Citation Nr: 0000700	
Decision Date: 01/10/00    Archive Date: 01/19/00

DOCKET NO.  98-19 972	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, 
Alabama


THE ISSUE

Entitlement to special monthly compensation at the rate 
provided by 38 U.S.C.A. §1114(l) based on the need for 
regular aid and attendance.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

S. L. Smith, Counsel



INTRODUCTION

The appellant served on active duty from August 1955 to 
February 1959.

This matter comes before the Board of Veterans' Appeals (the 
Board) on appeal from a November 1998 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Montgomery Alabama.  


FINDINGS OF FACT

1.  Sufficient evidence necessary for an equitable 
disposition of the veteran's appeal has been obtained by the 
RO.

2.  The veteran's current service connected disability 
ratings are as follows:  Paralysis, radicular group, left, 80 
percent; residuals of fracture of vertebrae, with traumatic 
arthritis and deformity of vertebra D9, 10 percent; bronchial 
asthma, 10 percent; residuals of brain concussion with post-
traumatic headaches, 10 percent; and noncompensable (0 
percent) ratings for Horner's syndrome, and residuals of a 
scalp wound with no artery or nerve involvement.  The veteran 
has been assigned a total (100 percent) rating based on 
individual unemployability due to his service-connected 
disabilities, effective since September 1992.

3.  The veteran is in receipt of special monthly compensation 
(hereinafter SMC) for the loss of use of one hand under the 
provisions of 38 U.S.C.A. § 1114(k) (West 1991) and 38 C.F.R. 
§ 3.350(a) (1999).

4.  The veteran's service-connected disabilities do not 
prevent him from performing the basic functions of self care, 
or prevent him from protecting himself from the hazards and 
dangers of his daily environment, or cause him to be so 
helpless as to be in need of regular personal assistance from 
others.


CONCLUSION OF LAW

Entitlement to SMC at the rate provided by 38 U.S.C.A. § 
1114(l), based on the need for regular aid and attendance, is 
not warranted.  38 U.S.C.A. §§ 1114(l), 5107 (West 1991); 38 
C.F.R. §§ 3.350(b), 3.352(a) (1999).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board finds that the veteran has presented sufficient 
evidence to conclude that his claim is "well-grounded" 
within the meaning of 38 U.S.C.A. § 5107(a).  The credibility 
of the veteran's evidentiary assertions is presumed for 
making the initial well-grounded determination.  The Board is 
also satisfied that he duty to assist mandated by 5107(a) has 
been fulfilled as there is no indication that there are other 
records available that would be pertinent to the veteran's 
appeal.  Moreover, the due process concerns with regard to 
providing the veteran adequate notice of the legal criteria 
applicable to his claim for additional SMC have been 
fulfilled.

In adjudicating a well-grounded claim, the Board determines 
whether the weight of the evidence supports the claim, or 
whether the weight of the "positive" evidence in favor of 
the claim is in relative balance with the weight of the 
"negative' evidence against the claim.  The appellant 
prevails in either event.  However, if the weight of the 
evidence is against the appellant's claim, the claim must be 
denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. 
Derwinski, 1 Vet. App. 49 (1990).

The veteran's current service connected disability ratings as 
assigned by the RO are as follows:  (1) complete paralysis, 
left radicular group, 80 percent; (2) residuals of fracture 
of vertebrae, with traumatic arthritis and deformity of 
vertebra D9, 10 percent; (3) bronchial asthma, 10 percent; 
(4) residuals of brain concussion, 10 percent; (5) Horner's 
syndrome, noncompensable; and (6) residuals of scalp wound 
with no artery or nerve involvement, noncompensable.  The 
veteran has been assigned a total (100 percent) rating based 
on individual unemployability due to his service-connected 
disabilities, effective since September 1992.  Additionally, 
the veteran is in receipt of SMC for the loss of use of one 
hand under the provisions of 38 U.S.C.A. § 1114(k) (West 
1991) and 38 C.F.R. § 3.350 (1999).   (This is commonly 
referred to as the "k" rate of special monthly compensation 
(SMC)).

The veteran contends he is entitled to SMC at a higher rate; 
specifically, the rate assigned for those in need of regular 
aid and attendance of another as defined in 38 U.S.C.A. 
§ 1114(l) (West 1991).  (This is commonly referred to as the 
"l" rate of special monthly compensation (SMC)).

According to statue and regulation, SMC at the "l" rate may 
be paid if the veteran, as a result of service-connected 
disability, has suffered the anatomical loss or loss of use 
of both feet, or of one hand and one foot, or is blind in 
both eyes, with 5/200 visual acuity or less, or is 
permanently bedridden or so helpless as to be in need of 
regular aid and attendance of another person to assist in 
performing the activities of daily living.  See 38 U.S.C.A. 
§ 1114(l); 38 C.F.R. §§ 3.350(b), 3.352(a) (1999).

In the instant case, the veteran has not alleged, nor do the 
facts show, that he has loss of use of both feet, or of one 
hand and one foot, or that he is blind in both eyes, or that 
he is permanently bedridden.  Therefore, the issue before the 
Board is whether the veteran is so helpless as to need the 
regular aid and attendance of another so as to warrant the 
higher (l) rate of SMC.

A claim for entitlement to SMC based on the need for regular 
aid and attendance was received in March 1998.  The veteran's 
description of his various disabilities and functional 
limitations follows.  He needed help in doing most of his 
chores and duties.  He could not button his shirt or tie his 
shoes.  He was unable to put on deodorant, cut his meats or 
salads, or butter bread or toast.  He could not cut his 
fingernails.  He needed help in putting on T-shirts or other 
"pull over shirts."  His neck tie had to be tied by another 
and he needed help in putting it on.  Surgery of the rotator 
cuff on his "good arm" had limited him severely.  In 
subsequent statements in support of his claim, he elaborated 
that he could not put deodorant on his right side; could not 
prepare his food; and could not wash his right side.  
However, he could drive, thanks to automation.  His wife had 
to help him with practically everything he did on a daily 
basis.  Thus, he maintained that his disabilities were so 
severe that he required the regular aid and attendance of 
another person.

Report of VA examination for aid and attendance or housebound 
status, conducted in July 1998, noted that the veteran was 
right-handed.  He was able to drive using the right hand.  He 
had difficulty using the wipers as the control was on the 
left side.  He had difficulty with buttoning his shirts and 
his wife helped.  She had to cut his food because he had 
difficulty with his left arm and also tingling and numbness 
in his right hand.  He had had surgery on the right shoulder 
for rotator cuff repair.  He suffered from enlarged prostate 
which caused him to get up several times at night for 
urination.  He also complained of decreased sex drive due to 
the prostate.  The veteran also complained of indigestion 
from a hiatal hernia, decreased hearing, decreased vision, 
chronic back pain, and pain and giving-way in the knee.  The 
examiner noted that the veteran's means of locomotion was 
unassisted walking but was restricted to about one mile.  He 
wore an elbow pad on the right.  Physical examination 
revealed marked wasting of the left arm and left forearm.  He 
had difficulty walking on his heels; when he closed his eyes, 
he lost his balance.  The examiner noted that the veteran had 
increasing difficulty in putting on his shirt.  He also 
needed help in cutting his food.  He also had difficulty in 
putting on his belt.  It was difficult to apply his deodorant 
stick to his body.  

The examiner further commented that "[t]he veteran is not 
able to take care of himself.  He needs help in cooking, 
washing and cleaning, etc.  The wife has been doing all his 
housework as he is not able to do.  His driving is restricted 
because he  ... has to drive with his right arm...  His walking 
is restricted, he can only walk short distances because of 
the knee pain and also the back pain."

Report of VA neurology consultation, conducted in July 1998, 
noted that the main concern was evaluation of weakness and 
atrophy of the left hand of 30 years duration.  Physical 
examination focused on evaluation of strength in the upper 
limbs.  Marked atrophy and weakness, as well as sensory 
deficits were noted in the left arm and forearm.  Strength in 
the right arm was essentially normal.  

Report of VA range-of-motion evaluation, conducted in July 
1998, noted some limitation of motion in the cervical spine 
and right shoulder, and moderate to moderately severe 
limitation of motion in the lumbar spine, most notably on 
lateral flexion and rotation.  

Report of VA pulmonary function analysis, performed in July 
1998, indicated minimal obstructive lung defect.  There was 
mild restrictive lung defect and a moderate decrease in 
diffusing capacity.

VA radiographic reports, dated August 1998, noted that x-rays 
of both knees revealed no fracture or acute abnormality.  
Also, x-ray of the right shoulder revealed no fracture or 
significant abnormality.  X-ray of the thoracic spine 
revealed mild loss of height of a lower thoracic segment at 
approximately T9 or T10, but otherwise unremarkable.  

Report of VA electromyogram and nerve conduction studies, 
dated August 1998, indicated that the veteran had very mild 
right carpal tunnel syndrome.

By rating decision dated November 1998, the RO denied the 
veteran's claim for SMC based on the need for regular aid and 
attendance of another.

Legal Analysis

Special monthly compensation is payable to individuals who 
are so helpless as a result of service-connected disability 
as to be in need of regular aid and attendance.  38 U.S.C.A. 
§ 1114(l) (West 1991); 38 C.F.R. § 3.350(b)(3) (1999).

The following will be accorded consideration in determining 
the need for regular aid and attendance: Inability of a 
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 (this will not include the 
adjustments of appliances which normal persons would be 
unable to adjust without aid, such as supports, belts, lacing 
at the back, etc.); inability of a 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, either 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.  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 which 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 a 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.  38 
C.F.R. § 3.352(a) (1999).

Governing criteria regarding entitlement to the need for 
regular aid and attendance contemplate an individual with 
such severe physical disability that he or she is unable to 
perform self-care.  The determination of this entitlement is 
based on the overall ability to care for one's own needs.  
The fact that an individual may require the assistance of 
another person in the performance of one or more specified 
functions is not, by itself determinative of the need for 
regular aid and attendance.  The veteran seeks SMC based on 
the need for regular aid and attendance.  In this case, the 
question is whether his service-connected disabilities are of 
such magnitude that they effectively render him helpless, so 
that he was in need of regular aid and attendance as set 
forth in 38 C.F.R. § 3.352(a).

Here, the record demonstrates that the veteran is capable of 
feeding himself.  Although he reported the need for his wife 
to cut his meat and salad, he did not claim that he was 
unable to use utensils or hold drinking glasses, despite the 
problems with weakness of the left hand.  Further, the record 
demonstrates that the veteran is capable of walking 
unassisted by another person or any device.  The Board has 
taken note of the veteran's contention that his multiple 
orthopedic and neurological disabilities make it difficult 
for him to perform certain tasks.  Indeed, the record 
confirms that he has a significant service-connected left arm 
disability, with an additional service-connected back 
disability involving the thoracic spine.  Nevertheless, 
despite these disabilities, VA examination in July 1998 
revealed that he was fully ambulatory and drove his own car, 
was capable of feeding himself, could and did attend to the 
wants of nature alone, and could basically dress himself 
although he had difficulties with certain types of clothing 
and items such as belts and neckties.  Further, the record 
indicates that the veteran is able to participate in sexual 
relations with his wife.  Basically, the July 1998 VA 
examination showed that he was capable of performing 
activities of daily living, and he has not claimed that he 
was actually incapable of dressing or washing himself.

In addition, the record does not establish that the veteran 
is actually bedridden.  In this regard, it is again noted 
that the veteran is fully ambulatory.  

The Board again notes that entitlement to SMC based on the 
need for regular aid and attendance is determined exclusively 
by the impact of service-connected disabilities.  In reaching 
its determination that the veteran is not entitled to regular 
aid and attendance benefits, the Board wishes to emphasize 
its awareness that the veteran, does have extensive 
functional impairment from his service-connected 
disabilities.  However, as to the specific benefit sought on 
appeal, the evidence as to the extent of impairment, 
exclusively from service-connected disabilities does not 
establish that the veteran is "helpless," as that term is 
defined by governing criteria.  There is not an approximate 
balance of positive and negative evidence regarding the issue 
on appeal as to warrant application of the doctrine of 
benefit of doubt.  38 U.S.C.A. § 5107(b) (West 1991).



ORDER

Entitlement to special monthly compensation at the rate 
provided by 38 U.S.C.A. §1114(l) based on the need for 
regular aid and attendance, is denied.



		
	P.M. DILORENZO
	Acting Member, Board of Veterans' Appeals