Citation Nr: A25035255 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 250107-502653 DATE: April 16, 2025 ORDER Entitlement to special monthly compensation (SMC) based on aid and attendance is granted. REMANDED Entitlement to SMC based on loss of use of left lower extremity is remanded. Entitlement to SMC based on loss of use of right lower extremity is remanded. FINDING OF FACT Due to service-connected disabilities, the Veteran is so helpless as to need regular aid and attendance of another person. CONCLUSION OF LAW The criteria for SMC based on the need for regular aid and attendance have been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.351, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from December 1967 to August 1971. In November 2024, the regional office (RO) denied SMC based on loss of use and aid and attendance. In the January 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the November 2024 agency of original jurisdiction (AOJ) decision, as well as any evidence submitted by the Veteran or representative with, or within 90 days from receipt of, the VA Form 10182. See 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. See 38 C.F.R. §§ 20.300, 20.303, 20.801. However, because the Board is remanding the claim of SMC based on loss of use, any evidence the Board could not consider will be considered by the AOJ in the adjudication of the claim. See 38 C.F.R. § 3.103(c)(2)(ii). Special Monthly Compensation Special monthly compensation is payable at a specified rate if the veteran, as the result of service-connected disability, is in need of regular aid and attendance. Need for aid and attendance means helplessness or is so nearly helpless as to require the regular aid and attendance of another person. A veteran will be considered to be in need of regular aid and attendance if he or she is blind or is 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; if the veteran is a patient in a nursing home because of mental or physical incapacity; or if the evidence establishes a factual need for aid and attendance or "permanently bedridden" status under the criteria set forth in 38 C.F.R. § 3.352(a). See 38 U.S.C. § 1114(l); 38 C.F.R. § 3.351(b). The following will be accorded consideration in determining the need for regular aid and attendance: inability of claimant to dress or undress himself, or to keep himself 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.); inability of claimant to feed himself 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. "Bedridden" will be a proper basis for the determination. See 38 C.F.R. § 3.352(a). A veteran will be found to be bedridden if the condition actually requires that he remain in bed, but not if he voluntarily stays in bed or if a physician merely recommends bed rest. It is not required that all of the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made. The particular personal functions that the 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 the veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that the veteran is so helpless, as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant's condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others. Id. Furthermore, the performance of the necessary aid and attendance service by a relative of the beneficiary or other member of his or her household will not prevent the granting of the additional allowance. See 38 C.F.R. § 3.352 (c). The United States Court of Appeals for Veterans Claims (Court) held that a veteran need not show all of the disabling conditions identified in 38 C.F.R. § 3.352(a) to establish entitlement to aid and attendance, it is logical to infer there is a threshold requirement that "at least one of the enumerated factors be present." See Turco v. Brown, 9 Vet. App. 222, 224 (1996). 1. SMC aid and attendance. The Veteran's seeks SMC based on the need for aid and attendance of another person. Here, the Veteran, the Veteran's spouse, and a private examiner presented credible evidence showing the Veteran's service-connected disabilities rendered him in need of aid and attendance in his daily care. Indeed, the probative evidence demonstrates the Veteran requires aid with food preparations, personal hygiene, cleaning, grocery shopping, medication management, and other daily activities. See Veteran's and spouse lay statement (May 2024 and October 2024); Physician letter (October 2024), VA examination (October 2024). Accordingly, these findings constitute highly probative evidence weighing in favor of the claim and demonstrate the Veteran's is so helpless as to need regular aid and attendance of another person for daily activities. For the above reasons, the evidence weighs in favor of the Veteran's claim and SMC based on the need aid and attendance of another person is warranted. REASONS FOR REMAND This appeal is being reviewed under the modernized review system, commonly referred to as the "AMA," as established by the Veterans Appeals Improvement and Modernization Act of 2017. 115 Pub. L. No. 55, 131 Stat. 1105. Remand by the Board in the AMA is proper for correction of a pre-decisional duty to assist errors. 38 C.F.R. § 20.802 (a). 2. Entitlement to SMC based on loss of use of lower extremities. The Veteran seeks SMC benefits based on the loss of use of bilateral lower extremities. The Veteran underwent bilateral lower extremity VA examinations in February 2017, October 2021 and August 2024. See VA medical examinations (February 2017, October 2021 and August 2024). However, the examiners did not adequately address the pertinent lay and medical evidence of record regarding the severity of the Veteran's bilateral lower extremity conditions. Moreover, the examiner did not provide an adequate medical opinion assessing the severity of the Veteran's bilateral lower extremity disabilities, including the loss of use, ankylosis, and equivalency to amputation. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Consequently, the examinations are inadequate and provided minimal probative weight. The failure to provide an adequate examination and opinion constitutes a pre-decisional duty to assist error requiring remand to remedy. See 38 U.S.C. § 5103A(f)(2)(A); 38 C.F.R. § 20.802(a). On remand, the examiner must provide a retrospective medical opinion discussing the severity of the Veteran's service-connected bilateral lower extremity disabilities, throughout the appeal. See Chotta v. Peake, 22 Vet. App. 80, 85-86 (2008). In doing so, the examiner must fully discuss the medical and lay evidence regarding the symptoms and impairment of the Veteran's service-connected bilateral lower extremity disabilities for the appealed period. See Miller v. Wilkie, 32 Vet. App. 249, 260 (2020). The matter is REMANDED for the following action: Schedule a VA examination to assess the severity of the Veteran's service-connected bilateral lower extremity disabilities. The examiner must review the entire claims file and this remand. The examiner shall provide a full, retrospective description of the severity of the bilateral lower extremity disabilities and report all signs and symptoms necessary for evaluating the Veteran's disability, throughout the appeal period. The examiner shall identify all functional impairment, found to be present in the disability, including the loss of use, ankylosis, and equivalency to amputation. In doing so, the examiner must specifically acknowledge and discuss the Veteran's medical history and competent lay reports regarding the severity of the bilateral lower extremity disabilities condition. If unable to render a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. If the examiner is unable to provide any requested opinion without resort to speculation, he or she must explain why this is so. SHAUN S. SPERANZA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Alvarado 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.