Citation Nr: 23048131 Decision Date: 08/31/23 Archive Date: 08/31/23 DOCKET NO. 19-35 963A DATE: August 31, 2023 ORDER Entitlement to special monthly compensation (SMC) based on the Veteran's spouse's need for regular aid and attendance is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his spouse needs and relies on the aid and assistance of another person to perform the routine activities of daily living. CONCLUSION OF LAW The criteria for entitlement to special monthly compensation (SMC) based on the Veteran's spouse's need for regular aid and attendance have been met. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from April 1970 to October 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2018 rating decision issued by the Department of Veterans Affairs VA Regional Office. In March 2022, the Veteran testified before the undersigned Veterans Law Judge during a Board virtual hearing. SMC Any veteran who is entitled to VA disability compensation at the rates provided in 38 U.S.C. § 1114, whose disability is rated not less than 30 percent disabling, and whose spouse is a patient in a nursing home, or helpless or blind, or so nearly helpless or blind as to need or require the regular aid and attendance of another person, is entitled to additional compensation. 38 U.S.C. § 1115. The record shows the Veteran has had at least one disability rating in excess of 30 percent throughout the period on appeal. Hence, he meets the initial requirements for this provision. VA's governing laws and regulations direct that SMC at the aid and attendance rate is payable to a veteran by reason of the veteran's spouse being helpless or so nearly helpless that he or she requires the regular aid and attendance of another person. 38 U.S.C. §§ 1502 (b); 38 C.F.R. § 3.351 (a), (b). To establish a need for regular aid and attendance, the veteran's spouse 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 five degrees or less; (2) be a patient in a nursing home because of mental or physical incapacity; or (3) show a factual need for aid and attendance. 38 U.S.C. § 1502 (b); 38 C.F.R. §§ 3.351 (c). Determinations as to a factual need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to such conditions as the inability to dress and undress, the inability to keep ordinarily clean and presentable, the inability to feed oneself through loss of coordination of the upper extremities or through extreme weakness, or the inability to attend to the wants of nature. It includes the frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid. A need for aid and attendance also includes either physical or mental incapacity that requires care or assistance on a regular basis to protect against the hazards or dangers incident to the daily environment. Additionally, an individual who is bedridden, as that term is defined by regulation, meets the criteria for aid and attendance. 38 C.F.R. § 3.352 (a). Bedridden is defined as a condition that, through its essential character, actually requires that the individual remain in bed. The fact that the veteran's spouse 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). Bedridden is defined as a condition that, through its essential character, actually requires that the individual remain in bed. The fact that the veteran's spouse 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 particular personal functions which the veteran's spouse is unable to perform should be considered in connection with her condition as a whole. The evidence need only establish that she is so helpless as to need regular aid and attendance, not constant need. Determinations that she is so helpless as to need regular aid and attendance will not be based solely upon an opinion that her condition requires her to be in bed. They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352 (a). The Veteran's spouse must be unable to perform one of the enumerated personal functions, but her condition does not have to manifest in an inability to perform all the enumerated personal functions. Turco v. Brown, 9 Vet. App. 222, 224 (1996). As the Veteran's spouse is neither blind nor nearly blind and is not a patient in a nursing home, the facts must establish that the Veteran's spouse is in need of aid and attendance in order to establish eligibility for SMC benefits. Resolving reasonable doubt in the Veteran's favor, the Board finds that such is the case. A review of the spouse's June 2022 treatment records and May 2022 VA examination for housebound status or permanent need for regular aid and attendance reflects that the Veteran has adopted the role of a caregiver for her. Further review of lay statements by the Veteran's daughter, son, and sister-in-law further reflects that he assists his spouse on a daily basis with using the bathroom, showering, and getting in and out of bed. He also provides all transportation for her needs, to include taking her to all her medical appointments. The Veteran further states that he does 95 percent of the cooking, cleaning, and chores around the house. See March 2018 Correspondence. A February 2018 VA examination for housebound status or permanent need for regular aid and attendance further indicated that the Veteran's spouse was diagnosed with chronic back pain, degenerative disc disease, scoliosis, and peripheral neuropathy. The examiner indicated that she spent 12 hours in bed and is unable to sit or stand for prolong periods. She has difficulty walking and poor coordination and uses a walker and a cane for assistance. She requires a shower chair to shower. Her upper extremities are restricted due to a weak grip and inability to lift more than five pounds. She is unable to bend to the floor due to poor strength. She is also unable to drive. The examiner indicated she was able to leave her home for medical appointments and to eat out dinner two times a month. In a May 2022 VA examination for housebound status or permanent need for regular aid and attendance, a physician indicated that her gait is slow. She shuffles her feet and needs a walker at all times. She is unable to drive, stand for more than five minutes, or walk longer than 30 feet or so due to lack of body strength. She is prone to having dizzy spells. Although she can fix her own food, it is usually microwaved or easy to fix. She needs assistance with getting in and out of the shower. She has occasional trouble getting off the toilet. She has a neurostimulator and morphine pump inside her body to help control her pain. Her arm strength is limited, and she is unable to lift more than a few pounds. She has constant low back and leg pain which is so severe at times that she is unable to get out of bed. She lays in bed all day and sleeps sometimes more than 10 hours. Her husband provides all of her transportation. She further reported a decline in her memory. In view of the examination reports and lay statements, the Board finds the evidence is in relative balance as to whether the Veteran's spouse requires regular aid and attendance of another. Notably, available evidence sufficiently shows the Veteran's spouse regularly needs aid and attendance of another to perform some of the basic functions of daily life due to her chronic low back pain and loss of strength of her upper and lower extremities. The evidence of record further indicates that her condition has worsened throughout the year requiring more assistance with performing her activities of daily living, which suggest that her need for regular aid and attendance can be reasonably expected to continue. Thus, in view of the above, the Board finds the evidence supports finding the Veteran's spouse has a factual need for the aid and attendance of another as the available evidence shows she has required assistance with activities of daily living or needed care or assistance on a regular basis. Therefore, the claim for SMC based on the Veteran's spouse's need for aid and attendance is granted. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Xiong, Doaw 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.