Citation Nr: 21040241 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 16-09 473 DATE: July 2, 2021 ORDER Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance is granted. FINDING OF FACT Prior to his death, due to his service-connected residual of a ruptured spleen status post splenectomy due to colonoscopy and associated stroke, the Veteran was 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 regular aid and attendance are met. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.102, 3.350, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who served on active duty in the United States Army from August 1955 to November 1957, died in January 2021. The appellant is his surviving spouse and has been properly substituted as the claimant for purposes of processing the claim to completion. See 38 U.S.C. § 5121A. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2016, the Veteran and his spouse, the appellant, testified during a Board hearing before the undersigned Veterans Law Judge. The appeal was remanded for further development in December 2016 and May 2018. SMC SMC is payable where a veteran suffers from service-connected disability that renders him permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114; 38 C.F.R. § 3.350 (b). A veteran shall be considered to be in need of regular aid and attendance if: he/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 five degrees or less; or is a patient in a nursing home because of mental or physical incapacity; or establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). See also 38 C.F.R. § 3.351(c). Determinations as to the need for aid and attendance are based on the actual requirements of personal assistance from others. In determining the need for regular aid and attendance, consideration will be given to the inability of the veteran and his or her spouse to dress or undress themselves, or to keep clean; frequent need of adjustment of any prosthetic which by reason of the disability cannot be done without aid; inability of the veteran or his or her spouse to feed themselves; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect themselves from the hazards or dangers of the daily environment. Bedridden will be that condition which, through its essential character, actually requires that the claimant remain in bed. 38 C.F.R. § 3.352(a). It is mandatory for VA to consider the enumerated factors within the regulation, and at least one of the enumerated factors be present. Turco v. Brown, 9 Vet. App. 222 (1996). In order for the Appellant to prevail in the claim, the evidence must show that it is a service-connected disability that has resulted in the Veteran's need for regular aid and attendance. Prejean v. West, 13 Vet. App. 444 (2000). The appellant seeks SMC benefits based on the need for aid and attendance or at the housebound rate because of the impairment caused by the Veteran's service-connected residual of a ruptured spleen s/p splenectomy due to colonoscopy disability prior to his death. Specifically, the Veteran's representative maintains that although the he had several other non-service-connected disabilities, his service-connected splenic injury resulted in a stroke and mental decline (dementia), which caused his need for regular aid and attendance. See February 2020 Appellate Brief. To this end, the appellant maintains that she provided the Veteran with daily constant aid prior to his death as he was unable to take care of himself and needed someone to watch him at all times. See August 2016 Board Hearing Transcript. As detailed below, the Board agrees. The record reflects that the Veteran was service-connected for residual of a ruptured spleen s/p splenectomy due to colonoscopy and midline abdominal scar. A May 2014 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance indicates that the Veteran could not prepare his own meals, needed assistance in bathing and tending to other hygiene needs, and required medication management. The examiner noted that he could not stand for long periods of time alone and was wheelchair bound for most of the time. During the August 2016 Board Hearing, the appellant testified that she provided the Veteran with daily constant aid as he was unable to take care of himself and needed someone to watch him at all times. A May 2017 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance indicates that the Veteran could not prepare his own meals, needed assistance in bathing and tending to other hygiene needs, required medication management, and did not have the ability to manage his own financial affairs. The examiner noted that he was in a wheelchair accompanied by his wife, that he needed assistance with getting dressed and bathing, and that he had a limited ability to sit for long periods of time and that he had to lay in bed due to weakness, dizziness, and heart problems. An August 2018 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance indicates that the Veteran could not prepare his own meals, needed assistance in bathing and tending to other hygiene needs, required medication management, and did not have the ability to manage his own financial affairs. The examiner noted that he was chronically ill and in a wheelchair, that he needed assistance with getting dressed and bathing due to pain, that he stayed in bed 80 to 90 percent of the time, and that he only left his home for doctor's appointments. A March 2019 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance indicates that the Veteran could not prepare his own meals, needed assistance in bathing and tending to other hygiene needs, required medication management, and did not have the ability to manage his own financial affairs. The examiner noted that he was chronically ill and in a wheelchair, that he needed assistance with getting dressed and bathing due to pain, that he was unable to bend, walk, stoop, or squat, that he stayed in bed 90 percent of the time, and that he only left his home for doctor's appointments. In a September 2019 private opinion, Dr. T. F. noted the Veteran had dementia and was wheelchair bound and that his wife took care of him. In an October 2019 VA examination, the examiner noted that the Veteran's diagnosis of residual of a ruptured spleens/p splenectomy due to colonoscopy had progressed and determined that his stroke was a progression of this disability. Specifically, the examiner stated that studies reveal that splenic injury and splenectomy were significantly associated with an increased risk of hemorrhagic and ischemic strokes and that several complications of splenectomy, including bacterial infections, thrombosis, thromboembolism, pulmonary arterial hypertension, and cancer, have been described. A November 2019 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance indicates that the Veteran could not prepare his own meals, needed assistance in bathing and tending to other hygiene needs, required medication management, and did not have the ability to manage his own financial affairs. The examiner noted that the Veteran was confined to a wheelchair due to lower leg weakness and cognitive impairment due to stroke and dementia. To this end, the examiner noted that the Veteran's wife cooked all his meals, attended to all his bathing and hygiene needs, and provided him with medication as a result of his confinement to a wheelchair. She also noted that the Veteran only left his home once a month for doctor's visits. Based on the totality of the evidence, the Board finds that the lay and medical evidence of record sufficiently establishes that prior to his death, due to his service-connected residual of a ruptured spleen s/p splenectomy due to colonoscopy and associated stroke, the Veteran was so helpless as to be in need of regular aid and attendance of another person. Critically, the October 2019 VA examiner attributed his stroke to his splenic injury, which the November 2019 VA examiner stated caused his dementia (cognitive impairment) and lower leg weakness, which ultimately caused his confinement to a wheelchair and resulting need for constant assistance from the appellant. Accordingly, SMC based upon the need for regular aid and attendance is established. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Asante, Ruby 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.