Citation Nr: 21040406 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 14-28 187A DATE: July 3, 2021 ORDER Entitlement to special monthly compensation (SMC) for regular aid and attendance is denied. FINDING OF FACT The Veteran's service-connected disabilities do not render him so helpless as to require regular aid and attendance. CONCLUSION OF LAW The criteria for entitlement to SMC based on aid and attendance have not been met. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1978 to April 1983. He testified before the undersigned Veterans Law Judge at a November 2017 hearing. The transcript is of record. The Board of Veterans' Appeals (Board) most recently remanded this claim in an October 2020 decision. It has now returned for adjudication. 1. Entitlement to special monthly compensation for regular 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). 38 C.F.R. § 3.351(c). 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). It is not required that all of the disabling conditions enumerated in the provisions of 38 C.F.R. § 3.352(a) be found to exist to establish eligibility for aid and attendance and that such eligibility required at least one of the enumerated factors be present. The particular personal function which a veteran was unable to perform should be considered in connection with his or her condition as a whole and that it was only necessary that the evidence establish that a veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Turco v. Brown, 9 Vet. App. 222 (1996). Bedridden status will also be a proper basis for the determination of the need for regular aid and attendance. Bedridden means that condition which, through its essential character, actually requires that the veteran remain in bed. The fact that a veteran 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). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). The Board previously remanded this issue in October 2020. Such was based on the report from the Veteran's spouse that she had to assist him with bathing and dressing, which the Board interpreted as a worsening of symptoms. An updated examination was ordered. The examination took place in November 2020. The examiner reported that the service-connected disabilities affected his activities of daily living including dressing, feeding, attending the needs of nature, and keeping himself clean. She also reported impacted activities due to weakness and nerve pain in the right hand, which is not service connected. The Veteran generally did not leave the house but was not bedridden, blind, or living in a nursing facility. The examiner opined that the Veteran could not prepare his own meals and needed significant assistance with dressing, bathing, grooming, keeping clean, and toileting. The non-service-connected right hand was given as a reason for feeding, dressing, shaving, and attending nature. Such weighs against the Veteran's claim, i.e., that his inability to attend to the needs of daily living was due a non-service connected disability. VA also examined the Veteran's back and radiculopathy separately in October 2020. The examiner included functional limitations on activities such as bending, walking, standing, lifting, pushing, pulling, and climbing. He also stated that the Veteran used a motorized cart and cane to assist in ambulation. He did not, however, consider the Veteran to be so helpless as to require the aid and attendance of another person. The VA examinations weigh against a finding of helplessness requiring aid and attendance. The Veteran has significant limitations, but those limitations are consistent with his significant disability. SMC requires more than significant disability and the Veteran has not been found to be unable to do, for example, basic hygiene or dressing activities due to his service-connected disabilities. At the 2017 hearing, the Veteran testified that he had problems falling. In particular, he stated that when in the lavatory brushing his teeth, he could get a catch in his back when straightening up. He also testified that he could not ambulate because of his knees and back. His wife testified that she had to basically give him baths at night and help him with shoes, socks, and clothes. This testimony indicates a difficulty in dressing and cleaning, but do not demonstrate the more limiting "inability" that the regulations require. As to ambulation, aid and attendance does not consider limited ability to ambulate one of the general criteria. The Veteran's representative argued that 38 C.F.R. § 4.63 may apply as it related to the inability to balance and propel. Section 4.63 refers to the loss of use of a hand or foot. This is not applicable as the Veteran has not lost the use of a hand or foot and does not have service-connected disabilities of the hand or foot. The remaining evidence shows a consistent picture of a significant disability, but not one that leaves the Veteran so helpless as to be unable to perform basic activities of daily living such as cleaning or grooming. As SMC for aid and attendance requires more it must be denied. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Saindon, 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.