Citation Nr: 21041382 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 16-32 338 DATE: July 9, 2021 ORDER Entitlement to special monthly compensation (SMC) based on the need for the regular aid and attendance of another person is granted. FINDINGS OF FACT 1. The Veteran does not have a single disability rated at 100 percent. 2. Resolving reasonable doubt in his favor, the Veteran is in need of aid and attendance of another person with activities such as meal preparation, dressing, bathing, and hygiene due to pain and impaired functioning caused by his service-connected neck, back, knee, mood, and depressive disorders. CONCLUSION OF LAW The criteria for SMC based on the regular need for aid and attendance are met. 38 U.S.C. §§ 1114(l), 1502(b), 5107; 38 C.F.R. §§ 3.102, 3.350, 3.351, 3.352 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from October 1975 to October 1978 and from October 1980 to July 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision of a Department of Veterans' Affairs (VA) Regional Office, the agency of original jurisdiction (AOJ). The Veteran, in his June 2016 appeal, requested a Board hearing. Due to the COVID-19 pandemic, a virtual hearing was scheduled for April 2021, and the Veteran was so notified. However, in March 2021, the Veteran withdrew his request for a hearing. Therefore, the hearing request is deemed withdrawn and the Board may proceed with adjudication of this appeal. Following issuance of the Statement of the Case, a May 2016 VA mental disorders examination report, which includes evidence relevant to this appeal, was associated with the Veteran's electronic claims file. Although the evidence is VA-generated and there is no signed waiver of AOJ review by the Veteran or his representative, the Board finds that remanding the claim for issuance of a Supplemental Statement of the Case or placing the case in abeyance in order to solicit a waiver from the Veteran is not warranted as the Board has determined that the benefits to which the evidence relates may be fully allowed on appeal. 38 C.F.R. § 20.1304(c) (2020). SMC The Veteran seeks entitlement to SMC at the aid and attendance and/or housebound rate. See Examination for Housebound Status or Permanent Need for Regular Aid and Attendance received January 23, 2013. SMC at the housebound rate provided under 38 U.S.C. § 1114(s) is payable when a veteran is permanently housebound by reason of service-connected disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). This requirement is met when the veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises, or if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. Id. SMC is payable at the housebound rate where the claimant has a single service-connected disability rated as totally disabling and one or more distinct service-connected disabilities, which are independently ratable at 60 percent or more and involve different anatomical segments or bodily systems. 38 U.S.C. § 1114(s)(1); 38 C.F.R. § 3.350(i). SMC for aid and attendance at the rate provided under 38 U.S.C. § 1114(l) is payable when a veteran requires the regular aid and attendance of another person. One is considered in need of regular aid and attendance if he or she: (1) is a patient in a nursing home on account of mental or physical incapacity; (2) is blind or nearly so 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 (3) establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). 38 U.S.C. § 1502(b); 38 C.F.R. § 3.351(b), (c). The factors considered in determining the need for aid and attendance include, in pertinent part, the inability to perform such tasks as to dress and undress oneself, to maintain ordinary cleanliness, to feed oneself, to attend to the wants of nature, or to have physical or mental incapacity which requires care or 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). A need for aid and attendance will also be found if the claimant is "bedridden," meaning that condition which, through its essential character, actually requires that the claimant remain in bed. Id. Not all of the above disabling conditions need be found to exist in order to grant aid and attendance benefits. Id. It is only necessary that the evidence establish that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. Id. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Housebound Regarding SMC based on housebound status, the Veteran does not have a single disability rated at 100 percent. Therefore, he does not meet the threshold requirements for special monthly compensation payable at the housebound rate under 38 U.S.C. § 1114(s). Additionally, the evidence does not show, nor does the Veteran contend, that he is permanently housebound due to his service-connected disabilities. There is no evidence to suggest that the Veteran is substantially confined to his home or the immediate premises. Therefore, the Board finds that the preponderance of the evidence weighs against a finding that SMC based on housebound status is warranted. See 38 U.S.C. § 5107(b), Gilbert, supra. Aid and Attendance Entitlement to SMC by reason of the need for regular aid and attendance requires helplessness such as to require the regular aid and attendance of another person. One is considered in need of regular aid and attendance if he or she: (1) is a patient in a nursing home on account of mental or physical incapacity; (2) is blind or nearly so 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 (3) establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). 38 U.S.C. § 1502(b); 38 C.F.R. § 3.351(b), (c). The factors considered in determining the need for aid and attendance include, in pertinent part, the inability to perform such tasks as to dress and undress oneself, to maintain ordinary cleanliness, to feed oneself, to attend to the wants of nature, or to have physical or mental incapacity which requires care or 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). A need for aid and attendance will also be found if the claimant is "bedridden," meaning that condition which, through its essential character, actually requires that the claimant remain in bed. Id. Not all of the above disabling conditions need be found to exist in order to grant aid and attendance benefits. Id. It is only necessary that the evidence establish that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. Id. The Board notes that the Social Security Administration (SSA) has determined that the Veteran is disabled due to neck, low back, and left foot disabilities. While SSA determinations are not binding on the Board, they are, however, relevant and the records relied upon to make SSA determinations are probative evidence specifically in consideration of the Veteran's claim for SMC. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (observing that while SSA decisions are relevant, there are significant differences between SSA and VA recognition of disabilities and SSA decisions are not binding on VA). Upon review of the evidence of record, the Board finds that the evidence does not establish that the Veteran has corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; or is a patient in a nursing home because of mental or physical incapacity. Nevertheless, the Veteran's service-connected disabilities, particularly his service-connected lumbar spine, left lower extremity radiculopathy, and left knee degenerative joint disease have resulted in his need for regular aid and attendance. The January 2013 SMC examination completed by R.T., M.D. reflects that the Veteran described chronic, severe low back pain with radicular pain in his legs regularly occurring every second or third day. At times, the Veteran was unable to get out of bed all day (24 hours), and he was unable to prepare meals, bathe, or tend to hygiene needs without assistance. On other days, when the pain was less severe, he was able to get up and move around but was unable to bend to do physical work, touch his knees, or bend left or right. Doctor R.T. noted that at times, it was all the Veteran could do to reach a toilet. While the Veteran was able to drive a vehicle, he was able to do so only for limited periods of time. VA treatment records reflect that the Veteran has suffered from chronic neck, back, and knee pain throughout the period on appeal. A February 2015 VA psychiatry outpatient note reflects that the Veteran was "paying a guy to drive me around." An April 2015 VA functional dependence assessment notes that the Veteran needs help with bathing, dressing, toileting, transferring, bowel function, bladder function, eating/feeding, behavior patter and orientation. During an April 2015 VA physical medicine rehabilitation consultation, it was noted that the Veteran was prescribed Oxycodone, Cyclobenzaprine, Gabapentin, and Ibuprofen for chronic neck and low back pain, which, according to the Veteran provided only "mild" relief. On examination, the Veteran's gait was slow and stable but guarded with use of a cane. His left lower extremity stance was decreased. There was tenderness to palpation at the neck, low back, and left knee. The Veteran's range of motion was "grossly" decreased in all planes with lumbar motion self-limited by pain. During an October 2015 VA outpatient appointment, the Veteran walked with a cane and had an antalgic gait. He reported that his left knee would give away and he fell twice, most recently one month earlier. He said his neck and back hurt constantly. The Veteran was unable to perform neck and back range of motion testing due to pain. While undergoing a VA mental disorders examination in May 2016, the Veteran said most of the time he was "too depressed" to get out of bed. He said he received assistance with dressing and cooking from a person he paid "to come over and help me get dressed" and do cooking. He said if he was feeling really good, he "goes out and gets something" if he was able to drive. The Veteran added, "I usually have a guy drive me around." The lay and medical evidence reveals that the Veteran has been in need of the regular aid and attendance of another person for activities such as meal preparation, dressing, bathing, and hygiene throughout the period on appeal, and that such assistance is due to pain and impaired physical functioning due to his service-connected neck, back, knee, mood, and depressive disorders. Therefore, resolving all reasonable doubt in favor of the Veteran, the Board finds that, as demonstrated by facts found in the record SMC based on the regular need for aid and attendance is warranted for the entire period on appeal. 38 U.S.C. §§ 1502(b), 1114(l); 38 C.F.R. §§ 3.102, 3.351(b), (c), 3.352(a). Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017). S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Farrell, Associate 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.