Citation Nr: 21062173 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-36 419 DATE: October 6, 2021 ORDER Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is granted. FINDING OF FACT The Veteran's service-connected disabilities have caused him to be so helpless as to be in need of regular aid and attendance. CONCLUSION OF LAW The criteria for entitlement to SMC, based on the need for aid and attendance, have been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.351, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1998 to August 2002. This matter comes before the Board of Veterans' Appeal (Board) on appeal from an August 2013 Department of Veterans Affairs (VA) regional office (RO) rating decision. In July 2019, this issue was remanded by the Board to afford the Veteran a VA examination to determine entitlement to SMC based on the need for aid and attendance of another/housebound status. In January 2020, the RO granted entitlement to SMC at the housebound rate. Since the Veteran is presumed to be seeking the maximum benefit, this claim now returns to the Board for further adjudication. Ab v. Brown, 6 Vet. App. 35 (1993). Entitlement to SMC based on the need for aid and attendance is granted. Compensation at the aid and attendance rate is payable when a Veteran's service connected disabilities cause the anatomical loss or loss of use of both feet, one hand and one foot, blindness in both eyes with a visual acuity of 5/200 or less or being 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). The Veteran has not raised, and the record does not raise, entitlement to SMC based upon the anatomical loss or loss of use of both feet, one hand and one foot, blindness in both eyes with a visual acuity of 5/200 or less or being permanently bedridden, and accordingly these factors need not be addressed. Determinations as to the need for regular aid and attendance are factual and must be based upon the actual requirements for personal assistance from others. 38 C.F.R. § 3.351(c)(3). Consideration is given to conditions such as: (1) the 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 aid; (3) inability of the Veteran to feed himself 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). All conditions need not be present for a finding of aid and attendance; however, at least one condition must be present. Turco v. Brown, 9 Vet. App. 222, 224-25 (1996). 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 must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352(a). Performance of the necessary aid and attendance by a relative or other member of his household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352(c). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the Veteran shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). In this case, service connection is in effect for posttraumatic stress disorder, rated as 100 percent from September 23, 2008; headaches, rated as 50 percent from December 8, 2009; and sleep apnea, rated as 50 percent from October 15, 2012. In a May 2016 independent medical evaluation, the private examiner stated that the Veteran is "capable of basic activities of daily living himself and does not need assistance with dressing, undressing, etc. On the other hand, particularly when experiencing a great deal of pain or agitation he needs assistance with meal preparation. In addition, periodic monitoring of his medications is essential. His associated agoraphobia requires him to have assistance with basic shopping needs." A second March 2019 independent medical evaluation was submitted. Therein, the private examiner opined that the Veteran is in need of regular aid and attendance. The examiner reasoned that he has required this attendance since at least 2009 as "he is clearly incapable of attending to his instrumental activities of daily living, and, particularly, struggles with basic activities of daily living. The veteran is frequently incapacitated from both physical and mental illness." The examiner continued, "the combination of his PTSD, headache syndrome, and severe insomnia requires his wife to attend to his basic day-to-day needs on a regular basis. The Veteran is not able to attend to cooking, cleaning, or any chores around the house. The veteran would be incapable of caring for self were not for his family filing in all of the gaps in his day-to-day functioning." The examiner concluded that "because of mental illness and extensive chronic headache pain, the veteran does not care for these basic needs and would be incapable of managing simple tasks ... only his wife's presence allows him to live a comfortable life given the extent of his disability." As noted by the July 2019 Board decision, the March 2019 private examiner found that the Veteran is in need of aid and attendance, however, that it was unclear whether the Veteran is so helpless as to be in need of regular aid and attendance. The Board referenced the July 2016 psychiatry note indicating that the Veteran travelled to Puerto Rico for a week. An August 2020 VA examination regarding aid and attendance/housebound status was obtained. Therein, the VA examiner noted that the Veteran was in bed all day and needed assistance with his medications as he has "memory lapses," but was able to feed himself and prepare his own meals and did not need help bathing and tending to other hygiene needs. In a November 2020 buddy statement, the Veteran's wife explained that she does everything for the Veteran. Specifically, she stated that she does all of the cooking, cleaning, and laundry as the Veteran is "so forgetful" and he "gets overwhelmed and confused easily." And she stated that he "is easily distracted and struggles to follow directions." She further described how the Veteran does not leave the house unless it is to attend a doctor's appointment and that he is depressed all the time and lays in bed "almost all day." In a November 2020 lay statement, the Veteran stated that he is grateful for all the support his wife provides and does not know where he would be without her. For example, the Veteran reiterated that he is unable to cook as he gets distracted and is unable to drive to pick up food given his panic attacks in public. A January 2021 private examination was also submitted. Therein, the examiner opined that the Veteran has required constant assistance from his wife since at least 2008 and that he would be incapable of caring for himself if it were not for the attendance of his wife and son. The Veteran's wife reported that she needed to remind him to brush his teeth, shower, and get out of bed; indeed, there are occasions when the wife needs to clean him because the Veteran urinates in the bed. Furthermore, the Veteran's wife stated that the Veteran would be in danger if she were not there, as he "turns very aggressive when he doesn't take his pills. If I'm not there to make sure he takes his pills, then things will turn out like they're not supposed to." The examiner described the Veteran's limitations as "profound," and underscores this need for the constant presence of his wife. Importantly, the examiner stated that he "had the sense that were his wife not sitting next to him, [the Veteran] would have minimized his difficulties and not admitted his profound need to his wife's constant presence in his life." 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 Board highlights the thorough and well-reasoned January 2021 private examination. This examination was based on a review of the claims file and in-person interview with the Veteran and his wife. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). The Board affords the August 2020 VA examination less probative weight as it did not consider the Veteran's wife's crucial testimony. To that point, the January 2021 VA examiner stated that he "had the sense that were his wife not sitting next to him, he would have minimized his difficulties and not admitted his profound need to his wife's constant presence in his life." In sum, the most probative medical evidence of record shows that the Veteran needs regular aid and assistance with many activities of daily living including getting in and out of bed, preparing meals, bathing, and toileting. He also requires assistance leaving the home so that he can attend medical appointments and help remembering his medications. For these reasons, the Board finds that SMC due to need for aid and attendance is warranted. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Finelli, 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.