Citation Nr: 1756622 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 07-09 981 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance of another person or by reason of being housebound. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran had recognized Philippine guerilla service in the United States Armed Forces from December 1944 through March 1945 and from April 1945 through June 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. This matter has been remanded by the Board on multiple occasions, most recently in September 2016. The development requested by the Board has been performed. The matter now returns to the Board for de novo review. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017); 38 U.S.C.A. § 7107(a)(2) (2012). FINDING OF FACT The Veteran's service-connected disabilities, acting on their own, do not render the Veteran housebound or in need of regular aid and attendance. CONCLUSION OF LAW The requirements for entitlement to SMC based on the need for the regular aid and attendance of another person or housebound status are not met. 38 U.S.C.A. § 1114 (l) (2012); 38 C.F.R. §§ 3.352, 3.1000 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In this case, VA's duty to notify was satisfied by a September 2006 letter to the Veteran. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA has also met its duty to assist the Veteran by obtaining all identified and available treatment records and evidence. Those records are associated with the claims file. VA examinations of the Veteran's service connected disabilities were conducted in October 2010. A separate VA examination to determine the Veteran's eligibility for SMC was also conducted in January 2015. The findings and conclusions from that examination are supplemented by a July 2017 addendum opinion that was prepared by the January 2015 examiner. II. Analysis Service connection is in effect for the Veteran for posttraumatic stress disorder (PTSD), residuals associated with a right thigh shrapnel wound, hypertensive cardiovascular disease, right lower extremity sciatic nerve paralysis with peripheral neuropathy, left lower extremity peripheral neuropathy, hypertension, right upper extremity peripheral neuropathy, left upper extremity peripheral neuropathy, gastroduodenal ulcer, and a left hallux scar. The Veteran is also in receipt of a total disability rating based on individual unemployability due to his service-connected disabilities (TDIU), effective since May 1997. The Veteran asserts that he is entitled to SMC on the basis that he is in need of regular aid and attendance of another person and/or by reason of being housebound. SMC at the aid and attendance/housebound rate is payable when a veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or 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) (2012). Determinations as to the need for aid and attendance must be based on the actual requirement of personal assistance from others. In making such determinations, consideration is given to such conditions as: inability of the veteran to dress or undress him or herself, or to keep herself 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; inability of the veteran to feed him or herself through loss of coordination of the 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 the hazards or dangers inherent in 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 veteran remain in bed. The regulation does not require that all of the disabling conditions enumerated above be found to exist in order for a favorable rating to be made. The particular personal functions which the veteran is unable to perform should be considered in connection with 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. 38 C.F.R. § 3.352 (a) (2017). Turning to the evidence, the Veteran reported during a January 2015 VA examination that he spent most of his day doing sedentary activities such as reading and watching television. He stated that he sometimes went to the store accompanied by a family member to buy a newspaper. He reported mild memory loss, daily episodes of dizziness, and weekly episodes of imbalance and vertigo that were brought on by changes in head position. He stated that he had occasional attacks of gout and pain in his hands due to degenerative arthritis. He also reported that he had a tendency of getting lost and that he was poor with directions, apparently due to age-related loss of cognition. An examination for mental competency revealed that the Veteran retained good insight and demonstrated the ability to make sound judgments. A physical examination of the Veteran revealed a stooped posture and ataxic gait. Still, the Veteran did not require assistive devices for ambulating. His upper extremities were mildly to moderately impaired and he demonstrated some difficulty in his ability to feed, dress, bathe, groom, and toilet himself. An examination of the lower extremities revealed some limitation of joint motion. Still, weight bearing and propulsion were normal. The Veteran's balance was impaired due primarily to benign paroxysmal vertigo. The examiner opined that the Veteran's dizziness and vertigo were less likely than not associated with the Veteran's service-connected heart disability. In that regard, she elaborated that benign paroxysmal vertigo is a common form of positional vertigo and is marked by episodes that are caused by specific head movement such as looking up while standing or sitting, standing from a lying position, or rolling over. The examiner noted further that the Veteran's reported symptoms of dizziness were not consistent with light-headedness and loss of balance that are customarily associated with hypertension or hypertensive vascular disease. The examiner determined that the Veteran was not bedridden or housebound, but rather, remained ambulatory with assistance and remained capable of traveling outside of his domicile. Still, the examiner noted that the Veteran required assistance while walking due to his unsteady gait and opined that the Veteran was in need of regular aid and attendance due to a combination of vertigo, cataracts, impaired hearing, degenerative arthritis, age-related cognitive decline, and peripheral neuropathies. Pursuant to the Board's previous September 2016 remand, the VA examiner was asked to elaborate as to whether the Veteran's service-connected peripheral neuropathies, acting alone were causing the Veteran's need for aid and attendance, or alternatively, whether the Veteran's need for aid and attendance was being caused by a combination of the Veteran's peripheral neuropathies and other non-service connected disorders. in a July 2017 addendum opinion, the examiner acknowledged that given the Veteran's advanced age, it is difficult to determine whether the Veteran's peripheral neuropathies, acting alone, would render the Veteran in need of aid and assistance. Indeed, the examiner noted that the Veteran had a history of weakness and numbness in his lower extremities, beginning in 2000. Nonetheless, she observes that a 2006 VA examination revealed at that time that the Veteran's vertigo, acting alone, was causing the Veteran to require aid and assistance. Based on the same, the examiner concludes that muscle weakness and imbalance caused by a combination of the Veteran's peripheral neuropathies and other non-service connected disorders were causing the Veteran to be unable to protect himself from the hazards or dangers incident to his daily environment, and hence, in need of aid and attendance. The VA examiner's conclusions and rationale are consistent with the other evidence in the record. Indeed, the Veteran reported during the October 2006 VA examination that he was independent in his activities of daily living and that he was able to tend to his vegetable garden for up to 30 minutes a day. He denied being bedridden and stated that he was able to go to church and leave the house to go to the store, albeit with assistance due to intermittent dizziness. Based exclusively on the Veteran's dizziness, the October 2006 VA examiner opined that the Veteran was in need of aid and attendance. A November 2006 VA examination of the Veteran's right thigh shrapnel wound revealed that the Veteran maintained right knee flexion up to 130 degrees without any evidence of instability. Right hip range of motion was painless and included flexion to 120 degrees, extension to 30 degrees, adduction to 25 degrees, abduction to 45 degrees, internal rotation to 30 degrees, and external rotation to 50 degrees. X-rays of the right hip were normal. Although the Veteran demonstrated an altered gait marked by poor propulsion, the examiner opined that the Veteran was unlimited in his ability to groom and feed himself; mildly impaired in his ability to bathe, dress, and toilet himself; moderately impaired in performing chores, shopping, exercise, recreation, and traveling; and severely impaired in his ability to play sports. VA examinations of the Veteran's service connected disabilities conducted in October 2010 revealed that the Veteran maintained a high level of cognitive and mental function despite PTSD symptoms. Physically, the Veteran continued to demonstrate an altered gait due at least in part to decrease mobility and strength associated with service connected neurological disabilities in his lower extremities. Still, the examiner did not opine that the Veteran's neurological disabilities, acting alone, rendered the Veteran in need of aid and assistance. A heart examination revealed that the Veteran had an enlarged heart. Still, however, the Veteran was estimated as maintaining a MET level of 5 to 7, based on his self-reported activity level. The examiner opined that the Veteran's heart disability was causing only mild to moderate restriction of the Veteran's activities. An examination of the Veteran's hypertension showed that the Veteran's blood pressure was controlled by medication. An abdominal examination revealed that the Veteran's service-connected ulcer was resolved and manifested by some residual pain that was only mildly restricting the Veteran's activities. A skin examination of the Veteran's scars revealed some pain symptoms that were only mildly to moderately restricting the Veteran's activities. In sum, the evidence in the record indicates that the Veteran's service connected disabilities are productive of some loss of the Veteran's function. Nonetheless, the evidence does not support the conclusion that his service connected disabilities, acting on their own, are the cause for the Veteran's need for aid and attendance. In that regard the evidence shows that the Veteran's inability to protect himself from the hazards or dangers incident to his daily environment are due at least in part to dizziness, imbalances, and other functional loss caused by non-service connected disorders and advancing age. Accordingly, the Veteran is not entitled to SMC based on the need for regular aid and attendance of another person or by reason of being housebound. ORDER SMC based on the need for regular aid and attendance of another person or by reason of being housebound is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs