Case A26039919

NATHANIEL DOAN · 2026 · Case ID: A26039919

DENIED

Summary

The veteran, who served from October 1976 to November 1976, appeals the denial of Special Monthly Compensation (SMC) based on the need for aid and attendance. The veteran claimed that due to his service-connected disabilities, including acquired psychiatric disorder, shoulder disorders, diabetes mellitus, sarcoidosis, erectile dysfunction, and hypertension, he required regular aid and attendance. The Board reviewed several VA Form 21-2680 submissions from various clinicians between 2013 and 2019, which indicated some limitations, such as needing help with bathing and meal preparation, but also noted the veteran was not bedridden and could leave the house. These opinions were given limited weight as they often relied on non-service-connected disabilities and were contradicted by the veteran's own testimony. At a July 2024 hearing, the veteran testified that he was independent with most activities of daily living, including bathing (though needing help with his back), dressing, eating, and medication management, with his wife providing reminders. He also drove himself and his wife to shop. The Board found this testimony the most probative, noting his self-care abilities and independence, which was further supported by VA treatment records from 2019 indicating he was an active church-goer and independent with daily activities. The Board denied the claim for SMC based on aid and attendance, finding the most probative evidence did not support a need for regular assistance.

Rationale

Veteran's testimony indicated independence in most ADLs.; VA treatment records corroborated independence.; Clinician opinions relied on non-service-connected disabilities or were contradicted by testimony.

Special Benefit

SMC - AID & ATTENDANCE; TDIU

Docket No.

200131-66727

Full Decision Text

Citation Nr: A26039919
Decision Date: 04/29/26 Archive Date: 04/29/26

DOCKET NO. 200131-66727
DATE: April 29, 2026

ORDER

Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is denied.

FINDING OF FACT

The Veteran is not in need of the regular aid and attendance of another person as a result of his service-connected disabilities.

CONCLUSION OF LAW

The criteria for entitlement to SMC based on the need for aid and attendance have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.310(a).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from October 1976 to November 1976.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2020 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).

In the January 31, 2020, VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement (NOD)), the Veteran elected the Hearing docket. A Board hearing was held on July 18, 2024. Therefore, the Board may only consider the evidence of record at the time of the January 2020 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

The Board notes that in January 2025, the Veteran attempted to appoint a new representative via the submission of an Appointment of Veterans Service Organization as Claimant Representative (VA Form 21-22), but no representative from the organization signed the form. As such, the attempted appointment is not valid and the Veteran remains represented by The American Legion, a representative of which attended his Board hearing with him.

At the Board hearing, it was suggested that the Board may be able to broaden the Veteran's claim for SMC based on the need for aid and attendance to include consideration of whether a total disability rating based on individual unemployability (TDIU) was warranted. In this discussion, it was noted that the Veteran's NOD did include reference to his right shoulder disability.

Upon review of the entirety of the record, the Board notes that while the NOD was submitted within one year of a rating decision adjudicating issues related to the Veteran's service connected shoulders, that decision adjudicated Clear and Unmistakable Error (CUE) in a prior rating decision; the NOD did not in any way reference the CUE rating decision by date or issue. Further, the Board is unable to identify any authority that would support accepting an application for SMC based on the need for aid and attendance as a claim for a TDIU. Finally, VA has not issued notice of an adjudication of entitlement to TDIU as required by 38 U.S.C.

§ 5104.

In addition to the preceding reasons the Board is unable to broaden the appeal to include the issue of entitlement to a TDIU, the Board notes that the Veteran submitted an Application for Increased Compensation Based on Unemployability (VA Form 21-8940) in May 2018 that the RO does not appear to have ever processed. As such, the Veteran and his representative are encouraged to contact the AOJ and ask that they respond to the May 2018 submission. If the Veteran is dissatisfied with their response, he should review the appellate rights attached to the AOJ's response.

Entitlement to SMC based on the need for aid and attendance.

The Veteran contends that because of his service-connected
5104.

Entitlement to SMC based on the need for aid and attendance.

The Veteran contends that because of his service-connected disabilities (an acquired psychiatric disorder, right shoulder disorder, left shoulder disorder, diabetes mellitus, sarcoidosis, erectile dysfunction, and hypertension (some of which were service connected years after the rating decision on appeal), he requires the regular aid and attendance of another person.

SMC is payable at a specified rate if the Veteran, as the result of service-connected disability, 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 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 her daily environment. "Bedridden" will be a proper basis for the determination.

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 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 Veteran's condition is such as would require him to be in bed. They must be based on the actual requirement of personal assistance from others.

For the following reasons and bases, the Board finds that entitlement to SMC based on the need for regular aid and attendance is denied. While the Veteran has submitted numerous applications for aid and attendance (VA Form 21-2680s), the Board finds these submissions to be less probative than the Veteran's sworn testimony at the Board hearing and statements made to treatment providers.

Turning to the VA Form 21-2680s, in December 2013 Dr. H.L. intimated that the Veteran was unable to prepare his own meals, and needed assisted with showering due to his right shoulder disability. Notably, while Dr. H.L. endorsed the need for medication management, the associated comment indicates the Veteran required medications to treat his pain, not that he required the assistance of someone else to allocate his medication. The clinician also noted that the Veteran did not have any lower extremity restrictions, was not confined to his bed, and left the house only when accompanied by his wife or daughter to church and medical appointments. Notably, Dr. H.L. listed both service connected disabilities and non-service connected disabilities as the cause of the Veteran's limitations.

In March 2016, clinician A.D. endorsed similar findings to Dr. H.L., though she specified that the Veteran's wife was "in charge" of his medication management. She also noted that the Veteran was able to shave and wear shirts, though he had difficulty with upper extremity movements. The Veteran was reported to leave his home three times a week. In the form, A.D. discussed both service connected disabilities and non-service connected disabilities.

A few months later in June 2016, clinician A.D. reported similar findings to her reports in March, except noting that the Veteran did not require medication management and was able to ambulate independently.

In October
as the cause of the Veteran's limitations.

In October 2017, Dr. E.B. opined on the Veteran's limitations and like Dr. H.L. and clinician A.D.'s March 2016 opinion, she also discussed both service connected and non-service connected disorders. Turning to Dr. E.B.'s findings, she noted the Veteran was able to feed himself, was not legally blind, did not require nursing care, but was unable to prepare his own meals, needed assistance bathing, and needed assistance with medication management. She intimated the Veteran left his home on a daily basis for medical appointments and for personal reasons.

In May 2018, Dr. E.B. again commented on the Veteran's functioning, but failed to note which disabilities she was commenting on. In any event, she noted the Veteran maintained the ability to feed himself, prepare his own meals, was not legally blind, did not require nursing care, and did not require medication management. It was observed that he could leave the house four days a week for four to six hours to shop, bank, or attend medical appointments.

Finally, in October 2019 Dr. F.B. completed a VA 21-2680 form, but listed both service connected and non-service connected disabilities as the cause of the Veteran's limitations. Turning to the findings, it was noted the Veteran required assistance with preparing meals, grooming, and medication management; it was intimated that the Veteran only left the house for medical treatment.

The Board affords the foregoing opinions regarding the Veteran's need for aid and attendance limited probative value. Initially, all of the opinions except the June 2016 submission from A.D. relied on non-service connected disabilities to describe the Veteran's alleged limited functioning. Additionally, all of the submissions are contradicted by the Veteran's sworn testimony at the July 2024 hearing.

Turning to the hearing testimony, the Veteran reported ambulating on his own, including in his yard, but that he stayed close to the house. He denied needing assistance to bathe, but did report the need for help in washing his back. The Veteran reported dressing, eating, and attending to the wants of nature independently, though he did report manipulating his head while eating to move the utensil to his mouth. In terms of medication management, the Veteran reported administering his own insulin, though he reported that his wife reminds him about taking his medications. When asked about shopping, the Veteran endorsed driving his wife and daughter to shop and staying in the car.

Following this testimony, the Veteran's representative seemingly acknowledged that based on his testimony, the Veteran's service connected disabilities did not render him in need of the regular aid and attendance of another person. Instead, she intimated that the Veteran was statutorily housebound, which is warranted when a veteran has a single service connected disability rated as totally disabling with other disabilities rated as 60 percent disabling; the Veteran is not in receipt of awards to support the award of statutory housebound SMC.

In short, the Board affords the Veteran's testimony at the Board hearing the most probative weight in terms of the limitations caused by his service connected disabilities. The Veteran swore to tell the truth and there is no reason to question the veracity of his reports regarding his ability to function on a daily basis. This testimony did not support a finding that he required the aid and attendance of another person. To the contrary, the Veteran is commended on his self-care abilities and independence.

In this regard, in addition to the hearing testimony, VA treatment records from October 2019 indicate that the Veteran is an active church-goer and that he was independent with most activities of daily living and helped his wife with her medical appointments. In November 2019 VA treatment records state that the Veteran "propels himself around the unit and is very active." Such records bolster the Veteran's hearing testimony regarding his independence.

In short, the Board finds that the most probative evidence of record, the Veteran's testimony, is against a finding that he needs another person to assist him in his day-to-day life, to include with his hygiene, feeding himself, attending to the wants of nature, or protecting himself from his daily environment. Further, the evidence does not show that the Veteran is so helpless as to require the regular aid and attendance of another person as a result of his service-connected disabilities.

As the most probative evidence of record shows that the Veteran does not require care or assistance on a regular basis due to his service-connected disabilities, either with the activities of daily living or to protect himself from hazards or dangers incident to his daily environment, the claim for SMC based on the need for aid and attendance is denied. 38 U.S.C. § 1114(l); 38 C.F.R. §§ 3.350(b), 3.352(a).

Again, the Veteran and his representative are encouraged to follow-up with the AOJ regarding the May 2018 TDIU application.

Nathaniel Doan

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board K. Sosna, 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.

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