requires that he remain in bed, but not if he voluntarily stays in bed or if a physician merely recommends bed rest. It is not required that all of the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made. The particular personal functions that 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 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. Id. Although a veteran need not show all of the disabling conditions identified in 38 C.F.R. § 3.352(a) to establish entitlement to aid and attendance, the U.S. Court of Appeals for Veterans Claims has held that it is logical to infer there is a threshold requirement that “at least one of the enumerated factors be present.” Turco v. Brown, 9 Vet. App. 222, 224 (1996). Furthermore, the performance of the necessary aid and attendance service by a relative of the beneficiary or other member of his or her household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352(c). In his July 2014 notice of disagreement, the Veteran explained that he was dependent on his wife to function with activities of daily living, including prepare meals. In his March 2016 Form 9, Substantive Appeal, the Veteran asserted that he required assistance with meals, hygiene, and getting dressed. Prior to his death, service-connected was in effect for posttraumatic stress disorder with a 70 percent rating; right knee total replacement with a 30 percent rating; lumbar spine disability with a 20 percent rating; and bilateral pes planus with a 10 percent rating. During the January 2021 hearing, the Appellant testified that the Veteran needed her assistance to get dressed, prepare and consume meals, make coffee, and bathe. The Appellant reported that the Veteran would not eat unless she remained with him throughout the meal. Significantly, she stated that the Veteran experienced dementia and dementia-related incontinence. Dementia-related memory loss hindered the Veteran’s ability to regulate his own medications. The Appellant stated that could not leave the Veteran alone and stayed home 24 hours per day, 7 days per week. In support of her claim of entitlement to service connection for the cause of the Veteran’s death, the Appellant submitted an opinion from Tammy L. Brown, M.D., dated in February 2019. Dr. Brown, with reference to medical studies that are associated with the record, etiologically related the Veteran’s service-connected PTSD with Alzheimer’s disease/dementia. The Veteran’s treatment records show that he required care and assistance on a regular basis to perform daily necessities of living and to protect him from hazards or dangers incident to the daily environment. Further, the evidence of record also supports a finding that the Veteran was unable to leave his home, needed assistance with activities of daily living, and required medication management. As the manifestations of the Veteran’s service-connected disabilities meet the pertinent requirements, as demonstrated by the noted medical reports and consistent lay statements, aid and attendance is warranted. Given that special monthly compensation based on aid and attendance is a greater benefit than special monthly compensation based on housebound status, the latter issue must be dismissed as moot. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sean G. Pflugner, 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.