Citation Nr: 21008266 Decision Date: 02/12/21 Archive Date: 02/12/21 DOCKET NO. 17-22 570A DATE: February 12, 2021 ORDER Entitlement to special monthly compensation (SMC) based on the need for aid and attendance of the Veteran's spouse is granted. FINDING OF FACT The Veteran’s spouse needs the regular aid and attendance of another person. CONCLUSION OF LAW The criteria for an award of special monthly compensation benefits based on the need for regular aid and attendance for the Veteran’s spouse have been met. 38 U.S.C. §§ 1115, 5107; 38 C.F.R. §§ 3.4(b)(2), 3.350, 3.351, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1981 to February 1984. The Veteran and her spouse testified at a hearing before the undersigned Veterans Law Judge in February 2021. The record indicates that the Veteran’s spouse is also a veteran. At the February 2021 hearing, testimony was provided which raised issues of entitlement to service connection as secondary to the service-connected psychiatric disability and entitlement to SMC pursuant to 38 C.F.R. § 3.350(b). The Board finds the testimony provided at the February 2021 should be construed as an “intent to file” pursuant to 38 C.F.R. § 3.155(b)(1)(iii). SMC A veteran who is entitled to compensation, and whose disability is rated not less than 30 percent, shall be entitled to additional compensation for dependents, including a spouse and each child. 38 U.S.C. § 1115; 38 C.F.R. § 3.4(b)(2). SMC is payable to a veteran by reason of the veteran’s spouse being in need of aid and attendance. 38 U.S.C. § 1115(1)(E); 38 C.F.R. § 3.351(a)(2). The need for aid and attendance means helplessness as to require the regular aid and attendance of another person. 38 C.F.R. § 3.351(b). The Veteran’s spouse will be considered in need of regular aid and attendance if he or she: (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 5 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 section 3.352(a). 38 C.F.R. § 3.351(c). The following criteria are used to determine whether a claimant is in need of the regular aid and attendance of another person: the inability of the claimant to dress himself or herself or to keep himself or herself ordinarily clean and presentable; frequent need of 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 or herself through the loss of coordination of the upper extremities or through extreme weakness; the inability to attend to the wants of nature; or, 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). It is not required that all of the conditions enumerated above be found to exist before a favorable rating may be made. The particular personal functions one is unable to perform must be considered in connection with his or her condition as a whole. It is only necessary that the evidence establish that the claimant is so helpless as need of regular aid and attendance, not that there be a constant need. Determinations that the claimant 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 remain in bed. They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352(a); see also Turco v. Brown, 9 Vet. App. 222, 224-25 (1996). The performance of the necessary aid and attendance service by a relative of the beneficiary or other member of his or her household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352 (c). As an initial matter, the Board notes that during the period on appeal, the Veteran’s combined disability rating is greater than 30 percent. Therefore, she is eligible for additional compensation for her spouse, M.H. See 38 U.S.C. § 1115; 38 C.F.R. § 3.4(b)(2). A June 2015 VA form 21-2680 indicates that M.H. was unable to prepare her own meals, required nursing home care (noted as help with activities of daily living), required assistance in bathing and tending to her hygiene needs, and required medication management due to a lumbar spine disability. The record adds that M.H. was unable to manage her own financial affairs. The record reports that M.H. had to use a walker at all times and had restrictions of each lower extremity and of the spine and that her medication would affect balance and increase risk of falling. A February 2019 VA form 21-2680 reveals that M.H.’s disabilities, which include psychiatric disability, incontinence, lumbar spine disability, and knee disabilities, prevented her from preparing her own meals. The record adds that M.H. needed assistance in bathing and tending to hygiene needs, required medication management, and was unable to manage her own financial affairs. The record reveals that M.H. had restrictions of the upper and lower extremities, spine, trunk, and neck, and other pathology. An April 2019 medical statement reports that M.H. had severe psychiatric disability, poorly controlled migraines (2 to 3 times per month) and variable and distractible left hemibody weakness and dysesthesias. Based on the medical statements and the competent and credible statements and testimony from the Veteran and her spouse as to the impairment associated with M.H.’s disabilities, including needing assistance toileting, cooking, medication management, dressing and undressing, the Board finds that it is at least as likely as not that M.H. requires the regular aid and attendance of another person. Thus, the claim is granted. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Snyder, 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.