Citation Nr: 1425167 Decision Date: 06/04/14 Archive Date: 06/16/14 DOCKET NO. 13-21 266 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to an effective date prior to March 23, 2009, for the grant of service connection for a bilateral hearing loss disability. 2. Entitlement to an effective date prior to March 23, 2009, for a grant of entitlement to a total rating based on individual unemployability (TDIU). 3. Whether the January 21, 2010 rating decision, which denied entitlement to a TDIU, was clearly and unmistakably erroneous. 4. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance. 5. Entitlement to SMC at the housebound rate. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his daughter ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from January 1946 to January 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines. In February 2014, a hearing was held before the undersigned Veterans Law Judge sitting at the RO. Review of the claims folder shows that in a July 2013 VA Form 9, the Veteran asserted that the May 1982 Board decision that denied service connection for hearing loss contained clear and unmistakable error (CUE). The Veteran did not file a Motion with the Board and only made vague statements as to any alleged errors. The Veteran is advised that a CUE Motion must be filed at the Board and must meet specific pleading requirements. If the Veteran wishes to file such a motion, he should refer to the Board's Rules of Practice on CUE. See 38 C.F.R. §§ 20.1400-20.1411 (2013). The VBMS and Virtual VA folders have been reviewed. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The RO most recently denied service connection for a bilateral hearing loss disability in May 2010. The Veteran did not appeal this decision and new and material evidence was not received within the 1-year appeal period. 2. The RO most recently denied entitlement to TDIU in January 2010. The Veteran did not appeal this decision and new and material evidence was not received within the 1-year appeal period. 3. On March 1, 2012, the RO received a claim to reopen service connection for hearing loss and for TDIU. 4. The January 2010 rating decision denying entitlement to TDIU did not contain an outcome determinative error in applying the law extant at that time to the facts that were before the adjudicator. 5. The evidence of record establishes that the Veteran requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment; however, the preponderance of the evidence shows that this need is due to nonservice-connected disabilities. 6. The Veteran is shown as likely as not to be permanently housebound by reason of service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to March 23, 2009, for service connection for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1110, 1131, 5110 (West 2002); 38 C.F.R. §§ 3.303, 3.400 (2013). 2. The criteria for an effective date prior to March 23, 2009, for a grant of TDIU are not met. 38 U.S.C.A. §§ 1155, 5110 (West 2002); 38 C.F.R. §§ 3.400, 4.16 (2013). 3. The January 2010 rating decision that denied entitlement to TDIU does not contain CUE. 38 U.S.C.A. § 5109A (West 2002); 38 C.F.R. § 3.105(a) (2013). 4. The criteria for SMC due to the need for regular aid and attendance are not met. 38 U.S.C.A. § 1114(l) (West 2002); 38 C.F.R. § 3.350, 3.352(a) (2013). 5. The criteria for SMC at the housebound rate are met. 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i)(2). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. By letters dated in March 2012 and June 2012, VA notified the Veteran of the information and evidence needed to substantiate his claims, to include notice of the information and evidence the claimant was responsible for providing, and of the evidence that VA would attempt to obtain. These letters provided notice as to how VA assigns disability ratings and effective dates. The earlier effective date issues are "downstream" issues in that they arose following the initial grant of service connection for bilateral hearing loss and for TDIU. VA has also satisfied its duty to assist. The claims folder contains the Veteran's service treatment records, VA medical center records, and private medical records. The Veteran has not identified additional relevant records that need to be obtained. In June 2012, the Veteran underwent a VA aid and attendance examination. The examination report appears adequate and further examination is not warranted. The Veteran had the opportunity to present testimony at the February 2014 travel board hearing. During the hearing, the Veterans Law Judge clarified the issues on appeal, explained the applicable concepts, and suggested the submission of evidence to support the Veteran's claims. The actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing. 38 C.F.R. § 3.103. The VCAA is not applicable to CUE claims. See Parker v. Principi, 15 Vet. App. 407 (2002); Livesay v. Principi, 15 Vet. App. 165 (2001). In sum, there is no evidence of any VA error in notifying or assisting the Veteran that affects the adjudication of this appeal. See 38 C.F.R. § 3.159 (2013). Analysis Effective dates The assignment of an effective date for an award of service connection is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim for service connection or a claim reopened after final adjudication, "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore." 38 U.S.C.A. § 5110(a). However, if a granted claim is filed within one year of the Veteran's discharge or release from active service, the effective date shall be the day following the date of such discharge or release. 38 U.S.C.A. § 5110(b). The implementing regulation, 38 C.F.R § 3.400, states that the effective date for an award of compensation based on an original claim for service connection or a claim reopened after final disallowance will be "the date of the receipt of the claim or the date entitlement arose, whichever is later." If the claim is received within 1 year after separation from service, the effective date will be the day following separation from active service. Under 38 U.S.C.A. § 5110(a), the effective date of an increase in a veteran's disability compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. Section 5110(b)(2) provides an exception to this general rule: The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. The United States Court of Appeals for Veterans Claims (Court) and VA's General Counsel have interpreted the laws and regulations pertaining to the effective date for an increase as follows: If the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was factually ascertainable. If the increase occurred more than one year prior to the claim, the increase is effective the date of the claim. If the increase occurred after the date of the claim, the effective date is the date of increase. 38 U.S.C.A. § 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(1)(2); VAOPGCPREC 12-98 (1998). As to what constitutes a claim, a specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the Veteran, it will be considered filed as of the date of receipt of the informal claim. When a claim has been filed which meets the requirements of 38 C.F.R. §§ 3.151 or 3.152, an informal request for increase or reopening will be accepted as a claim. 38 C.F.R. § 3.155. The mere existence of medical records generally cannot be construed as an informal claim. Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006). An exception to this general rule exists pursuant to 38 C.F.R. § 3.157(b)(1) (2013). The provision describes what constitutes an informal claim for increased benefits or an informal claim to reopen and applies when a formal claim for pension or compensation has been allowed, or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree. i. Hearing Loss The Veteran is currently service-connected for bilateral sensorineural hearing loss, rated as 80 percent disabling, from March 23, 2009. The Veteran contends that the effective date should be the date of retirement from service or prior to March 2009. At the hearing, his daughter said that since he is old, he needs an earlier effective date to be able to enjoy his benefits. By way of history, review of the claims folder shows that in April 1958, the RO denied service connection for defective hearing. In June 1964, the Board dismissed the issue of service connection for defective hearing, finding that the appeal period had expired. In September 1979 and April 1980 confirmed rating decisions, the RO determined that new and material evidence had not been submitted to warrant reconsideration of the claim of service connection for defective hearing. The Veteran perfected an appeal and in May 1982, the Board denied service connection for a hearing loss disability. The Veteran did not appeal this decision and it is final. See 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2013). In January 1983, the Board denied the Veteran's Motion for Reconsideration. See 38 U.S.C.A. § 7103. On March 23, 2009, the RO received a statement in support of claim wherein the Veteran asked to reopen his claim for hearing loss. In September 2009, January 2010, and May 2010, the RO determined that new and material evidence had not been submitted to reopen the claim. The Veteran did not appeal the decisions and new and material evidence was not received within the 1-year appeal period following the May 2010 decision. The decisions are final. See 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.156(b), 20.1103 (2013). On March 1, 2012, the Veteran submitted a statement which was construed to include a claim to reopen service connection for hearing loss. In November 2012, the RO granted service connection for bilateral hearing loss effective March 1, 2012. The Veteran disagreed with the effective date and perfected this appeal. On review, the Board does not find correspondence or other evidence following the May 2010 final rating decision and prior to March 1, 2012 that could be reasonably construed as a claim to reopen service connection for a hearing loss disability. Thus, the date of the reopened claim is March 1, 2012. Notwithstanding, in a May 2013 code sheet and the June 2013 Statement of the Case, the RO assigned an earlier effective date of March 23, 2009 for service-connected hearing loss. At that time, the RO determined that the Veteran successfully reopened his claim on March 23, 2009 and that it was kept open through continuous prosecution. The RO's finding is favorable to the Veteran and the Board will not interfere with that determination. There is, however, no basis under the applicable laws and regulations for assigning an effective date prior to March 23, 2009. See 38 U.S.C.A. § 1155; 38 C.F.R. § 3.400. On review, the Veteran is really trying to attack the finality of a prior rating decision. To the extent he is raising a "freestanding" claim for an earlier effective date, such a claim must be dismissed. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). The Board further notes that absent a showing of CUE in the prior final decision, he cannot receive disability payments for a time frame earlier than the date of the claim to reopen. See Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005). The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. See 38 C.F.R. § 3.102 (2013). ii. TDIU The effective date currently assigned for TDIU is March 23, 2009. The Veteran contends that he is entitled to an earlier date. In his notice of disagreement, he asserts entitlement to TDIU effective the date of his retirement in January 1957. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is, "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). A threshold requirement for eligibility for a TDIU under 38 C.F.R. § 4.16(a) is that, if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). However, even where the Veteran does not meet these schedular requirements, 38 C.F.R. § 4.16(b) codifies VA's policy under which all veterans who are unable to secure a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. A claim for a TDIU is deemed to have been submitted as part of any claim for an increased rating when evidence of unemployability is submitted at the same time as the claim and the Veteran seeks the highest rating possible. See Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). The grant of a TDIU is an award of increased disability compensation for purposes of assigning an effective date. Dalton v. Nicholson, 21 Vet. App. 23 (2007). By way of history, review of the claims folder shows that in May 1982, the Board denied entitlement to TDIU finding that the Veteran's service-connected disabilities were not of such a nature and severity as to preclude gainful employment. The Veteran did not appeal this decision and it is final. See 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. In January 1983, the Board denied the Veteran's Motion for Reconsideration. See 38 U.S.C.A. § 7103. In March 2000, the Veteran submitted a claim for TDIU. The RO denied this decision in October 2000 and the Veteran perfected an appeal. In July 2006, the Board again denied entitlement to TDIU, finding that his service-connected disability had not been shown to be of such severity as to preclude substantially gainful employment. The Veteran did not appeal this decision and it is also final. See 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. In January 2007, the Board denied the Veteran's Motion for Reconsideration. See 38 U.S.C.A. § 7103. In April 2007, the Veteran submitted a statement which appears to raise a claim for TDIU. Rating decisions dated in May 2007 and September 2009 do not address this issue. In December 2009, the Veteran submitted a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. In January 2010, the RO denied TDIU. The Veteran did not appeal this decision and new and material evidence was not received within the 1-year appeal period. The decision is final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. On March 1, 2012, the RO received another claim for TDIU. In November 2012, the RO granted entitlement to TDIU from March 1, 2012. The Veteran disagreed with the effective date and perfected this appeal. On review, the Board does not find correspondence or other evidence following the January 2010 final rating decision and prior to March 1, 2012 that could be construed as a claim for TDIU. The Board finds March 1, 2012 to be the date of claim. On review of the claims folder, and as discussed in further detail below, it appears that the Veteran met the schedular requirements for TDIU as of March 10, 2000. See 38 C.F.R. § 4.16(a)(2), (3). Further, a factually ascertainable increase in disability (i.e., the criteria for TDIU were met) was arguably shown in the year prior to the March 1, 2012 date of claim. Notwithstanding, in a May 2013 code sheet and June 2013 Statement of the Case, the RO awarded an earlier effective date of March 23, 2009 for TDIU. The assigned date is more favorable to the Veteran and the Board will not disturb that determination. The applicable laws and regulations, however, do not permit entitlement to TDIU prior to that date. See 38 U.S.C.A. § 5110; 38 C.F.R. §§ 3.400, 4.16. Again, the Veteran is really trying to attack the finality of a prior rating decision. To the extent he is raising a "freestanding" claim for an earlier effective date, such a claim must be dismissed. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). The Board further notes that absent a showing of CUE in the prior final decision, he cannot receive disability payments for a time frame earlier than the date of the claim to reopen. See Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005). Clear and unmistakable error As discussed above, the January 2010 rating decision denied entitlement to TDIU and this decision is final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. In March 2012, the Veteran submitted a statement wherein he argued that the January 2010 rating decision contained CUE. He asserted that the decision was not in accordance with 38 C.F.R. § 4.16(a) and/or extraschedular consideration pursuant to 38 C.F.R. § 4.16(b). In November 2012, the Veteran submitted another statement wherein he indicated that the rating decision was erroneous as outlined in his March 2012 letter. On review, it does not appear that the RO issued a rating decision as to the Veteran's allegation of CUE. They did, however, furnish a Statement of the Case addressing whether there was CUE in the January 2010 rating decision that denied entitlement to TDIU. The Veteran submitted a timely Form 9 and the RO certified the issue for appeal. Thus, the Board will accept jurisdiction of this issue. See Percy v. Shinseki, 23 Vet. App. 37 (2009) (by treating the matter as if it were part of the timely filed Substantive Appeal, VA waived any objections it might have had to the timeliness of filing). Previous determinations which are final and binding will be accepted as correct in the absence of CUE. See 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.105(a). In order for CUE to exist, the Court has stated: (1) '[e]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied,' (2) the error must be 'undebatable' and of the sort 'which, had it not been made, would have manifestly changed the outcome at the time it was made,' and (3) a determination that there was [clear and unmistakable error] must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has stated that there are two requirements to establish CUE: (1) the alleged error must have been outcome determinative; and (2) the error must have been based upon the evidence of record at the time of the original decision. Cook v. Principi, 318 F.3d 1334, 1344 (Fed. Cir. 2002) (citations omitted). In Fugo v. Brown, 6 Vet. App. 40 (1993), overruled in part by Simmons v. Principi, 17 Vet. App. 104 (2003) (only to the extent that it is more appropriate to dismiss rather than deny CUE claims that fail pleading specifications), the Court stated that CUE is the kind of legal or factual error that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Id. at 43. To reasonably raise the question of CUE, there must be some degree of specificity as to what the alleged error is, and unless it is the kind of error that, if true, would be CUE on its face, persuasive reasons must be given as to why the result would have been manifestly different but for the error. Id. at 44. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Id. The Court has also stated that an incomplete record, factually correct in all other respects, is not clearly and unmistakably erroneous, and that a breach of the duty to assist cannot constitute CUE because such a breach creates only an incomplete rather than an incorrect record. Caffrey v. Brown, 6 Vet. App. 377, 383-384 (1994). A determination of CUE must be based on the record and the law that existed at the time of the prior adjudication. Baldwin v. West, 13 Vet. App. 1 (1999); Caffrey v. Brown, 6 Vet. App. 377 (1994). The Board notes that an assertion of CUE is a collateral attack on an otherwise final rating decision by a VA regional office. Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994). As such, there is a presumption of validity that attaches to a final decision, and when such a decision is collaterally attacked the presumption becomes even stronger. Fugo, 6 Vet. App. at 43-44. Therefore, a claimant who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed on a claimant who seeks to establish prospective entitlement to VA benefits. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). As noted, the Veteran appears to argue that the relevant regulation, 38 C.F.R. § 4.16, was incorrectly applied. In the January 2010 rating decision, the RO stated that TDIU remained denied because the Veteran's service-connected disabilities did not meet the schedular requirements and that he had not been found unable to secure or follow a gainful occupation as a result of service-connected disabilities. At the time of the January 2010 rating decision, the Veteran was service-connected for the following disabilities: left femur fracture with shortening and posttraumatic osteoarthritis (30 percent); limitation of motion left lower extremity associated with left femur fracture (30 percent); and painful limitation of flexion of the left knee (10 percent). The combined evaluation was 60 percent from March 10, 2000. On review, these disabilities all result from a common etiology or a single accident (an in-service motor vehicle accident) and effect a single body system (e.g., orthopedic). Thus, the schedular requirements were met under 38 C.F.R. § 4.16(a)(2) and (3). While the RO appears to have made an error in determining whether the schedular requirements were met, this was not outcome determinative. That is, the RO also stated that results of VA examinations failed to show that his service-connected disabilities were so severely disabling as to affect his ability to obtain or retain employment. The RO further noted that his VA Form 21-8940 did not indicate his educational background which was necessary for them to make a determination on whether or not he was precluded from employment compatible with his educational background as a result of service-connected disabilities. The Board has reviewed the relevant VA examinations and private medical evidence of record and notes that the Veteran did have limitations with standing and walking due to his service-connected lower extremity disabilities. The Board, however, does not find information, to which reasonable minds could not differ, that establishes the Veteran's orthopedic disabilities were of such severity as to preclude substantially gainful employment. To the extent the Veteran disagrees with how the RO weighed the evidence, this does not rise to the level of CUE. The Board observes that the RO found the requirements for TDIU were met as of the date service connection for bilateral hearing loss was granted. At the time of the January 2010 rating decision, service connection had not yet been established for hearing loss. Special Monthly Compensation In November 2012, the RO denied entitlement to SMC based on aid and attendance or at the housebound rate. The Veteran disagreed with the decision and perfected this appeal. Special monthly compensation is payable at the (l) rate if a 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.A. § 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 his daily environment. 38 C.F.R. § 3.352(a). "Bedridden" will be a proper basis for the determination. For the purpose of this paragraph, "bedridden" will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that claimant has voluntarily taken to bed or that a physician has prescribed bed rest for the greater or lesser part of the day to promote convalescence or cure will not suffice. Id. 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 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. Id. The Veteran is currently service-connected for bilateral sensorineural hearing loss (80 percent); left femur fracture with shortening and posttraumatic osteoarthritis (30 percent); limitation of motion left lower extremity (30 percent from March 10, 2000 and 10 percent from June 18, 2012); and painful limitation of flexion of the left knee (10 percent from March 10, 2000 and noncompensable from June 18, 2012). The Veteran underwent a VA aid and attendance examination in June 2012. He was not permanently bedridden or currently hospitalized. He could not travel beyond his home and was accompanied by his daughter. He stays home most of the time and does not perform household chores. The Veteran had generalized weakness likely due to old age. On physical examination, the Veteran was frail with stooped posture and noted to be malnourished and unable to walk. He required use of a wheelchair and could leave home for medical care only. There was mild to moderate impairment in function of the upper extremities and he had some difficulty with self-feeding, and self-grooming; and marked difficulty with dressing/undressing, self-bathing, and toileting ability. Function of the left lower extremities was not normal and he had limitation of motion, muscle weakness and atrophy. There was muscle weakness in the right lower extremity. He cannot stand or walk alone. Following examination, diagnoses were: senility, multiple arthritis, bronchial asthma, pulmonary emphysema, left eye cataract, status post cataract surgery right eye, impaired hearing, age-related cognitive decline, hypertension, and malnutrition. The examiner stated that the Veteran needed regular aid and attendance of another person in the performance of his activities of daily living due to his senility and multiple arthritis. There was moderate to severe restriction in his ability to perform his activities of daily living due to the other disabilities. As set forth, the Veteran is in need of aid and attendance. The question though, is whether this need is due to service-connected disabilities. In considering the claim, the Board acknowledges that the Veteran is service-connected for arthritis in the left lower extremity and that the examiner indicated that disabilities necessitating the need for aid and attendance included "arthritis, multiple." The Veteran's left lower extremity arthritis and associated disabilities are currently rated as 30 percent, 10 percent, and noncompensable. On review, the service-connected left lower extremity disabilities, in and of themselves, are not shown to be so disabling as to necessitate the need for regular aid and attendance. The Board has also considered the moderate to severe restrictions imposed by the Veteran's hearing loss, but does not find the overall impairment due to service-connected disabilities to be so severe as to demonstrate a need for regular aid and attendance. Rather, the need appears to be based largely on nonservice-connected impairment, to include old age, senility, and malnutrition. On review, the criteria for SMC based on the need for aid and attendance are not met. The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. See 38 C.F.R. § 3.102. Special monthly compensation is payable at the (s) rate if a Veteran has a single service-connected disability rated as 100 percent and, (1) has additional service-connected disability or disabilities independently evaluated as 60 percent or more disabling which are 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. A veteran will be considered housebound where the evidence shows that, as a direct result of his service-connected disability or disabilities, he is substantially confined 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). The June 2012 examiner stated that the Veteran could leave the home for medical care only. Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran is permanently housebound due to his severe hearing loss and lower extremity disabilities. Thus, entitlement to SMC at the housebound rate is established. Given the determination that the Veteran is housebound in fact, the Board does not find it necessary to discuss whether the criteria for statutory entitlement to housebound benefits are met under 38 C.F.R. § 3.350(i)(1). ORDER An effective date prior to March 23, 2009 for the grant of service connection for hearing loss is denied. An effective date prior to March 23, 2009 for the grant of TDIU is denied. The January 21, 2010 rating decision, which denied entitlement to TDIU, is not clearly and unmistakably erroneous. Entitlement to SMC based on the need for aid and attendance is denied. Entitlement to SMC at the housebound rate is granted, subject to the laws and regulations governing the award of disability benefits. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs