Citation Nr: 0003345 Decision Date: 02/09/00 Archive Date: 02/15/00 DOCKET NO. 98-21 483 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES Entitlement to special monthly compensation on account of need for aid and attendance. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. P. Simpson, Associate Counsel INTRODUCTION The appellant served on active duty from March 1942 to August 1945. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a May 1998 rating decision of the Montgomery, Alabama, Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO denied entitlement to special monthly compensation on account of need for aid and attendance. FINDINGS OF FACT 1. The appellant is service connected for gunshot wound, Muscle Group XIX, right, evaluated as 30 percent disabling; gunshot wound, Muscle Group XV, right with skin graft, evaluated as 30 percent disabling; gunshot wound, Muscle Group XIV, left with skin graft, evaluated as 30 percent disabling; gunshot wound, Muscle Group IX, right with muscle weakness, scar, and metallic foreign body involvement, evaluated as 20 percent disabling; gunshot wound, Muscle Group XI, right, evaluated as 10 percent disabling; gunshot wound, Muscle Group XXI, left, evaluated as 10 percent disabling; gunshot wound, Muscle Group IX, left, with weakness and scar involvement, evaluated as 10 percent disabling; and psychoneurosis, anxiety state, evaluated as 10 percent disabling. The appellant was granted a total rating for compensation based upon individual unemployability from January 1964. 2. The appellant has nonservice-connected disabilities which significantly impair his daily functioning. 3. The appellant's service-connected disabilities do not render him unable to care for his daily needs without the aid and attendance of another person. CONCLUSION OF LAW The criteria for a special monthly compensation based on the need for regular aid and attendance is not met. 38 U.S.C.A. §§ 1114(l), 5107 (West 1991 & 1999); 38 C.F.R. §§ 3.350(b), 3.352(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION This claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In addition, the facts relevant to the issue on appeal have been properly developed and the statutory obligation of the VA to assist the veteran in the development of his claim has been satisfied. 38 U.S.C.A. § 5107(a). Special monthly compensation benefits are payable to a veteran who needs regular aid and attendance. 38 U.S.C.A. § 1114(k)-(s) (West 1991); 38 C.F.R. § 3.350 (1999). A veteran is in need of regular aid and attendance if he is helpless or is so nearly helpless as to require the regular aid and attendance of another person. The criteria for establishing the need for aid and attendance include anatomical loss or loss of use of one or more extremities; consideration of whether the veteran 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; or whether the veteran is a patient in a nursing home because of mental or physical incapacity; or whether 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). 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b). Under the provisions of the aforementioned section 3.352(a), the criteria include the inability of the veteran to dress or undress himself, or to keep himself ordinarily clean and presentable; whether he requires frequent adjustment of any special prosthetic or orthopedic appliances with the aid of another; inability to feed himself; inability to attend to the wants of nature; or incapacity, physical or mental, that requires assistance on a regular basis to protect himself from hazards or dangers incident to his daily environment. "Bedridden" will be a proper basis for the determination under this section. For the purposes of this section, "bedridden" constitutes a condition which through its essential character actually requires that an individual remain in bed. The fact that the veteran has voluntarily taken to bed or that a physician has prescribed bedrest for a lesser or greater portion of the day will not suffice. It is only necessary that the evidence establish he is so helpless as to need regular aid and attendance not that there be a constant need. Although the 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, the United States Court of Appeals for Veterans Claims has held that 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). The appellant has stated that although he is not service connected for a hip disorder, he is service connected for bilateral leg disorder, which has interfered with his recovery and made it more difficult for him to stand and walk. He states that if it were not for his service- connected bilateral leg disorder, he would not be seeking special monthly compensation. The appellant is service connected for gunshot wound, Muscle Group XIX, right, evaluated as 30 percent disabling; gunshot wound, Muscle Group XV, right with skin graft, evaluated as 30 percent disabling; gunshot wound, Muscle Group XIV, left with skin graft, evaluated as 30 percent disabling; gunshot wound, Muscle Group IX, right with muscle weakness, scar, and metallic foreign body involvement, evaluated as 20 percent disabling; gunshot wound, Muscle Group XI, right, evaluated as 10 percent disabling; gunshot wound, Muscle Group XXI, left, evaluated as 10 percent disabling; gunshot wound, Muscle Group IX, left, with weakness and scar involvement, evaluated as 10 percent disabling; and psychoneurosis, anxiety state, evaluated as 10 percent disabling. The appellant was granted a total rating for compensation based upon individual unemployability from January 1964. In March 1998, a private physician stated that the appellant was modified independent with eating and grooming. He stated that the appellant had a set up for upper extremity dressing and that he was continent of bowel and bladder. He was supervised for toileting. He had touch down weight bearing on the right lower extremity. The appellant was able to ambulate 160 feet with minimal assistance and a standard walker. He had fair balance and endurance. The private physician stated that the appellant would leave the house three times per week to attend therapy and that someone had to bring him. In the examination report, the private physician entered the following diagnoses as to pathology that would affect the appellant's ability to perform self- care, ambulate or travel beyond the premises of the home: congestive heart failure, status post permanent pacemaker placement, history of cardiac arrhythmia and coronary artery disease, and history of urinary retention. The private physician noted that the appellant had been in a motor vehicle accident, which had resulted in a fracture of the right femur and a subsequent open reduction internal fixation. The private physician stated the appellant did not need daily skilled services. In a June 1998 VA medical record, the examiner stated that the appellant was not able to walk without the assistance of another person. The VA examiner added that the appellant needed a walker for short distances and a wheelchair for long distances. The diagnosis entered was fracture of the right femur. The VA examiner stated that the appellant required the daily personal health care services of a skilled provider. In a letter received in August 1998, Dr. C. J. Simaytis stated that the appellant had been treated for a fractured hip and had undergone a total hip replacement and was unable to drive and/or apply pressure with his right leg. In a March 1999 letter, Dr. D. D. Thornbury stated that the appellant had recently been in a motor vehicle accident which had caused a severe fracture to his right femur just above the knee and that the appellant was unable to drive due to some stiffness in the knee. After a review of the record, the Board concludes that a preponderance of the evidence is against the claim of entitlement to special monthly compensation based on the need for regular aid and attendance due to the appellant's service-connected disabilities. None of the disabling conditions identified during the March 1998 or June 1998 examinations were related to the appellant's service- connected disabilities. Two letters from private physicians relate only to the fracture that the appellant sustained in the motor vehicle accident. No medical professional has attributed the appellant's lack of ambulation to his service- connected gunshot wound disabilities. The Board finds that the preponderance of the evidence does not establish a need for regular aid and attendance as contemplated by 38 C.F.R. § 3.352(a). The appellant has not contended or demonstrated that he has a visual impairment or that he is a patient living in a nursing home. The elements regarding anatomical loss or loss of use of one or more extremities are not germane to the facts of this case. It has been established that the appellant's difficulty with ambulating is a direct result from the motor vehicle accident, which resulted in a fracture of his right femur. The Board further finds that there is no evidence of record that any of the appellant's service-connected disabilities, either separately or combined, are so disabling, as to require the need of regular aid and attendance. Therefore, the Board concludes that while it appears from the record that the appellant may be in need of regular aid and assistance from another, this is due to his nonservice- connected disabilities. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and the claim for special monthly compensation based on the need for regular aid and attendance must be denied. 38 U.S.C.A. § 5107(b). ORDER The claim for special monthly compensation based on the need for regular aid and attendance is denied. P.M. DILORENZO Acting Member, Board of Veterans' Appeals