Citation Nr: 21070057 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 19-14 282 DATE: November 22, 2021 ORDER Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is granted. FINDING OF FACT Resolving all doubt in Veteran's favor, his service-connected psychiatric disorder renders him in need of the regular aid and attendance of another person. CONCLUSION OF LAW The criteria for entitlement to SMC based on the need for aid and attendance have been satisfied. 38 U.S.C. § 1114 (l); 38 C.F.R. §§ 3.350, 3.351, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1948 to April 1952. This matter comes before the Board of Veterans' Appeals (Board) from a November 2017 rating decision by the Agency of Original Jurisdiction (AOJ). In January 2020, the Board denied SMC based on the need for aid and attendance or at the housebound rate. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court). In September 2020, the Court granted the parties' Joint Motion for Remand (JMR), vacating the Board's decision and remanding for action consistent with the JMR. The Board remanded the matter for development of the record in March 2021. The Veteran seeks entitlement to SMC based on the need for regular aid and attendance of another person due to his service-connected disabilities. See July 2018 Notice of Disagreement. SMC is payable to a veteran who, as a result of service-connected disabilities, is so helpless as to need or require the regular aid and attendance of another person. 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b)(3). A veteran will be considered in need of regular aid and attendance if he or she is: (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 C.F.R. § 3.351(c). Factual need for aid and attendance is based on the following criteria: the inability of the veteran to dress or undress himself or herself, or to keep himself or 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 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.); the inability of a veteran to feed himself or herself through the loss of coordination of upper extremities or through extreme weakness; the 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 incident to his daily environment. 38 C.F.R. § 3.352(a). It is not required that all the disabling conditions enumerated in the provisions of 38 C.F.R. § 3.352(a) be found to exist to establish eligibility for aid and attendance and that such eligibility required at least one of the enumerated factors be present. The particular personal function which a veteran was unable to perform should be considered in connection with his or her condition as a whole and that it was 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. Turco v. Brown, 9 Vet. App. 222 (1996). The Veteran has been in receipt of a 100 percent evaluation for anxiety reaction since 1979. He is also in receipt of a noncompensable evaluation for infectious hepatitis. Review of VA treatment records dating to 2011 reflect that the Veteran's wife has been the primary point of contact relating to the Veteran's care. A November 2017 record notes that she helped manage his medications. A subsequent November 2017 record reflects that she assisted the Veteran with activities of daily living, and that he was unable to clean himself after toileting and that he had difficulty dressing and feeding himself. The Veteran's treating VA physician completed VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance in October 2017. He noted that the Veteran was unable to prepare his own meals, and that he required supervision, reminders, and administration assistance with his medications. He indicated that the Veteran required a caregiver all of the time and that he could not drive or leave home without his caregiver. An October 2019 VA nursing assessment indicates that the Veteran's wife was his primary caregiver. The provider noted that the Veteran was unable to shop, prepare food, or participate in housekeeping activities. She indicated that he was not capable of dispensing his own medication and that he was incapable of handling money. A November 2019 statement by a VA social worker indicates that the Veteran was assigned to home based primary care. In August 2021, a VA examiner conducted a telemedicine examination and noted that the Veteran had moderate dementia. He indicated that the dementia coupled with the Veteran's anxiety caused the Veteran to make irrational comments such as threatening to kill his physical therapist. See November 2017 VA physical therapy note. He noted that the Veteran's wife quit her job to care for him, as he required constant care. He indicated that the Veteran required help with all activities of daily living other than swallowing. In a September 2021 addendum, the VA examiner stated that the Veteran was in need of regular aid and attendance. He indicated that the Veteran did not have the physical or mental capacity to care for himself. He stated that due to his chronic severe anxiety and dementia, the Veteran had poor judgment and insight, resulting in the need for care of assistance on a regular basis to protect him. He indicated that the Veteran could not be relied on to take his medications. He specified that the Veteran's anxiety had major bearing on his ability to function, and that this, along with his moderate dementia, contributed to his inability cognitively and rationally to care for himself. After consideration of all of the evidence of record, and resolving reasonable doubt in the Veteran's favor, the Board finds that when considered as a whole, the record establishes the factual need for aid and attendance due to the Veteran's service-connected psychiatric disorder. The Veteran has been dependent on his wife for many years for his basic needs of daily living, and an award of SMC based on the need for aid and attendance of another person is warranted. (Continued on the next page) The Board also notes that the grant herein of SMC based on the need for aid and attendance renders moot the Veteran's claim for SMC at the housebound rate, as SMC based on housebound status is a lesser benefit than SMC at the aid and attendance rate. See 38 U.S.C. § 1114 (l), (s); 38 C.F.R. § 3.350 (i). DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Barone, 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.