Citation Nr: 21064385 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 19-09 408 DATE: October 20, 2021 ORDER Special monthly compensation (SMC) based on aid and attendance is granted. FINDING OF FACT Due to his service-connected disability, the Veteran requires care or assistance on a regular basis. CONCLUSION OF LAW The criteria for SMC due to the need for aid and attendance are met. 38 U.S.C. § 1114, 5107(b); 38 C.F.R. § 3.350, 3.352(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1964 to December 1969. He is a Purple Heart Medal recipient. This matter was remanded by the Board in May 2020 for additional development. Entitlement to SMC based on aid and attendance The Veteran seeks entitlement to SMC based on aid and attendance. SMC is available when, 'as the result of service-connected disability,' a veteran suffers additional hardships above and beyond those contemplated by VA's schedule for rating disabilities." Breniser v. Shinseki, 25 Vet. App. 64, 68 (2011) (citing 38 U.S.C. § 1114 (k)-(s)). The Board notes that the Veteran is already in receipt of SMC under 38 U.S.C. § 1114 (k) for loss of use of one eye. However, a claimant is presumed to be seeking the maximum benefit allowed by statute or regulation. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In particular, the SMC provided for by 38 U.S.C. § 1114 (l) is payable if, as the result of service-connected disability, the Veteran has suffered: (1) anatomical loss or loss of use of both feet; (2) anatomical loss or loss of use of one hand and one foot; (3) blindness in both eyes with visual acuity of 5/200 or less; (4) being permanently bedridden; or (5) being 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). Determination of this need is subject to the criteria of 38 C. F. R. § 3.352. SMC is payable where a veteran suffers from service-connected disability that renders him 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). Determinations as to the need or aid and attendance are based on the actual requirements of personal assistance from others. In determining the need for regular aid and attendance, consideration will be given to the inability of the veteran to dress or undress himself, or to keep himself clean; frequent need of adjustment of any prosthetic which by reason of the disability cannot be done without aid; inability of the veteran to feed himself; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect himself from the hazards or dangers of his daily environment. Bedridden will be that condition which, through its essential character, actually requires that the claimant remain in bed. 38 C.F.R. § 3.352(a); see Turco v. Brown, 9 Vet. App. 222, 224-25 (1996) (stating that it is only necessary that the evidence establish that a veteran is so helpless as to need regular aid and attendance, not that there is a constant need). A June 2021 Aid and Attendance examination report shows that the examiner noted the Veteran's medical history regarding his service connected vision disability. The Veteran experienced combat shrapnel wounds to the face causing right eye enucleation. He required a prosthetic right eye and embedded shrapnel of the left eye. The Veteran was also assessed with macular degeneration of the left eye with 20/70 vision. The examiner noted a February 2019 vision chart that showed his vision of the left eye was 5/200 corrected in March 2018 with severely constricted peripheral vision. The examiner noted that the Veteran was restricted to his home or immediate vicinity. The Veteran was not permanently bedridden. A prosthetic appliance was used regarding the eye. The examiner noted issues with the Veteran's capacity to protect oneself from the hazards/dangers of daily environment and difficulty with ambulating as the Veteran has poor vision that causes dizziness with walking and no peripheral vision to warn of danger from either side. The Veteran was noted to stay close to his home and could not drive. The examiner reported that he may walk in his yard a bit or listen to audio books. Balance deficits were assessed due to poor vision. The Veteran was noted to be able to walk without assistance but could not see hazards coming from either of his sides. The Veteran was noted to be able to walk 300 feet without assistance of another person. The Veteran was able to go outside at any time but has to have someone drive him if he needs to go more than immediate premises and could only leave the home or immediate premises with someone driving. Best vision corrected was noted not to be worse than 5/200. The examiner remarked that due to the Veteran's extremity poor vision, he was unable to protect himself from hazards he might incur with walking, even around his house and in addition he could not drive. It is noted that, in order for the veteran to prevail in his claim, the evidence must show that it is a service-connected disability that has resulted in him being in need of regular aid and attendance. See Prejean v. West, 13 Vet. App. 444, 447-48 (2000). Importantly, the record reflects that the Veteran is service-connected for concussion, residuals enucleation of the right eye and decreased vision of the left eye at 90 percent from December 2013 and 100 percent from March 2018. In this matter, the evidence shows that the Veteran requires the assistance of others as demonstrated by the medication opinion of the June 2021 VA examiner who remarked that the Veteran requires the aid and attendance of another to keep in safe from dangers in his environment due to limited vision with his remaining eye, specifically, the inability to see dangers or objects coming from his right or left sides. Therefore, when resolving reasonable doubt in favor of the Veteran, the claim of entitlement to SMC based on aid and attendance is granted. 38 U.S.C. § 5107(b). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dworkin, 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.