Citation Nr: A21018299 Decision Date: 11/16/21 Archive Date: 11/16/21 DOCKET NO. 200813-103051 DATE: November 16, 2021 ORDER Service connection for amyotrophic lateral sclerosis (ALS) is granted. Entitlement to special monthly compensation based on the need for aid and attendance of another is granted. FINDINGS OF FACT 1. The Veteran was diagnosed with amyotrophic lateral sclerosis (ALS) after a thirty-year period of active duty service. 2. The Veteran is in need of regular aid and attendance of another person for certain activities of daily living due to ALS. CONCLUSIONS OF LAW 1. The criteria for service connection for amyotrophic lateral sclerosis (ALS) are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.318. 2. The criteria for an award of special monthly compensation based on the need for the regular aid and attendance of another person have been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has active service from November 1965 to April 1996, including service in the Republic of Vietnam. This matter is on appeal from an August 2020 rating decision. On August 13, 2020, VA received a VA Form 10182, Notice of Disagreement, in which the Veteran requested Direct Review by a Veterans Law Judge. As such, the Board will adjudicate this appeal based on the evidence of record at the time of the RO's notice of the August 2020 rating decision. Service Connection Presumptive service connection for amyotrophic lateral sclerosis (ALS) is established under 38 C.F.R. § 3.318 for any Veteran who develops ALS at any time after separation from service, unless (1) there is affirmative evidence that it was not incurred during or aggravated by service; (2) there is affirmative evidence that it is due to the Veteran's own willful misconduct; or (3) the Veteran did not have continuous active service of 90 days or more. 1. Service connection for amyotrophic lateral sclerosis (ALS) The evidence supports the existence of a current diagnosis of ALS. A May 2018 VA medical record states that the Veteran "has PLS," that symptoms are "getting worse," and that he is "unable to drive." A July 2020 private medical examiner indicates that PLS is considered a variant of ALS, in that "[t]hese two subtypes of motor neuron disease share some of the same clinical and pathophysiologic features, and the management plans for these conditions share some similarities as well." In support, the examiner cites to a Johns Hopkins reference stating that PLS "is the rarest form of ALS." As the evidence is at least in equipoise, the Veteran is entitled to a favorable finding with respect to the existence of a current diagnosis of ALS. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 5556 (1990). Medical evidence of record does not reflect affirmative evidence that would rebut the presumption of service connection. The Veteran served for more than 90 days on active duty. Evidence of record does not reflect that the Veteran's own willful misconduct contributed to the development of ALS. Accordingly, in light of the medical evidence of record supporting a diagnosis of ALS, and the absence of affirmative evidence to rebut the presumption of entitlement to service connection, the Veteran is entitled to service connection for ALS. Special Monthly Compensation (SMC) Increased compensation at the aid and attendance rate is payable when a veteran is helpless or so nearly helpless as the result of service-connected disability that he requires the regular aid and attendance of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). To establish a need for regular aid and attendance, the veteran must, as a result of service-connected disability, (1) be 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) be a patient in a nursing home because of mental or physical incapacity; or (3) show a factual need for aid and attendance. Id. Determinations as to need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to such conditions as the following: the inability of the claimant to dress or undress himself or to keep himself ordinarily clean and presentable; the frequent need of the adjustment of any special prosthetic or orthopedic appliance which by reason of the particular disability cannot be done without aid; the inability of the claimant to feed himself through loss of coordination of the 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 the claimant from hazards or dangers incident to daily environment. 38 C.F.R. § 3.352(a). "Bedridden" will be a proper basis for the aid and attendance determination and is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that the claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater-or-lesser part of the day to promote convalescence or cure will not suffice. It is not required that all of the disabling conditions enumerated above be found to exist before a favorable rating may be made. The particular personal functions that the claimant is unable to perform should be considered in connection with his condition as a whole. 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 the Veteran is so helpless, as to be in need of regular aid and attendance will not be based solely on an opinion that the claimant's condition is such as would require him to be in bed. They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352(a). The performance of the necessary aid and attendance service by a relative of the claimant or other member of his or her household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352(c). 2. Entitlement to special monthly compensation based on the need for aid and attendance of another The Veteran is also already in receipt of special monthly compensation benefits at the housebound rate. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). Special monthly compensation is payable at a specified rate if the veteran, as the result of service-connected disability, is in need of regular aid and attendance. Need for aid and attendance means helplessness or is 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 he or she is blind or is 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; if the veteran is a patient in a nursing home because of mental or physical incapacity; or if the evidence establishes a factual need for aid and attendance or "permanently bedridden" status under the criteria set forth in 38 C.F.R. § 3.352(a). 38 U.S.C. § 1114(l); 38 C.F.R. § 3.351(b). The following will be accorded consideration in determining the need for regular aid and attendance: inability of 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 or her daily environment. "Bedridden" will be a proper basis for the determination. 38 C.F.R. § 3.352(a). A veteran will be found to be bedridden if the condition actually requires that he remain in bed, but not if he voluntarily stays in bed or if a physician merely recommends bed rest. It is not required that all of the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made. The particular personal functions that the veteran is 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 the veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that the veteran 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. Although a veteran need not show all of the disabling conditions identified in 38 C.F.R. § 3.352(a) to establish entitlement to aid and attendance, the Court has held that it is logical to infer there is a threshold requirement that "at least one of the enumerated factors be present." Turco v. Brown, 9 Vet. App. 222, 224 (1996). An August 2019 VA examination states that the Veteran "must use [a] motorized wheelchair for all transport" and "needs assistance with transfer [from] bed to wheelchair at home." The Veteran "relies on [a] personal aid to come daily to do body functions such as shaving [and] showering." He "is practically in wheelchair all waking movements," cannot self-feed, cannot dress himself, cannot bathe himself, cannot groom, and cannot toilet by himself. He is "unable to walk at all without considerable assistance." He is "taken care of by wife and daughter although he needs a personal aid every day for daily hygiene." An August 2019 VA medical opinion concludes that SMC is not warranted because the Veteran's lower-extremity weakness is due to motor neuron disorder, the most common example of which is ALS, for service connection has not been awarded. The evidence indicates that the Veteran is in need of aid and attendance of another due to his ALS. As the Board has now awarded the Veteran service connection for ALS, SMC based on the need for aid and attendance is also warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Cannon, Brian 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.