Citation Nr: 1729566 Decision Date: 07/27/17 Archive Date: 08/04/17 DOCKET NO. 13-08 732 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to special monthly compensation (SMC) based on aid and attendance. 2. Entitlement to a certificate of eligibility for financial assistance for the purchase of an automobile or other conveyance and adaptive equipment. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD A. Vieux, Associate Counsel INTRODUCTION The Veteran had active duty service in the United States Army from February 1969 to January 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida. In October 2016, the Veteran and his spouse testified before the undersigned at a travel board hearing. A transcript of that hearing is of record. The issue of entitlement to a clothing allowance is addressed in a separate decision. FINDING OF FACT For the entire appeal period, the Veteran's service-connected myocardial infarction; multilevel intervertebral disc syndrome with foraminal narrowing; left knee torn medial meniscus with severe osteoarthritis status post arthroscopy associated with status post right total knee replacement; status post right total knee replacement; degenerative arthritis, greater trochanteric bursitis and sacroiliitis of right hip; and degenerative arthritis, greater trochanteric bursitis and sacroiliitis of left hip has resulted in the loss of use of both feet and renders the Veteran so helpless as to be in need of regular aid and attendance of another person. CONCLUSIONS OF LAW 1. The criteria for SMC based on the need for aid and attendance are met from September 24, 2008. 38 U.S.C.A. §§ 1114(l), 5107 (West 2014); 38 C.F.R. §§ 3.350, 3.352 (2016). 2. The criteria for entitlement to financial assistance for the purchase of an automobile or other conveyance and adaptive equipment are met. 38 U.S.C.A. §§ 3901, 3902, 5107 (West 2014); 38 C.F.R. §§ 3.350, 3.808, 4.63 (2016). REASONS AND BASES FOR FINDING AND CONCLUSIONS SMC Based on the Need for Aid and Attendance The Veteran asserts that he requires daily personal care and is unable to walk. See Board Hearing Transcript (Tr.) at 3-6. He has a caregiver for 5 days per week and 3 hours a day who helps him with bathing, getting dressed and preparing breakfast, and his wife cares for him for the remainder of the day. See id. He needs a power wheelchair at all times. See April 2016 VA examination report. He also reports having constant back, hip, and knee pain. See id. The Board notes that the Veteran has been awarded SMC based on housebound status for portions of the appeal period, with the exception of the periods dated September 24, 2008 to October 12, 2008; December 2, 2008 to May 10, 2009; and July 2, 2010 to May 11, 2015. As the instant decision awards SMC based on aid and attendance for the entire appeal period, which is a greater benefit than SMC based on housebound status, the Veteran's entitlement to SMC based on housebound status for the above-listed dates will not be addressed herein. SMC based on the need for aid and attendance of another is payable when the 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); 38 C.F.R. § 3.350(b). The term "loss of use of a hand or foot" is defined as existing when "no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the elbow or knee with the use of a suitable prosthetic appliance." 38 C.F.R. §§ 3.350(a)(2). The determination as to whether such loss of use exists will be made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc., in the case of the hand, or balance, propulsion, etc., in the case of a foot, could be accomplished equally well by an amputation stump with prosthesis. Id. As directed by 38 C.F.R. § 3.352(a), the following criteria are to be considered for determining whether a claimant is in need of the regular aid and attendance of another person: (1) the inability of the claimant to dress himself or to keep himself or herself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliance which, by reason of the particular disability, cannot be done without aid (not to include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); (3) the inability of the claimant to feed himself through the loss of coordination of the upper extremities or through extreme weakness; (4) the inability to attend to the wants of nature; or, (5) a physical or mental incapacity that requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his or her daily environment. It is not required that all of the disabling conditions enumerated 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 claimant's 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. 38 C.F.R. § 3.352(a); Turco v. Brown, 9 Vet. App. 222, 224 (1996). The Veteran is currently service-connected for myocardial infarction, rated as 100 percent disabling; multilevel intervertebral disc syndrome with foraminal narrowing, rated as 30 percent disabling; left knee torn medial meniscus with severe osteoarthritis status post arthroscopy associated with status post right total knee replacement, rated as 30 percent disabling; status post right total knee replacement, rated as 30 percent disabling; degenerative arthritis, greater trochanteric bursitis and sacroiliitis of right hip, rated as 10 percent disabling; and degenerative arthritis, greater trochanteric bursitis and sacroiliitis of left hip, rated as 10 percent disabling. In support of the instant claim, the Veteran provided a November 2010 VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, that was completed by VA physician E.I., MD. Dr. E.I. noted that the Veteran was bound to a wheelchair. Further, he indicated that the Veteran needed assistance with transferring, showering, and other activities of daily living. He also noted that the Veteran was not able to prepare his own meals and needed assistance in bathing and tending to other hygiene needs. Moreover, he required medication management. Dr. E.I. indicated that he was housebound and depended on a power chair for ambulation. He stated that the Veteran could not walk because of muscle weakness and chronic pain in lower back and both knee joints. Further, Dr. E.I. indicated that he could leave his home, but with assistance. The Veteran was afforded a VA Aid and Attendance or Housebound examination in February 2013. The examiner noted that the Veteran's mode of travel to the exam was by an accompanied private vehicle. The examiner indicated that he could not walk without the assistance of another person, he required a wheelchair, and needed a walker for ambulation. He was unable to perform dressing and undressing, bathing, and grooming. The examiner stated that the Veteran was "receiving care for his daily needs from a private company and he would be qualified for A&A." An April 2014 VA Form 21-2680 completed by Dr. E.I. indicates that the Veteran could not walk. Dr. E.I. also noted that he was not able to prepare his own meals and needed help to get in and out the shower. Further, he required medication management. Dr. E.I. indicated that he used a motorized wheelchair for ambulation. In addition, he needed help with clothing. Dr. E.I. noted that he had poor balance and dizziness sometimes. The Veteran provided a January 2016 VA Form 21-2680 completed by Verimed Health Group (Verimed). It was noted that he had long distance walking difficulty, an abnormal gait, used a cane, and used a scooter. In addition, he was not able to prepare his own meals and needed assistance in bathing and tending to other hygiene needs secondary to difficulty with activities of daily living (walking, bathing, toileting) due to walking difficulty. Further, it was noted that nursing home care was required because he needed assistance with cooking, bathing, and toileting. It was also indicated that he had poor balance and chronic low back pain. The Veteran was afforded another VA Aid and Attendance or Housebound examination in April 2016. The examiner noted that the Veteran's mode of travel to the exam was by an accompanied specially equipped van. Further, he had a home aid for 3 hours daily to help with house chores, bathing, dressing and preparing breakfast. The Veteran reported dizziness once or more per day and had moderate short-term memory loss. Further, his imbalance constantly (or nearly) affected his ability to ambulate. The examiner noted that he was unable to walk and was power wheelchair dependent. Further, he was unable to perform dressing and undressing, bathing, grooming, and toileting. The examiner indicated that the circumstance in which he could leave his home was for medical care only. The Veteran had pain all the time in his thoracolumbar spine. His left lower extremity functional limitations included lack of coordination and his right lower extremity functional limitations included muscle weakness and lack of coordination. The foregoing medical evidence is consistent with the need for aid and attendance due to loss of use of both feet requiring aid of a wheelchair secondary to service-connected disabilities and inability to perform dressing and undressing, bathing, grooming, and toileting due to his service-connected disabilities. Specifically, the February 2013 VA examiner opined that "he would be qualified for A&A," and the April 2016 VA examiner opined that the Veteran requires home aid and attendance due to the combination of his service-connected heart, knee, hip, and back conditions. Accordingly, the criteria are satisfied to award SMC based on the need for aid and attendance of another person since September 24, 2008. Thus, the appeal is granted in full. Automobile and Adaptive Equipment Financial assistance may be provided to an "eligible person" in acquiring an automobile or other conveyance and adaptive equipment, or adaptive equipment only. 38 U.S.C.A. § 3902(a), (b). The applicable regulation defines an "eligible person" as a veteran who is in receipt of compensation for disability resulting in the loss or permanent loss of use of one or both feet; the loss or permanent loss of use of one or both hands; or the permanent impairment of vision of both eyes. 38 C.F.R. § 3.808(b)(1)-(3). A veteran who does not qualify as an "eligible person" under the foregoing criteria may nevertheless be entitled to adaptive equipment, and adaptive equipment only, if he is entitled to VA compensation for ankylosis of one or both knees, or of one or both hips. 38 U.S.C.A. § 3902 (b)(2); 38 C.F.R. § 3.808 (b)(6). As the Board has already found that the evidence weighs in favor of finding service-connected loss of use of both feet, such as to preclude locomotion without the aid of a wheelchair, consistent with this, the Board finds that the Veteran is eligible for financial assistance for the purchase of an automobile and adaptive equipment. As stated previously, Dr. E.I. noted in the November 2010 VA Form 21-2680 that the Veteran depended on a power chair for ambulation. He stated that the Veteran could not walk because of muscle weakness and chronic pain in lower back and both knee joints. The February 2013 VA examiner noted that his mode of travel to the exam was by an accompanied private vehicle. Moreover, the examiner indicated that he required a wheelchair and needed a walker for ambulation. Further, Dr. E.I. noted in the April 2014 VA Form 21-2680 that the Veteran could not walk. In addition, Dr. E.I. indicated that he used a motorized wheelchair for ambulation. Moreover, Dr. E.I. noted poor balance and dizziness. The January 2016 VA Form 21-2680 completed by Verimed indicates that he had long distance walking difficulty, an abnormal gait, used a cane, and used a scooter. It was also noted that he had poor balance and chronic low back pain. The April 2016 VA examiner indicated that the Veteran's mode of travel to the exam was by an accompanied specially equipped van. The examiner stated that he was unable to walk and was power wheelchair dependent. It was noted that the Veteran had pain all the time in his thoracolumbar spine. His left lower extremity functional limitations included lack of coordination and his right lower extremity functional limitations included muscle weakness and lack of coordination. Because the medical evidence shows the Veteran's service-connected disabilities result in no effective function remaining in the feet, loss of use of both feet has been established, and the Veteran meets the criteria for a certificate of eligibility for financial assistance for the purchase of an automobile and adaptive equipment under 38 C.F.R. § 3.808. Accordingly, the appeal is granted. ORDER SMC based on the need for aid and attendance is granted. Entitlement to a certificate of eligibility for financial assistance for the purchase of an automobile or other conveyance and adaptive equipment is granted. ______________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs