Citation Nr: 21028536 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 11-15 926 DATE: May 11, 2021 ORDER Entitlement to special monthly compensation (SMC) based on a need for aid and attendance, pursuant to 38 U.S.C. § 1114(r), is denied. FINDING OF FACT The Veteran's service-connected disabilities do not render him in need of regular aid and attendance. CONCLUSION OF LAW The criteria for SMC based on a need for aid and attendance, pursuant to 38 U.S.C. § 1114(r), have not been met. 38 U.S.C. § 1114(r); 38 C.F.R. § 3.350(h). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1991 to May 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Although the Veteran requested a hearing with the Board, he has since expressed to VA in writing the intention to withdrawal the requested Board hearing. See Correspondence (April 2016). Since the withdrawal request was received prior to the scheduled hearing date, the Board finds that the hearing request has been withdrawn. 38 C.F.R. § 20.704(e). A November 2017 Board decision granted SMC based on loss of use of both lower extremities with loss of anal and bladder sphincter control, pursuant to 38 U.S.C. § 1114(o), and remanded the claim of entitlement to SMC based on a need for aid and attendance, pursuant to 38 U.S.C. § 1114(r), to obtain VA treatment records. The Board finds that the RO has substantially complied with the Board's prior remand order as VA treatment records from the VA Medical Center in Richmond, Virginia have been obtained. Dyment v. West, 13 Vet. App. 141 (1999). The Veteran contends that he has bowel and bladder dysfunction and must use crutches or a wheelchair for ambulation; the Veteran does not contend that he is in need of regular aid and attendance. See Form 9 (May 2011). The Veteran's representative indicated that the intent of the Veteran's appeal has been satisfied; the Veteran's representative does not contend that the Veteran is in need of regular aid and attendance. See Appellate Brief (April 2021). Although the Veteran's representative indicated satisfaction with the Veteran's current rating, the claim is still on appeal as the Appellate Brief included no "statement that the appeal is withdrawn." 38 C.F.R. § 19.55(b). The Board concludes that the preponderance of the evidence is against finding that the Veteran's service-connected disabilities render him in need of regular aid and attendance to warrant SMC pursuant to 38 U.S.C. § 1114(r). 38 U.S.C. § 1114(r); 38 C.F.R. § 3.350(h). The Veteran's combined disability rating is 100 percent, and he is currently receiving SMC pursuant to (1) 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a) based on loss of use of a creative organ, (2) 38 U.S.C. § 1114(l) and 38 C.F.R. § 3.350(b) based on loss of use of both feet, (3) 38 U.S.C. § 1114(p) and 38 C.F.R. § 3.350(f)(3) based on additional independent disability rated at 50 percent or more which is separate and distinct from the condition establishing entitlement under 38 U.S.C. § 1114(l), and (4) 38 U.S.C. § 1114(o) and 38 C.F.R. § 3.350(e)(2) based on paralysis of both lower extremities together with loss of anal and bladder sphincter control. Section 1114(r)(1) provides additional compensation if the Veteran is otherwise entitled to compensation authorized under section 1114(o), at the maximum rate under section 1114(p), or at the intermediate rate under sections 1114(n) and (o) and the rate of section 1114(k), and is in need of regular aid and attendance. 38 U.S.C. § 1114(r). A claimant will be considered in need of regular aid and attendance if he or she is 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; or is a patient in a nursing home because of mental or physical incapacity. 38 C.F.R. § 3.351(c). Additionally, following will be accorded consideration in determining the need for regular aid and attendance: inability of claimant to dress or undress himself (herself), or to keep himself (herself) 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 (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of claimant to feed himself (herself) 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 hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352(a). Section 1114(r)(2) provides a greater level of compensation, if the aforementioned requirements are met and "the Secretary finds that the veteran, in the absence of the provision of such care, would require hospitalization, nursing home care, or other residential institutional care." 38 U.S.C. § 1114(r)(2). Higher level of care is considered to be need for personal health-care service provide on a daily basis in the veteran's home by a person who is licensed to provide such services or who provides such services under the regular supervision of a licensed health-care professional. The existence of the need for such care shall be determined by a physician employed by the Department or, in areas where no such physician is available, by a physician carrying out such function under contract or fee arrangement based on an examination by such physician. Id. Here, the Veteran is not a patient in a nursing home and is not 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. Additionally, VA treatment records throughout the appeal period consistently show that the Veteran is independent in his activities of daily living (ADLs) and instrumental activities of daily living (IADLs), can drive his sports utility vehicle using hand controls, and can ambulate in his home with his forearm crutches and in the community with his manual wheelchair. Further, the Veteran reported that he does not utilize a caregiver and that he stays busy with his three active children. After consideration of the lay and medical evidence of record, the Veteran does not meet the requirements for SMC pursuant to 38 U.S.C. § 1114(r)(1) or (r)(2) as the preponderance of the evidence shows that the Veteran is not in need of regular aid and attendance. The Board notes the severity of his service-connected disabilities. However, this severity is already contemplated for by the Veteran's receipt of SMC pursuant to 38 U.S.C. § 1114(k), (l), (p), and (o). Accordingly, the claim is denied. There is no doubt to resolve. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). J.N. MOATS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Thaddaeus J. Cox, 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.