Citation Nr: 21021624 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 15-22 072 DATE: April 13, 2021 ORDER Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance is granted. FINDINGS OF FACT The Veteran is so helpless as to need regular aid and attendance by reason of his service-connected disabilities. CONCLUSIONS OF LAW The criteria SMC based on the need for regular aid and attendance have been met. 38 U.S.C. §§ 1114, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.350, 3.352(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1966 to September 1968. In October 2018 the Veteran testified before a Veterans Law Judge who is no longer employed at the Board of Veterans’ Appeals. The Veteran and his representative did not respond to an October 2020 letter regarding whether the Veteran wished to appear at a hearing before another Veterans Law Judge. Therefore, the claim will be considered based on the evidence of record. This claim was previously before the Board in December 2020, at which time the Board remanded it for additional development. The requested development has been completed, and the claim is properly before the Board for further appellate consideration. Entitlement to SMC based on the need for regular aid and attendance Increased compensation at the aid and attendance rate is payable when a veteran is helpless or so nearly helpless as the result of service-connected disability that he requires the regular aid and attendance of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). To establish a need for regular aid and attendance, the veteran must, as a result of service-connected disability, (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. Id. Determinations as to need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to such conditions as the following: the inability of the claimant to dress or undress himself or to keep himself ordinarily clean and presentable; the frequent need of the 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 through loss of coordination of the upper extremities or through extreme weakness; the inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). “Bedridden” will be a proper basis for the aid and attendance determination and is defined as 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. It is not required that all of the disabling conditions enumerated above be found to exist before a favorable rating may be made. The particular personal functions that the claimant is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that the Veteran is so helpless, as to be in need of regular aid and attendance will not be based solely on an opinion that the claimant’s condition is such as would require him 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 performance of the necessary aid and attendance service by a relative of the claimant or other member of his or her household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352(c). Service connection is in effect for posttraumatic stress disorder, rated 100 percent, and degenerative disc disease with lumbosacral strain, to include intervertebral disc syndrome and bilateral lower extremity radiculopathy, rated 40 percent. The Veteran had a VA examination for his back in October 2014 at which he reported having daily back pain and that there were times when he could not get out of bed. He used a back brace and did not use any assistive devices for walking. It was noted at December 2014 VA treatment that the Veteran had severe low back pain that radiated to both legs. He could hardly ambulate and wanted a walker. January 2015 VA treatment records show that the Veteran reported back pain that had progressed and that involved on and off radiation to the legs. He had difficulty ambulating. On examination there was marked limitation of motion and pain. At February 2015 VA physical therapy the Veteran had a diagnosis of sprains and strains of the knee and leg. He reported that his right leg often gave out, causing him to fall. The Veteran wrote in February 2015 that he could not bend over, needed help getting dressed, and could not get in the bathtub by himself. His girlfriend assisted him with everything. It was noted at April 2018, June 2018, and September 2018 VA treatment that the Veteran’s back pain affected his ability to perform activities of daily living. The Veteran then testified at the October 2018 hearing that he could not bend over, and that when on the floor he “needed a chair to pull himself up with.” He used a walker or cane to ambulate, with the walker being used more of the time. Numbness in his legs had caused him to fall. The Veteran’s girlfriend testified that she put on his socks and shoes for him and helped him bathe. At June 2019 VA treatment the Veteran reported back and leg pain and that he sometimes could not be as active as he wanted to be because of increased pain. The Veteran said at June 2019 and September 2019 VA treatment that he had “difficulty bending over to pick up objects and clean his home.” The Veteran had a VA examination for his back in December 2019 at which he reported worsening pain that radiated into the lower extremities. There was pain with bending and lifting and flare-ups with increased pain intensity. The examiner wrote that the Veteran was unable to perform lifting, bending, or physical activity. The Veteran had a VA examination in January 2021 at which he reported using a cane to ambulate and a ramp to get into his house. He had difficulty getting in and out of the bathtub. While he bathed himself, he was unable to wash his back or bend over. When getting dressed, he required assistance with putting on his socks and shoes. The Veteran was unable to stand or sit for prolonged periods of time due to back pain. He avoided meals that required long preparation. Since he could not bend over, he hired others to perform chores such as sweeping, mopping, vacuuming, yardwork, and home repairs. Imbalance affected the Veteran’s ability to ambulate. The examiner felt that the Veteran was unable to perform dressing, undressing, and bathing. The functional impairments were permanent. Resolving any doubt in the appellant’s favor, the Board concludes the evidence supports entitlement to SMC based on a need for regular aid and attendance of another person due to the service-connected back disability. 38 U.S.C. § 5107(b). The record shows that the Veteran needs assistance with activities of daily living, including bathing, dressing, and preparing more complicated meals. Furthermore, the Veteran cannot perform household chores. The record shows that the Veteran’s girlfriend has assisted him with activities of daily living for several years, including dressing and bathing. The VA treatment records, examinations, written statements, and Board hearing testimony indicate that the limitations in the Veteran’s activities of daily living are due to the service-connected back disability. While the Veteran is able to perform some activities of daily living independently, overall, he requires the regular aid and attendance of another. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott Shoreman, 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.