Citation Nr: 1752895 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 14-02 966 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance (A&A) of another person or on account of being housebound. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD D. J. Drucker, Counsel INTRODUCTION The Veteran had active military service from May 1967 to January 1969. This case comes to the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). FINDING OF FACT Due to the Veteran's significant service-connected disabilities, he required assistance with dressing, bathing, preparing meals, and he required regular care or assistance against dangers in his daily environment. CONCLUSION OF LAW The criteria for an award of SMC based upon the need for regular aid and attendance of another person have been met. 38 U.S.C. §§ 1114(l), 5107(b) (2012); 38 C.F.R. §§ 3.350, 3.352 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION When a veteran seeks benefits and the evidence is in relative equipoise regarding any issue material to the determination of a matter, the Veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The benefit of the doubt rule is a unique standard of proof, and "the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding such benefits." Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (citing Gilbert, 1 Vet. App. at 54). Legal Criteria SMC is available when, "as the result of service-connected disability," a veteran suffers additional hardships above and beyond those contemplated by VA's schedule for rating disabilities. Breniser v. Shinseki, 25 Vet. App. 64, 68 (2011). Section 1114(l) provides five distinct ways for a veteran, "as the result of service-connected disability," to qualify for this rate of SMC: (1) Anatomical loss or loss of use of both feet; (2) anatomical loss or loss of use of one hand and one foot; (3) blindness in both eyes with 5/200 visual acuity or less; (4) being permanently bedridden; or (5) having "such significant disabilities as to be in need of regular aid and attendance." 38 U.S.C. § 1114 (l). The "need of regular aid and attendance" in § 1114(l) must be the result of "such significant disabilities." 38 U.S.C. § 1114(l); Breniser, 25 Vet. App. at 71. The following basic considerations are critical in determining the need for the regular aid and attendance of another person: inability of the Veteran 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 the Veteran 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 Veteran from hazards or dangers incident to his daily environment. See 38 C.F.R. § 3.352 (a) (2017). Determinations as to the need for aid and attendance must be based on actual requirements of personal assistance from others. Id. It is not required that all of the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found to exist before a favorable rating may be made. The particular personal functions which a 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 a veteran is so helpless as to need regular aid and attendance, not that there is a constant need. See Turco v. Brown, 9 Vet. App. 222, 224-25 (1996). "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. 38 C.F.R. § 3.352(a). If the Veteran does not qualify for increased benefits for aid and attendance, increased compensation benefits may still be payable if the Veteran is able to establish entitlement to SMC based on housebound status under 38 U.S.C.A. § 1114 (s). In that instance, the evidence must show that a veteran has a single service-connected disability evaluated as 100-percent disabling and an additional service-connected disability, or disabilities, evaluated as 60 percent or more disabling that is separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or the Veteran has a single service-connected disability evaluated as 100 percent disabling and due solely to service-connected disability, or disabilities, the Veteran is permanently and substantially confined to his or her immediate premises. See 38 C.F.R. § 3.350(i). Facts and Analysis In June 2011, when the Veteran filed his claim for SMC, service connection was in effect for major depression, evaluated as 70 percent disabling; prostate carcinoma, status post prostatectomy with bilateral pelvic lymphadenectomy, evaluated as 40 percent disabling; residuals of trauma and surgery to the left knee with patellofemoral arthritis, evaluated as 30 percent disabling; arterial hypertension with microalbuminuria, evaluated as 30 percent disabling; diabetes mellitus, type II, evaluated as 20 percent disabling; peripheral neuropathy of the left upper extremity, evaluated as 20 percent disabling; lumbar spondylosis, evaluated as 10 percent disabling; and hemorrhoids and impotence, each assigned noncompensable disability evaluations. During the pendency of this appeal, in December 2011, the RO granted a 10 percent rating for peripheral neuropathy of the right upper extremity and, in January 2013, a 10 percent rating was granted for tinnitus and a noncompensable rating assigned for bilateral hearing loss. In an August 2016 rating decision, the RO granted a 20 percent rating for the Veteran's lumbar spondylosis, and 10 percent ratings for left and right lower extremity peripheral neuropathy. The evidence includes a March 2011 VA peripheral nerves examination report showing that the Veteran complained of foot and toe cramps with burning pain in his ankle and the anterior aspect of the distal lower extremities, with occasional numbness in his hands. He occasionally lost his balance due to his left knee suddenly giving away. Peripheral neuropathy of the right upper extremity was diagnosed as due to service-connected diabetes mellitus, type II. A Medical Statement for Consideration of A&A, completed by Dr. J.J., a private psychiatrist, was received June 2011. See 6/20/11 VBMS Medical Statement for Consideration of A&A; see also 10/11/11 VBMS VA Examination, page 10 (noting that the Veteran was seen privately by Dr. J.J.; and, 8/5/16 VBMS C&P Exam, page 2, noting a history of psychiatric treatment with Dr. J.J. until 2011). The physician reported that the Veteran's diagnosed disabilities were chronic, undifferentiated, schizophrenia, and degenerative joint disease of the knees. The Veteran was unable to walk unattended and the doctor stated that the Veteran was unable to walk unassisted and required use of a cane and metal brace. The Veteran was able to feed himself. He required assistance in bathing and tending to other hygiene and was unable to care for the needs of nature. The Veteran was not confined to a bed. He was not able to sit up and needed assistance to stand up. The Veteran was not blind, his corrected visual acuity in each eye was 20/20, and he had to wear glasses continuously. Dr. J.J. reported that the Veteran was not able to travel and had to always be accompanied as he easily got lost. The Veteran was unable to leave home without assistance as he was unable to travel alone and had no concentration. He did not require nursing home care but needed constant assistance. The physician commented that the Veteran had severe and permanent knee insufficiency suitable for knee replacement in the near future. According to an October 2011 VA examination report for A&A, the examiner reported that the Veteran was permanently bedridden and traveled, accompanied, on public transportation to the exam. See 10/11/11 VBMS VA Examination, page 1. The Veteran's average day included having breakfast prepared by his wife, listening to music and reading newspapers, having lunch and talking with his wife, watching television, bathing, and talking with his children on the telephone. The Veteran used a cane (metal brace) on the right arm to aid in ambulation due to his knee disability and reported surgery on both knees. He had occasional dizziness and mild memory loss. Imbalance affected his ability to ambulate occasionally. The Veteran was able to perform all self-care functions and was able to walk unassisted up to several hundred yards. He reported leaving home with his wife to come to the examination on a train. His upper and lower extremities functioned normally. The October 2011 VA mental disorders examination report indicates that the Veteran had anxiety symptoms with a constant depressed mood, that he rated 8 to 9 on a severity scale of 10. He had constant anxiety rated as a 6 or 7 out of 10. The Veteran had frequent, passive, suicidal ideation. He had memory difficulties, such as forgetting to pay bills and getting lost while driving, that affected his self-esteem and caused more anxiety because he feared having the same disease as his brother who died from complications related to Alzheimer's disease. The Veteran also had worsening of his knee disability and uncontrolled diabetes that may require insulin use. The examiner observed that the Veteran was fully oriented and partially capable of managing his financial affairs. The Veteran's wife paid most of their bills as he frequently forgot to make payments. The examiner commented that the Veteran was isolated and spent most of his time at home. The Veteran did not want to drive due to paranoia and could not tolerate crowded places or loud noises. Thus, he was mostly housebound. The examiner opined that the Veteran demonstrated worsening depressive symptoms since last seen in January 2011. The Veteran was more isolated and spent most of his time at home. His wife paid all the bills due to his memory impairments that affected his ability to make those payments on his own. The Veteran also experienced diminished self-esteem due to his prostatectomy as he could not work and felt worthless and useless that produced frequent, passive, suicidal ideation, with depressive and anxiety symptoms, and psychotic symptoms due to paranoia that affected his ability to drive. His wife drove him to medical appointments or he had to use public transportation. The examiner commented that the Veteran had not undergone any formal neuropsychological testing to analyze his current cognitive status that worried the Veteran. According to the examiner, the Veteran's cognitive impairment was unrelated to his service-connected major depressive disorder and represented additional impairments that made the Veteran "not only housebound" but (the Veteran) was not found to be in need of A&A by reason of his major depressive disorder. An October 2012 VA examiner noted the Veteran's reported history of having problems with his legs during the past ten years, with cramps in the thighs and calves mostly at night that awakened him from sleep. The examiner opined that the Veteran did not have bilateral lower extremity peripheral neuropathy. In July 2014, the Veteran was surgically treated for pancreatic cancer followed by chemotherapy. See 8/12/16 VBMS CAPRI, pages 452, 464, 466-7, 518. During rehabilitation treatment in December 2014, it was noted that he was very negative in self-care and did not attempt to help himself in any daily care activities. Id. at 221, 230. He was able to feed himself when alone. Id. at 221. An August 2016 VA mental disorders examination report shows a diagnosis of a major depressive disorder in partial remission. Dr. J.J. treated the Veteran until 2011 and, when the psychiatrist died in 2012, the Veteran did not seek further treatment. See 8/5/16 VBMS C&P Exam, page 2. The examiner opined that the Veteran's psychiatric disability did not require care and assistance on a regular, daily basis, and he was not in need of being housebound or of A&A due to his mental disorder. The Veteran was alert, coherent, logical, and relevant on current examination. His mental disability was stable and, without treatment, he was able to regularly attend church, go shopping with his wife, and interact in a socially appropriate manner. The mental disorder symptoms were not severe enough to interfere with the Veteran's marital relationship, daily activities, family responsibility, financial debts, and social functioning. According to an August 2016 VA diabetic sensory-motor peripheral neuropathy examination report, Veteran had peripheral neuropathy of the left upper extremity and bilateral lower extremities. An August 2016 VA examination for diabetes mellitus shows that the Veteran had diabetic peripheral neuropathy and diabetic nephropathy or renal dysfunction caused by diabetes mellitus. The examiner recorded the Veteran's reported medical history of having variable blood sugar that required taking daily oral medication and insulin injections. See 8/10/16 VBMS C&P Exam, page 5. The Veteran had frequent hypoglycemic reactions treated at home by eating something and that resolved. He did not drive and always went outside accompanied by a relative. The Veteran reported requiring supervision and assistance for bathing, dressing and undressing, and grooming, due to imbalance and falls at home. The VA examiner opined that the Veteran's service-connected diabetes mellitus with multiple complications, as well as his service-connected prostate carcinoma, together, rendered the Veteran housebound and in need of A&A. According to the examiner, the Veteran had uncontrolled diabetes mellitus with frequent hypoglycemic reactions, and neuropathy. The Veteran had imbalance and frequent falls and required assistance and supervision for activities of daily living. A factual need for aid and attendance includes the inability to dress, undress, keep ordinarily clean and presentable, feed oneself, or attend to the wants of nature. It also includes either physical or mental incapacity that requires care or assistance on a regular basis to protect against the hazards or dangers incident to a claimant's daily environment. A showing that the Veteran is unable to perform one of the enumerated disabling conditions is sufficient to establish the need for aid and attendance. Turco, 9 Vet. App. at 224. Here, the probative medical and lay evidence is, at the very least, in equipoise as to whether the Veteran is in need of the regular aid and attendance of another person due to his service-connected disabilities. In this case, the evidence strongly suggests that due to balance problems and pain brought on by bilateral upper and lower extremity peripheral neuropathy disability and diabetes mellitus, as well as his other service-connected disabilities, the Veteran is unable to properly, bathe, groom and dress himself. He additionally appears to need help protecting himself against the hazards or dangers of falling due to intensifying balance difficulties brought on by peripheral neuropathy disability and is unable to leave his home alone due to loss of concentration and memory problems that cause him to get lost. Resolving all reasonable doubt in the Veteran's favor, the Board concludes that the criteria for SMC on the basis of the need for aid and attendance of another person have been met. SMC at the aid and attendance rate is a greater monetary benefit than the housebound benefit. Compare 38 U.S.C.§ 1114(l), with 38 U.S.C. § 1114(s). The grant of SMC at the aid and attendance rate thus renders the question of entitlement to SMC on account of being housebound moot. ORDER SMC based on the need for aid and attendance is granted. ____________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs