Citation Nr: 1756833 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 14-31 342A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to special monthly compensation (SMC) based on the need for aid and attendance or housebound status. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Veteran and O.W. ATTORNEY FOR THE BOARD K. Thompson, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 1967 to February 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In September 2016, a Board videoconference hearing was held before the undersigned; a transcript of the hearing is associated with the record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT The Veteran's service-connected disabilities do not result in physical or mental incapacity that prevents him from attending to the needs of nature, caring for himself, or protecting himself from the hazards of his environment. Further, the Veteran is not in receipt of a 100 percent schedular rating or in receipt of a total disability based on individual unemployability. CONCLUSION OF LAW Entitlement to SMC, based on the need for the regular aid and attendance of another person or housebound status, is not established. 38 U.S.C. § 1114 (2012); 38 C.F.R. §§ 3.350, 3.352 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that the notice requirements have been satisfied by adequate letters after which the appeals were adjudicated. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and other pertinent treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board also concludes that the duty to assist has been satisfied as all pertinent service records, post-service treatment records, and lay statements are in the claims file. The Veteran was not afforded a VA examination specific to his claim for SMC based on the need for aid and attendance; however, the August 2012 and January 2013 VA Form 21-2680s (Examination for Housebound Status or Permanent Need for Regular Aid and Attendance) of record, coupled with the testimony at the Travel Board hearing as to the cause of the Veteran's need for aid and assistance adequately address the issue of whether the Veteran required regular aid and attendance of another person as a result of his service-connected disabilities. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the claims. As the time of the hearing, the undersigned specifically discussed the issue before the Board and that the basis of denial was that entitlement to service connection for residuals of stroke were not in effect. As discussed in greater detail below, this is the basis of the denial of this appeal. II. SMC SMC is payable at a specified rate if the veteran, as the result of service-connected disability, is in need of regular aid and attendance. Need for aid and attendance means helplessness or is so nearly helpless as to require the regular aid and attendance of another person. A veteran will be considered to be in need of regular aid and attendance if he or she is blind or is so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; if the veteran is a patient in a nursing home because of mental or physical incapacity; or if the evidence establishes a factual need for aid and attendance or "permanently bedridden" status under the criteria set forth in 38 C.F.R. § 3.352(a). 38 U.S.C. § 1114(l); 38 C.F.R. § 3.351(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 or her daily environment. "Bedridden" will be a proper basis for the determination. 38 C.F.R. § 3.352(a). In Turco v. Brown, 9 Vet. App. 222, 224 (1996), the Court determined that it is not required that all of the conditions enumerated in the provisions of 38 C.F.R. § 3.352(a) be found to exist in order to establish entitlement to aid and assistance, but that at least one of the enumerated factors must be present. The Court added that the particular function the claimant is unable to perform must be considered in connection with his or her condition as a whole and that it is only necessary to establish that the claimant is in need of regular aid and attendance, not that there be a constant need. Id. The Board initially notes that the Veteran has not contended or demonstrated that he has a visual impairment to the extent that he was blind or nearly blind, and the evidence of record does not so suggest. Furthermore, although the evidence indicates the Veteran was being treated in a long-term care facility, such care is the result of his nonservice-connected stroke residuals. As such, the foregoing analysis will focus on whether there is a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). See 38 U.S.C. § 1114(l); 38 C.F.R. § 3.351(b). Unfortunately, the weight of the medical evidence shows that the Veteran's limitations in his activities of daily living and the inability to protect himself against the hazards or dangers incident to daily life are largely due to a non-service-connected disability, particularly, residuals of a stroke. The Veteran is currently service-connected for right lower extremity peripheral neuropathy, rated as 20 percent disabling; left lower extremity peripheral neuropathy, rated as 20 percent disabling; diabetes mellitus, rated as 20 percent disabling ; cataracts, rated as 10 percent disabling; bilateral hearing loss, rated as 10 percent disabling; and tinnitus, rated as 10 percent disabling. The Veteran submitted examinations for housebound status or permanent need for regular aid and attendance in August 2012 and January 2013. The examinations showed that the Veteran was able to feed himself and was able to manage his financial affairs but was unable to prepare his own meals, required assistance in bathing and tending to other hygiene needs, and required medication management. The clinician listed cerebral vascular accident, hearing loss, morbid obesity, seizures, anemia, diabetes mellitus, asthma, COPD, and vision impairment as the Veteran's diagnoses and noted that all of the diagnoses restrict the Veteran's activities. The clinician opined that the Veteran required the assistance of one other person for all activities of daily living. The clinician stated that he needed assistance bathing and attending to other hygiene needs "due to body habitus and weakness of extremities post stroke." The clinician stated that the Veteran's left hand and both lower extremities were minimally functional post stroke and that the Veteran required extra time and assistance for all activities of daily living. The Veteran was also found unable to walk due to balance problems post-stroke. The clinician also noted bladder incontinence, poor balance and endurance, as well as early fatigue due to respiratory complications from asthma and COPD. However, of the diagnoses that the clinician listed as restricting the Veteran's activities, the Veteran is only service-connected for hearing loss, diabetes mellitus, and vision impairment (cataracts). At the September 2016 Travel Board hearing, the Veteran's daughter stated that she had been taking care of the Veteran ever since he suffered a stroke in December 2009. She stated that he has not been able to walk since the stroke. The Veteran also testified at the Travel Board hearing as to his limitations following the stroke. The Veteran also contends that his stroke was the result of a diabetic coma. Unfortunately, the Veteran is not service-connected for stroke residuals, including as secondary to diabetes mellitus. Service connection for stroke secondary to diabetes mellitus was denied in a January 2012 rating decision, which specifically found that at no time during the Veteran's hospitalization was either hypoglycemia or hyperglycemia thought to be the source of his seizures and encephalopathy. The Veteran did not perfect an appeal, and the issue of entitlement to service connection for stroke residuals is not before the Board. Upon consideration of the evidence, the Board finds that the Veteran's service-connected bilateral lower extremity peripheral neuropathy, diabetes mellitus, cataracts, bilateral hearing loss, and tinnitus have not resulted in the need for regular aid and attendance of another person because of resultant helplessness due to mental and/or physical impairment. Although the evidence shows that the Veteran requires assistance, he is not helpless due to his service-connected disabilities. SMC based on the need for aid and attendance, however, requires a finding that the service-connected disabilities causes very specific types of limitations; the evidence of record indicates that to the extent that the Veteran has these specific limitations they are due to non-service connected disabilities, namely residuals of the December 2009 stroke. The Board does not dispute the Veteran's contentions that he is in need of aid and attendance. However, the evidence of record does not suggest that such need for aid and attendance results from debilitating effects of his service-connected disabilities, but rather from the effects of his nonservice-connected strokes. As such, the evidence of record weighs against a finding that the Veteran's service-connected disabilities result in one of the enumerated factors needed for an award of SMC based on the need for regular aid and attendance. Accordingly, the claim for SMC based on the need for the regular aid and attendance of another person must be denied. 38 U.S.C. § 1114(l); 38 C.F.R. §§ 3.350, 3.352(a). The Board has also considered entitlement to SMC pursuant to 38 U.S.C. § 1114(s); however, the criteria has not been met. SMC provided by 38 U.S.C. § 1114(s) is payable where the Veteran has a single service-connected disability rated as 100 percent, and (1) has additional service-connected disability or disabilities independently rated as 60 percent, 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. This requirement is met when the Veteran is substantially confined as a 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 reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. See 38 C.F.R. § 3.350(h)(3)(i)(1), (2). An award of TDIU, if it based upon a single service-connected disability, is sufficient to satisfy the § 1114(s) requirement of a service-connected disability rated as 100 percent disabling. Bradley v. Peake, 22 Vet. App. 280, 293 (2008); see also Buie v. Shinseki, 24 Vet. App. 242, 250 (2010); however, a TDIU rating that is based on multiple underlying disabilities cannot satisfy the § 1114(s) requirement of "a service-connected disability" because that requirement must be met by a single disability. Id. As indicated above, the Veteran is service-connected for right lower extremity peripheral neuropathy, rated as 20 percent disabling; left lower extremity peripheral neuropathy, rated as 20 percent disabling; diabetes mellitus, rated as 20 percent disabling ; cataracts, rated as 10 percent disabling; bilateral hearing loss, rated as 10 percent disabling; and tinnitus, rated as 10 percent disabling. His combined disability rating is 70 percent, and he has not been awarded TDIU. The Veteran does not have any other service-connected disability or disabilities independently rated at 60 percent. 38 C.F.R. § 4.25. In light of these factors, the Veteran is not eligible for SMC under 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350, as a matter of law. Further, the evidence does not indicate that the Veteran is substantially confined to his dwelling and the immediate premises or to a ward/clinical area due to the service-connected disabilities. In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran's claim, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). ORDER Entitlement to SMC, based on the need for aid and attendance or housebound status, is denied. _________________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs