Citation Nr: 22017196 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 15-14 556 DATE: March 24, 2022 ORDER Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance (SMC A&A) is granted. FINDING OF FACT The Veteran's service-connected disabilities result in a need of regular aid and attendance. CONCLUSION OF LAW The criteria for SMC A&A have been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1966 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Board remanded the above claim for additional development. The Board notes that there has not been substantial compliance as the supplemental statement of the case issued following remand does not indicate that the RO considered the examinations directed by the Board. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). Nonetheless, as the Board is herein granting the benefit sought, there is no prejudice to the Veteran. Entitlement to SMC A&A. The Veteran's representative contends that the Veteran needs assistance with bathing and tending to other hygiene needs, medication management, preparation of meals, and assistance with the needs of nature. Additionally, the Veteran is insulin and oxygen dependent due to his heart and kidney conditions, and he is in the process of dialysis due to his kidney condition, which he has three times a week and takes nearly a day to recover from each time. The Veteran reports that his wife assists in dressing and bathing him, and that he has loss of feeling in his feet and experiences shortness of breath on exertion. SMC is an additional level of compensation paid to veterans above the basic levels of compensation for various types of losses or levels of impairment solely due to service-connected disabilities. It reflects recognition by VA that certain disabilities, either alone or in combination, have an impact on a veteran beyond the impairment of earning capacity, which is central to the Rating Schedule. 38 C.F.R. § 4.1. Basic levels of SMC are listed at 38 U.S.C. § 1114(k). Additional levels of SMC are provided in 38 U.S.C. § 1114(l) through (t). The SMC rate payable under 38 U.S.C. § 1114(l) is warranted if a veteran, as the result of service-connected disability, has suffered 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. "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). The following basic considerations are critical in determining the need for the regular aid and attendance of another person: inability of the veteran to dress or undress him or herself, or to keep him 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; inability of claimant to feed him or herself 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 or her daily environment. 38 C.F.R. § 3.352(a). Determinations as to the need for aid and attendance must be based on actual requirements of personal assistance from others. Id. 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. Turco v. Brown, 9 Vet. App. 222, 224-25 (1996). The particular personal functions which a veteran is unable to perform should be considered in connection with his or her condition as a whole. It is only necessary that the evidence establish that a veteran is so helpless as to need regular aid and attendance, not that there is a constant need. Id. Here, the Veteran is service connected for ischemic heart disease (100 percent from June 6, 2007), diabetic nephropathy associated with type II diabetes mellitus (80 percent from November 5, 2012 and 100 percent from May 13, 2019), posttraumatic stress disorder (50 percent from March 10, 2005), peripheral neuropathy, right lower extremity associated with type II diabetes mellitus (40 percent from November 5, 2012), left knee traumatic arthritis (30 percent from November 25, 2009), peripheral neuropathy, right upper extremity associated with type II diabetes mellitus (30 percent from November 5, 2012), type II diabetes mellitus with diabetic retinopathy and erectile dysfunction (20 percent from June 1, 1999), peripheral neuropathy, left upper extremity associated with type II diabetes mellitus (20 percent from November 5, 2012), peripheral neuropathy, left lower extremity associated with type II diabetes mellitus (20 percent from November 5, 2012), history of perforated jejunum and sigmoid colon with abdominal adhesions and with liver laceration (10 percent from June 19, 1969), Hepatitis C (noncompensable from February 13, 2003), onychomycosis left big toe associated with type II diabetes mellitus (noncompensable from March 3, 2003), scar, dialysis catheter associated with diabetic nephropathy (noncompensable from May 17, 2019). VA examinations in November 2013 show that the Veteran's service-connected peripheral neuropathy was noted to be severe and caused reduced strength, reduced reflexes, reduced sensation, and muscle atrophy. The Veteran's diabetic nephropathy was noted to cause weakness. A December 2013 report VA examination for housebound status or permanent need for regular aid and attendance shows that the Veteran was unable to prepare his meals, exhibited an antalgic gait, and had a history of falls due to his service-connected knee arthritis and peripheral neuropathy. A March 2016 report VA examination for housebound status or permanent need for regular aid and attendance shows that the Veteran dresses himself but requires the help of his wife sometimes, is only able to drive short distances, and has to use modified utensils because of grip issues. The examiner opined that the Veteran needs assistance for activities of daily living (ADLs), and reasoned that although he is able to do ADLs by himself, he reports that it is difficult to do them, and he sometimes requires the assistance of his wife for activities such as dressing and bathing. A report VA examination for housebound status or permanent need for regular aid and attendance received in April 2016 shows that the Veteran has an antalgic gait, poor balance, loss of stamina, needs assistance in bathing and tending to other hygiene needs, and is unable to prepare meals and manage his financial affairs. A report VA examination for housebound status or permanent need for regular aid and attendance received in September 2016 shows that the Veteran is unable to prepare his own meals and needs assistance with bathing and hygiene. The examiner noted that the Veteran is "essentially home bound," due to his moderate-to-severe decrease in finger dexterity, severe decrease in lower extremity sensation, moderate decrease in knee range of motion, and poor balance due to his service-connected lower and upper extremity peripheral neuropathy, and left knee arthritis. A May 2021 report VA examination for housebound status or permanent need for regular aid and attendance shows that the Veteran is unable to prepare his own meals, manage his medications, or bathe and tend to his hygiene. The Veteran reported that he can dress himself, but he must move slowly to do so and use modified tools for putting on socks and shoes. He experienced occasional incontinence because of inability to get to the bathroom in time due to his antalgic gait and shuffling. He constantly used a cane. The Veteran also reported that he must use portable oxygen with nasal canula at 2 liters at all times, and that his son has to drive him to appointments sometimes. The Board finds that giving the Veteran the benefit of the doubt, the totality of the circumstances indicate that he needs the regular aid and attendance of another person. Regular assistance is needed to protect himself from dangers in the daily environment and perform certain movements due to his service-connected bilateral upper and lower extremity peripheral neuropathy, diabetic nephropathy, ischemic heart disease, and left knee arthritis. The medical and lay evidence indicates that he is a risk for falls, uses a cane constantly, and uses a walker at times. He is also unable to keep himself ordinarily clean and presentable and requires assistance in bathing and with hygiene. He has occasional bowel and bladder incontinence due to gait impairments that prevent him from reaching a restroom in time, and must use a toilet chair. Further, he cannot prepare his own meals or manage his medications, he must use modified tools to dress himself, and at times he must be transported to his doctor appointments. Although the Veteran may not need constant assistance of another person, the medical and lay evidence demonstrates the need for regular assistance of another person, as contemplated by 38 C.F.R. § 3.352(a). Additionally, that this assistance is provide by a relative or member of his household does not prevent the granting of the requested benefit. 38 C.F.R. § 3.352(c). Therefore, the Board finds that SMC under 38 U.S.C. § 1114(l) is warranted. Rebecca N. Poulson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Thaddaeus J. Cox, 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.