Citation Nr: 22015679 Decision Date: 03/18/22 Archive Date: 03/18/22 DOCKET NO. 16-04 476 DATE: March 18, 2022 ORDER Entitlement to special monthly compensation (SMC) based on aid and attendance or housebound status from October 1, 2015 to November 30, 2015 is granted. Entitlement to SMC based on aid and attendance or housebound status prior to October 1, 2015 is denied. FINDINGS OF FACT 1. The competing lay and medical evidence is in 'approximate balance' regarding whether the Veteran was in need of the regular aid and attendance of another person due to his service-connected disabilities from October 1, 2015 to November 30, 2015; therefore, the Board resolves the benefit of the doubt in favor of the appellant. 2. The competent evidence of record persuasively supports a finding that the Veteran was not in need of the regular aid and attendance of another person or housebound due to his service-connected disabilities prior to October 1, 2015; therefore there is no benefit of the doubt to resolve in the appellant's favor. CONCLUSIONS OF LAW 1. The criteria for entitlement to SMC for aid and attendance from October 1, 2015 to November 30, 2015 have been met. 38 U.S.C. §§ 1114, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.350, 3.352(a). 2. The criteria for entitlement to SMC for aid and attendance prior to October 1, 2015 have not been met. 38 U.S.C. §§ 1114, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.350, 3.352(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty from September 1966 to September 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision issued by a Department of Veterans Affairs (VA) regional office (RO). Unfortunately, the Veteran passed away during the pendency of the appeal; the appellant is the Veteran's surviving spouse and was recognized as his substitute in April 2017. In October 2021, the appellant was notified that she was scheduled for an in-person Travel Board hearing with a Veterans Law Judge of the Board of Veterans' Appeals in December 2021. Before the hearing, in November 2021, the Board received an Appeal Cancellation Form completed by the appellant which indicates that the appellant wished to "cancel" her appeal. However, by and through her representative, the appellant clarified, in a statement received on December 3, 2021 and a brief received thereafter, that she wanted to "withdraw her request for a BVA HEARING, but still wishes a Board of Appeals Judge to consider her statement as testimony when rendering a decision." Considering all of this correspondence together, the Board finds that the appellant's intent was not to withdraw her appeal, but instead to simply withdraw her hearing request and continue with her appeal. In accordance with her wishes, the Board will thus proceed to adjudicate this appeal. 1. Entitlement to SMC based on aid and attendance or housebound status from October 1, 2015 to November 30, 2015 The appellant claims entitlement to SMC based on aid and attendance from October 2015, instead of from the current December 2015 effective date, because the Veteran went on hospice in October 2015 until his death the following year and had a bather that came twice a week and also had his sister living with them to keep him company during the day. See VA Form 21-4138, Statement in Support of Claim, received December 3, 2021. The record as a whole reflects that the hospice and other care mentioned above was necessitated by the Veteran's service-connected terminal lung cancer. Special monthly compensation is payable under 38 U.S.C. § 1114(l) if, as the result of service-connected disability, the Veteran is permanently bedridden or is so helpless as to be in need of regular aid and attendance of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). Need for aid and attendance means being so helpless as to require the regular aid and attendance of another person. 38 C.F.R. § 3.350(b). As it pertains to the present case, criteria for establishing such need include whether the Veteran is permanently bedridden or is so helpless as to be in need of regular aid and attendance as determined under criteria enumerated under 38 C.F.R. § 3.352(a). Under 38 C.F.R. § 3.352(a), the following factors will be accorded consideration in determining whether the Veteran is in need of regular aid and attendance of another person: (1) inability of the Veteran to dress or undress himself, or to keep himself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without such aid; (3) inability of the Veteran to feed himself because of the loss of coordination of upper extremities or because of extreme weakness; (4) inability to attend to the wants of nature; or (5) physical or mental incapacity which requires care or assistance on a regular basis to protect the 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 38 C.F.R. § 3.352(a) be found to exist before a favorable rating may be made. The particular personal functions which the Veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance, not that there is a constant need for aid and attendance. 38 C.F.R. § 3.352(a); see Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in § 3.352(a) must be present to grant special monthly compensation based on the need for aid and attendance). For the purposes of 38 C.F.R. § 3.352(a), "bedridden" will be a proper basis for the determination of whether the Veteran is in need of regular aid and attendance of another person. "Bedridden" will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that a claimant 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). Here, the Veteran's wife has competently stated that the Veteran went on hospice in October 2015 until his death in 2016 and had a bather coming twice a week during that time. A December 1, 2015 letter from the Veteran's physician indicates that he "ha[d] lung cancer and COPD and [was] currently on hospice." The letter does not state when the Veteran went on hospice. There is no competent evidence in the claims file that indicates that the Veteran was not on hospice care in October 2015 or that he did not require assistance with activities such as bathing during that time. The Veteran's wife did not state the exact date that the Veteran went on hospice care and first required assistance bathing, but the Board finds that it is at least as likely as not that the Veteran was on hospice and in need of regular aid and attendance from October 1, 2015. Resolving all doubt in the appellant's favor, the Board finds that the appellant is entitled to SMC based on aid and attendance from October 1, 2015 to November 30, 2015. 2. Entitlement to SMC based on aid and attendance or housebound status prior to October 1, 2015 As discussed above, the Veteran's spouse has alleged that the Veteran went on hospice and required the bather from October 2015 until his death; however, she has not claimed that he was in need of regular aid and attendance or housebound prior to that date. Furthermore, the competent medical evidence of record shows that he was not in need of regular aid and attendance or housebound, and did not require assistance bathing and tending to other hygiene needs, through at least early August 2015. See VA Form 21-0960L-1, Respiratory Conditions Disability Benefits Questionnaire (DBQ), dated August 6, 2015; VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, dated August 6, 2015. As the appellant has not claimed that the Veteran was in need of regular aid and attendance or housebound prior to October 2015, and the medical evidence shows that he was not, the Board finds that the evidence persuasively supports a finding that the Veteran was not in need of regular aid and attendance or housebound prior to October 1, 2015. As such, the Board finds that the appellant is not entitled to SMC based on aid and attendance prior to October 1, 2015. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Banks, 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.