Citation Nr: 21002901 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 13-17 778 DATE: January 19, 2021 ORDER Entitlement to special monthly compensation (SMC) benefits based upon the need for aid and attendance/housebound status for accrued benefits purposes is denied. FINDINGS OF FACT 1. During the Veteran’s lifetime and throughout the pendency of this claim, the Veteran was shown to be unable to perform his activities of daily living and unable to protect himself from his environment without regular assistance of another person; however, the medical evidence of record has established it was not due to his service-connected disabilities. 2. During the Veteran’s lifetime and throughout the pendency of this claim, he was not in receipt of a total disability rating, was not in receipt of an additional service-connected disability or disabilities independently ratable at 60 percent or more, and was not permanently housebound by reason of service-connected disabilities. CONCLUSION OF LAW The criteria for an award of SMC by reason of the need for regular aid and attendance of another person or housebound status are not met. 38 U.S.C. §§ 1114, 1502, 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 United States Marine Corps from January 1942 to October 1945. He died in May 2014 and his surviving son has been substituted as the appellant for the purposes of the claims pending before the Department of Veterans Affairs (VA) at the time of the Veteran’s death. Entitlement to SMC was previously before the Board in August 2017, at which time it was remanded for further evidentiary development. The claim again came before the Board in April 2020. At this time it was remanded in order for several claims that were pending at the time of the Veteran’s death to be adjudicated. The remand instructions included a directive ordering a new opinion to be obtained if service connection was awarded for either a cardiovascular disease, or alcohol abuse. The subsequent adjudication of the outstanding claims in September 2020 denied service connection for both cardiovascular disease and alcohol abuse, as well as denied service connection for the cause of the Veteran’s death, and denied increased ratings for the service-connected malaria and tinnitus. No additional opinion was, therefore, necessary. SMC by reason of the need for regular aid and attendance of another person is payable if a Veteran, as a result of the service-connected disability, either: (1) has suffered the anatomical loss or loss of use of both feet, (2) has suffered the anatomical loss or loss of use of one hand and one foot, (3) is blind in both eyes, (4) is permanently bedridden, or (5) is with such significant disabilities/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). Bedridden means that the Veteran is actually required to remain in bed. 38 C.F.R. § 3.352(a). The fact that the 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. Id. In determining the need for regular aid and attendance of another person, several factors are for consideration. Id. These include: (1) the inability of the Veteran to dress or undress himself or to keep himself ordinarily clean and presentable, (2) the frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the Veteran’s 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.), (3) the inability of the Veteran to feed himself through loss of coordination of his upper extremities or through extreme weakness, (4) the inability of the Veteran to attend to the wants of nature, (5) incapacity, physical or mental, which requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment, and (6) the Veteran being bedridden. Id. Granting SMC by reason of the need for regular need for aid and attendance of another person requires that at least one of the above disabling factors be met. Turco v. Brown, 9 Vet. App. 222 (1996). Regarding being bedridden, however, a favorable determination will not be based solely upon an opinion that the Veteran’s condition is such as would require him to be in bed. 38 C.F.R. § 3.352 a). Such a determination instead must be based on the actual requirement of personal assistance from others. Id. As implied from above, it is not required that all of the disabling factors be found to exist before a favorable determination is made. Id. The particular personal functions that the Veteran is unable to perform should be considered in connection with his condition as a whole. Id. It is only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance, not that there is a constant need. Id. The performance of the necessary aid and attendance service by a relative or other member of the Veteran’s household will not prevent a favorable determination. 38 C.F.R. § 3.352(c). Moreover, SMC by reason of being housebound is payable if a Veteran has a service-connected disability rated as total and either: (1) has an additional service-connected disability or disabilities independently ratable at 60 percent or more or (2) is permanently housebound by reason of his service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). The Veteran and appellant have contended that the Veteran was, during his lifetime, entitled to aid and attendance or housebound status benefits due to his service-connected disabilities. Initially, the Board notes the Veteran was service-connected for bilateral hearing loss, posttraumatic stress disorder (PTSD), tinnitus, and malaria. It is apparent from the medical evidence of record, including several assessments and statements from the Veteran’s treating clinicians, that prior to his death, he was so nearly helpless as to require the regular aid and attendance of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). Clinical treatment records show the Veteran required assistance with dressing, bathing, sitting, transferring from bed to a chair, attending to the wants of nature, walking unaided, managing medications, cooking, cleaning, and eating. The question is whether it was due to his serviced connected hearing loss, PTSD, tinnitus, or malaria. The Veteran’s clinical records show the reasons for the Veteran’s limitations to be left hemispheric stroke with right hemiparesis and aphasia, chronic atrial fibrillation, chronic alcoholism and smoking, ischemic heart disease, peripheral vascular disease, B complex deficiencies, cholecystitis, hypothyroidism, chronic obstructive pulmonary disease (COPD), degenerative disability disease, extremity fractures, and hypertension, none of which are service connected. The Veteran suffered a left hemispheric stroke in May 2008. Private treatment records at the time of the CVA noted a long history of chronic alcohol abuse and associated progressive dementia, felt to be related to Korsakoff’s syndrome. Contributing factors to the CVA were listed to be atrial fibrillation without use of anticoagulants due to chronic alcoholism, frequent falls and fractures, and probable hepatic problems. Again, the heart disorder and alcohol abuse were both not found to be service-connected. A VA opinion was obtained in March 2019, which indicated the need for aid and attendance was “clearly due” to the Veteran’s status post cerebrovascular accident (CVA) and dementia. The clinician confirmed that neither of those disabilities was due to, related to, or aggravated by the Veteran’s service-connected disabilities. The clinician noted that the Veteran’s hearing loss might lead to the need for modifications of lifestyle, but did not cause a need for aid and attendance. The March 2019 VA opinion also stated that the Veteran’s claimed vertigo and disequilibrium were not the result of his service-connected hearing loss, as he contended, but instead were more likely caused by long-term alcohol abuse. Thus, the medical evidence of record, including clinical records and the March 2019 VA opinion, show the Veteran was in need of aid and attendance of another, but it was not due to his service-connected disabilities. As for whether the SMC benefits can be awarded for the Veteran’s housebound status, the Board notes that the Veteran service-connected hearing loss was rated as 40 percent disabling, his PTSD as 30 percent disabling, and his tinnitus as 10 percent disabling. His malaria was noncompensably rated. His combined rating was 60 percent. He did not have a total disability rating, did not have an additional service-connected disability or disabilities independently ratable at 60 percent or more, and he was not permanently housebound by reason of his service-connected disability or disabilities. Thus, none of the criteria are met for SMC based upon housebound status. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). While the Board certainly acknowledges the severity of the Veteran’s health issues prior to his death, the law simply does not allow for an award of the benefits sought. This appeal, therefore, is denied. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Adamson, 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.