Citation Nr: 21069028 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 15-44 943 DATE: November 17, 2021 ORDER Special monthly compensation (SMC) based on a need for aid and attendance is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, he is in need of the regular aid and attendance of another person due to his service-connected disabilities. CONCLUSION OF LAW The criteria for SMC based on a need of aid and attendance of another person have been met. 38 U.S.C. §§ 1114, 5017 (2012); 38 C.F.R. §§ 3.351, 3.350, 3.352 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from August 1968 to December 1968. This matter is on appeal from an April 2017 rating decision. In a May 2019 decision, the Board remanded the issue being decided below to afford the Veteran a VA examination. The Agency of Original Jurisdiction (AOJ) has done so. The Veteran was afforded VA examinations for the issue being decided below in June 2019, October 2019, and May 2021. The Board remanded this issue again in a November 2020 decision because it was inextricably intertwined with other issues on appeal. Because the Board is granting the Veteran's claim in full, any error in compliance with regard to the remand directives is harmless. See Stegall v. West, 11 Vet. App. 268 (1998). In the November 2020 decision, the Board also remanded claims for service connection for degenerative arthritis of the lumbar spine and a left foot disorder. In a May 2021 rating decision, the AOJ granted service connection for intervertebral disc syndrome and degenerative arthritis with spinal stenosis of the lumbar spine, radiculopathy of the right lower extremity, radiculopathy of the femoral nerve of the right lower extremity, radiculopathy of the left lower extremity, and radiculopathy of the femoral nerve of the left lower extremity. The AOJ added clarification that the left lower extremity radiculopathy grant represented a grant of the appeal with regard to the left foot claim. These issues are no longer before the Board. 1. SMC Aid and Attendance Generally, with respect to claims of entitlement to SMC based on the need for the regular aid and attendance of another person, such claims will be granted when a veteran, due to a service-connected disability, has the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to be in need of regular aid and attendance. See 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). The record does not reflect that the Veteran has the anatomical loss or loss of both feet or one hand and one foot or is blind in both eyes, nor does he so contend. See 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). Thus, the question is whether he is permanently bedridden or so helpless as to be in need of regular attendance due to his service-connected disabilities. Determinations as to the need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to the following: inability of a veteran 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; inability of a veteran 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 a veteran from the hazards or dangers inherent in his daily environment. It is not required that all of the disabling conditions listed above be found to exist before a favorable rating may be made. 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 be a constant need. 38 C.F.R. § 3.352(a). The Veteran has submitted an October 2018 examination report by a private psychologist, who indicated that the symptoms of the Veteran's service-connected psychological disability included persistent delusions or hallucinations, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The psychologist noted that the Veteran's friend helped him with food shopping, that his sister and the same friend helped him to prepare meals and maintain household chores, and that his sister reminded him to keep up with shaving, showering, and managing the length of his hair. The Veteran also reported that he washed with a washcloth and last bathed one to two years prior. The Veteran was afforded a VA examination for housebound status or the permanent need for regular aid and attendance in June 2019. The clinician indicated that the Veteran's back pain throbs and radiates down to his feet, interfering with his ability to stand, bend, and reach to dress himself. The clinician also indicated that the Veteran was able to feed himself, but not to prepare his own meals because he was unable to stand at the stove for extended periods to cook or to safely transport hot foods from the kitchen to consume them, as well as being at risk of causing fires due to drowsiness induced by medication. The clinician found that the Veteran required an aide to help him with food preparation and that he had a family member or friend to help him. The clinician also found that the Veteran required significant assistance dressing, undressing, and bathing himself, as well as keeping himself ordinarily clean and presentable, and that he also needed mild to moderate assistance with grooming and toileting. The clinician added that the Veteran needed assistance getting up and off of the commode, pulling his pants up and rearranging his clothing post facility use, and with cleaning himself after bowel movements. The clinician added that the latter was primarily due to back pain limiting his ability to bend, but that he "also has slight limitation with the right shoulder rotation component making it difficult to reach behind his back." The Veteran's right shoulder symptoms are not service connected. The clinician also noted that the Veteran is legally blind, but this is not service connected. The clinician also noted that the Veteran required medication management, that his sister set out his medication for the week and a cousin and assistant visited him during the week to ensure that he had taken his medication. The Veteran was afforded a VA examination for mental disorders by a psychologist in October 2019. The psychologist found that the Veteran's service-connected psychiatric disability caused total occupational and social impairment and that its symptoms included intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The psychologist also found that "[t]he following criteria are met by the [V]eteran and determine his need for aid and attendance: inability of claimant to dress or undress himself (herself), or to keep himself (herself) ordinarily clean and presentable; inability of claimant to feed himself (herself) 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 the hazards or dangers incident to his or her daily environment." The Veteran was afforded an additional VA examination for housebound status or the permanent need for regular aid and attendance in October 2019. The clinician found that the Veteran had dizziness weekly but less than daily and that imbalance constantly or nearly constantly affected his ability to ambulate. The Veteran reported that he was unable to shave himself and that a friend shaved his face weekly, but the friend added that this was due to nervousness caused by the Veteran's decreased vision, which is not service connected. The friend reported that he dressed the Veteran 80 percent of the time and he and the Veteran both reported that the Veteran was unable to dress himself due to his back symptoms. The Veteran attributed his balance problems to his back condition. The Veteran also reported that he felt lightheaded up to three times per week but did not know the cause. The clinician noted that the Veteran needed a cane for ambulation and that he left the home to pay bills, attend medical appointments, and buy groceries. The clinician opined that it was less likely than not that the Veteran's service-connected disabilities rendered him helpless or so nearly helpless as to require the regular aid and attendance of another person. However, at the time, the Veteran's low back disability and bilateral lower extremity radiculopathy were not yet service-connected; service connection has since been granted for those disabilities throughout the period on appeal. The Veteran was afforded an additional VA examination for housebound status or the permanent need for regular aid and attendance in May 2021. The Veteran was driven to the examination by a care giver. The Veteran reported dizziness with standing intermittently and periods of inability to recall things. He had an unsteady gait and ambulated with a cane. The clinician found that the Veteran was unable to bathe, dress, and groom himself and was sometimes unable to use the restroom on his own. The Veteran has also submitted an August 2021 statement by his sister, who reported that the Veteran needed help dressing himself due to difficulty bending over, had to have meals prepared for him due to inability to stand for long periods, could not be trusted to cook even without the standing difficulty due to limited memory and cognition, needed help showering due to difficulty with standing and had a shower chair, needed assistance getting into and out of bed, needed assistance in the restroom, and had trouble remembering appointments and conversations such that she and the other care giver kept a calendar for him. She summarized the Veteran's condition as follows: "[T]he limitations caused by his service-connected conditions severely affect his ability to take care of himself. Daily activities that most people take for granted have to be done by [her] or the other caregiver." The October 2018 private examiner and the October 2019 VA examiner both found that the symptoms of the Veteran's service-connected psychiatric disability included intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. Other VA examiners have noted the Veteran's need for assistance with dressing and undressing himself, preparing food, bathing, and attending to the wants of nature due to his service-connected disabilities. The statements of the Veteran's sister are credible and consistent with the examiners' reports. As noted above, it is not necessary that all of the factors enumerated in 38 C.F.R. § 3.352 (a) be present in order for the claim to be granted. Resolving reasonable doubt in favor of the Veteran, the claim of entitlement to SMC based on the need for aid and attendance of another person is granted. DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ryan Frank, 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.