Citation Nr: 1801999 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 16-30 232 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to special monthly compensation (SMC) based on need for aid and attendance or being housebound. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active duty from July 1954 to July 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board in June 2017 remanded the appealed issue for additional development, and it now returns for further 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. § 7107(a)(2) (2012). FINDINGS OF FACT Due to the Veteran's service-connected disabilities, he is as likely as not in need of the regular aid and attendance of another person. CONCLUSION OF LAW The criteria for SMC based on the need for regular aid and attendance have been met. 38 U.S.C. §§ 1114, 5107 (2012); 38 C.F.R. §§ 3.102, 3.350, 3.352 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION As an initial matter, the Veteran has not contended and the record does not reflect that the Veteran is housebound, or that he has a permanent and total disability rating plus 60 percent, and hence SMC on these bases is not warranted. 38 C.F.R. § 3.350(i) (2017). Special monthly compensation is payable at the aid and attendance rate when the Veteran is helpless or so nearly helpless that he requires the regular aid and attendance of another person. To establish a need for regular aid and attendance, the Veteran must be blind or 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; a patient in a nursing home because of mental or physical incapacity; or show a factual need for aid and attendance. See 38 C.F.R. §§ 3.350(b), 3.352(a). 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 the frequent need of adjustment of any special prosthetic or orthopedic appliances or 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. 38 C.F.R. § 3.352(a). Importantly, in order for a veteran to prevail in his claim for aid and attendance, the evidence must show that it is a service-connected disability that has resulted in his being in need of regular aid and attendance. 38 U.S.C.A. § 1114(l); see also Prejean v. West, 13 Vet. App. 444 (2000). The Veteran is service connected for lumbar degenerative disk disease with anterolisthesis and painful limited motion, rated 40 percent disabling; right lower extremity radiculopathy, rated 40 percent disabling; and hypertension, rated 10 percent disabling. He is also in receipt of a total disability rating based on individual unemployability due to all service-connected disabilities. The Veteran contends that he requires the aid and attendance of another due to his service-connected disabilities. In a report of a July 2013 VA examination to address need for aid and attendance or housebound status, the Veteran was noted to suffer from back pain, radiculopathy, and lower leg pain. His back pain and lower leg pain resulted in restriction of activities or functioning. The examiner observed that during flare-ups the Veteran required assistance preparing meals and bath and tending to other hygiene needs. The Veteran's spine and trunk had limited stability, such that the Veteran had to use a cane or walker or wheelchair depending on the level of back or leg pain. However, the Veteran went to appointments and did limited shopping with use of a cane or walker. He used a wheelchair during flare-ups. Upon a March 2014 VA examination also addressing the need for regular aid and attendance due to service-connected disabilities, the Veteran was noted to be not restricted to his home, and to travel by a vehicle accompanied by a family member. He used a cane or a walker for ambulation, or used a wheelchair. The examiner noted that the Veteran lived alone in a single family home, but that the Veteran's family lived nearby and provided assistance with activities of daily living. This included bringing food, assisting with bathing and dressing, and performing household chores. By his son's account, the Veteran was prone to falls. The Veteran himself reported that he required the assistance of another to perform activities of daily living. Besides his lumbar degenerative disk disease with radiculopathy, the Veteran also required assistance of others due to visual impairment resulting from cataracts, degenerative joint disease with limitation of motion of multiple joints, weakness in the lower extremities, and dizziness and imbalance constantly affecting ability to ambulate. The examiner also noted that the Veteran could not perform dressing and undressing or bathing, and this was due to degenerative joint disease of multiple joints as well as visual impairment. The March 2014 examiner concluded that the Veteran's need for assistance of another was not due solely to his service-connected disabilities. In March 2014 VA nursing functional activity assessment, the Veteran was noted to bathe himself without assistance, including getting in and out of the tub, to retrieve clothes himself and dress and undress himself, to perform his toileting activities himself without any needed assistance, and to transfer in and out of bed and in and out of a chair without assistance. He was not incontinent for bowel or bladder functioning. He also fed himself without assistance. Further, he was noted to take care of shopping needs independently; to plan, prepare, and serve adequate meals independently; to perform his own laundry completely; to travel independently; to take his medications in correct dosages at correct times; and to manage his finances correctly. The Veteran also then denied any falls since his last visit. In an October 2014 statement, the Veteran's son informs as follows: [....] [A]bout 5 or 6 days a week I help my dad with his daily activities[.] I help him take a bath and getting in and out of the tub, shopping for his groceries, helping with his finances[.] [D]ue to his numerous flare-ups it is very difficult for him to get around, I also assist with his wheelchair, walker and cane[.] [H]e has limited spine and trunk stability and Dr. [G.C.] recommends that it would be better with a chair and a walker at home. In an October 2014 statement, the Veteran's grandson states: On a daily basis my father and I assist my grandfather and his daily needs. Such as helping him in and out of the tub. I assist him whenever he has flare ups. I also make up his and clean his room on a daily basis. I also help him get up and walk to prevent falling. I help prepare his meals, shop, and go pay his bills[.] I also help him change into clothes and making sure his meals are on time. In a July 2016 medical report, Dr. M.C.C., a private physician, lists factors that impair the Veteran's daily functioning as including "dizziness, memory impairment, imbalance" as well as weakness. Parts of this report are not legible, but what is legible is the finding that the Veteran needs a cane for walking, which is attributed to his spine impairment. The private physician notes that the Veteran requires some assistance with medication management for his multiple conditions including degenerative joint disease, which would include his service-connected low back disability. In the report, the Veteran is noted to have informed that his son sometimes helps him with his medication as well as with bathing, but this is not attributed by the physician to his service-connected low back disability. At a VA examination in August 2017 to address need for aid and attendance, the Veteran reported that in the past few years he had increased symptoms. The symptoms he described usually consisted of dull pains, though at times throbbing or radiating to the left or right side of the low back, and frequently radiating into the right lower extremity. He also reported unsteadiness, worse pain with standing approximately 10 minutes, and pain lasting one to four minutes which might be precipitated by changing position. The Veteran did describe performing short-distance transfers within his house by himself, but asserted that other daily activities required assistance and were impeded by his low back pain and right lower extremity radiating pain. He lived in a home with his son and his son's wife and they assisted him, but they both worked and could only assist him after the workday. They did leave him prepared meals. He reported needing help with getting dressed, particularly underpants, pants, and socks, due to his low back pain and right lower extremity radiculopathy. The examiner noted that while the Veteran had falls in the past due to unstable gait, there were no documented falls after March 2014. The August 2017 VA examiner noted that while the Veteran did suffer from low back pain and right lower extremity radiculopathy, the Veteran's right knee difficulties appeared to affect his functioning more than these conditions. Objectively, the examiner found significantly limited range of motion of the thoracolumbar spine and inability to perform repetitive motion due to increased pain. Moderate para-lumbar muscle spasm was observed. Evidence of moderate right radicular pain and paresthesias or dysesthesias was also noted. The Veteran was noted to use a cane, walker, or wheelchair, depending on severity of pain/impairment. The examiner concluded that the Veteran's low back condition resulted in limitations of prolonged walking, prolonged standing, and prolonged sitting, limitations of bending and lifting, and inability to ascend or descend stairs. In an October 2017 addendum, the August 2017 VA examiner concluded that the Veteran's lumbar spine and right lower extremity radiculopathy conditions demonstrated sufficient impairment upon examination that "it was obvious to me that his low back condition with [right lower extremity] radiculopathy would impose in him significant functional limitations without the help of human personnel that can supervise, help and protect him from serious injuries caused by his limited functionality." The examiner concluded that it is at least as likely as not that the Veteran requires the aid and attendance of another due to his service-connected low back disability and right lower extremity radiculopathy. After resolving all doubt in the Veteran's favor, the Board concludes that these findings, taken together with prior private medical evaluations and the Veteran's own statements concerning his regular need for assistance of family members with dressing/undressing, occasionally with bathing despite installed assistive devices in the bathroom, and due to ongoing unsteadiness, all combined to reflect need for regular aid and attendance of another. The Veteran's degenerative low back and right lower extremity pain conditions are noted to have progressed and to be debilitating despite daily pain medication. The Board concludes that while a nursing evaluation and some treatment records in 2014 informed against incapacity for self-care, subsequent treatment and examination records indicating progression of disability inform that such a regular need is likely now present due solely to his service-connected disabilities, without consideration of his multiple non-service-connected impairments. Accordingly, special monthly compensation based on need for regular aid and attendance of another is warranted. 38 C.F.R. §§ 3.102, 3.352(a). ORDER Special monthly compensation based on the need for regular aid and attendance is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs