Citation Nr: 25005390 Decision Date: 04/22/25 Archive Date: 04/22/25 DOCKET NO. 11-06 547 DATE: April 22, 2025 ORDER Entitlement to special monthly compensation (SMC) based on the need for aid and attendance of another person for the purposes of substitution is granted. FINDING OF FACT There is sufficient evidence to conclude that the Veteran required the regular aid and attendance of another person to carry out the activities of daily living due to his service-connected disabilities prior to his death. CONCLUSION OF LAW The criteria for SMC based on the need for aid and attendance of another person for the purposes of substitution are met. 38 U.S.C. §§ 1114(l), 5103, 5103A, 5107, 5121A; 38 C.F.R. §§ 3.102, 3.350, 3.352(a), 3.1010(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1966 to July 1968. The Veteran died in September 2020. The Appellant is the Veteran's surviving spouse and has been granted substitution as the claimant in this pending appeal. See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010(a). This case was remanded by the Board of Veterans' Appeals (Board) in March 2024 for development with respect to an inferred claim of entitlement to SMC based on the need for aid and attendance of another person for substitution purposes and is now ready for appellate review of this issue. I. Legal Criteria When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the U.S. Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See also Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021). Only when the evidence persuasively favors one side, or another is the benefit of the doubt doctrine not for application. Id. Entitlement to aid and attendance benefits is based on a showing that the claimant is (1) blind, or (2) a patient in a nursing home, or (3) requires the regular assistance of another person for most of the activities of daily living and for protection against the hazards or dangers incident to daily life. 38 C.F.R. §§ 3.350, 3.351. Determinations as to 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: Inability of claimant to dress or undress himself/herself or to keep himself/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 himself/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/her daily environment. "Bedridden" will be a proper basis for the determination and is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. It is not required that all of the disabling conditions enumerated above be found to exist before a favorable rating may be made. The particular personal functions which the claimant is unable to perform should be considered in connection with his/her condition as a whole. It is only necessary that the evidence establish that the claimant is so helpless as to need regular aid and attendance, not that there is a constant need. 38 C.F.R. § 3.352(a). II. Analysis Prior to the Veteran's death, service connection was in effect for disabilities to include post-traumatic stress disorder (PTSD) with dysthymic disorder, rated as 70 percent disabling; coronary artery disease, rated as 60 percent disabling; degenerative disc disease of the thoracolumbar spine, rated as 40 percent disabling; diabetes, rated as 20 percent disabling; and peripheral neuropathy of the bilateral upper and lower extremities, with each extremity rated as 10 percent disabling. While not required for the SMC benefits at issue, the service-connected disabilities combined to be 100 percent disabling prior to the Veteran's death, effective from September 2007. In response to a request for an opinion by the March 2024 Board remand as to the impact of the Veteran's service connected disabilities on the activities of daily living during his lifetime, a VA clinician completed an opinion in April 2024 that noted that impaired judgment and labile moods due to PTSD and dysthymic disorder resulted in the Veteran needing to be in a nursing facility that required nursing aids. She also stated that the Veteran's coronary artery disease required blood pressure monitoring and that his degenerative disc disease of the thoracolumbar spine could lead to decreased range of motion. In this regard, the clinician remarked that the Veteran was wheelchair bound and could stand only with assistance and that he needed aid to help stand to shower and move to do the activities of daily living such as cooking, moving from a chair to the bed, using the bathroom and shower, and getting dressed. The clinician also noted that the Veteran's diabetes could lead to episodes of confusion and hypoglycemia. Finally, she found that the Veteran's peripheral neuropathy could have caused impaired balance requiring the need for close ambulatory monitoring and assistance with the activities of daily living. In short, the undersigned find the opinion above is sufficient to conclude that the Veteran required the regular assistance of another person for most of the activities of daily living and for protection against the hazards or dangers incident to daily life due to his service-connected disabilities. As such, the undersigned finds that the criteria for SMC based on the need for aid and attendance for substation purposes are met. 38 U.S.C. §§ 1114(l), 5107, 5121A; 38 C.F.R. §§ 3.102, 3.350, 3.351, 3.352(a), 3.1010(a); Lynch, Gilbert, supra. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ahlberg, Andrew 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.