Citation Nr: 25003791 Decision Date: 03/20/25 Archive Date: 03/20/25 DOCKET NO. 18-16 660 DATE: March 20, 2025 ORDER Entitlement to special monthly compensation (SMC) based on the need for the regular aid and attendance of another person, for accrued benefits purposes, is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT Resolving all doubt in the Veteran's favor, at the time of his death in August 2018, he was in need of the regular aid and attendance of another person as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for SMC based on the need for regular aid and attendance of another person have been met. 38 U.S.C. § 1114(l); 38 C.F.R. §§ 3.350, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1972 to May 2007. He passed away in August 2018. His surviving spouse has been substituted as the appellant in this appeal. The appeal comes before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision. The matter was before the Board in October 2022, at which time the Board denied the claim of entitlement to SMC based on the need for regular aid and attendance. The appellant appealed to the United States Court of Appeals for Veterans Claims (Court). In a March 2024 Order, the Court granted the Joint Motion for Remand (JMR) of the parties and remanded the matter for readjudication. The matter now returns to the Board. During his lifetime, the Veteran contended that he was entitled to SMC based on the regular need for the aid and attendance of another person. SMC, in pertinent part, is payable if, as the result of service-connected disabilities, a veteran is so helpless as to need regular aid and attendance of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). Under 38 C.F.R. § 3.352(a), the following factors will be accorded consideration in determining whether a veteran is in need of regular aid and attendance of another person: (1) the inability of the veteran to dress or undress herself, or to keep herself 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 herself because of the loss of coordination of upper extremities or because of extreme weakness; and (4) 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 veteran from the hazards or dangers incident to his or her daily environment. 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 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. After a review of the record, the Board finds that the criteria for SMC based on the need for regular aid and attendance of another have been met. At the time of his death, the Veteran was service connected for the following disabilities: status post vagotomy and Billroth II operation, with residual scar, to include anemia and weight loss; heart condition; sleep apnea, to include pulmonary fibrosis and daytime sleepiness; chronic headaches; degenerative joint disease, cervical spine; splenectomy; right knee osteoarthritis; left arm tenosynovitis; low back strain; hypertension; deviated septum; Hodgkin's disease; lipoma; and hypogonadism. He had a combined 100 percent rating from June 1, 2007. In connection with his initial claim for SMC, VA received a medical questionnaire from a private medical practice, completed by the Veteran in August 2015. The Veteran reported that he sometimes needed help putting clothes on; could not prepare meals without help; sometimes needed help being fed; and sometimes needed help taking a bath. He indicated that he could use the toilet independently. He stated that he could not clean his home or shop for food without help. He indicated that the symptoms of dizziness, shortness of breath, weakness, and anxiety, prevented him from completing the above tasks, and that he had experienced those symptoms since his March 2015 heart surgery. Also in August 2015, VA received a VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance. The physician who completed the examination indicated that the Veteran could feed himself but could not prepare his own meals. The Veteran needed assistance bathing but did not require nursing home care. The Veteran's spouse was noted to manage his medication as there was a history of "questionable" overdose; likewise, the Veteran's spouse managed his finances. The Veteran appeared thin, used a cane, evinced mild kyphosis, and displayed calm and appropriate demeanor. As to upper extremity restrictions, the physician reported no issues, and noted that the Veteran could feed himself, button his clothing, shave, urinate, and defecate. The physician reported a possible issue with ambulation due to narcotic use. The physician noted that the Veteran experienced frequent shortness of breath due to past complications from a heart procedure. In a December 2015 VA heart conditions examination report, a VA physician noted that the Veteran could not engage in prolonged walking or strenuous activities. In March 2017, the Veteran and his spouse underwent a caregiver assessment at VA. The Veteran's spouse reported that she worked away from home and had cameras installed at her home in order to monitor the Veteran while he was home alone. She explained that they were in "continuous communication" while she was at work, and that there were various friends and family nearby available to assist the Veteran if needed. She reported that the couple lived in a two-story home but that the Veteran resided primarily on the first floor, as he suffered from chronic pain. When his pain flared, he required assistance with dressing, toileting, and bathing; this occurred approximately three to four times per week. The spouse also assisted with medication compliance and provided "daily mood management" due to the Veteran's complaints of "depression, anxiety, insomnia, nightmares, uncontrollable urges/anger, inability to tolerate crowds." At a May 2017 in-home VA caregiver assessment, the Veteran reported that he was independent with feeding, bathing and personal hygiene, and toileting, but that he needed assistance with ambulation and dressing. He was totally dependent on his spouse for preparing meals, housework, medication management, and financial management. He needed assistance with shopping and transportation. He was independent with using the telephone. At a July 2018 VA safety assessment, it was noted that the Veteran required extensive assistance with bathing, dressing, and mobility; and required limited assistance with eating, oral hygiene, and toileting. As noted, the Veteran passed away in August 2018. After considering the above, the Board finds that the evidence is at the very least in approximate equipoise as to whether, at the time of his death, the Veteran's service-connected disabilities were so severe as to require the aid and attendance of another. Although he reported that he only required "limited assistance" with personal hygiene needs, including toileting, the Veteran's spouse also noted that when the Veteran's chronic pain flared up, which could happen three to four times per week, he required assistance with all needs, including toileting. The Board finds that the fact that the Veteran's spouse had such a specific safety plan in place, including cameras installed in the house and friends and family nearby ready to assist if necessary, suggests that the Veteran was unable to protect himself from the hazards or dangers incident to his daily environment. Resolving all doubt in the Veteran's favor, entitlement to SMC under the provisions of 38 U.S.C. § 1114(l) is granted, for accrued benefits purposes. Leetra J. Harris Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Polly Johnson, 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.