Citation Nr: 21064479 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 10-29 843 DATE: October 20, 2021 ORDER Entitlement to special monthly pension (SMP) based on the need for regular aid and attendance is granted, subject to the laws governing awards of monetary benefits. FINDING OF FACT The Veteran's medical conditions, when considered in conjunction with each other, result in his inability to care for his daily personal needs without regular assistance from others, and result in an inability to protect himself from the hazards and dangers of his daily environment. CONCLUSION OF LAW The criteria for SMP based on the need for regular aid and attendance of another person have been met. 38 U.S.C. §§ 1502, 1521, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.351, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1968 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision in which a Department of Veterans Affairs (VA) Regional Office (RO) denied entitlement to SMP. In July 2021, the Veteran and his care provider, G. L., testified at a virtual hearing held before the undersigned Veterans Law Judge. A hearing transcript is of record. Special Monthly Pension Relevant laws and regulations provide that when an otherwise eligible veteran is in need of the regular aid and attendance of another person, an increased rate of pension shall be payable. 38 U.S.C. § 1521(d); 38 C.F.R. § 3.351(a)(1). A Veteran will be considered 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; or (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 the criteria set forth in 38 C.F.R. § 3.352(a). 38 C.F.R. § 3.351(c). As directed by 38 C.F.R. § 3.352(a), the following criteria are to be considered for determining whether a claimant is in need of the regular aid and attendance of another person: (1) the inability of the claimant to dress himself or herself or to keep himself or herself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliance which, by reason of the particular disability, cannot be done without aid (not to 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 claimant to feed himself or herself through the loss of coordination of the upper extremities or through extreme weakness; (4) the inability to attend to the wants of nature; or, (5) a physical or mental incapacity that requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352(a). Additionally, "bedridden," which is a proper basis for the determination, is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that claimant 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 of the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made. The particular personal functions which 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 a 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. 38 C.F.R. § 3.352(a); Turco v. Brown, 9 Vet. App. 222, 224 (1996) (it is logical to infer there is a threshold requirement that "at least one of the enumerated factors be present"). The Veteran presently is in receipt of nonservice-connected pension benefits, effective March 12, 2007. For pension purposes only, the Veteran has a 100 percent evaluation, based on left hemiparesis, secondary to cerebral vascular accident (CVA) suffered in January 2007. As an initial matter, the evidence does not demonstrate that the Veteran 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 bedridden, or a patient in a nursing home. Additionally, the record does not indicate that he is bedridden. After a careful review of the evidence of record, the Board finds that the Veteran is entitled to special monthly pension benefits based on the need for regular aid and attendance of another person. The medical evidence indicates that he meets the criteria outlined in 38 C.F.R. § 3.351(a). Specifically, the evidence of record indicates that the Veteran needs assistance in bathing himself, cooking, cleaning, and that he has difficulty with aphasia. Due to his CVA and residuals, the Veteran has had left-sided weakness, is only able to ambulate with a cane, or, occasionally, with a walker, and has had difficulty with balance. A private November 2008 neuropsychological evaluation report also noted that due to his CVA, the Veteran's thought processes were slow, that he was easily distractable, and that he had some difficulty with hearing and seeing, reporting that prescribed glasses do not work, and that his left eye vision caused significant trouble. He presented with suspiciousness, and was concerned that someone was trying to take his services away. The report noted that he was not presently driving, and that while he lived independently, he had daily assistance from a personal assistant, Monday through Friday, and sometimes on Saturdays. The Veteran's personal assistant reported that he was able to prepare a balanced meal, but that it was difficult for him. She reported that he needed assistance with nearly all of his activities of daily living. He also required assistance with finances, assembling important papers, utilizing kitchen appliances, keeping track of current events, remembering appointments/medications, and traveling out of his neighborhood. Even with assistance, he was unable to shop alone, play a game of skill, work on a hobby, or pay attention. The evaluation report concluded that he had difficulty with language, attention, concentration, short term memory, and executive functioning. A December 2009 VA examination report noted that the Veteran's specifically reported needed the assistance of another person in attending to the ordinary activities of daily living. The examiner indicated that the Veteran did not appear to be fully capable of protecting himself from the hazards and dangers of his daily environment. Physically, his main difficulties presented as a result of his CVA. He walked with a cane or walker, and had full function in his left upper extremity, but was noted to have limiting weakness, to the extent that he could not pick up a minimally heavy object. He additionally had left footdrop, and deficient knee movement. The examiner concluded that while the Veteran could feed himself and take care of toileting, he needed help with bathing, dressing, and shaving. In support of his claim, in April 2010, the Veteran submitted a private report of examination for housebound status or permanent need for regular aid and attendance. In the report, the private physician indicated that the Veteran was not able to prepare his own meals, that he required assistance in bathing and tending to other hygiene needs, and that he required assistance with medication management. The Veteran difficulties stemmed around his left-sided weakness. The examiner further noted that while the Veteran was not homebound, he required help with his activities of daily living. Ongoing evidence of record shows that Veteran has required the continual help of a care provider on a near daily basis throughout the appeal period. During his July 2021 hearing, the Veteran and his personal care provider both testified as to his ongoing need for assistance with his activities of daily living, including washing and dressing himself, getting in and out of a bathtub, cooking, cleaning, all since the time he left the hospital after suffering a CVA in January 2007. They further testified as to his difficulty with balance, his difficulties with aphasia, and his difficulties with memory and bladder control. The Veteran testified as to an instance when he tried to go outside to recover a package that had been delivered, and ended up falling and was unable to get up by himself. They maintained that he could only go outside or walk with assistance. Based on the foregoing evidence, the Board finds that the evidence supports a grant of SMP based on aid and attendance. The evidence clearly indicates that the Veteran is in need of the assistance of another to dress himself, to keep himself ordinarily clean and presentable, and to protect himself from the hazards incident to his daily environment. In this regard, the Board finds the medical evidence supports the finding that the Veteran requires regular aid and attendance to assist in dressing, undressing, bathing, preparing food, shaving, using kitchen appliances, managing medications, and in providing transportation. He additionally suffers difficulties with aphasia, processing thoughts, and he has been noted to have difficulty with hearing and seeing as a result of his CVA. Importantly, as noted above, a Veteran need only show one of the enumerated factors identified in 38 C.F.R. § 3.352(a) to establish entitlement to aid and attendance. Turco, 9 Vet. App. at 224. Moreover, while he has required assistance from his care provider five to six days per week, he reportedly received help from family members on the days which his care provider did not come to his home. Regardless, a veteran's need for aid and attendance does not need to be constant; rather, the regulation requires only that there be a "regular" need. See id; see also 38 C.F.R. § 3.352(a). Accordingly, given the probative medical evidence concerning limitations imposed by the Veteran's disabilities associated with his CVA, and considering the evidence indicating that he requires regular aid and attendance to, at a minimum, assist in his daily living activities and to protect himself from the hazards and dangers of his daily environment, the Board finds that SMP based on the need for regular aid and attendance is warranted. 38 C.F.R. §§ 3.351(c), 3.352(a). MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Wilson, 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.