Citation Nr: 21030880 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 18-15 762 DATE: May 19, 2021 ORDER Entitlement to special monthly compensation based on aid and attendance or being housebound is denied. FINDING OF FACT The probative evidence of records does not establish anatomical loss or loss of use of both feet, or of one hand and foot, or is blind in both eyes, or is permanently bedridden or so helpless as to require regular aid and attendance of another due to service-connected disabilities. CONCLUSION OF LAW The criteria for special monthly compensation at the rate based on the need for the regular aid and attendance of another person have not been met. 38 U.S.C. §§ 1114, 5107, 5121 (2018); 38 C.F.R. §§ 3.350, 3.352(a), 3.1000 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Marine Corps from January 1985 to August 1991. In November 2020, the Veteran testified before the undersigned at a Board hearing held in Washington D.C. A transcript of that hearing is of record. The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to special monthly compensation based on aid and attendance Special monthly compensation (SMC) is payable to a veteran who, as a result of service-connected disabilities, is so helpless as to need or require the regular aid and attendance of another person. 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b)(3). A veteran will be considered in need of regular aid and attendance if he or she is: (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 five degrees or less; (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 38 C.F.R. § 3.352 (a). Factual need for aid and attendance is based on the following criteria: the inability of the veteran to dress or undress himself or herself, or to keep himself or 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.); the inability of a veteran to feed himself or herself through the loss of coordination of 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 a veteran from the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352 (a). The Veteran's service-connected disabilities do not render him legally blind and he is not in a nursing home. The Veteran is currently service connected for herniated nucleus pulposus C5-C6 with left radiculopathy) (rated at 60 percent), lumbar strain (rated at 40 percent), status post septorhinoplasty and left posterior maxillary osteotomy with residual nasal deformity and neuropraxia left side of face (rated at 10 percent), maxillary dysfunction due to status post septorhinoplasty and left posterior maxillary osteotomy with residual nasal deformity and neuropraxia left side of face (rated at 10 percent), and compression fracture of T4 (rated as noncompensable), and fracture of sternum (rated as noncompensable). The Veteran's need for aid and attendance was most recently evaluated in a September 2017 examination for housebound status or permanent need for regular aid and attendance. At examination, the Veteran reported his activities were restricted by residuals of a cerebrovascular accident (CVA). The Veteran was able to feed himself and prepare his own meals with supervision. He did not require assistance bathing or managing medication. The Veteran reported paralysis of the left side due to residuals of CVA. At a November 2020 hearing, the Veteran testified that he required aid and attendance of another due to residuals of a CVA resulting in left-side weakness and paralysis. At the hearing, his representative also stated that the Veteran is claiming SMC due to residuals of a CVA, which he acknowledged was not service-connected. The Veteran testified that disability had worsened since his September 2017 examination. The Veteran's wife testified that the Veteran requires assistance with preparing meals, feeding himself, bathing, and toileting. The Veteran also testified to a history of falls and instability as a result of his CVA. The Veteran has also previously submitted lay statements noting that he requires the aid and attendance of another due to residuals of a CVA. While the Board sympathizes with the Veteran's need for help from another person, his residuals of a CVA is not a service-connected disability at this time. As noted above, SMC for aid and attendance is warranted when as a result of service-connected disabilities, a veteran is so helpless as to need or require the regular aid and attendance of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b)(3). At present, the Veteran has not asserted, and the record does not establish, his need for aid and attendance is due to any of his service-connected disabilities. Because the Veteran's residuals of a CVA is not a service-connected disability, it cannot be considered when determining the Veteran's need for aid and attendance. Based on the probative evidence of record, the Board finds that entitlement to SMC based on the need for aid and attendance is not warranted. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Riordan, 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.