Citation Nr: 21030522 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 14-15 720 DATE: May 19, 2021 ORDER Entitlement to special monthly pension (SMP) based on the need for regular aid and attendance is granted, subject to the laws governing awards of monetary benefits. FINDING OF FACT The Veteran's medical conditions, when considered in conjunction with each other, result in her inability to care for her daily personal needs without regular assistance from others, and result in an inability to protect herself from the hazards and dangers of her daily environment. CONCLUSION OF LAW The criteria for a SMP based upon the need for regular aid and attendance of another person have been met. 38 U.S.C. §§ 1502, 1521, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.351, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1973 to December 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the April and June 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Board notes that this claim was most recently remanded to the Agency of Original Jurisdiction (AOJ) in May 2020. This matter has been returned to the Board at this time for further appellate review. 1. Entitlement to SMP based on the need for regular aid and attendance Relevant regulations provide that when an otherwise eligible veteran is in need of the regular aid and attendance of another person, an increased rate of pension shall be payable. 38 U.S.C. § 1521 (d). A Veteran will be considered in need of regular aid and attendance if he or she: (1) 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 (2) is a patient in a nursing home because of mental or physical incapacity; or (3) Establishes a factual need for aid and attendance under the criteria set forth in § 3.352(a). 38 C.F.R. § 3.351(c). As directed by 38 C.F.R. § 3.352(a), the following criteria are to be considered for determining whether a claimant is in need of the regular aid and attendance of another person: (1) the inability of the claimant to dress himself or herself or to keep himself or herself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliance which, by reason of the particular disability, cannot be done without aid (not to include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); (3) the inability of the claimant to feed himself or herself through the loss of coordination of the upper extremities or through extreme weakness; (4) the inability to attend to the wants of nature; or, (5) a physical or mental incapacity that requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352(a). Additionally, "bedridden," which is a proper basis for the determination, is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that 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. 38 C.F.R. §§ 3.352(a). It is not required that all of the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made. The particular personal functions which 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 claimant's condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352(a); Turco v. Brown, 9 Vet. App. 222, 224 (1996) (it is logical to infer there is a threshold requirement that "at least one of the enumerated factors be present"). The Veteran presently receives SMP by reason of being house bound effective April 2, 2007, and nonservice-connected pension effective July 28, 2003. For pension purposes only the Veteran has a combined evaluation for pension of 100 percent disabled due to loss of vision, rated 60 percent disabling; residuals of facial fractures and lacerations, rated 50 percent disabling; intervertebral disc syndrome, cervical, rated 10 percent disabling; tinnitus, rated 10 percent disabling; sinusitis, rated 10 percent disabling; hypertension, rated 10 percent disabling; cholecystitis, rated 10 percent disabling; and hyperthyroidism, rated 10 percent disabling. As an initial matter, the evidence does not demonstrate that the appellant 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 bedridden, or a patient in a nursing home. Although the Veteran is noted as "legally blind," her corrected vision acuity was most recently recorded as 20/0 in the left eye, and 20/300 in the right eye. Additionally, the record does not indicate that the she is bedridden. After a careful review of the evidence of record, the Board finds that the Veteran is entitled to special monthly pension benefits based on the need for regular aid and attendance. The medical evidence indicates that she meets the criteria outlined in 38 C.F.R. § 3.351(a). Specifically, the medical evidence of record indicates that the she needs assistance in dressing herself, preparing her meals, bathing, tending to other hygiene needs, as well as identifying medication. See June 2011 VA Aid and Attendance Examination. In addition, the Veteran was found to have an unsteady gait that requires the use of a cane. Id. Further, the Veteran's vision is severely impaired, and she has no sense of smell. Based on her disabilities, a VA examiner determined that the Veteran is a danger to herself if an emergency arose involving something she would have to smell or see to make a lifesaving decision. See October 2003 VA Examination. Also, the Veteran is unable to work. Additionally, the Veteran cannot drive and must be driven to all appointments. Also, the record reflects that, as of 2009, the Veteran moved in with her son to receive assistance with daily tasks. And the Veteran has difficulty fastening buttons, pulling up pants, putting on socks, and putting on overhead clothing. During a December 2009 nursing admission evaluation note, the Veteran stated that her poor vision impacts her ability to care for herself and was found to be a high risk for falls. The Board notes that a March 2011 VA Aid and Attendance Examination noted that the Veteran is able to feed herself, prepare meals, handle medication, and some difficulty with movement due to cervical disc disease. However, with resolution of any reasonable doubt in the Veteran's favor, the Board finds that the evidence supports a grant of SMP based on aid and attendance. The Veteran is in need of the assistance of another to protect herself from the hazards of daily living. The Board finds the medical evidence supports the finding that the Veteran requires regular aid and attendance to assist in dressing, undressing, toileting, bathing, preparing food, and driving. The Veteran's severe vision impairment significantly impacts her ability to protect herself from the hazards of daily living. And the Veteran's intervertebral disc syndrome impacts here ability to walk and dress herself. Importantly, as noted above, a Veteran need only show one of the enumerated factors identified in 38 C.F.R. § 3.352(a) to establish entitlement to aid and attendance. Turco, 9 Vet. App. at 224. And the Veteran's need for aid and attendance does not need to be constant; rather, the regulation requires only that there be a "regular" need. See id. See also 38 C.F.R. § 3.352(a). Accordingly, given the probative medical evidence concerning limitations imposed by the Veteran's disabilities, and taking into account the evidence indicating that she requires regular aid and attendance to assist in her daily living activities, the Board finds that SMP based on the need for regular aid and attendance is warranted. 38 C.F.R. §§ 3.351(c), 3.352(a). T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Patrick C. Brady, Attorney Advisor 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.