Citation Nr: 22019997 Decision Date: 04/04/22 Archive Date: 04/04/22 DOCKET NO. 19-07 929 DATE: April 4, 2022 ORDER Special monthly compensation based on regular aid and attendance is granted. FINDING OF FACT The evidence demonstrates that the Veteran has a factual need for regular aid and attendance. CONCLUSION OF LAW The criteria for special monthly compensation based on regular aid and attendance are met. 38 U.S.C. §§ 1144, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.351, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the United States Navy from February 1973 to April 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran attended a virtual hearing before the undersigned in November 2021. Special Monthly Compensation The Veteran is claiming special monthly compensation (SMC) for regular aid and attendance. For the following reasons, the Board finds that SMC for regular aid and attendance is warranted. SMC is payable for regular aid and attendance when a veteran is helpless or so nearly helpless that he or she requires the regular aid and attendance of another person. 38 U.S.C. § 1114; 38 C.F.R. § 3.351(a), (b). To establish a need for regular aid and attendance a veteran must (1) be blind or so nearly 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; (2) be a patient in a nursing home because of mental or physical incapacity; or (3) show a factual need for regular aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). 38 C.F.R. § 3.351(c). The Veteran is service connected for posttraumatic stress disorder, bowel incontinence, degenerative arthritis of the spine with degenerative disc disease thoracic spine and lumbar disc disease status post fusion, right lower extremity radiculopathy (sciatic nerve), left lower extremity radiculopathy (sciatic nerve), status post total right knee replacement, chondromalacia patella left knee with arthrotomy and osteoarthritis (limitation of extension), chondromalacia patella left knee with arthrotomy and osteoarthritis (instability), right lower extremity radiculopathy (femoral nerve), left lower extremity radiculopathy (femoral nerve), right knee scars, left knee scar, female sexual arousal disorder, surgical scar of the neck area, surgical scar of the anterior trunk, and surgical scars of the lumbar spine. There is no evidence that the Veteran is blind or nearly blind and she is not in a nursing home. The Veteran may establish aid and attendance through factual need. Factual need for aid and attendance is based on the following criteria: the inability of the veteran to dress or undress himself or herself, or to keep himself 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 (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.); the inability of a veteran to feed himself or herself through the loss of coordination of upper extremities or through extreme weakness; the inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect a veteran from the hazards or dangers to his daily environment. 38 C.F.R. § 3.352(a). The Board finds that there is enough evidence to establish a factual need for aid and attendance. In June 2018, the Veteran underwent a VA examination for her claim. The examiner found the Veteran to have instability of gait and that she sways using a cane for balance. It was noted that the Veteran lost her balance when walking into the examination room. She reported that she nearly falls multiple times per day while walking and that she cannot clean her home or play in the yard with her dogs. The examiner noted that the Veteran was unable to bathe, toilet, or dress without modified independence. The claims file also includes multiple VA examinations for the Veteran's service-connected disabilities. In June 2019, she underwent an examination for her back disability. Her symptoms were noted to be constant pain in the back. The Veteran reported that she cannot tie her shoes and has to use a tool to clean herself after using the bathroom. She also reported that her wife drives her everywhere. In September 2021, she underwent another VA examination for her back disability. Her symptoms were the same as at her June 2019 examination. The Veteran also underwent a VA examination for her radiculopathy in September 2021. Her symptoms were found to be severe intermittent pain and moderate paresthesias and/or dysesthesias and numbness. It was noted that the Veteran had an abnormal gait and utilizes a wheelchair, cane, and walker for ambulation. In September 2021, the Veteran underwent a VA examination for her knee disabilities. Her symptoms were constant weakness, stiffness, swelling, giving way, tenderness, and pain. The examiner noted that the Veteran's left knee prevented her from squatting kneeling, walking long distance, or standing for any significant length of time. The Veteran submitted a June 2021 examination for housebound status and need for regular aid and attendance accompanied by a letter from her medical provider. The provider found the Veteran to be unable to prepare her own meals, require assistance with bathing and tending to other hygiene needs, and medication management. They explained in the letter that the Veteran is unable to stand or maneuver in the kitchen to prepare meals. They also noted that the Veteran has limited ability to flex her spine or twist and is unable to wash/reach her lower extremities, posterior body, or head. The Veteran required use of a wheelchair for extended ambulation and had a fixed posture due to extensive spinal fusion. She also is unable to stand safely unsupported. At her November 2021 hearing, the Veteran and her wife provide extensive testimony on the Veteran's need for regular aid and attendance. The Veteran testified that she cannot prepare her own meals and due to her fused spine, she cannot stand for long, reach above her head or below her waist, and cannot lift cooking tools. She testified about her limited mobility and was noted to be in a wheelchair during the hearing. The Veteran was able to stand during the hearing, but only with her representative and wife supporting her and was visibly in extreme pain during this. The Veteran also testified that her wife has to help with cleaning up after toileting, dressing the Veteran, bathing, and preparing meals. The Veteran testified that her wife also manages the Veteran's medication. The Veteran's wife testified that she has to drive the Veteran because she cannot drive. The Veteran's wife also testified that she helps the Veteran get dressed and with using the bathroom. (Continued on the next page) The Board finds this evidence to show that the Veteran requires regular aid and attendance due to her service-connected disabilities. As such, the Board finds that the Veteran is entitled to SMC for regular aid and attendance on a factual basis and the claim is granted. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Chandeck, 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.