Citation Nr: 21072848 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 09-29 065 DATE: December 6, 2021 ORDER Special monthly compensation (SMC) based on the need for regular aid and attendance is denied. FINDING OF FACT The Veteran does not require regular aid and attendance from another due to his service-connected disabilities. CONCLUSION OF LAW The criteria for SMC based on the need for regular aid and attendance of another have not been met. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1960 to July 1964. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The appeal was remanded by the Board in August 2017, February 2018, October 2020, and February 2021 for additional development. This development was completed and the claim has returned to the Board. SMC SMC based on the need of regular aid and attendance is granted. SMC based on the need for aid and attendance of another is payable when the veteran, due to service-connected disability, has suffered 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 require regular aid and attendance. See 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). SMC under 38 U.S.C. § 1114 (k) is payable for one of a number of conditions, including each anatomical loss or loss of use of one hand, one foot, both buttocks, one or more creative organs. 38 C.F.R. § 3.350 (a). The term "loss of use of a hand or foot" is defined as existing when "no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the elbow or knee with the use of a suitable prosthetic appliance." For example: (a) Extremely unfavorable complete ankylosis of the knee, or complete ankylosis of two major joints of an extremity, or shortening of the lower extremity of 3 1/2 inches or more, will constitute loss of use of the hand or foot involved, and; (b) Complete paralysis of the external popliteal nerve (common peroneal) and consequent footdrop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve, will be taken as loss of use of the foot. 38 C.F.R. § 3.350 (a)(2). The Veteran does not contend that the previous criteria are applicable. He only contends that he is permanently bedridden or so helpless as to require regular aid and attendance. The following criteria are to be considered for determining whether a veteran is in need of the regular aid and attendance of another person: (1) the inability of the claimant 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 claimant 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 requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352 (a). "Bedridden," which is a proper basis for the determination, is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that 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. 38 C.F.R. §§ 3.350 (b)(4), 3.352(a). In addition, any determination 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 to be in bed. It must be based on the actual requirement of personal assistance from others. See Turco v. Brown, 9 Vet. App. 222, 224 (1996). Analysis The Board first notes that the Veteran applied for SMC based on the need for aid and attendance on March 24, 2014. Since that time, the Veteran has had the following service-connected disabilities at the following ratings: posttraumatic stress disorder (PTSD), rated at 70 percent; asbestos with chronic obstructive pulmonary disease (COPD), rated at 60 percent; and an esophageal disorder, rated at 30 percent. The Veteran's PTSD was previously found to render the Veteran unemployable; thus, he was entitled to a total disability rating based on individual unemployability (TDIU) based on that disability alone. Further, because the Veteran had one disability rated at 100 percent and other service-connected disabilities independently rated at 60 percent, he was previously granted SMC under 38 C.F.R. § 3.350 (i) and 38 U.S.C. § 1114 (s). The Board may only consider these service-connected disabilities in its determination of whether the Veteran meets the criteria for SMC. The Board cannot consider the effects of the Veteran's back disorder which he asserts is due to ionizing radiation; this claim was denied in an October 2021 rating decision. The Board has considered the many lay statements of record from both the Veteran and his wife. The Veteran has repeatedly asserted that his COPD is the service-connected disability for which he needs aid and attendance. In contrast, he has not asserted that his other two service-connected disabilities are the basis for his claim. He and his wife have referenced getting shortness of breath, requiring nebulizer treatment, and that he needs his wife's assistance to do activities of daily living (ADLs). However, in virtually every statement, the Veteran does not state his exact limitations, just that he is limited. Further, the Veteran often references his back condition as causing limitations. In reviewing all of the correspondence, the only thing the Veteran says he is unable to do, is to leave the house and he must be accompanied if he goes anywhere. Further, the Board has considered the medical evidence of record which includes several examinations for aid and attendance. See VBMS, document labeled VA 21-2680 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance (A&A examination), receipt date March 24, 2014 (completed December 2013); See VBMS, A&A examination, receipt date November 17, 2014 (completed May 2014); See VBMS, document labeled Medical Statement for Consideration of Aid and Attendance, receipt date May 27, 2015 (completed May 2015); See VBMS, A&A examination, receipt date August 2, 2018 (completed July 2018); See VBMS, A&A examination, receipt date September 27, 2018 (completed September 2018); See VBMS, A&A examination, receipt date August 19, 2021 (completed June 2021). While these examinations indicate that the Veteran is unable to do activities unassisted, the majority of the examinations do not specify that the Veteran's service-connected disabilities alone, render him unable to do the activities. Significantly, the Veteran's back condition is chief among the conditions that cause limitations in the examinations. At most, the examinations find the Veteran has difficulty getting dressed, bathing, and preparing meals because he gets short of breath due to his COPD. The lone examination that considers the Veteran's COPD and its specific limitations is the June 2021 examination. The clinician reported the following limitations: the Veteran is unable to prepare his own meals because he cannot stand for long periods of time due to shortness of breath and he is oxygen dependent; he needs assistance with bathing and hygiene because he becomes short of breath and has difficulty with ADLs due to oxygen dependence (but this also said he cannot complete ADLS due to his "physical condition"); the Veteran cannot provide nebulizer treatment himself (but the clinician does not explain why); and the Veteran is homebound and only leaves home for medical appointments. The Board notes that there are many other health issues referenced that cause other severe limitations. The Board finds the June 2021 examination to be the most specific in the limitations from which the Veteran experiences due to his COPD. However, even so, the Board does not find the Veteran to meet the criteria for the need of the regular aid and attendance of another person. The specific criteria are as follows (emphasis added): (1) the inability of the claimant 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 claimant 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 requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352 (a). The Board has emphasized the term "inability" because it is a higher standard than "difficulty", even if it is extreme difficulty. Further, while the Veteran may need help with nebulizer treatment (although it is unclear why he cannot do it himself), the adjustment of a device is specifically limited to special prosthetic or orthopedic devices. The Veteran does not have loss of coordination of the upper extremities or cannot feed himself due to extreme weakness; the Board does not find his shortness of breath to equate to extreme weakness. Finally, the Veteran's conditions do not equate to incapacity to protect the claimant from the hazards or dangers incident to his daily environment. Again, while the Veteran has difficulties due to his service-connected disabilities, he is not unable to do activities because of his service-connected disabilities. Thus, given all of the above, the Board finds that the Veteran does not have a physical or mental incapacity that requires care and assistance on a regular basis. 38 C.F.R. § 3.352 (a). Thus, the criteria for SMC based on the need of aid and attendance have not been met. The claim is denied. B. G. LeMoine Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. M. Hitchcock 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.