Citation Nr: 21070758 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 12-32 158 DATE: November 26, 2021 ORDER Entitlement to special monthly compensation (SMC) based on the regular need for aid and attendance is granted. REFERRED The claim of entitlement to service connection for depression, as secondary to bladder incontinence, is referred to the Agency of Original Jurisdiction (AOJ) for adjudication in the first instance. See June 30, 2003 Correspondence. FINDING OF FACT Due to service-connected disabilities, the Veteran is so helpless as to be in regular need of aid and attendance. CONCLUSION OF LAW The criteria for SMC based on the regular need for aid and attendance are met. 38 U.S.C. §§ 1114(l), 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 United States Navy from September 1986 to September 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by an AOJ of the Department of Veterans Affairs (VA). The Board remanded this matter for additional development in February 2019 and March 2021. The Board acknowledges the Veteran's argument that he qualified for SMC years ago and these benefits should have been granted. See, e.g., July 2010 Correspondence. If the Veteran disagrees with the effective date of SMC assigned by the AOJ, he can seek review of that decision by filing the appropriate VA form. Additionally, the Board has referred a claim of entitlement to service connection for depression based on the Veteran's June 2003 Correspondence, in which he reported that "what really depresses [him] is the [service-connected] bladder problems." If the Veteran is granted service connection for depression, he may seek review of that decision if he believes that he should receive SMC as part of his initial rating for depression. As discussed below, the Veteran meets the criteria for entitlement to SMC based on the regular need for aid and attendance. As this level of SMC is a superior benefit compared to SMC based on housebound status, the Board will limit the discussion to SMC based on the regular need for aid and attendance. The following criteria are to be considered for determining whether a veteran is in need of regular aid and attendance: (1) the inability of the veteran 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 veteran 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 required care and assistance on a regular basis to protect the veteran from the hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352. It is not required that all of the disabling conditions enumerated be found to have existed before a favorable rating may be made. The particular personal functions which a veteran was 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 a veteran is so helpless as to need regular aid and attendance, not that there was 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 veteran's condition was such as would have required 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; Turco v. Brown, 9 Vet. App. 222 (1996). A July 2010 private examination report by Dr. C.N. states that the Veteran required assistance in bathing and attending ot other hygiene needs as he was unable to dress himself due to service-connected disabilities and was incontinent. See July 2010 VA Form 21-2680. Most recently, the July 2021 VA examiner explained that the Veteran was unable to independently dress and undress, bathe, or use the toilet. The examiner opined that the Veteran "would benefit from aid and attendance." The examiner also noted that the Veteran could leave the home but has his wife as standby assist, as his legs give out and he may fall and requires a cane for ambulation. See July 2021 VA Examination Report. The examiner subsequently added that review of a private aid and attendance examination report completed by Dr. C.N. states that the Veteran needs assistance with activities of daily living and can leave the home one or two times per day but is not permanently bedridden. See July 2021 Addendum Opinion. With respect to SMC based on the regular need for aid and attendance, there is no requirement that a veteran be permanently bedridden. Moreover, the July 2021 VA Examination Report demonstrates that the Veteran's service-connected disabilities prevent him from dressing himself and keeping himself clean and attending to the wants of nature. This evidence shows that he meets the criteria for SMC, as he meets some of the specifically listed criteria for that benefit. Although he does not meet all criteria, that is not required by VA regulations. The Board acknowledges that the July 2020 VA-contracted examiner opined that the Veteran required "mild-to-moderate" assistance with dressing, bathing, grooming, keeping himself ordinarily clean and presentable, and toileting. However, the examiner also noted that the Veteran needed assistance in bathing and tending to hygiene needs, and thus this evidence does not weigh against the claim. In any event, the July 2020 examination report is less probative than the July 2021 examination report, as the July 2020 report was conducted based on a review of evidence in the claims file while the July 2021 report was based on an in-person examination. Thus, as the criteria for SMC based on the regular need for aid and attendance are met, the appeal is granted. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.M. Badaczewski, Associate 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.