Citation Nr: 21040258 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 16-59 722 DATE: July 2, 2021 ORDER Entitlement to special monthly compensation (SMC) based on the aid and attendance is denied. FINDING OF FACT The preponderance of the evidence of record does not reflect that the Veteran is bedridden or so helpless as to be in need of regular aid and assistance due to service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to special monthly compensation (SMC) based on the aid and attendance have not been met. 38 U.S.C. §§ 1114(l), 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.350(b)(3), 3.352(a), 4.3. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from August 1970 to March 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. This matter was previously before the Board in November 2018, where it was remanded for additional development. The Board notes that there was substantial compliance with its November 2018 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Entitlement to SMC based on the aid and attendance. The Veteran contends that SMC is warranted based on his need for regular aid and attendance from another person. Regarding aid and attendance, SMC is payable at a specified rate if the Veteran, as the result of service-connected disability, is bedridden or so helpless as to be in need of regular aid and assistance. 38 U.S.C. § 1114(1); 38 C.F.R. § 3.350(b). Aid and attendance is appropriate if the record establishes a factual need for the benefits under the criteria set forth in 38 C.F.R. § 3.352(a). The criteria to establish a factual need for aid and attendance are listed under 38 C.F.R. § 3.352(a). Aid and attendance is warranted if the following criteria are met: the inability of a claimant to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any specific prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include adjustment of appliances which normal persons would be unable to adjust without such aid, such as supports, belts, lacing at the back, etc.); the inability of a claimant to feed himself 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 daily environment. It is not required that all of the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found to exist before a favorable rating may be made. The particular personal functions which a 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 a veteran is so helpless as to need regular aid and attendance, not that there is a constant need. Id. The Veteran is currently service connected for the following disabilities: posttraumatic stress disorder and alcohol abuse, tinnitus, bilateral hearing loss, and erectile dysfunction. VA and private treatment records reveal complaints and treatment for the Veteran's service-connected disabilities, with noted issues of a decline in memory to the point of forgetting to close doors and turn off the stove and/or car, according to his spouse; however, he has the ability to perform moderate physical activity, and continues to perform activities of daily living, with assistance as needed with bathing, shaving, dressing, and fixing food only due to nonservice-connected orthopedic issues. See VA and private treatment records. VA examinations of record assessing the Veteran's PTSD reflect that he has memory issues, but can maintain personal hygiene, dressing himself, feeding himself, attending to his own toilet needs, and managing his own financial affairs. See VA Examinations, May 2007, January 2008, September 2010, and May 2012. VA examinations of record assessing the Veteran's hearing loss and tinnitus reflect the Veteran has difficulty hearing with ringing in his ears; however, there is no functional impact noted other than his trouble hearing in crowds and irritability due to the ringing in his ears. See VA Examinations, May 2008 and May 2012. VA examinations of record assessing the Veteran's erectile dysfunction reflect he has issues with obtaining an erection due to his PTSD; however, this does not have any functional impact on his ability to perform activities of daily living, other than urinary dysfunction due to hesitancy, slow stream, and weak stream. See C&P Exams, April 2017 and September 2019. In a November 2015 private examination for housebound status or permanent need for regular aid and attendance, the examiner noted that the Veteran's diagnoses of PTSD and right shoulder pain restrict his activities and functions, and render the need for assistance. Specifically, the examiner found that the Veteran needed assistance in preparing meals, bathing, shaving, clothing, and feeding himself due to right shoulder pain. According to the private examiner, the Veteran required medication management due to memory problems that prevent daily compliance, and the Veteran was unable to manage finances. The examiner relayed, however, that the Veteran can feed himself, is not legally blind, and does not require nursing home care. Additionally, the examiner noted that the Veteran's loss of memory had declined over the previous six months, and that the Veteran unable to drive at all, or leave the premises without his wife due to his fibromyalgia. See Private Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, November 2015. Based on the above, the Board notes that while the evidence of record in its totality reflects treatment, complaints, and a level of functional impact of the Veteran's service-connected disabilities, it does not readily show a severity level of impairment that renders the Veteran bedridden or so helpless as to need regular aid and attendance due to his service-connected disabilities. Specifically, there is no evidence that the Veteran's service-connected disabilities provides the inability to dress or undress himself, keep himself ordinarily clean and presentable, adjust any specific prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include adjustment of appliances which normal persons would be unable to adjust without such aid, such as supports, belts, lacing at the back, etc.), feed himself through loss of coordination of upper extremities or through extreme weakness, attend to the wants of nature, or be so incapacitated, physically or mentally, to require care or assistance on a regular basis in order to protect himself from hazards or dangers incident to his daily environment. While the Board acknowledges the November 2015 private examination finding that the Veteran needs assistance in preparing meals, bathing, shaving, clothing, and feeding himself, the Board notes that this examination and treatment records during the appeal period all reflect that this assistance needed is solely due to his nonservice-connected right shoulder pain. Additionally, while the private examiner finds the Veteran needs assistance in managing his finances, the Board finds this to be heavily outweighed by the VA examinations of record to the contrary, as well as, the Veteran's own statements that he could manage his finances independently if he used cash. Lastly, while there is evidence of memory issues due to the Veteran's PTSD, the evidence of record in its totality reveals that this does not interfere with the Veteran's ability to perform activities of daily living to the point of rendering him incapacitated. Therefore, as the probative evidence of record is against the Veteran's claim, the Board finds that entitlement to SMC based on aid and attendance is not warranted; and the claim is denied. The Board notes that the lay assertions of record have been considered. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). To the extent that they have argued that SMC based on aid and attendance is warranted, these assertions are outweighed by more probative evidence provided by the medical evidence of record, to include the examinations of qualified medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, the lay statements do not provide such a probative basis upon which to grant the claim. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C. § 5107 and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). The claim is denied. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Hodges, 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.