Citation Nr: 22016953 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 17-17 181A DATE: March 23, 2022 ORDER Entitlement to special monthly compensation based on aid and attendance is denied. FINDING OF FACT The Veteran is not blind, is not in a nursing home, did not lose the use of both feet, is not permanently bedridden, and is not in need of regular aid and attendance as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for the award of SMC based on the need for regular aid and attendance have not been met. 38 U.S.C. §§ 1114, 5107, 38 C.F.R. §§ 3.102, 3.350, 3.351, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U. S. Air Force from April 1973 to March 1978. This matter comes before the Board of Veterans' Appeals (Board) from an August 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). An October 2018 rating decision awarded special monthly compensation based on housebound criteria, effective April 10, 2007. In April 2020 correspondence, the Veteran specifically requested a videoconference hearing at his local RO. He was scheduled for a Board videoconference hearing in August 2021 at the Cheyenne Regional Office. The Veteran failed to report for this scheduled hearing without good cause. VA has received no communication, written or otherwise, from the Veteran pertaining to the hearing. Because the Veteran has failed to appear for his scheduled hearing without good cause and there has been no request for postponement, his request for a hearing will therefore be considered withdrawn. 38 C.F.R. § 20.704(d). In the October 2021 informal hearing presentation, the Veteran's representative argued that the case should be remanded for a current assessment of the Veteran's condition because it had been several years since the Veteran's most recent examination. The duty to get a new examination is triggered only when the available evidence indicates that the previous examination no longer reflects the current state of the Veteran's disability. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-83 (2007); VAOPGCPREC 11-95 (1995). In the current case, there is no indication that the Veteran's disabilities have progressed in severity. As explained in further detail below, it appears the Veteran's condition has substantially improved. Accordingly, remand is not necessary. SMC SMC as provided by 38 U.S.C. § 1114(l) is payable if as a result of a service-connected disability has suffered anatomical loss or loss of use of both feet, one hand and one foot, blindness in both eyes with visual acuity of 5/200 or less or being permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). The following will be accorded consideration in determining the need for regular aid and attendance: inability of claimant to dress or undress himself, or to keep himself 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.); inability of 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. 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. 38 C.F.R. § 3.352(a); see also Turco v. Brown, 9 Vet. App. 222, 224 (1996) (noting that at least one factor listed in § 3.352(a) must be present for a grant of special monthly pension based on 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 Veteran remain in bed. The fact that the 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). Entitlement to special monthly compensation based on aid and attendance. The Veteran contends that he is eligible for special monthly compensation (SMC) based on his claimed need for aid and attendance (A&A) due to his service-connected disabilities. The Veteran submitted his claim for SMC based on A&A in July 2015, explaining that when he experienced a migraine he was completely incapacitated. He reported that his wife helped him manage his mental health disabilities by understanding his triggers. The Veteran's wife, a nurse, also provided a July 2015 statement explaining that she acted as his caregiver during a migraine episode and that the Veteran was a fall risk. In a corresponding examination for A&A, the Veteran's VA doctor reported that during a migraine the Veteran was completely incapacitated for 2 to 3 days. See March 2015 examination report. In a December 2015 statement, the Veteran reported that the medications he was prescribed for his service-connected disabilities prevented him from driving and caused fatigue and dizziness. He reported several falls due to his disabilities. In a corresponding December 2015 examination for A&A, the Veteran's VA doctor reported that the Veteran needed assistance with activities of daily living (ADL), medication management, and financial affairs. The Veteran attended a VA examination in November 2016. He told the examiner that he performed his daily hygiene and fed himself when he was hungry. He told the examiner that he liked "to go out and BBQ." He reported dizziness, memory loss and constant imbalance. He denied needing assistance with grooming, eating, dressing, or using the bathroom. He denied any physical or mental incapacity which required care or assistance on a regular basis to protect the Veteran from hazards or dangers incident to the daily environment. The Veteran reported needing assistance putting on his ankle braces, but was able to adjust them frequently throughout the day independently. The examiner determined that the Veteran did not meet the criteria for SMC A&A. Between June 2015 and May 2017 VA treatment records reflect the Veteran was questioned dozens of times on whether he had difficulty in bathing, dressing, or using the bathroom. More often than not, the Veteran denied difficulty. The Veteran submitted a consultant's opinion in April 2017. The private report stated that the Veteran understood that he did "not need help with most things" but that the medication he took to treat his service-connected conditions prevented him from driving. The private consultant determined that the Veteran was able to perform most ADLs and instrumental ADLs but was occasionally limited by pain. The consultant noted that the Veteran's spouse "put forth a significant amount of effort" taking care of the Veteran. During June 2016 VA treatment, the Veteran's long-term and short-term memory were intact, and he denied dizziness. No movement abnormalities were noted. The Veteran denied difficulty walking, bathing, transferring, dressing, or using the bathroom during September 2017 VA treatment. He also denied dizziness or unsteadiness. In June 2018, the Veteran was assigned power of attorney over his mother. He applied to add his mother as a dependent in April 2019. In a corresponding letter, the Veteran stated that his spouse passed away in July 2019 and he was the "sole caregiver and sole provider" for his mother's health and wellbeing. The Veteran stated that his mother became incapacitated around 2016 and his family decided that he was most equipped to provide the care she needed. He explained that his mother also relied on him for transportation because she was unable to drive. The Board is not persuaded that the evidence supports the Veteran's claim. As an initial matter, several of the criteria for entitlement to special monthly compensation based on the need for regular aid and attendance are not applicable in this case. Specifically, the Veteran does not have a service-connected disability that results in loss or loss of use of a foot or in blindness in both eyes. Again, the Veteran has not contended, and the record does not show, that he is bedridden. Therefore, the only potentially applicable criterion for entitlement is helplessness. The record reflects he is not so helpless as to be in need of regular aid and attendance. The record does not demonstrate that he is unable to perform routine activities of daily living. Therefore, the functional impact of his disabilities cause limitations but have not been noted to prevent him from being able to dress and be presentable, he does not use a prosthetic, he can feed himself, and he has not been found to require such assistance as described in the regulation due to service-connected disability. This is evidenced by the fact that the Veteran was the sole caregiver for his elderly mother. The Board recognizes the Veteran's reports of relying on his spouse prior to her death but finds it highly probative that he is not only able to care for himself but act as the sole caregiver for his mother despite his disabilities. In summary, the evidence is persuasively against the Veteran's claim that his service-connected disabilities meet any of the criteria for entitlement to special monthly compensation based on the need for regular aid and attendance, and the claim is denied. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Fitzgerald, 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.