Citation Nr: 1752409 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 15-06 075 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to special monthly compensation based on the regular need for aid and attendance of another. 2. Entitlement to special monthly compensation based on housebound status prior to February 23, 2016. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD A. Parsons, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1943 through December 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied entitlement to special monthly compensation both at the housebound rate and based on the need for regular aid and attendance. Subsequent to the Board's remand in December 2015, the Agency of Original Jurisdiction (AOJ) granted entitlement to special monthly compensation at the housebound rate, effective February 23, 2016. As the Veteran's claim predates this effective date, the issue of entitlement to special monthly compensation at the housebound rate prior to February 23, 2016 remains on appeal. The issues were remanded by the Board in December 2015 and November 2016 for further development. As for both issues, all requested developed has been completed to the extent available and appellate adjudication may proceed. See Stegall v. West, 11 Vet. App. 268 (1998). 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). FINDINGS OF FACT 1. For the entire period on appeal, the Veteran was not in need of aid and attendance due to his service connected disabilities. 2. Prior to February 23, 2016, the Veteran did not have a single service-connected disability rated at 100 percent disabling with additional service-connected disability or disabilities independently ratable at 60 percent, nor is he shown to be substantially confined to his home by reason of his service-connected disabilities. CONCLUSIONS OF LAW 1. For the entire period on appeal, the criteria for special monthly compensation by reason of the need for regular aid and attendance of another person have not been met. 38 U.S.C.A. §§ 1114, 1502, 1521, 5103(a), 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.350, 3.352 (2016). 2. Prior to February 23, 2016, the criteria for special monthly compensation based on housebound status have not been met. 38 U.S.C.A. §§ 1114, 1502, 1521, 5103(a), 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.350 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Special monthly compensation is payable at a specified rate if a VA claimant, 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 visual acuity of 5/200 or less; 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). The criteria for determining that a VA claimant is so helpless as to be in need of "regular aid and attendance" are contained in 38 C.F.R. § 3.352(a). Those criteria include: (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. 38 C.F.R. § 3.352(a) Being "bedridden" will also be a proper basis for finding that a VA claimant is in need of regular aid and attendance. The term "bedridden" means a condition which, through its essential character, actually requires that the claimant remain in bed. However, the fact that someone 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 is not sufficient. Special monthly compensation under for housebound status is warranted (1) if a veteran has a single service-connected disability rated as total and additional service-connected disabilities that are independently rated at more than 60 percent combined, or (2) he or she is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when a veteran is substantially confined as a direct result of service-connected disabilities to his or her 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 or her lifetime. 38. U.S.C.A. § 1114(s) (West 2014); 38 C.F.R. § 3.350(i) (2016). After review of the evidence of record, the Board finds that entitlement to special monthly compensation based on the need for aid and attendance of another has not been met during any period on appeal. Further, he is not entitled to special monthly compensation based on housebound status prior to January 23, 2016. Prior to February 23, 2016, the Veteran was service connected for residuals of repair right lower lid entropion and lateral tarsal strip left eye with bilateral senile ectropion associated with chronic blepharitis and conjunctivitis, bilateral associated with chronic blepharitis and conjunctivitis, bilateral (rated as 50 percent disabling), major depressive disorder with alcohol abuse in remission associated with chronic blepharitis and conjunctivitis, bilateral (rated as 30 percent disabling), epiphora associated with residuals repair right lower lid entropion and lateral tarsal strip left eye with bilateral senile ectropion associated with chronic blepharitis and conjunctivitis, bilateral (rated as 20 percent disabling), and chronic blepharitis and conjunctivitis, bilateral (rated as 10 percent disabling), with a combined disability rating of 80 percent. In a June 2016 rating decision, the RO increased the Veteran's major depressive disorder with alcohol abuse in remission to 100 percent disabling effective February 23, 2016. An April 2012 VA Form 21-2680 "Examination for Housebound Status or Permanent Need for Regular Aid and Attendance" noted the Veteran was unable to prepare his own meals due to poor vision and stamina, required medication set up and reminders, was unable to leave home unassisted and unable to drive due to vision impairment. He was not bedridden or hospitalized. It was noted he had poor hearing and vision, but was not blind, and needed the assistance of a cane or another person to walk more than 25 feet. Although the examiner noted weakness of the upper and lower extremities, the Veteran could feed himself and it was not recorded that he had difficulty buttoning clothing, shaving, or attending to the needs of nature. He was diagnosed with photophobia, diabetes mellitus, hypertension, major depression and conjunctivitis. In July 2013, another VA Form 21-2680 "Examination for Housebound Status or Permanent Need for Regular Aid and Attendance" was submitted. The examiner diagnosed him with status post right hip fracture surgery, chronic obstructive pulmonary disease, diabetes mellitus type II, chronic kidney disease stage III, depression, hypertension, and a pacemaker. She noted the Veteran's right hip fracture and depression restricted his daily activities and functions, but he was not bedridden. His gait was steady with a rolling walker, he could prepare simple meals with supervision, he could feed himself, and he needed minimal help bathing when cleaning his trunk and lower extremities. The Veteran was under skilled nursing facility care for three weeks between June 2013 and July 2013, he could leave the nursing facility with his grandson, and he could manage his financial affairs with assistance from family members. The examiner noted minimal loss of strength in his upper extremities. Examination of his lower extremities revealed his weight bearing was improving on his right leg, and his left leg had no issues. There were also no restrictions to limitation of his spine, trunk, or neck. No bowel or bladder issues were noted and the Veteran did not have cognitive loss. He could transfer with his walker with minimal assistance and was independent with bed mobility. A June 2013 statement from the Veteran's grandson reported he took care of all the Veteran's medicine, doctor's appointments, cooking, housekeeping, lawn care, and finances. He further reported the Veteran needed an electric scooter to leave the house and was housebound other than going to doctor's appointments. In his September 2013 notice of disagreement, the Veteran reported that he was hospitalized and under nursing home care from June 2013 through July 2013 due to his hip fracture. He also reported that his vision loss prevented him from completing daily activities without assistance, and that his grandson drove him everywhere, cooked, cleaned, assisted in dressing and bathing him, did the laundry, and went grocery shopping. Further, due to his vision loss, his grandson needed to tell him where to step so that he did not fall or bump into objects. The Veteran was afforded a VA examination for his eye disabilities in February 2016. The examiner opined that the Veteran's chronic conjunctivitis and blepharitis in his left and right eyes, and epiphora in his left and right eyes may be uncomfortable, cause irritation, and require care, but the disabilities were not debilitating and did not impair his vision. The examiner additionally opined that the Veteran's macular degeneration is age-related and his corrected visual acuity in the right eye was 20/30 and 20/20 in the left eye with no visual impairment. Also in February 2016, the Veteran was afforded a VA examination to determine the severity of his major depressive disorder. The Veteran reported he lived with his son, who was his caretaker. He reported memory problems and that his son had to remind him to take his medications. The Board has additionally considered VA treatment records indicating the Veteran's need for assistance. Eye exams noted in June 2012 the Veteran had visual acuity of 20/40 in his right eye and 20/30 in his left eye. In October 2012, his visual acuity was 20/25-2 in his right eye and 20/30 in his left eye. In January 2013, his visual acuity was 20/30-1 in his right eye and 20/30 in his left eye. In February 2015, the Veteran had visual acuity of 20/40 in his right eye and 20/30 in his left eye. At no point during the period on appeal has the Veteran been blind in both eyes with 5/200 visual acuity or less. A VA treatment record dated May 2013 noted the Veteran experienced shortness of breath with activity. He was issued a motorized scooter for long distances and a cane for short distances. The Board may only consider the Veteran's service-connected disabilities in addressing whether he is entitled to special monthly compensation. He is only service-connected for residuals repair right lower lid entropion and lateral tarsal strip left eye with bilateral senile ectropion, major depressive disorder with alcohol abuse in remission, epiphora associated with residuals repair right lower lid entropion and lateral tarsal strip left eye with bilateral senile ectropion, and chronic blepharitis and conjunctivitis, bilateral. Although the Veteran is service-connected for several eye disabilities, he does not have visual acuity of 5/200 or less. While the Veteran attributed his inability to cook, clean, drive, or otherwise perform daily activities to his diminished visual acuity, eye exams consistently recorded his vision as near normal. Further, it is not demonstrated that his service-connected disabilities, on their own, require the need for aid and attendance of another. The Veteran reported during his February 2013 VA psychiatric evaluation that he needed help remembering to take his medication, but he did not report being completely dependent on his son for all daily activities due to his service-connected depression. It was also noted consistently that his inability to leave the house was due to his use of a motorized scooter, but the Veteran is not service connected for his right hip fracture, shortness of breath, or his heart problems. There is no evidence in the record indicating that the Veteran's eye disabilities or depression prevented him from dressing himself, keeping himself clean and presentable, feeding himself, or required frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of his particular disability could not be done without aid, or required constant aid and assistance to protect him from hazards or dangers incident to his everyday environment due to mental or physical incapacity. Additionally, the Veteran was never bedridden. In view of these findings, the Board concludes that the Veteran's service-connected disabilities are not shown by the evidence to debilitate him to such an extent that he requires the regular aid and attendance of another person as specified by the criteria in 38 C.F.R. § 3.352(a). Accordingly, the evidence does not support entitlement to special monthly compensation based on the regular need of aid and attendance throughout the entire period on appeal. Next, with respect to housebound benefits, the Board notes the Veteran was granted housebound status effective February 23, 2016, the date he met the threshold criteria of having a service-connected disability rated at 100 percent and additional disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability. Prior to February 23, 2016, the evidence does not establish that the Veteran was permanently housebound by reason of his service-connected disabilities. As discussed above, although the Veteran used a motorized scooter to travel long distances and leave the house, he is not service connected for any disability that impacts his ambulation. Despite the Veteran reporting that he could not drive due to his diminished visual acuity, the February 2016 VA examiner noted his service-connected eye disabilities do not caused diminished visual acuity, and even though the Veteran had non-service-connected macular degeneration, his eyesight was still normal. Therefore, prior to February 23, 2016, the medical evidence does not establish the Veteran was entitled to special monthly compensation on the basis of being housebound. In sum, the evidence does not support the Veteran's claim for special monthly compensation by reason of the need for regular aid and attendance of another person during any period on appeal, and it does not establish housebound status prior to February 23, 2016. Finally, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). ORDER Entitlement to special monthly compensation based on the regular need of aid and attendance of another is denied. Entitlement to special monthly compensation based on housebound status prior to February 23, 2016 is denied. ____________________________________________ MICHELLE KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs