Citation Nr: 21066437 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 10-44 206 DATE: November 1, 2021 ORDER Entitlement to special monthly compensation (SMC) based on the need of regular aid and attendance is granted. FINDING OF FACT The Veteran's service-connected disabilities at least as likely as not result in him being in need of regular aid and attendance of another person. CONCLUSION OF LAW The criteria for entitlement to SMC based on the need of regular aid and attendance have been met. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION This matter was most recently before the Board of Veterans' Appeals (Board) in June 2021, when it was remanded so the Agency of Original Jurisdiction could schedule the Veteran for an aid and attendance/housebound examination. The requested examination was completed in September 2021, and the matter has now been returned to the Board for further appellate consideration after the issuance of a supplemental statement of the case (SSOC). See Stegall v. West, 11 Vet. App. 268, 271 (1998). Analysis A veteran may be entitled to additional SMC benefits where there is an established need for regular aid and attendance. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b)(3). Requiring aid and attendance means that a person is helplessness or so nearly helpless as to require the regular aid and attendance of another person. A veteran will be considered to be in need of regular aid and attendance if by reason of his or her service-connected disabilities 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; (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 38C.F.R. §3.352(a). The criteria to be considered in establishing a factual need for aid and attendance include: the inability of a claimant to dress or undress himself, or to keep himself 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 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.); inability of claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). It is not required that all of the disabling conditions enumerated be found to exist before a favorable rating may be made. Moreover, it is only necessary that the evidence establish that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that a claimant 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. Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The September 2021 examiner reported the Veteran's service-connected orthopedic disabilities, to include the thoracolumbar spine and both hips, knees, and ankles, as well a right leg length discrepancy, have progressed over time and are now of such severity that he is "very minimally mobile and requires assistance with every activity." The September 2021 examiner explained the Veteran "can no longer walk independently, prepare his own food, or bath/dress himself without assistance" and is "very limited in his physical ability due to pain and unsteadiness." The September 2021 further noted the Veteran's "wife assists him with all self-care activities including but not limited to dressing and undressing, bathing, grooming, preparation of food, medication" due to impairment stemming from his service-connected disabilities. Although the September 2021 examiner also noted the Veteran is restricted to his home or its immediate vicinity, the Board finds SMC based on the need of regular aid and attendance is warranted in his case rather than SMC at the housebound rate under 38 U.S.C. § 1114(s) because SMC based on the need of regular aid and attendance is a higher benefit. Although the precise basis for the AOJ's denial is not entirely clear from its September 2021 SSOC, the Board acknowledges Regional Office adjudicators typically require a single service-connected disability rated at 100 percent disabling to grant SMC based on the need of regular aid and attendance because the lower benefit of SMC at the housebound rate requires such a finding, but neither statute nor regulation imposes a requirement of a single service-connected disability rated at 100 percent disabling to grant SMC based on the need of regular aid; therefore, the plain statutory construction must prevail in accordance with Bradley v. Peake, 22 Vet. App. 280 (2008). In summary, the evidence establishes the Veteran's service-connected disabilities at least as likely as not result in him being in need of regular aid and attendance of another person; therefore, criteria for entitlement to SMC based on the need of regular aid and attendance have been met, resulting in a full grant of the benefit sought on appeal. See 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352. The AOJ will assign the effective date in the first instance to ensure the Veteran is afforded due process. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. S. Kyle, 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.