Citation Nr: 21026542 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 15-40 405 DATE: May 3, 2021 ORDER Entitlement to special monthly compensation (SMC) based on the need for aid and attendance pursuant to 38 U.S.C. § 1114(l) is granted, subject to the laws and regulations governing the award of monetary benefits. FINDING OF FACT The Veteran's service-connected disabilities render him 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 aid and attendance are met. 38 U.S.C. § 1114(l); 38 C.F.R. §§ 3.350(b), 3.352(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1975 to May 1979. This case initially came before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision, which, among other things, denied the Veteran's claim for entitlement to SMC based on aid and attendance or being housebound. In March 2013 the Veteran filed a notice of disagreement (NOD) and in September 2015 the RO issued a statement of the case (SOC). In November 2015 the Veteran filed a substantive appeal (via VA Form 9). In April 2019 the Board remanded the Veteran's claim for further evidentiary development. As the benefit sought is being granted in full, consideration of whether the agency of original jurisdiction complied with the Board's remand instructions is unnecessary. Entitlement to SMC based on 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. See 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). Loss of use of a hand or foot is defined as no effective function remaining other than that which would be equally well served by an amputation stump at the site of election below the elbow or knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc., in the case of the hand, or of balance, propulsion, etc., in the case of a foot, could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. §§ 3.350(a)(2)(i), 4.63. Pursuant to 38 C.F.R. § 3.350(b)(3) and (4), the criteria for determining that a veteran is so helpless as to be in need of regular aid and attendance, including a determination that he is permanently bedridden, are contained in 38 C.F.R. § 3.352(a). That regulation provides that the following will be accorded consideration in determining the need for regular aid and attendance: 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 the 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. "Bedridden" is defined as that condition, which, through its essential character, actually requires that a claimant remain in bed. The fact that a 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 be found to exist before a favorable rating may be made. Turco v. Brown, 9 Vet. App. 222, 224 (1996) (providing that eligibility for special monthly compensation by reason of regular need for aid and attendance requires that at least one of the factors set forth in VA regulation is met, but not all). The particular personal functions that 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 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 upon an opinion that the Veteran's condition is such as would require him or her to be in bed. They must be based on the actual requirements of personal assistance from others. 38 C.F.R. § 3.352(a). Furthermore, 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). For the following reasons, SMC based on the need for aid and attendance pursuant to 38 U.S.C. § 1114(l) is warranted. The Veteran is service-connected for major depressive disorder evaluated at 70 percent disabling, Morton's neuroma of the right and left lower extremities evaluated at 30 percent disabling, degenerative joint disease with lumbar strain and a history of radiculopathy evaluated at 20 percent disabling, residuals, right buttock abscess evaluated at 10 percent disabling, left and right foot scars, status post neuroma excisions evaluated as noncompensable. Also, the Board has granted a total disability based on individual unemployability (TDIU). On a February 2012 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance (VA Form 21-2680) a VA physician noted that the Veteran is not able to prepare is own meals as he cannot stand for longer than a few minutes. The VA physician noted that the Veteran requires assistance in bathing and tending to hygiene needs. The Veteran requires medical management as the Veteran's spouse organizes his pill box. The VA physician noted that the Veteran goes for a walk once a month using a cane. A January 2014 VA treatment note indicates that the Veteran is wheelchair bound and dependent for all activities of daily living and instrumental activities of daily living. In the November 2015 VA Form 9 the Veteran's spouse stated that she had to stop working to take care of the Veteran permanently. In a July 2019 letter, the Veteran's spouse stated that in November 2018 they had to evacuate from their home due to a fire which caused them hardship. On the December 2019 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance a VA physician noted that the Veteran is unable to dress or undress himself or to keep himself ordinarily clean and presentable. The VA physician noted that the Veteran has a wheelchair that is used for conveyance which he cannot self-propel on his own. The Veteran cannot drive himself and is unable to feed himself through loss of coordination of upper extremities or through extreme weakness. The Veteran cannot eat with standard utensils and is unable to attend to the wants of nature or use the toilet or bath/shower independently without assistance. The Board acknowledges, at the outset, that the Veteran did not suffer the anatomical loss or loss of use of both feet or one hand and one foot, and is not service-connected for blindness in both eyes. Nevertheless, the evidence of records establishes that the Veteran requires aid and assistance of others. Specifically, the VA physicians who filled out the February 2012 and December 2019 aid and attendance or housebound examination reports concluded that the Veteran is dependent on his spouse and family members for preparing meals, bathing and other hygienic needs, medical management, and traveling anywhere outside his home, which largely meets the criteria set forth in 38 C.F.R. § 3.352(a). The December 2019 VA physician noted that Veteran requires aid and attendance of another due to both service-connected disabilities and non-service-connected disabilities. Although the VA physician did not differentiate between the Veteran's impairments caused by service-connected disabilities and non-service-connected disabilities, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181 (1998) (the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that clearly does so). As the Veteran's service-connected disabilities render him disabled to the extent that he requires the regular aid and assistance of another person, special monthly compensation based on the need for aid and attendance is warranted. Moreover, because SMC based on aid and attendance pursuant to 38 U.S.C. § 1114(l) is a greater benefit than SMC at the housebound rate pursuant to 38 U.S.C. § 1114(s), and there is no indication that there is a separate and distinct disability that would warrant SMC at the housebound rate pursuant to 38 U.S.C. § 1114(s), the issue of entitlement to SMC at the housebound rate need not be further addressed. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Miller, 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.