Citation Nr: 21076500 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 16-35 271A DATE: December 27, 2021 ORDER Entitlement to special monthly pension (SMP) based upon the need for regular aid and attendance of another person is granted. FINDING OF FACT The Veteran is shown to be in need of regular aid and attendance by another person. CONCLUSION OF LAW The criteria for an award of SMP based on the need for the regular aid and attendance of another person have been met. 38 U.S.C. § 1521; 38 C.F.R. §§ 3.23, 3.351, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1973 to March 1975. His decorations include the National Defense Service Medal. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2016, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. Entitlement to SMP based upon the need for regular aid and attendance of another person is granted. The Veteran seeks SMP based on the need for aid and attendance of another person. While the Veteran is already in receipt of SMP at the housebound rate, SMP based on need for regular aid and attendance provides a greater monetary benefit. Special monthly pension is payable at a specified rate if a VA claimant is helpless or so nearly helpless that he requires the regular aid and attendance of another person. To establish a need for regular aid and attendance, the claimant must (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. 38 C.F.R. §§ 3.351(b)-(c), 3.352(a). The criteria to be considered in establishing a factual need for aid and attendance include: inability of the claimant to dress or undress him or herself or to keep him 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 assistance; inability of the claimant to feed him or herself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, either physical or mental, that requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352(a). The particular personal functions which the veteran is unable to perform should be considered in connection with the claimant's condition as a whole. The evidence need only establish that the veteran is so helpless as to need regular aid and attendance, not constant need. Determinations that the veteran is so helpless as to need regular aid and attendance will not be based solely upon an opinion that the veteran's condition requires the veteran 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 veteran must be unable to perform one of the enumerated disabling conditions, but the veteran's condition does not have to present all of the enumerated disabling conditions. Turco v. Brown, 9 Vet. App. 222, 224 (1996). Being "bedridden" will also be a proper basis for finding that a VA claimant is in need of regular aid and attendance. The term "bedridden" means a condition which, through its essential character, actually requires that the claimant remain in bed. However, the fact that someone 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 is not sufficient. 38 C.F.R. § 3.352(a). The Veteran provided a March 2015 VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance. The private examiner indicated that the Veteran has been diagnosed with chronic pain syndrome, type 2 diabetes mellitus, and hepatitis C. It was assessed that the Veteran is not blind or bedridden, is not a patient of a nursing home, and does not require assistance with bathing, dressing, tending to personal hygiene needs, preparing his meals, or feeding himself. The examiner noted that the Veteran has chronic slow gait and that using a cane helped with a cane. It was further noted that the Veteran is limited due to decreased motion of both legs, as well as chronic back pain. It was further assessed that the Veteran is not confined to his residence, can leave his home as needed, and is competent to manage his affairs. It was further noted that the Veteran can walk a city block with the use of a cane. A June 2015 VA aid and attendance examination report indicated that the Veteran had diagnoses of moderate to severe stenosis of the lumbar spine, chronic pain syndrome, diabetes, tinnitus, and gout. The Veteran reported that he spent days laying in bed due to chronic back pain related to spinal stenosis and neurogenic claudication. The examiner assessed that the Veteran is not blind or bedridden, and does not require assistance with bathing, dressing, or feeding himself. It was further assessed that the Veteran can perform all function and there were no system impairments that affected his ability to protect himself from the daily environment. The examiner noted that functions of the upper and lower extremities were normal, but that the Veteran walked slowly with a cane. A June 2016 VA aid and attendance examination report indicated that the Veteran had diagnoses of status-post left partial nephrectomy for renal cell carcinoma, diffuse degenerative disc disease with multilevel spinal canal and neural foraminal stenosis, cataracts of the left eye, diabetes mellitus, diabetic peripheral neuropathy of the upper and lower extremities, gout, hepatitis C, and tinnitus. It was noted that the Veteran presented in a wheelchair assisted by his aid and reported that he could not walk or stand for prolonged periods due to his back and left knee conditions. It was further noted that the Veteran had a home aid 5 days per week to assist with bathing, dressing, household chores, shopping, and medication management. The Veteran also reported that he required assistance with meal preparation, bathing, dressing, and transferring from room to room within his home. The examiner assessed that the Veteran is bedridden, and that the Veteran can perform all function and there were no system impairments that affected his ability to protect himself from the daily environment. The examiner noted that functions of the upper and lower extremities were normal, but that the Veteran walked with a cane or a walker. A November 2015 VA treatment record noted that the Veteran was ambulating with a cane. See also April 2016 VA treatment record. A January 2016 VA treatment record noted that the Veteran needed help with bathing, transferring from to wheelchair, and moving around indoors. A September 2016 VA treatment record noted that the Veteran could not walk very far, and an August 2017 VA treatment record noted that the Veteran's walking was restricted. An April 2018 VA treatment record noted that the Veteran reported feeling unsteady when walking or standing, and that he was afraid of falling. A May 2018 VA treatment record noted that the Veteran could not walk due to knee pain, and a June 2018 VA treatment record noted that the Veteran could not walk and could only use one hand, and that he used a walker with help from a nursing escort. A February 2019 VA examination report of the knees noted that the Veteran reported that both knees buckled frequently, that he needed assistance to walk, and that he stayed in bed most of the time. The examiner noted constant use of a wheelchair and a cane for ambulation. A February 2019 VA treatment record noted that the Veteran was bedridden two to three weeks per month due to pain. See also April 2019 VA treatment record. VA Forms 21-0820 dated in December 2020 and May 2021 noted that the Veteran was residing in a care facility. See also June 2021 VA Form 27-0820. (Continued on the next page) At the August 2021 Board hearing, the Veteran reported that he has not been able to perform activities of daily living such as bathing, bathing, and dressing himself since 2015. In this regard, the Veteran's representative noted that, while a June 2015 VA examination report noted that the Veteran was able to perform these functions, a June 2016 VA examination report indicated that he was accompanied by a nursing aid, who was with him 5 days per week, which supports a finding that he was unable to perform activities of daily living at that time. The Veteran also reported that he had been in a nursing home for three years. Based on the foregoing, and after resolving reasonable doubt in the Veteran's favor, the Board finds that the evidence is at least in equipoise on the question of whether the Veteran is entitled to SMP based on the need for regular aid and attendance for daily personal needs of dressing or undressing himself, bathing, feeding, and ambulating. In doing so, the Board assigns significant probative value to the Veteran's statements that he has been unable to perform activities of daily living since 2015, the June 2016 VA examination report, and VA treatment records showing the Veteran's impairment and that he required help from a nursing escort. This evidence supports a finding that the Veteran has required the aid and attendance of another individual for the entire period on appeal. Accordingly, SMP based on the need for regular aid and attendance of another person is warranted, and the appeal is granted. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Ragheb, 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.