Citation Nr: 21010971 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 20-16 687 DATE: February 26, 2021 ORDER Entitlement to special monthly compensation (SMC) based on aid and attendance is denied. FINDING OF FACT The probative evidence of record does not show the Veteran is in need of regular aid and attendance for his service-connected disability. CONCLUSION OF LAW The criteria for special monthly compensation (SMC) based on aid and attendance have not been met. 38 U.S.C. §§ 1114, 5107, 5110; 38 C.F.R. §§ 3.102, 3.350, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from January 1963 to January 1967. In January 2021, the Veteran was provided a hearing with the undersigned Veterans Law Judge and a transcript of the proceeding is of record. Entitlement to Special Monthly Compensation: Aid and Attendance The Veteran is seeking special monthly compensation (SMC) based on the need for aid and attendance. SMC at the aid and attendance rate is payable when a 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 be in need of regular aid and attendance. 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). A number of factors are to be accorded consideration in determining the need for regular aid and attendance, including: inability of a 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; inability 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 him from hazards or dangers incident to his daily environment. 38 C.F.R. §§ 3.350 (b), 3.352(a). The Veteran is service-connected for posttraumatic stress disorder (PTSD), peripheral neuropathy of the bilateral upper extremities, and peripheral neuropathy of the bilateral lower extremities. In October 2017, the Veteran was provided a VA examination for aid and attendance. The examiner noted the Veteran was not permanently bed ridden or hospitalized. The Veteran was able to travel to beyond his current domicile and drove himself to the examination. He did not have an accompanying attendant with him. The Veteran reported that he gets up at 6:00 am and goes to a drive through for breakfast. He reported bathing himself, although having trouble bathing his feet, napping during the day, microwaving meals, and going to bed around 8 or 9 pm. He reported having a maid come clean his place every two weeks. He did not use an orthopedic or prosthetic appliance. The Veteran did have nearly constant imbalance that affects his ability to ambulate. He did not have any other body parts or system impairments that affect his ability to protect himself in a daily environment. The Veteran was able to perform all self-care skills. The Veteran was noted as being obese and his gait was ataxic. He did have normal posture. The Veteran was able to walk without the assistance of another person; however, he did have need for a cane. There were no limitations to the Veteran leaving his home. The Veteran’s functional impairments were noted as permanent and he had limitation of motion of the cervical and thoracolumbar spine due to pain. The abnormality did not interfere with breathing and the Veteran’s upper extremities were normal. The Veteran had mild or moderate impairment of strength in the upper extremities. The Veteran’s ability to self-feed, dress and undress, self bathe, groom, and use the toilet were all normal. The Veteran’s function of the lower extremities was abnormal; however, it was not due to a lower amputation. The Veteran did have limitation of joint motion and muscle weakness in the bilateral lower extremities. The Veteran’s weightbearing and propulsion were normal. Pertinent diagnoses were his peripheral neuropathy of the bilateral lower extremities. The Veteran was found capable of managing all his financial affairs. In January 2020, the Veteran was provided another VA examination. The Veteran reported getting up at 6 am and taking a shower as best as he was able to. He reported having a bar in the shower and having a hard time leaning over to wash his feet. He stated that he sits 21 hours a day and if he goes grocery shopping, he has to have something to lean on. He said his friend who takes him out will help him carry his groceries. He reported not cooking, and instead he was microwaving meals or eating out. He reported that he sleeps on a recliner due to his foot and leg pain and has a cleaning lady for the house. The Veteran reported dizziness weekly but less than daily. He did not have memory loss. The examiner noted the Veteran has balance issues, primarily due to his peripheral neuropathy and Charcot feet. He is unable to stand for even a short time without support. If he does not have support, he feels dizzy, his balance is off, and he feels like he might fall. He has to walk with some support and has a roller walker. He reported pain and numbness that is constant from his knees down and tingling in his fingertips, which causes him to drop things at times. The Veteran was noted as being able to perform all self-care functions. The Veteran was noted as obese with normal posture and average build. His gait was ataxic. The Veteran is able to walk without the assistance of another person for a few hundred yards with the use of a walker. The Veteran is not restricted to his home. The Veteran’s functional impairments are permanent. The Veteran has limited motion in his cervical and thoracolumbar spine that was likely due to aging. The Veteran did have normal function of the upper extremities. The Veteran did have muscle weakness in the bilateral lower extremities. Weight-bearing and propulsion was normal. The examiner explained that the Veteran has numbness in his feet with pain that makes it difficult to walk or stand for even short periods of time. If he is without support or is standing long, he feels off and like he may fall. He uses an assistive device to walk or he is at risk of falling so he is unable to do any lifting type motions. The Veteran cannot bend all the way over to wash his feet or put shoes on. The Veteran stated that he has to pull his pant leg to his foot up to get in his shoe. If he is up on a high chair or examination table, he needs help getting down. He is unable to stand or walk long enough to cook or clean. The Veteran also has tingling in his fingertips which makes him drop things. The Veteran was found capable of handling all his financial affairs. The Board notes that VA treatment records do not show the Veteran has anatomical loss or loss of use of one or both of his hands and feet, is permanently blind, or so helpless as to be in need of regular aid and attendance due to any service-connected disability, or otherwise. The Veteran has maintained use of all his anatomical extremities and is able to primarily care for himself. While the Veteran reports issues washing his feet and putting on shoes, he is able to soak his feet clean and use assistive devices to get his shoes and socks on. While the Veteran is not able to walk alone, he is able to ambulate with use of a cane or walker. The Board acknowledges the Veteran reported difficulty wiping himself when using the bathroom; however, he reported receiving an assistive device that helps him wipe. The Veteran also reported being able to dress himself in his examinations and at his January 2021 hearing. The Veteran also reports still driving himself to get food or to a friend’s house and VA treatment records show he attends all his appointments by himself. Further, the VA examiners found the Veteran able to perform self-care skills and was not restricted to his home. He also was found capable of handling all his financial affairs and his upper extremities were noted as normal. The Board acknowledges the Veteran has issues with some day to day activities. However, the Board notes that the Veteran has maintained care of himself and continues to drive himself to appointments, to get food, as well as was found to be able to walk a few hundred yards with his cane or walker. The Board again notes that while the Veteran reported severe symptoms of peripheral neuropathy in his lower extremities, none of the VA examiners found the Veteran to have loss of use of his extremities and he still had normal weight-bearing. Further, part of the Veteran’s functional impairment was noted as limited motion due to his cervical and thoracolumbar spine pain, which the Board notes the Veteran is not service-connected for. Thus, as provided above, the overwhelming medical evidence of record shows the Veteran is not in need of aid and attendance as defined under 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). Given the above, the Board finds that entitlement to SMC based on aid and attendance as result of the Veteran’s service-connected disabilities is not warranted. The benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Negron, Associate 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.