Citation Nr: 21041946 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 16-55 924 DATE: July 10, 2021 ORDER Entitlement to a higher special monthly compensation (SMC) rating based on the need for aid and attendance, is denied. FINDING OF FACT The Veteran is not so helpless as to need or require the regular aid and attendance of another person. CONCLUSION OF LAW The criteria for entitlement to a higher SMC rating based on need for aid and attendance have not been met. 38 U.S.C. §§ 1114, 5103, 5103A, 5107; 38 C.F.R. §§ 3.350, 3.352(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1976 to November 1979, from November 1990 to April 1991, and from January 2006 to November 2006. Based on a prior request for SMC benefits, the agency of original jurisdiction (AOJ) granted SMC at the housebound level, effective from November 28, 2006, and denied SMC at the aid and attendance level. The Veteran then submitted a new claim for an increase in SMC based on the need for regular aid and attendance, which is a higher level of compensation than that of SMC at the housebound rate in February 2015. Following receipt of the AOJ's denial of the aid and attendance claim in a July 2015 rating decision, the Veteran appealed. 38 U.S.C. § 1114. In August 2019, the Board of Veterans' Appeals (Board) remanded this case because the Veteran had requested an informal hearing, but had been unable to attend a previously scheduled one. Pursuant to the 2019 Remand, the Veteran was offered a hearing. He requested that the hearing be rescheduled, but his representative later asked that the Board proceed with the appeal and submitted an additional brief and argument for consideration. Increase in SMC benefits based on Regular Aid and Attendance The Veteran contends that his service-connected conditions warrant additional entitlement under SMC compensation based on aid and attendance (A&A). The Board finds that the evidence does not show the Veteran's service-connected conditions render him so helpless as to need or require the regular aid and attendance of another person under the criteria set forth in 38 C.F.R. § 3.352(a). The Veteran is currently receiving SMC benefits under "S-1," based on housebound status. The Veteran is entitled to special monthly compensation under 38 U.S.C. § 1114, subsection (s) and 38 C.F.R. § 3.350(i) on account of history of total laryngectomy after recurrent carcinoma of the larynx with tracheoesophageal puncture and history of radiation failure rated 100 percent and additional service-connected disability of aphonia, independently ratable at 60 percent or more from November 28, 2006. SMC for A&A housebound is payable to a veteran who, because of his service-connected disabilities, is so helpless as to need or require the regular aid and attendance of another person under the criteria set forth in 38 C.F.R. § 3.352(a). 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b)(3). When determining whether the regular aid and attendance of another person is needed, the following factors are considered: inability to dress or undress oneself, or to keep oneself 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 such aid; inability to feed oneself through the loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or an incapacity, physical or mental, which requires care or assistance on a regular basis to protect the Veteran from the hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352(a). Under the provisions of 38 U.S.C. § 1114(l), special monthly compensation based on A&A is payable where a veteran, as the result of service-connected disability(ies), has sustained the anatomical loss or loss of use of both feet, or of one hand and one foot, or is blind in both eyes, with 5/200 visual acuity or less, or is permanently bedridden or with such significant disabilities as to be in need of regular aid and attendance. 38 C.F.R. § 3.350(b)(3). For the purposes of 38 C.F.R. § 3.352(a), "bedridden" is a proper basis for determining whether the veteran needs regular aid and attendance of another person. "Bedridden" means that the veteran is actually required to remain in bed. 38 C.F.R. §§ 3.350(b)(4), 3.352(a). Voluntarily taking to bed or being prescribed bed rest for the greater or lesser part of the day to promote convalescence or cure is insufficient. Determinations that the veteran is so helpless as to be in need of regular aid and attendance will not be based solely upon an opinion that the veteran's condition is such as would require him to be in bed, but must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352(a). A veteran does not need to demonstrate all the above factors to be found entitled to A&A benefits, and the need for regular aid and attendance does not have to be constant. The particular personal functions that a veteran is unable to perform should be considered in connection with his condition as a whole. 38 C.F.R. § 3.352(a); Turco v. Brown, 9 Vet. App. 222, 224 (1996). Also, the performance of the necessary aid and attendance service by a relative or other member of the veteran's household will not prevent a favorable decision. 38 C.F.R. § 3.352(c). The Veteran's service-connected disabilities include aphonia (100%), residuals of a total laryngectomy (100%), articular osteopenia of the right wrist (10%), osteopenia and mild degenerative changes of the right ankle (10%), mild enthesopathic changes of the right knee (10%), and mild osteopenia and degenerative changes of the right hand (10%). On VA examination for A&A in July 2015, the examiner noted that the Veteran completed his own toileting and grooming. The Veteran's wife sometimes assisted him with bathing and dressing. He spent most of his day in the house resting, but was able to take a short walk around the house. Veteran reported that his wife prepared his meals and reminded him to take medications. In addition, she accomplished most household chores. The examiner noted that the Veteran can perform all self-care functions. For bathing, he used a bath chair and bath grab bars. He could walk a few hundred yards without assistance of another person and used a cane for ambulation. He was not restricted to his home. While this examination is 6 years old, there has been no assertion of record that the Veteran's condition has worsened, or that this examination is inadequate or does not reflect his current condition. Further, the claims folder contains no competent evidence refuting the findings of the July 2015 VA examination. Accordingly, the Board finds that there is no basis on which to grant A&A benefits. The Veteran is able to perform all functions of self-care. The evidence of record does not reflect that he requires the assistance of another in performing his activities of daily living, or has been bedridden due to his service-connected disabilities. 38 C.F.R. § 3.352(a). THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.E. Lee 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.