Citation Nr: 1325249 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 09-18 246 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance (A&A) or at the housebound rate. 2. Eligibility for financial assistance in acquiring specially adapted housing. 3. Entitlement to a special home adaptation grant. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION The Veteran served on active duty from April 1966 to February 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran contends that he is entitled to SMC as well as specially adapted housing or a special home adaptation grant because of his service connected disabilities. Service-connection has been established for degenerative arthritis of the lumbar spine, rated 40 percent disabling; right knee disability, rated 30 percent disabling; arthritis of the right hip, rated as 30 percent disabling; esophageal and gastric ulcer, rated as 20 percent disabling; and degenerative arthritis of the left knee, rated as 10 percent disabling. A total rating based on individual unemployability was assigned effective November 1, 2007; and an 80 percent (combined) schedular rating has been assigned from September 1, 2011. SMC at the A&A rate is warranted 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, or is permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b). Determinations as to the need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to: inability of a claimant to dress or undress himself; to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliance which by reasons of the particular disability cannot be done without aid; inability to feed himself through the loss of coordination of upper extremities or through extreme weakness; inability to tend to the wants of nature; or incapacity, physical or mental, that requires care and assistance on a regular basis to protect claimant from the hazards or dangers incident to his daily environment. "Bedridden" will be a proper basis for the determination and is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that the claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. It is not required that all the disabling conditions enumerated above be found to exist before a favorable rating may be made. The particular personal functions that the claimant is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establishes that the claimant is so helpless as to need regular aid and attendance, not that there is a constant need. 38 C.F.R. § 3.352(a). Consequently, to establish entitlement to compensation at the aid and attendance rate the Veteran must show that the disabilities render him bedridden, or require the regular aid and assistance of another person. Eligibility for assistance in acquiring specially adapted housing under 38 U.S.C.A. § 2101(a) may be granted if a veteran is entitled to compensation for permanent and total disability due to: (1) the loss, or loss of use, of both lower extremities such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; (2) blindness in both eyes, having only light perception, plus the anatomical loss or loss of use of one lower extremity; or, (3) the loss or loss of use of one lower extremity together with residuals of organic disease or injury that so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; or, (4) the loss or loss of use of one lower extremity together with the loss or loss of use of one upper extremity which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair. 38 C.F.R. § 3.809(b). The term "preclude locomotion" means the necessity for regular and constant use of a wheelchair, braces, crutches or canes as a normal mode of locomotion although occasional locomotion by other methods may be possible. 38 C.F.R. § 3.809(d). Eligibility for assistance in acquiring a special home adaptation grant under 38 U.S.C.A. § 2101(b) may be granted if a veteran is entitled to compensation for permanent and total disability that (1) is due to blindness in both eyes with 5/200 visual acuity or less, or (2) includes the anatomical loss or loss of use of both hands. 38 U.S.C.A. § 2101(b); 38 C.F.R. § 3.809a. The term "loss of use" of a hand or foot is defined by 38 C.F.R. § 3.350(a)(2) as that condition where no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc., in the case of the hand, or of balance, propulsion, etc., in the case of the foot, could be accomplished equally well by an amputation stump with prosthesis. Examples under 38 C.F.R. § 3.350(a)(2), which constitute loss of use of a foot, include extremely unfavorable complete ankylosis of the knee, complete ankylosis of two major joints of an extremity, shortening of the lower extremity of 3 1/2 inches or more, or complete paralysis of the external popliteal nerve (common peroneal) nerve and consequent footdrop. The Veteran has not been provided with a VA examination to determine whether he meets the criteria for SMC, specially adapted housing, or a special home adaptation grant. The medical evidence of record includes a VA examination in June 2008 for the purpose of the Veteran's subsequently granted claim for TDIU, and a statement dated in October 2008 from a treating VA physician. This evidence provides an incomplete and conflicting view of the Veteran's disability picture, and does not include consideration of the service connected right hip disability (service connection for which was granted in a July 2011 rating decision). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the current severity of (and associated functional limitations resulting from) his service-connected disabilities. The Veteran's claim file (including this remand) must be reviewed by the examiner in conjunction with the examination. Based on examination of the Veteran and review of his record, the examiner must: (a) Provide opinions as to: (1) Whether the Veteran requires the regular assistance of another person with activities of daily living, to include dressing and/or undressing, keeping ordinarily clean and presentable; feeding himself, and attending to the wants of nature; if regular assistance with a function is needed, identify the disability(ies) and related functional limitations that create the need for assistance; (2) whether the Veteran requires the assistance of another in protecting himself from the ordinary hazards of daily living; If he is deemed incapable of protecting himself from such hazards, explain why that is so (identifying the disability(ies) responsible); (3) whether the Veteran is restricted to his home or the immediate vicinity thereof; (4) to what extent functional impairment reported in response to the above is due to the Veteran's service-connected disabilities; and (5) to what extent (if any) the limitations found are due to any nonservice-connected disabilities. (b) Provide an opinion as to whether the Veteran's service-connected disabilities have resulted in the loss of use of one or both lower extremities or one or both upper extremities. If loss of use of a lower extremity is found, comment on the extent to which assistive devices are required. If the Veteran has loss of use of an extremity, but on account of nonservice-connected disability only, state so for the record (with explanation). The examiner must explain the rationale for all opinions, citing to supporting factual data and medical literature, as appropriate. 2. Then, readjudicate the appeal. If any of the benefits sought remains denied, issue a Supplemental Statement of the Case and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).