Citation Nr: 24002441 Decision Date: 01/17/24 Archive Date: 01/17/24 DOCKET NO. 20-17 977 DATE: January 17, 2024 ORDER Entitlement to special monthly compensation (SMC) based on aid and attendance is granted. FINDING OF FACT The Veteran's service-connected disabilities render him so helpless as to be in need of regular aid and attendance of another person. CONCLUSION OF LAW The criteria for SMC based on aid and attendance have been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION Procedural Background The Veteran served on active duty in the United States Army from March 1978 to July 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2023, a VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative) in favor of Washington Department of Veterans Affairs was received. However, the Veteran's appeal was certified and docketed in May 2020, and the change in representation was submitted more than 90 days thereafter without good cause. A representative may not withdraw unless good cause is shown on motion. 38 C.F.R. § 20.608. Therefore, the Board finds that The American Legion retains representation of the Veteran in his appeal. SMC SMC based on aid and attendance is payable when a veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). The need for aid and attendance is defined as helplessness or being so nearly helpless as to require the regular aid and attendance of another person. To establish a need for regular aid and attendance, the 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 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 C.F.R. § 3.351(c). Determinations as to the need for regular aid and attendance are factual and must be based upon the actual requirements for personal assistance from others. In making such determinations, consideration is given to such conditions as: the inability of the 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 assistance; the inability of the claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; the inability to attend to the wants of nature; or incapacity, either physical or mental, which requires care or assistance on a regular basis to protect a claimant from hazards or dangers incident to one's daily environment. It is not required that all of the disabling conditions enumerated be present before a favorable rating is made. 38 C.F.R. § 3.352(a). 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. 38 C.F.R. § 3.352(c). 1. Entitlement to SMC based on aid and attendance is granted. The Veteran is service connected for the following disabilities: anxiety neurosis with insomnia and depression; sleep apnea; intervertebral disc syndrome with multilevel spinal stenosis, status post laminectomies with osteoarthritis; radiculopathy, left lower extremity; radiculopathy, right lower extremity; left shoulder impingement syndrome; right shoulder impingement syndrome; ruptured left ankle tendon; right ankle tendinitis; tinnitus; left knee retropatellar pain syndrome; right knee retropatellar pain syndrome; right knee limitation of extension; left ear hearing loss; scar on back associated with spine laminectomies; and bilateral pes planus. In written statements, the Veteran and his wife described his daily limitations which included assistance with cooking, bathing, assistance with getting dressed, and help with navigating stairs in the house. In a July 2018 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance completed by a private physician, it was noted that the Veteran had severe stenosis of the spine, had decreased range of motion, and exhibited poor balance. It was noted that the Veteran used crutches and a wheelchair in order to get around. The Veteran was confined to bed from 9 pm to 9 am. He was unable to prepare his own meals. He needed assistance with bathing and tending to other hygiene needs. In a September 2018 VA back examination report, it was noted that the Veteran had a laminectomy in December 2017. Over the past several years, his spine condition had worsened, with radicular pain into his legs, decreased range of motion and foot drop. On VA aid and attendance/housebound examination in December 2018, the examiner noted the Veteran's long-standing spinal disease which led to fairly severe left foot drop. As a result, the Veteran used bilateral canes with arm bracing which made it difficult for him to cook, clean, or reach items on high shelves. The Veteran also reported difficulty getting dressed due to stiffness and pain the back and poor coordination of his legs, especially on the left. He also reported having difficulty getting in and out of the bathtub or bathroom, as well as difficulty climbing stairs in his home. The examiner noted the following functional restrictions of the lower extremities: weakness, lack of coordination, problems with weight bearing, and balance and propulsion deficits. The examiner stated that all noted restrictions were permanent. In a February 2020 VA examination for housebound status/aid and attendance, it was noted that the Veteran needed assistance with bathing and tending to other hygiene needs. The Veteran had to use a chair in the shower as he could not stand long. He had difficulty putting on clothing over his head due to shoulder pain and limited range of motion. He had difficulty holding things such as a cup of coffee without spilling it due to his tremors. He could only walk 30 feet before his leg became numb and weak. He used a wheelchair when necessary. He continued to have a lot of back pain with neuropathy going down his leg. His neuropathy and knee pain affected his balance. He used a hand cane/crutch constantly to help with ambulation and balance. He used a foot brace to help with ambulation as a result of foot drop. He used a knee brace on both knees to help stabilize his knees. He used diabetic shoes to help with numbness, ambulation, and nerve pain. The record does not reflect that the Veteran had the anatomical loss or loss of both feet or one hand and one foot, or that he is blind. Therefore, the question is whether the Veteran was permanently bedridden, or so helpless as to need regular attendance due to his service-connected disabilities. In consideration of the medical and lay evidence, the Board determines the Veteran requires regular aid and attendance due to his service-connected disabilities. The evidence of record reflects the Veteran is unable to prepare meals, needs assistance to shower, and needs his wife's assistance to get around and handle household duties. In particular, his service-connected back disability causes pain and restricts his mobility, and he uses assistive devices to get around. As such, SMC based on aid and attendance is warranted and the Veteran's claim is hereby GRANTED. Having determined that SMC based on aid and attendance is warranted, the issue of entitlement to SMC based on housebound status shall be DISMISSED as moot. The Veteran may only receive either SMC based on aid and attendance or for being housebound, and ultimately, SMC based on aid and attendance is a greater benefit. 38 U.S.C. § 1114. J.P. Norman Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Henriquez, 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.