Citation Nr: 21009692 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 14-16 696 DATE: February 23, 2021 ORDER Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is denied. FINDING OF FACT During the appeal period prior to his death, the Veteran’s service-connected anxiety disorder NOS, diabetes mellitus, type II, diabetic nephropathy, residuals of shrapnel wound, right upper arm, chronic myositis, and residuals of shrapnel wound, right thumb, are not shown to have caused the Veteran to be permanently bedridden and so helpless as to be in need of regular aid and attendance of another person. CONCLUSION OF LAW The criteria for SMC based on the need for regular aid and attendance are not met. 38 U.S.C. §§ 1114, 5107 (2012); 38 C.F.R. §§ 3.350, 3.352 (2020).   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1968 to April 1970. He died in September 2020. The appellant is his surviving spouse and has been properly substituted as the claimant for the purposes of processing this claim to completion. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, a hearing was held before the undersigned. A transcript of the hearing is of record. The case was previously before the Board in September 2018 and September 2019 when it was remanded for further development. Entitlement to SMC-Aid and Attendance SMC is payable under 38 U.S.C. § 1114(l) if, as the result of service-connected disability, the Veteran is permanently bedridden or is so helpless as to be in need of regular aid and attendance of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). Under 38 U.S.C. § 1114(l), SMC based on the need for aid and attendance is payable if, as the result of service-connected disability, the Veteran has suffered: (1) anatomical loss or loss of use of both feet; (2) anatomical loss or loss of use of one hand and one foot; (3) blindness in both eyes with visual acuity of 5/200 or less; (4) being permanently bedridden; or (5) being so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). To be deemed so helpless as to be in need of regular aid and attendance, there must be at least one of the following: (1) an inability to dress or undress or to keep ordinarily clean and presentable independently; (2) frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without assistance; (3) an inability to feed independently through loss of coordination of upper extremities or through extreme weakness; (4) an inability to attend to the wants of nature; or (5) incapacity, either physical or mental, that requires care or assistance on a regular basis to protect from hazards or dangers incident in the daily environment. 38 C.F.R. § 3.352(a); Turco v. Brown, 9 Vet. App. 222 (1996). Being bedridden also is a proper basis for such a determination. 38 C.F.R. § 3.352(a). The need for aid and attendance does not have to be constant. Id. It is not required that all of the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found to exist before a favorable rating may be made. The particular personal functions which 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 is a constant need for aid and attendance. 38 C.F.R. § 3.352(a); see Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in § 3.352(a) must be present to grant special monthly compensation based on the need for aid and attendance). For the purposes of 38 C.F.R. § 3.352(a), “bedridden” will be a proper basis for the determination of whether the Veteran is in need of regular aid and attendance of another person. “Bedridden” will be 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. 38 C.F.R. § 3.352(a). During the appeal period prior to his death, the Veteran was service connected for anxiety disorder, NOS, rated at 30 percent prior to June 21, 2019 and 70 percent thereafter; diabetic nephropathy rated at 30 percent; diabetes mellitus, type II rated at 20 percent; residuals of shrapnel wound, right upper arm, chronic myositis rated at 10 percent; and residuals of shrapnel wound, right thumb rated as noncompensable (0 percent). A December 2011 examination report for housebound status or permanent need for regular aid and attendance indicates that the Veteran’s diagnoses were post cerebral aneurysm, post stroke vascular dementia. He was able to feed himself and was not legally blind. He was not able to prepare his own meals, needed assistance in bathing and tending to other hygiene needs, required nursing home care, required medication management, and did not have the ability to manage his own financial affairs. He had limited control in his left upper extremity and no ability in his right. He was not able to feed, dress, or toilet for himself. He could stand with help. His trunk was sore and there was weakness on his right side. He was incontinent at times. He had dementia secondary to stroke and was not able to walk and unable to perform self-care. He was taken to an adult life care center while his wife worked around the home. He used a wheelchair. Records and statements from Coltrane Life Center from January 2012 note that the Veteran was assisted by staff with toileting, transferring, setting up meals, and ambulating. The Veteran communicated with non-verbal cues to the staff. A November 2016 examination report for housebound status or permanent need for regular aid and attendance noted service-connected and non-service connected disabilities under the diagnoses section. Right side paralysis and cardiovascular accident were listed under disabilities that restrict the listed activities/functions. He was able to feed himself and was not legally blind. He was not able to prepare his own meals, needed assistance in bathing and tending to other hygiene needs, did not require nursing home care, required medication management, and did not have the ability to manage his own financial affairs. He had very limited motion in the right arm and no grip. He could not button clothing or shave. He had poor balance, very limited mobility, and was practically non-weight bearing. He could not bend over to touch the floor and needed someone to help him up from the toilet. He had incontinence of the bowel and bladder. He had difficulty with memory due to aphasia. He required supervision 24/7. He attended adult life care center five days a week and otherwise only left home for doctor appointments. He used a wheelchair and had braces on his legs.   At the Veteran’s April 2018 hearing before the Board, the Veteran’s wife stated that she had to do everything for the Veteran and could not leave him alone. She stated that the Veteran’s stroke was part of his need for aid and attendance but that his diabetes was also a factor. A July 2019 VA mental disorders examiner indicated that the Veteran’s anxiety disorder was best summarized by occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress or symptoms controlled by medication. The examiner indicated that the Veteran was not verbal due to stroke and relied on his wife for all activities of daily living. He was in a wheelchair and unable to care for himself after his 2007 stroke. His symptoms were anxiety, panic attacks weekly or less often, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty adapting to stressful circumstances, and impaired impulse control. A July 2019 VA kidney examiner indicated the Veteran’s diabetic nephropathy showed very mild albuminuria, which had no impact in his functional capacity. A July 2019 VA diabetes mellitus examiner indicated that the Veteran’s diabetes was managed by restricted diet and prescribed oral hypoglycemic agents but did not require regulation of activities. An VA aid and attendance examination was conducted in December 2019. The Veteran’s claims file was reviewed. He was permanently bedridden, not currently hospitalized, and could not travel beyond his current domicile. He traveled to the exam via ambulance following a fracture of the right hip. He could not do any self-care activities, and the only thing he could do is feed himself. He used a wheelchair. The Veteran suffered from dizziness, memory loss, and imbalance. He also had severe aphasia which affected his ability to protect himself. Best corrected vision was not worse than 5/200 in both eyes. There was limitation of motion or deformity in the spine, and function of upper and lower extremities were not normal. Weight bearing and propulsion were not normal. The examiner opined that it was less likely than not that the Veteran’s service-connected disabilities rendered him in need of aid and attendance. The Veteran was so helpless as to need regular aid and attendance, but it was most likely due to his residuals of cerebrovascular accident and recent right hip fracture, which were not service-connected. The examiner also indicated that the Veteran had a diagnosis of hypertension prior to being diagnosed with diabetes mellitus. In this case, the most competent evidence of record, to include the aid and attendance examinations, VA examinations, and treatment records demonstrate that the Veteran was permanently bedridden and/or so helpless as to be in need of regular aid and attendance of another. However, as the December 2019 VA examiner indicated, the evidence shows that the Veteran’s need for aid and assistance was due to his cerebrovascular accident in 2007 and resulting residuals, which are not service-connected. While the Veteran was limited with his right upper extremity, the evidence did not demonstrate that the Veteran was bedridden or so helpless solely due to his service-connected disabilities. The record also does not show that the Veteran was blind or nearly blind or had visual acuity of 5/200 or less. Therefore, the Board finds that the preponderance of the evidence is against finding that the Veteran was in need of regular aid and attendance due to a service-connected disability. The Board has considered the lay evidence of record when adjudicating this claim, including the appellant’s statements that the Veteran required aid and attendance due to his disabilities; however, whether the Veteran required aid and attendance is not at issue. The Board acknowledges that the Veteran clearly required significant assistance during the appeal period prior to his death. The record does not show, however, that the Veteran required aid and assistance or was housebound due solely to his service-connected disabilities. Rather, the Veteran’s most significant disabilities were residuals from his 2007 stroke, which are not service-connected, but which required aid and attendance of another. In addition, the Veteran was not in receipt of a service-connected disability rated as 100 percent during the appeal period, therefore an award of SMC under 38 U.S.C. § 1114(s) (housebound status) is not warranted. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i).   Accordingly, the preponderance of the evidence is against the claim seeking SMC based on the need for aid and attendance, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Bonnie Yoon, 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.