Citation Nr: 1313174 Decision Date: 04/19/13 Archive Date: 05/02/13 DOCKET NO. 07-29 273 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a special monthly compensation (SMC) based on the need for the regular aid and attendance of another person or pursuant to 38 U.S.C.A. § 1114(s). ATTORNEY FOR THE BOARD James Alsup, Counsel INTRODUCTION The Veteran served on active duty from February 1976 to March 1978. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a March 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which denied the Veteran's claim for entitlement to special monthly compensation based on the need for the regular aid and attendance of another person or at the housebound rate. The Veteran disagreed and perfected an appeal. The Board remanded the Veteran's claim in May and October 2011. FINDINGS OF FACT 1. The Veteran is currently service-connected for a mood disorder secondary to low back pain, evaluated as 50 percent disabling effective from January 13, 1998; lumbar myofascial pain syndrome, evaluated as 40 percent disabling effective May 7, 1996; and a total abdominal hysterectomy, evaluated as 30 percent disabling. She also receives SMC for loss of a creative organ and is assigned a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) effective January 13, 1998. 2. The Veteran is not unemployable based solely on a single service-connected disability. 3. The Veteran is able to leave her house independently. 4. The service-connected disabilities do not prevent her from being able to dress or keep herself clean, feed herself, attend to the wants of nature, nor do they prevent her from protecting herself from the hazards or dangers incident to the environment. CONCLUSION OF LAW The criteria for entitlement to SMC based on the need for the regular aid and attendance of another person, on account of being permanently housebound, or on the basis of having a single disability assigned a total rating with additional disability or disabilities independently ratable at 60 percent or more, are not met. 38 U.S.C.A. §§ 1114(l), (s) (West 2002); 38 C.F.R. §§ 3.350, 3.352, 4.16(b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that the RO erred when it denied her benefits pursuant to 38 C.F.R. § 1114 based on the need for aid and attendance or at the housebound rate. The Board's October 2011 remand further noted that the Veteran's contentions and the evidence of record raised the issue of whether the Veteran was entitled to total disability benefits solely predicated upon a single disability for the purpose of considering entitlement to SMC as provided in § 1114(s). The Board will first address preliminary matters and then render a decision on the issue on appeal. As noted, the Board remanded the Veteran's claim on two occasions in 2011. Compliance with remand instructions is neither optional nor discretionary and where the remand orders of the Board are not satisfied, the Board errs as a matter of law when it fails to ensure substantial compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998); Dyment v. West, 13 Vet.App. 141, 146-47 (1999). The Board's May 2011 remand directed VA to contact the Veteran and request that she identify all private medical records not provided to VA and associate all VA treatment records dated from September 2010 with the Veteran's VA claims folder. In addition, VA was requested to inquire whether the Social Security Administration (SSA) had any medical records pertaining to the Veteran and, if not, to notify the Veteran pursuant to 38 C.F.R. § 3.159(e). After all obtained records were included in the Veteran's VA claims folder, VA was directed to provide the Veteran with an examination to determine the Veteran's housebound status or need for regular aid and attendance due to her service-connected disabilities. The record includes a May 2011 letter to the Veteran seeking private treatment records and informing her that VA was seeking records from SSA. A May 2011 response from SSA stated that there were no records pertaining to the Veteran. VA treatment records dating from September 2010 were included in the record. The Veteran underwent a June 2011 examination by a VA examiner regarding whether her service-connected disabilities cause her to be housebound or in need of regular aid and attendance. The Board's October 2011 remand directed VA to notify the Veteran regarding the efforts taken to obtain SSA records; to obtain VA treatment records dating from April 2011; to provide the Veteran with medical and psychiatric examinations that included opinions whether the Veteran's psychiatric and low back disabilities rendered her unable to secure and follow a substantially gainful occupation after taking into consideration her prior work experience; and to submit the claims folder to the Director of the Compensation and Pension Service to determine whether a total disability rating due to individual unemployability (TDIU) was warranted on an extraschedular basis for either the Veteran's back disability or psychiatric disability alone. The Veteran was informed in letters dated November and December 2011 that SSA records were not found. See 38 C.F.R. § 3.159(e) (2012). An October 2011 memorandum in the Veteran's VA claims folder documents the steps taken by VA to obtain SSA records and a formal finding that further attempts to locate the records would be futile. VA treatment records from April 2011 are included in the Veteran's VA claims folder and Virtual VA. The Veteran received a medical examination regarding the current state of her low back disability in December 2011 and she received a psychiatric examination regarding the current state of her psychiatric disability in December 2011. Both examiners provided opinions regarding the Veteran's disabilities and their impact on the Veteran's ability to secure and follow a substantially gainful occupation. An October 2012 decision by the Director of the Compensation and Pension service regarding whether an extraschedular TDIU rating was warranted based separately on the Veteran's low back and psychiatric disabilities is in the record. For those reasons, the Board finds that VA has substantially complied with the Board's remands. Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159(b) (2011); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012). The Veteran was informed in a March 2007 letter from VA of the evidence necessary to substantiate a claim for SMC based on aid and attendance of another person or at the housebound rate. The Veteran was further informed in the March 2007 letter of the steps VA would take to assist her in developing her claim. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of notices provided by the RO. Shinseki v. Sanders, 556 U.S. 396 (2009) (burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board finds that the Veteran has received all essential notice and she has had a meaningful opportunity to participate in the development of her claim. Conway v. Principi, 252 F.3d 1369 (2004). VA has obtained VA treatment records and provided medical examinations as described above in addition to the referral for consideration for extraschedular benefits. The Veteran requested in a November 2012 letter a 60 day extension so that she could provide further documents in support of her claim and the Board granted a 60 day extension from January 2, 2013. No further information was provided by the Veteran during the extension time. The Board finds that VA has satisfied the notification and duty to assist provisions of the law and that no further actions pursuant to the regulation or statute need be undertaken with respect to the claims decided herein. The Board will proceed to a decision on the claim. Under the pertinent criteria, the law provides that SMC is payable if a veteran, as the 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. See 38 U.S.C.A. § 1114(l) (West 2002); 38 C.F.R. § 3.350 (2012). The evidence does not show that that the Veteran is service-connected for a disability resulting in the anatomical loss or loss of use of both feet, or of one hand and one foot, nor is she service connected for disability of the eyes. She is also not permanently bedridden. While the Veteran has reported that she has difficulty raising her right arm and the evidence shows that she has arthritis in the right upper extremity, such disability is not service-connected. While she reports that she does have right lower extremity problems and diagnoses include radiculopathy, there is no indication that has lost use of the foot or that she has any impairment of the left foot resulting from a service-connected disability. It is also noted that she was in an accident in 2010 which resulted in problems with the right ankle which does affect her mobility, however, this disorder is not service-connected. The criteria for determining that a Veteran is so helpless as to be in need of regular aid and attendance are contained in 38 C.F.R. § 3.352(a) (2012). Determinations as to the need for aid and attendance are factual in nature 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: (1) Inability of the claimant to dress or undress him or herself or to keep him or herself ordinarily clean and presentable; (2) Frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without assistance; (3) Inability of the claimant to feed him or herself through loss of coordination of upper extremities or through extreme weakness; (4) Inability to attend to the wants of nature; or (5) Incapacity, either physical or mental, that 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 however that all of the disabling conditions enumerated be present before a favorable rating may be made. The particular personal functions which the claimant 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. 38 C.F.R. § 3.352(a) (2012). A Veteran who is bedridden shall also be considered to require regular aid and attendance. "Bedridden" constitutes a condition that through its essential character actually requires that an individual remain in bed. The fact that a claimant has voluntarily taken to bed or that a physician has prescribed bed rest for a lesser or greater portion of the day to promote convalescence or cure will not suffice. 38 C.F.R. § 3.352(a) (2012). Special monthly compensation is also payable where the Veteran has a single service-connected disability rated as 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the veteran is substantially confined as a direct result of service-connected disabilities to his dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his lifetime. 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i). When all the evidence is assembled, the Secretary is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Therefore, the issue is adjudicated on the basis of the record, keeping in mind the benefit of the doubt. The Veteran is currently service-connected for a mood disorder secondary to low back pain, evaluated as 50 percent disabling effective from January 13, 1998; lumbar myofascial pain syndrome, evaluated as 40 percent disabling effective May 7, 1996; and a total abdominal hysterectomy, evaluated as 30 percent disabling. She also receives SMC for loss of a creative organ and was awarded TDIU benefits effective January 13, 1998. Aid and attendance A January 2001 VA medical record indicates that the Veteran was alert and oriented times three, and ambulatory, although she walked with a cane and a slow gait because of pain on the right knee. A January 2001 aid and attendance examination reports that the Veteran was not bedridden, was competent and could dress and undress by herself. The report notes that the Veteran was unable to walk unassisted, attend to the wants of nature or keep herself clean. The report states that the Veteran was able to leave her home for short distances unattended and that she was not permanently confined to her home or immediate area. The examiner indicated that she was not able to protect herself in her daily environment. The examiner wrote that the Veteran was "largely at home [and] unable to tolerate much physical activity," that she "needs assistance with cooking, household cleaning and maintenance." The examiner stated that the back disability resulted in the above. A December 2001 VA medical record indicates that the Veteran was employed as a sewing machine operator and reported that she was unable to work due to her back. She also complained that the home health aide did not make the bed and clean the room of the adult son who was living with her. The home health aide program coordinator explained that the purpose of the program is not to provide maid services for other family members who are capable of doing things on their own. A January 2002 statement of D.B., who was in a relationship with the Veteran for seven and a half years, relates that the Veteran's "physical limitations will not allow for social interaction such as dancing, walking (for more than 10 or 15 minutes at a time), shopping (without the aid of a wheelchair) and daily chores." D.B. reported that the Veteran usually got a friend or relative to drive her to VA medical appointments in Lake City, and that he had occasionally been required to interrupt his work to help her tend to her needs such as helping her dress, bathe, prepare food and "run errands." Also, in January 2002, she informed a social worker that she needed aid and attendance benefits as she could not cook for herself or perform household maintenance due to chronic pain and difficulty with mobility. She was able to driver herself and was independent in her activities of daily living but was unable to lift or stand for any length of time. A September 2003 VA medical record indicates that she was independent with her activities of daily living and was able to drive herself although she tired easily and could not perform strenuous activities. She was told to reapply for A&A benefits if her condition deteriorated to the point where she was permanently housebound. She was referred to Family and Child Services for meals on wheels as she felt she needed more services at home than she could afford. In May 2003, she was recertified for a home health aide two times weekly for three hours and in November 2003, she was recertified for a home health aide three times per week for three hours. In March 2004, the Veteran reported to VA that home health aides were not doing an adequate job cleaning. She was informed that the program is focused on personal care and homemaker services were secondary. In May 2004, the home health agency agreed to continue to assist her but felt that one time per week for four hours would be sufficient to accommodate her needs. Ultimately, the Veteran was discharged from the home health agency later in the month as the aides were unable to satisfy her expectations in the area of homemaker services. The record shows that the Veteran was hospitalized for a week in December 2004 for diffuse abdominal pain, nausea and vomiting; none of those disorders is service-connected and the symptoms were not related to a service-connected disability. A January 2005 VA examination noted that the Veteran had lumbar pain "with gross overreaction to minimal touch in lumbar region," and that the Veteran became tearful when examined for range of motion of the back. A May 2005 MRI of the lumbar spine showed "minimal disc disease and age appropriate facet hypertrophy, there is no central canal or foraminal stenosis identified," and that when compared to a November 2003 MRI, there was no significant interval change noted. The Board observes that the Veteran is not service-connected for lumbar disc disease or facet hypertrophy but rather is service-connected for lumbar myofascial pain syndrome. A June 2005 pain treatment note states that the Veteran complained of "low back pain with radiation on lateral side of right thigh and calf onto top of foot and across top of foot, not into toes." In December 2006, the Veteran requested A&A assistance to get some help in her home with the cleaning. A January 2007 VA social worker's note states that the Veteran "ambulates slowly and unsteadily using a cane and is at risk for falls." The note goes on to state that the Veteran is "at times incontinent of urine, especially at night that she wets the bed because she is unable to get to the bathroom on time." The Veteran further reported that she at times could not get out of bed because of pain. She was able to manage her activities of daily living slowly and inconsistently. The social worker noted that she would benefit from the services of a full time caregiver. However, the social worker noted that she was service-connected for fibromyalgia which is not correct. A February 2007 VA primary care outpatient note indicates the Veteran asked for a back brace. She also had a fainting episode when she took pain medication in the morning without eating. A January 2007 aid and attendance examination report shows that the Veteran was able to dress and undress, walk unassisted, attend to the wants of nature and keep herself clean. The examiner noted that the Veteran was "largely confined to home due to severely restricted mobility, often unable to rise from bed." The examiner also wrote that the Veteran was "at times incontinent of urine," and was at risk for falls. Although the examiner noted at one point that the Veteran was able to dress and undress, the examiner noted that the Veteran "needs assistance bathing and dressing," and that "shopping and cleaning must be done by others." She was able to leave her home for short distances unattended but was permanently confined to her home or immediate area. She was not physically and mentally able to protect herself in the daily environment. The examiner reported multiple diagnoses, including nonservice-connected diagnoses, on the examination report. A March 2007 physical therapy consult noted that she was independently mobile with a cane and wore a back brace. Her range of motion was moderately limited in all planes. Her strength was 4/5. There was no tenderness to palpation, her balance and coordination were good. In an April 2007 statement she reported that needed help with daily activities. She had fallen in the bathroom and needed someone with her while bathing. She also needed help with every day chores, including grocery shopping. A January 2008 aid and attendance examination noted that the Veteran walked with a cane. She seemed to be in moderately severe pain and limping. She could hardly walk 30 feet without stopping and getting severe pain. The Veteran reported that she needed partial help in dressing and undressing, with bathing as she could not get into or out of the tub by herself, and assistance with cooking and all activities of daily living and chores. She could fix her medications, feed herself, and take her medications but it depended on how much pain she was in and what her mood was like. She did not drive. It was noted that she was not permanently bedridden. Her mind was clear and she seemed to be mentally competent although she was slowing down and getting forgetful. She did not have the capacity to protect herself from a fall, fire, flooding or hazards and dangers in the daily environment. The examiner found that she had severe fibroymyalgia, a history of a mood disorder and moderate deficiency in the activities of daily living. She needed partial help in dressing, undressing, showering, and bathing. She was chronically ill due to fibromyalgia and degenerative joint disease and required the assistance of another person in performing the activities of daily living. Her memory was poor and she had poor balance. Aid and attendance was recommended on the grounds of generalized weakness, fibromyalgia and the mental disorder. A January 2008 VA psychiatric examination report states that the Veteran was able to maintain minimum personal hygiene and that she had moderate problems with household chores, travelling and shopping, severe problems with exercise and recreation activities, no problem with feeding and slight problems with grooming, dressing and undressing, toileting and bathing. A January 2008 VA spine examination report notes no urinary incontinence or urgency, but did note unsteadiness and foot weakness despite normal neurologic, reflex and motor examination for the lower extremities. The examiner noted no evidence of lumbar radiculopathy and stated that the disability impacted the Veteran's occupational capabilities with decreased mobility and problems lifting and carrying. The examiner noted that the disability had severe effects on the Veterans usual daily activities. The Veteran complained that she would not be able to take care of herself and needed the aid of another person. A December 2008 psychiatry outpatient note states that the Veteran lives in the country and has a home with one and a half acres. The Veteran stated that she normally lives alone, but had had grown grandchildren live with her. The Veteran stated that she "[E]njoys them for the first few days and then when depressed she closes the door on them." The Veteran stated that she had a car and that she drives, and went to church on occasion. A January 2009 psychiatry note states that the Veteran reported that her house was messy, that she is a collector and did not like to get dressed. She reported that her psychiatric medication "makes her want to slow down a bit and she is a little more tolerant of herself." A September 2010 psychiatry outpatient note states that the Veteran said she "passed out while driving in March 2010 and broke her right ankle." The note further states that the Veteran could not trust her family and that she "just wanted to be left alone." The Veteran reported having "trouble cooking, doing laundry and cleaning the house." A January 2011 home and health consult states that the Veteran was "dependent in three or more activity of daily living," and lived alone in the community. The consult states that "based on the above, this veteran meets clinical eligibility criteria for H/HHA Program services." As noted above, in response to the Board's May 2011 remand, the Veteran was examined in June 2011 by an examiner regarding whether the Veteran's service-connected disabilities caused her to be housebound or in need of regular aid and attendance. The examiner reviewed the Veteran's VA claims folder and provided a brief medical history. The examiner noted that the Veteran was not bedridden or currently hospitalized, and noted that the Veteran could travel beyond her current residence in a private vehicle. The Veteran told the examiner that "she mostly stays in bed and sleeps," but does get up, "makes herself up," and sits in her den where she reads and watches television. The Veteran said that she used a chair with wheels to get around her house including the laundry room and that when she cooks, "she tries to do enough for 4 to 5 days." The chair helped her to balance and she was able to put things in the seat instead of carrying them. The Veteran explained that her then current walker did not have any provision for carrying anything. The Veteran stated that she pays someone to help her with more difficult chores such as sweeping or mopping. The Veteran stated that although she does not like to drive because her medications affect her and make her sleepy, she occasionally borrows a car. The examiner noted that the Veteran was able to dress, bathe and feed herself. The examiner noted that the Veteran felt her short-term memory was impaired, but the examiner reported that the Veteran was able to remember three out of three things after five minutes. The Veteran complained that her right ankle pain prevented her from walking long distances and caused balance problems; the examiner noted that the Veteran's gait was antalgic with a walker because of the right ankle pain. The Board observes that the Veteran is not service-connected for a right ankle disorder. The examiner found that the Veteran was unrestricted in her ability to leave her home and that she was not housebound. The Veteran had corrected vision better than 5/200 in both eyes. The Veteran's cervical spine was not limited in motion or deformity, but the examiner noted that the Veteran had lumbar myofascial pain syndrome, a service-connected disability, and "minimal disc disease and age appropriate facet hypertrophy" that was not service-connected. The Veteran's upper extremities were normal and the only lower extremity problem noted was the right ankle disorder. The examiner found that the Veteran did "have some safety issues living alone" such as using a chair instead of a walker, she was able to leave her home independently and, using a walker, was able to ambulate safely. The examiner noted that the Veteran did need to pay others to do more difficult chores, but that the Veteran was able to do all other activities of daily living independently. The examiner found the Veteran was oriented and coherent with organized thought processes, normal judgment and insight. The examiner opined that the Veteran did not meet the criteria for aid and attendance. A June 2011 VA social work consult states that the Veteran thought her cognitive function was worsening as she had run a red light earlier in the week and had no understanding why. The social worker told the Veteran that she should stop driving, but the Veteran "doesn't think she can." The Veteran complained of "chronic pain, fibromyalgia and has difficulty getting around on her right ankle." The report states that the Veteran's "balance is poor" and that the Veteran is "reluctant to get into the shower for fear that she will fall." The Veteran stated that she cannot wash her hair because she cannot raise her right arm over her head. The Veteran said she uses a cane to walk around her house, that she prepares "one large meal per week and eats from that for the remainder of the week." The report states that the Veteran's daughter had moved out and that the relationship with her daughter appears "strained." Other relatives or friends are occasionally available to drive her, but the Veteran insisted that not driving was unrealistic given "her proximity to stores, doctors, etc., and a lack of support network." The report notes that the Veteran indicated she has tried to minimize her driving. The June 2011 social worker opined that "it sounds as if she [the Veteran] tends towards amotivation, spending most of her days sleeping or reading." The Board observes that a December 2011 VA psychiatrist noted similar behavior. The December 2011 VA examiner wrote that "[I]t is my professional medical opinion that Veteran is assuming a sick role and there are external incentives for the behavior (such as economic gain, improving physical well-being and people taking care of her)." The examiner also observed that the Veteran's "subjective complaints during the examination appeared, to this examiner, out of proportion to objective exam findings." As is discussed in more detail below, the examiner found that the Veteran is not unemployable due to her service-connected psychiatric disability including the medications taken therefore. The Veteran reported that she had worked in a job sewing and had done housekeeping at a plantation which she could not do because of her back. She had an Associate's Degree in Business Administration. The December 2011 psychiatric examiner reported that the Veteran's mental disability caused "occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication." The examiner noted that the Veteran had a person "appointed by the VA who does the home chores for 2 hours per day, 3 days a week," including doing laundry, bathing and cooking for the Veteran and ensuring that she takes her medication. The Veteran underwent a back examination in December 2011. The examiner concluded that after examination and review of the Veteran's VA claims folder and despite a limited back examination because of the Veteran's "poor cooperation," the Veteran's back was "essentially normal." Indeed, the examiner noted that there was "no evidence of myleopathy, radiculopathy or neuropathy on today's exam," and "a precise diagnosis cannot be rendered as there is no evidence of pathology." As is discussed in more detail below, the examiner found that the Veteran is not unemployable due to her service-connected lumbar myofascial pain syndrome disability. A June 2011 psychiatry outpatient note reports that the Veteran complained of being "disconnected," and unable to "keep up with regular house chores," although her "adopted son-in-law" was living with her and providing assistance. June 2011 primary care notes address the Veteran's complaints of worsening cognition and worsening memory. The Board observes that the June 2011 psychiatry examination discounted the Veteran's complaints. As discussed above, the Veteran remembered three out of three things during a June 2011 VA aid and attendance examination. A July 2011 primary care note states that the Veteran complained of exacerbated pain after walking 500 feet down a road. An August 2011 psychiatry outpatient note states that the Veteran has a person who comes to her house three times per week for two hours at a time to cook and assist the Veteran to bathe. The note also reports that the Veteran's cousin had recently moved and was nearby, and that the Veteran's daughter was attempting to reconcile. Review of the evidence establishes that the Veteran is service-connected for a lumbar pain disability and a psychiatric disability, and a total abdominal hysterectomy. While the Veteran asserts that she voluntarily spends a great deal of time in bed, the examiners have determined that she is not permanently bedridden. The evidence, including the statements of the Veteran, do not show otherwise. Moreover, the extensive VA medical records do not show that physicians have informed her that the service-connected disabilities require her to remain in bed. The combined service-connected disabilities have an impact on the Veteran's ability to perform daily tasks, but they do not prevent her from leaving her house, getting dressed or undressed, preparing meals, eating, or toileting. The Veteran has obtained home health aide assistance from VA, or family or friends have assisted her during the pendency of the claim. The Board is aware that 38 C.F.R. § 3.352(c) provides that performance of necessary aid and attendance service by a relative does not preclude granting additional SMC allowance. However, the evidence does not show that regular aid and assistance was required for service-connected disabilities during the pendency of the claim. The evidence shows that the Veteran has reported that she walks with a cane and a slow gait because of nonservice-connected right knee pain. A January 2001 evaluation indicates that she could not attend to the wants of nature or keep herself clean however no explanation for the opinion was not provided. Accordingly, this evidence is entitled to no probative weight. D.B. also provided a statement but he did not indicate that he helped her bathe and dress due to the service-connected disabilities. Therefore, this statement also does not carry probative weight. In January 2007, a VA social worker noted that she was able to manage her activities of daily living slowly and inconsistently. The social worker noted that she would benefit from the services of a full time caregiver, however, the Veteran's nonservice-connected fibromyalgia was considered in providing the opinion. Accordingly, this evidence does not show that the service-connected disabilities result in the need for aid and attendance. Similarly, a January 2007 aid and attendance report and a January 2008 examination report indicated that aid and attendance was required, however, nonservice-connected diagnoses were considered. Accordingly, this evidence also is not entitled to probative weight. In April 2007, the Veteran reported that she had limited use of her limbs due to the back disability and had fallen. Thus, she needed someone with her while bathing. However, her statement, while competent, credible and probative, is outweighed by the medical evidence, which does not show she has a left leg disability associated with the back disability. However, the records do show that she has fibromyalgia and that she had a right knee disorder. The most probative evidence, in this regard, is the medical examiner's opinion that she does not require aid and assistance due solely to the effects of the back disability. The examiner specifically considered only the effects of the back disability and determined that these alone did not require the regular aid and assistance of another person. In January 2002 and September 2003, the Veteran reported that she was independent in activities of daily living, which is evidence against her claim. Importantly, the June 2011 examiner determined after a review of the history and a physical examination that she was not in need of regular aid and attendance as a result of the service-connected disabilities. The examiner found that she could dress, bathe and feed herself. Her gait was noted to be antalgic due to the nonservice-connected right ankle disorder. She was able to ambulate safely. She was able to do all other activities of daily living independently. In addition, the psychiatric examiner determined that she was assuming a sick role and there were external incentives for the behavior. These examination reports are highly probative evidence against the claim as they are based on a review of the history, physical and mental health examinations and as sufficient information was provided to allow the Board to render an informed determination. In sum, during the pendency of the claim, the preponderance of the evidence is against finding that the Veteran has been unable to dress herself and ordinarily keep herself clean and presentable due to service-connected disabilities. She has no prosthetic or orthopedic appliances and requires no assistance to ambulate with a cane or a walker. Her inability to ambulate for distances has also been related to a nonservice-connected right ankle rather than any service-connected disability. There is no evidence that the Veteran cannot feed herself due to service-connected disabilities. Although the Veteran complained that she cannot raise her right arm above her head, the right upper extremity arthritis is not service connected. There is nothing to show that the Veteran is unable to attend to the wants of nature as a result of service-connected disabilities. During a VA spine examination, she denied that she had bladder difficulties due to the service-connected disability. Although examiners have noted that she needs another person to do heavier cleaning tasks such as mopping, there is no evidence that the Veteran requires care or assistance on a regular basis to protect herself from the hazards or dangers incident to her daily environment due solely to the service-connected disabilities. Moreover, the Veteran does not have a single disability that is assigned a total schedular rating. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section H, Par. 44.b (a single disability rated as 100 percent disabling under a schedular evaluation is generally a prerequisite for entitlement to aid and attendance.) The appellant's assertions that she is entitled to aid and attendance benefits are outweighed by the more probative medical opinions which considered only the effects of the service-connected disabilities. The Board finds, after review of the entire record, that the preponderance of the evidence is against finding that the criteria for SMC based on the need for regular aid and attendance of another person have been met. SMC due to being permanently housebound or meeting the criteria for a single disability rating that is total with additional disability independently ratable at 60 percent or more The evidence raised the issue of whether the Veteran was entitled to total disability benefits solely predicated upon a single disability for the purpose of considering entitlement to SMC as provided in 38 U.S.C.A. § 1114(s). Accordingly, the Veteran was examined by VA examiners to determine whether either her service-connected psychiatric disability or her service-connected lumbar spine disability would, by themselves, meet the criteria for unemployability. In addition, the Board directed VA to submit the Veteran's claims folder to the Director of the Compensation and Pension Service to determine whether a total disability rating due to individual unemployability was warranted on an extraschedular basis for either the Veteran's back disability or psychiatric disability alone. As previously discussed, neither the December 2011 psychiatric examiner nor the December 2011 back examiner found that the service-connected disabilities were, by themselves, preventing the Veteran from following substantial gainful employment. After finding essentially no symptomatology of a back disability, the examiner determined that the Veteran's "'lumbar myofascial pain syndrome' should not preclude physical or sedentary employment." The examiner noted that the Veteran was "gainfully employed for [approximately] 20 years following" her service-connection for lumbar myofascial pain syndrome. While the examiner did not report any limitations resulting from the use of medication, the Veteran did not report any such limitations due to medication taken for the back disorder while reporting her history to the examiner. Accordingly, the examiner's failure to consider such is not prejudicial error. The psychiatric examiner found that the Veteran "is not unemployable due to a mental disorder," and that "medications used for treatment of her mood disorder do not render her unable to secure and follow a substantially gainful occupation." The examiner noted that the Veteran was "well groomed" and "able to understand every question posed" and "answer appropriately and assertively." The examiner also noted that the Veteran "did not engage in any challenging behavior" and "was not reacting to internal stimuli." The Veteran told the examiner that she was "able to make a list of things that she needs at home and get someone to take her to the groceries store." It is noted that the Veteran reported in August 2012 that she had stopped taking Effexor because she thought she was doing well and this resulted in irritability and fleeting suicidal thoughts. She immediately started taking the medication again and her mood stabilized. An April 1996 statement from a former employer indicated that she worked in the Housekeeping Department for less than one year. During that year, she was promoted to Assistant Housekeeping Supervisor. The Assistant General Manager stated that the Veteran resigned due to her chronic back problem. She was unable to do the lifting and other strenuous tasks that the job required. She was recommended for any job for which she is qualified as the back problem was her only limitation. An August 1996 VA social and industrial survey noted the Veteran's assertion that she was unable to work due to her back disability. During the interview, the Veteran wore a back support and moved about freely with full range of motion. She reached over to remove a dishpan full of water and easily placed it on the floor. She showed no obvious evidence of psychiatric dysfunction. The social worker noted the July 1992 certification by a physician that she was unable to return to work running a commercial sewing machine. The Veteran reported that the sitting became painful. She had work experience at a weather station where she used skills she learned in service. The job was not physical and she did fairly well. She also had experience working as a cashier at a grocery store which was "hard on her back." She also did housekeeping for a small museum but reportedly could not do the work due to back pain. The social worker felt after reviewing the claims folder that her symptoms were at times vague, pervasive and exaggerated. It was the social worker's opinion that she was not employable. A major factor was that the Veteran was convinced that she could not work full-time and did not intend to try. She did not believe there was any job she could do, earlier attempts at college did not succeed and she did not consent to surgery. This combination of factors made her future employment potential almost nil without treatment. The recommendation of her physician that she do physical therapy and biofeedback training would perhaps help her cope more effectively with the back pain. Then with medical release to return to work, she might attempt light-duty employment. The RO granted TDIU benefits "as a result of service-connected disabilities" effective January 13, 1998, when she was assigned a combined 70 percent evaluation for her service-connected disabilities. The October 2012 memorandum from the Director, Compensation and Pension Service states that the Veteran's claims folder was reviewed and the evidence was assessed pursuant to 38 C.F.R. § 4.16(b) which provides for a total disability on an extra-schedular basis for disabilities which are compensated below the minimum level for total disability under 38 C.F.R. § 4.16(a), but which still render a veteran incapable of maintaining gainful employment. The results of the December 2011 VA examiners were noted: "[B]oth of the VA examiners opined that the Veteran was not unemployable due solely to her back and mental conditions." Thus, noting that there "is no overall finding of unemployability due solely to her back or mental condition," extraschedular consideration was found not to be warranted. The VA examination reports are highly probative evidence against finding that the Veteran is unable to work solely due to the service-connected lumbar spine or the psychiatric disorder. The Board finds that the reports are probative and persuasive. The Veteran has reported that she is unable to work due to her service-connected back disability. However, the evidence as a whole does not show that the back disorder alone rendered her unemployable. The social and industrial survey reported that the Veteran was employed at one time in a position using her skills from the military. That position was not physical, unlike her positions running a commercial sewing machine and housekeeping. She has not reported that she is unable to engage in that type of employment again. There is no indication in the record that the Veteran has attempted to obtain employment and been denied due to either her lumbar spine disability or her psychiatric disability. The preponderance of the evidence is against finding that the Veteran is unemployable solely due to her service-connected psychiatric disability or her lumbar spine disability. While the Veteran's assertions have been considered, they are outweighed by other factors including the fact that the Veteran has work experience that does not require physical labor. In addition, the probative medical evidence shows that the psychiatric disability alone has not been shown to result in unemployability. Accordingly, the Veteran does not have a single disability that is rated 100 percent disabling and the criteria set forth in 38 C.F.R. § 3.351(d)(1) are not applicable. Moreover, the preponderance of the evidence is against finding that the Veteran is substantially confined to her home and the immediate premises due to the service-connected disabilities. The January 2001 aid and attendance report indicated that she was not permanently confined to her home or immediate area. In September 2003, she reported she could drive herself and was told to reapply for benefits if her condition deteriorated to the point where she was permanently housebound. A January 2007 examination report indicated that she was largely confined to her home due to severely restricted mobility. However, nonservice-connected disorders were considered by the examiner such that the statement has no probative value. In December 2008, the Veteran reported that she drove and went to church. The examiner in June 2011 found that she was able to travel beyond her current residence in a private vehicle. She was found to be unrestricted in her ability to leave her home and she was not housebound according to the examiner. This opinion is entitled to great probative weight as the examination report was found to be adequate above and as the purpose of the examination was to determine, in part, whether the Veteran was housebound. The Veteran asserts that she is substantially confined to her premises, however, the examiner determined that service-connected disabilities do not result in her being permanently housebound. This opinion is entitled to greater weight as the examiner considered only the effects of the service-connected disabilities. In sum, the preponderance of the evidence is against the claim; the benefit of the doubt rule is not for application. 38 U.S.C.A. § 5107(b) (West 2002). (CONTINUED ON NEXT PAGE) ORDER SMC based on the need for the regular aid and attendance of another person, on account of being permanently housebound, or on the basis of having a single disability assigned a total rating with additional disability or disabilities independently ratable at 60 percent or more, is denied. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs