Citation Nr: 21022173 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 18-34 848 DATE: April 14, 2021 ORDER Entitlement to special monthly compensation based on a need for the regular aid and attendance of another person since May 25, 2016 for accrued benefits purposes is granted, subject to the laws and regulations governing the award of monetary benefits. FINDING OF FACT Since May 25, 2016 the Veteran needed regular aid and attendance of another person due to service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to special monthly compensation based on a need for the regular aid and attendance of another person for accrued benefits purposes is granted since May 25, 2016 are met. 38 U.S.C. §§ 1114, 5110; 38 C.F.R. §§ 3.350, 3.352, 3.400, 4.63. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1960 to August 1988. He died in June 2020. The Appellant is his surviving spouse, and she was granted substitution to pursue this claim in August 2020. These matters are before the Board of Veterans’ Appeals (Board) on appeal of an October 2016 Department of Veterans Affairs (VA) rating decision. The Appellant contends that, prior to his death, the Veteran was entitled to special monthly compensation based on need for the regular aid and attendance of another person. On July 7, 2016, the Veteran submitted an examination for housebound status or permanent need for regular aid and attendance, dated May 25, 2016. The examination report was accepted as a claim for special monthly compensation based on a need for the regular aid and attendance of another person. Special monthly compensation under 38 U.S.C. § 1114 (l) is payable where a veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both feet, or of one hand and one foot, or is blind in both eyes, with 5/200 visual acuity or less, or is permanently bedridden or so helpless that he needs the regular aid and attendance of another person. 38 C.F.R. § 3.350 (b). In making aid and attendance determinations, consideration is given to such conditions as: inability of the 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 of the claimant 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 the claimant from the hazards or dangers inherent in his daily environment. 38 C.F.R. § 3.352 (a). The above are only factors for consideration, and it is left to the Board to determine whether a veteran is factually in need of regular aid and attendance. The personal functions that a veteran is unable to perform are also considered in connection with their condition as a whole. It is only necessary that the evidence establish that a veteran is so helpless as to need regular aid and attendance, not that there be a constant need, however the need must be caused solely by service-connected disabilities. Id.; see also Turco v. Brown, 9 Vet. App. 222 (1996). During the claim period, the Veteran was service-connected for coronary artery disease, rated 100 percent disabling, diabetic nephropathy rated 100 percent disabling, lumbar degenerative joint disease rated 20 percent disabling, left lower extremity peripheral vascular disease rated 20 percent disabling, right lower extremity peripheral vascular disease rated 20 percent disabling, type II diabetes mellitus rated 20 percent disabling, left lower extremity peripheral neuropathy rated 10 percent disabling, right lower extremity peripheral neuropathy rated 10 percent disabling, and right ear hearing loss rated noncompensable. In the May 25, 2016 examination for housebound status or permanent need for regular aid and attendance, the claimant was reported to be able to feed himself, prepare his own meals, did not require assistance in bathing and tending to other hygiene needs, was not legally blind, did not require nursing home care, did not require medication management, and was able to manage his own financial affairs. There were no restrictions which limited his activities of daily life. However, the Veteran was noted to be unsteady on his feet and needed to hold on to something or use a cane for balance. He had continued to suffer frequent falls despite the use of a cane. A June 2016 durable medical equipment order notes that the Veteran was issued a wheelchair due to falls resulting from imbalance and difficulty walking more than 100 feet. He was estimated to require the use of the wheelchair for the rest of his life. In a July 2016 correspondence, the Veteran reported that he had lost his balance to the point where he needed someone with him all the time, was afraid to drive, and was very forgetful. August 2017 private treatment records noted that the Appellant was serving as the Veteran’s caretaker and was unable to work due to needing to ensure that the Veteran did not fall and to monitor his dementia. The Veteran was noted to have had incontinence “for months” and was unable to cook, drive, or carry out higher executive functions due to his impairments. The Veteran was also noted to have an unsteady gait with history of falls which was likely secondary to peripheral neuropathy. In September 2017, a private physician, Dr. B.V. submitted a letter stating that the Veteran required constant monitoring due to high fall risk due to neuropathy and needed help with most activities of daily living and was not able to cook for himself. The Appellant was noted to be his constant medical attendant, and if she were not there the Veteran would require an in-home attendant. At her February 2021 Board hearing, the Appellant stated that at the time of the May 25, 2016 examination for housebound status, the Veteran had inaccurately denied requiring assistance with his activities of daily living. She stated that, in reality, at the time of the May 25, 2016 examination, the Veteran required her assistance to protect him from falls and with dressing, getting into the tub and preparing meals. The evidence is at least in equipoise as to whether the Veteran required the aid and attendance of another person since May 25, 2016. Significantly, the September 2017 opinion of Dr. B.V. indicated that the Veteran required the regular aid and attendance of another person due, in significant part, to risk of falls attributed to his service-connected diabetic neuropathy. The opinion of Dr. B.V. is corroborated by ample evidence of record, to include the credible statements of the appellant. This evidence establishes that the Veteran required care or assistance on a regular basis to protect him from the hazards or dangers inherent in his daily environment. While the May 25, 2016 examination for aid and attendance noted no restrictions on activities of daily living, the examiner specifically noted that the Veteran had problems with falls despite using a cane. The Appellant credibly testified at the February 2021 Board hearing that the Veteran did require her aid and attendance at the time of the May 25, 2016 examination due to risk of falls, as well as limitations with other activities of daily living. The Appellant credibly testified that the Veteran’s assessment of his own level of dependence was not accurate at that time. Given that the May 25, 2016 examiner described frequent falls despite the use of a cane, the Board will resolve reasonable doubt in the favor of the Appellant and find that it is factually ascertainable that the Veteran required the aid and attendance of another person due to his service-connected disabilities, effective May 25, 2016. The appropriate effective date for this award of special monthly compensation is May 25, 2016. The Board finds that it was factually ascertainable that the Veteran required the aid and attendance of another person at that time, which is dated within one year prior to the receipt of the claim for benefits. See 38 C.F.R. § 3.400 (o)(2). Based on the foregoing, entitlement to special monthly compensation based on the need for the regular aid and attendance of another person for accrued benefits purposes is granted since May 25, 2016. LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Paul J. Bametzreider 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.