Citation Nr: 21066054 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 19-33 682 DATE: October 28, 2021 ORDER Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is granted. FINDING OF FACT Resolving all reasonable favor in the Veteran's favor, she is in need of regular aid and attendance due to her service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to SMC based on the need for aid and attendance have been met. 38 U.S.C. § § 1134, 5107; 38 C.F.R. § § 3.102, 3.350, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from February 2008 to January 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2018 rating decision that denied the Veteran's claim of entitlement to SMC based on the need for aid and attendance by another person. The Veteran timely appealed the decision. In March 2021, she testified before the undersigned Veterans Law Judge in a virtual hearing. A copy of the hearing transcript is of record. Entitlement to SMC based on the need for aid and attendance is granted. The Veteran maintains entitlement to SMC based on the need for aid and attendance of another. Special monthly compensation at the aid and attendance rate is payable to a Veteran who, as a result of his service-connected disabilities: (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 five degrees or less; (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 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b)(3). Pursuant to 38 C.F.R. § 3.350(b)(3) and (4), the criteria for determining that a Veteran is so helpless as to be in need of regular aid and attendance, including a determination that he is permanently bedridden, are contained in 38 C.F.R. § 3.352(a). That regulation provides that the following criteria will be considered in determining whether the Veteran is in need of the regular aid and attendance of another person: the inability of the Veteran to dress or undress herself, or to keep herself 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 such aid; the inability of the Veteran to feed herself through the loss of coordination of upper extremities or through extreme weakness; the inability to attend to the wants of nature; or an incapacity, physical or mental, which requires care or assistance on a regular basis to protect the Veteran from the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). It is not required that all of the above disabling conditions be found to exist before a favorable rating may be made. Turco v. Brown, 9 Vet. App. 222, 224 (1996). The particular personal functions that a Veteran is unable to perform should be considered in connection with his condition as a whole. 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. 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 his condition is such as would require her to be in bed. They must be based on the actual requirement of personal assistance from others. See 38 C.F.R. § 3.352(a). The Veteran is in receipt of a 50 percent disability rating for bilateral pes planus, a 50 percent disability rating for migraine headaches, a 40 percent disability rating for lumbago with bilateral sacroiliac joint mild degenerative arthritis, a 20 percent disability rating for left lower extremity radiculopathy associated with lumbago with bilateral sacroiliac joint mild degenerative arthritis, a 20 percent disability rating for right lower extremity radiculopathy, a 10 percent disability rating for degenerative joint disease of the right hip with limited flexion, a 10 percent disability rating for degenerative joint disease of the left hip with limited flexion, a 10 percent disability rating for De Quervain's tendonitis of the right wrist, a 10 percent disability rating for gastroesophageal reflux disease, a 10 percent disability rating for bacterial vaginosis, a 10 percent disability rating for a painful scar, residual of a low transverse abdominal C-section, and non-compensably for degenerative joint disease of the left hip with thigh impairment, intermittent, external hemorrhoids, low transverse abdominal C-section scar, seborrheic keratosis, acne of the back and face, herpes simplex II, degenerative arthritis of the left hip with limited extension, degenerative arthritis of the right hip with limited extension, and degenerative joint disease of the right hip with thigh impairment. The Veteran's combined total disability rating is 100 percent. Prior to the rating decision on appeal, the VA received a VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, completed by a private physician in July 2018. The private physician indicated that the Veteran wore a back brace and two knee braces for stability and pain management. She also had to use a cane for stability and mobility due to recent falls. The Veteran had generally good posture but seemed to be in pain and was wearing dark sunglasses due to her migraine headaches. The private physician noted that the Veteran was unable to prepare her own meals and manage her medication due to the inability to focus on tasks and remember things due to her service-connected migraine headaches. These headaches were prostrating and incapacitating, lasted four to five days at a time, and were characterized by nausea, fatigue, and sensitivity to light and sound. She also observed that the Veteran was unable to adequately wash and dress herself due to her numerous service-connected musculoskeletal disabilities, but mostly due to her back, which locked up frequently, rendering her incapacitated. During those frequent, incapacitating episodes, the Veteran was also unable to tend to the needs of nature without assistance. These incapacitating episodes of back pain and limited range of motion combined with severe weakness in the Veteran's dominant right wrist due to De Quervain's tendonitis made it unsafe for her to drive a car. These disabilities kept the Veteran inside most days; she was only able to leave the house about twice a week. The private physician noted that even when the Veteran was able to leave the house, her activity was extremely restricted due to pain and the residual effects of multiple medication. The Veteran also submitted statements from her close friend and housekeeper. Her close friend indicated that she regularly assisted the Veteran with personal hygiene, dressing, cooking, and taking care of her young daughter as she was unable to do so on her own because of her migraines, back, knee, shoulder, and hip pain. The Veteran's housekeeper also indicated that the Veteran was unable to perform household duties due to her disabilities. The limitations noted by the Veteran's private physician, her close friend, and housekeeper are consistent with the Veteran's private and VA medical records These records indicate that she has severe difficulty standing, bending, walking, sitting, and using her dominant, right hand due to her numerous service-connected musculoskeletal disabilities, and experiences nausea, vomiting, sensitivity to light and sound, and changes in her visions due to her service-connected migraine headaches. Upon review of the entire record and resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran's combination of service-connected disabilities required care and assistance on a regular basis in order to dress herself, prepare meals, keep herself clean and presentable, attend to the wants of nature, and protect her from the hazards or dangers inherent in her daily environment. Accordingly, entitlement to SMC based on the need for regular aid and attendance is granted. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. As special monthly compensation based on aid and attendance is a greater benefit than special monthly compensation at the housebound rate, the issue of entitlement to special monthly compensation at the housebound rate is moot. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Bush 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.