Citation Nr: 1719781 Decision Date: 06/05/17 Archive Date: 06/21/17 DOCKET NO. 14-06 475 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to special monthly compensation (SMC) based on need for aid and attendance or on account of being housebound. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD S. Kim, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). The Veteran served on active duty from June 1960 to June 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In November 2016, the Veteran testified during a Board hearing held at the RO before the undersigned. A transcript is of record. Additional evidence, to include an October 2015 examination for housebound status or permanent need for regular aid and attendance as well as VA treatment records through June 2016, was added to the record after the issuance of a December 2013 statement of the case. As the Veteran's claim is being granted, he has suffered no prejudice in the Board considering this newly received evidence with regards to his claim. Cf. 38 C.F.R. § 20.1403 (2016). In addition, the record reveals an August 2015 claim for specially adapted housing grant and an October 2015 claim for financial assistance in purchasing an automobile or adaptive equipment. As these claims have not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2016). FINDING OF FACT The Veteran's service-connected disabilities cause the need for aid and attendance. CONCLUSION OF LAW The criteria for an award of SMC based on need for aid and attendance are met. 38 U.S.C.A. § 1114(l) (West 2014); 38 C.F.R. § 3.350(b) (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Pertinent Law and Regulations Under applicable VA law and regulations, SMC benefits based on need for regular aid and attendance are payable when there is service-connected disability for anatomical loss or loss of use of both feet, one hand and one foot, blindness in both eyes with visual acuity of 5/200 or less, or being permanently bedridden or so helpless as to be in need of regular aid and attendance. The criteria for determining that a veteran is so helpless as to be in need of regular aid and attendance and/or permanently bedridden are set forth in more detail in 38 C.F.R. § 3.352(a). 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b). Under 38 C.F.R. § 3.352(a), 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 or her daily environment. "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 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 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 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. 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 claimants condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others. Analysis The Veteran contends that he requires assistance "with all daily needs" due to his service-connected disabilities. See February 2014 substantive appeal (via VA form 9). Specifically, he reports that he requires "assist[ance] in the shower and all bathroom needs, see April 2010 statement, and help with "feed[ing]" because "[his] hands don't work due to the neuropathy in [his] hands" and with "walk[ing] due to neuropathy in both legs" because he would "fall without assistance," see February 2014 substantive appeal. The Veteran's service-connected disabilities are as follows: status post right carpal tunnel syndrome release (50 percent); lumbosacral spine degenerative changes (40 percent); nightmare disorder, claimed as posttraumatic stress disorder (30 percent); diabetes mellitus, type II (20 percent); mild cataracts and mild nonproliferative diabetic retinopathy (20 percent); status post right meniscectomy (10 percent); status post left meniscectomy (10 percent); hypertension (10 percent); fungus infection of the feet (10 percent); peripheral neuropathy of left upper extremity (10 percent); peripheral neuropathy of the right upper extremity (10 percent); peripheral neuropathy of the left lower extremity (10 percent); peripheral neuropathy of the right lower extremity (10 percent); peripheral neuropathy of the left lower extremity (10 percent); erectile dysfunction (noncompensable); lung cancer (noncompensable); and a total disability rating based in individual unemployability. The evidence of record supports a finding that the Veteran requires regular aid and attendance due to his service-connected disabilities. In an April 2009 private treatment record, Dr. B.T.G. observed that the Veteran's "legs [were] swelling a lot about the mid tibia down" and noted the Veteran's report that "it has been that way for a long time but it has gotten much worse." Dr. B.T.G. noted that he "ha[d] seen [the Veteran] out and around in town," while observing that the Veteran was now in a wheelchair and had chronic spinal stenosis, pain in the low back and down the legs and used a scooter. In a December 2009 examination for housebound status or permanent need for regular aid and attendance, the examiner certified that "[the] Veteran requires the daily personal health care services of a skilled provider without which the Veteran would require hospital, nursing home, or other institutional care." The examiner diagnosed diabetic neuropathy, lumbar spinal stenosis, cervical spinal stenosis, and hip pain. For restriction of lower extremities, the examiner observed that the Veteran was "very rigid [and] stiff when standing" and had shuffling gait, significant lower ext edema, left greater than the right. Poor balance was noted secondary to rigidity. For restriction of each upper extremity, the examiner reported that occasionally, the Veteran's "fingers [and] arms [would]. . . shake, causing food to spill." As for restriction of the spine, trunk, and neck, the examiner found that the Veteran was "rigid [and] unable to stand erect," noting that the Veteran "maintains about a 45 [degree] flexion as he walks." Further, the examiner indicated that the Veteran "requires assistance to travel outside home" and "to get to the van [and] into wheel chair." In daily routine, the examiner noted that "[i]f [the Veteran] needs to defecate, [he] uses caution as he has fallen in bathroom." Further, the examiner wrote that the Veteran "can't prepare [lunch] unless [his] wife had [prepared his food] in advance." The examiner further opined that the Veteran "must have assistance" when leaving home or immediate premises and that he required use of "motorized wheel chair" and walker to assist short distances in home. In a September 2015 letter Dr. G.E., the Veteran's VA treating physician, wrote that due to the Veteran's "chronic health concerns," he was no longer able to manage tasks such as driving, shopping, and running errands independently. VA treatment records show complaints and treatments for service connected disabilities, to include diabetic neuropathies, carpal tunnel syndrome, lumbar spine disability, hypertension, and diabetes mellitus type II, as well as non-service-connected disabilities, to include chronic obstructive pulmonary disease (COPD) and hip pain. In an October 2015 examination for housebound status or permanent need for regular aid and attendance, the examiner diagnosed malignant tumor of the lung as well as intervertebral disc degeneration. The examiner found that the Veteran was unable to prepare his own meals and needed assistance in bathing and tending to other hygiene needs; although he was able to feed himself. The Veteran was not legally blind. The examiner observed that the Veteran was wheelchair bound and unable to perform fine movements like buttoning clothing, shaving, and writing. The Veteran had decreased strength in both legs, and was unable to stand or balance without support. He was only able to ambulate three steps without a walker. Further, the Veteran "required help in daily activities, such as using the toilet, bathing, eating, and dressing. The Veteran was able to leave his home only for medical appointments or meetings once or twice a month and with assistance. During the November 2016 hearing, the Veteran and his spouse competently reported that he regularly needed assistance with dressing and bathing and that he could not travel far without a wheelchair or a walker due to his service-connected peripheral neuropathy, carpal tunnel syndrome, and lumbar spine disability. See November 2015 hearing tr. at 2, 5-6, 12. The evidence is, at least, in relative equipoise on the question of whether the service-connected disabilities, including peripheral neuropathy of all extremities, degenerative changes of the lumbosacral spine, status post right carpal tunnel syndrome, and status post bilateral meniscectomy, claimed as lower joint pain, caused the Veteran to need regular aid and attendance. Therefore, resolving reasonable doubt in the Veteran's favor, SMC based on need for aid and attendance is granted. SMC based on housebound status is a lesser benefit than SMC at the aid and attendance rate. See 38 U.S.C.A. § 1114 (l), (s); 38 C.F.R. § 3.350 (i). The grant of SMC at the aid and attendance rate renders the housebound issue moot. ORDER The claim for SMC based on need for aid and attendance is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs