Citation Nr: 1805883 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 12-03 566 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to special monthly compensation (SMC) based on the need for aid and attendance and based on housebound status. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Borman, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1969 to November 1971. This case comes before the Board of Veteran's Appeals (Board) on appeal from a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. This appeal was most recently remanded in August 2016 and is now ready for adjudication. FINDINGS OF FACT 1. Based solely on his service-connected disabilities, the Veteran does not require the assistance of another person in meeting his daily needs such as eating, dressing, and walking; nor does his service-connected disability prevent him from being able to protect himself from the hazards and dangers of his daily environment. 2. The Veteran does not meet the schedular requirements for SMC housebound benefits and does not need SMC housebound benefits as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for SMC by reason of the need for regular aid and attendance of another person or by being housebound have not been met. 38 U.S.C. §§ 1114, 1502, 1521, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.350, 3.352 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See, e.g., 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). In the instant case, VA provided adequate notice in letters sent to the Veteran. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records, VA treatment records, and VA examinations are associated with the claims file. The Board notes that this appeal was remanded in August 2016 in order to obtain updated treatment records and an updated VA examination. Numerous treatment records as well as a VA examination have been added to the record. Therefore, the Board is now satisfied that there has been substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). There is no indication of additional existing evidence that is necessary for a fair adjudication of the claim that is the subject of this appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. Aid and Attendance The Veteran asserts that he is entitled to SMC based on aid and attendance as a result of his service-connected disabilities, specifically, his PTSD. The Veteran does not argue and there are no indications that the Veteran's hepatitis currently affects him. In addition to any benefits already received, a veteran may also be entitled to SMC benefits where there is an established need for regular aid and attendance based on service-connected disabilities. 38 U.S.C. § 1114(l) (2012); 38 C.F.R. § 3.350(b)(3) (2017). Requiring aid and attendance means that a person is helplessness or 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: (1) is 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; (2) is a patient in a nursing home because of mental or physical incapacity; or (3) establishes a factual need for aid and attendance under 38 C.F.R. § 3.352(a) (2017). See also 38 C.F.R. § 3.351(b), (c) (2016). The criteria to be considered in establishing a factual need for aid and attendance include: * The inability of a 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 daily environment. See 38 C.F.R. § 3.352(a). Being bedridden is a proper basis for the determination. "Bedridden" is that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that a 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) (2017). It is not required that all of the disabling conditions enumerated be found to exist before a favorable rating may be made. Moreover, it is only necessary that the evidence establish that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that a claimant 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. Id. In this case, the evidence does not indicate that SMC is warranted based on the need for aid and attendance. Throughout the appeal period, the Veteran has at times demonstrated difficulty with independence in activities such as shopping, housekeeping, and transportation. However, according to an April 2010 examination conducted by the Veteran's physician, the Veteran was able to walk without assistance despite having frequent falls. He could leave the home without assistance, perform the toilet function independently, and dress independently. Although the Veteran reportedly stayed at home approximately 16 hours per day, this is not because he has been prescribed bedrest by a physician. Significantly, the Veteran's limitations were noted to be due to a seizure disorder, gait problem, and a history of cerebral vascular disease. The physician did not mention the Veteran's PTSD. Similar to the previous examination, during a September 2010 examination to determine whether the Veteran warrants SMC, the Veteran indicated that he could feed himself, but could not prepare his own meals. He needed someone to watch him shower, but did not require nursing home care or management. The Veteran exhibited poor balance, right eye blurriness, and occasional dizziness. However, he could walk a block without aid. More importantly, the Veteran's limitations were not due solely to his PTSD. Rather the physician noted diagnoses of hypertension, hearing loss, a seizure disorder, PTSD, a transient ischemic attack, and a cardiovascular accident. The Board does not question the fact that the Veteran's health is extremely limiting. If all his diagnosed disabilities were service-connected, the Veteran would have a much stronger case for a need for aid and attendance. Unfortunately, the Board is prohibited from considering the effects of the other disabilities. The Veteran is only service-connected for PTSD and for a history of infectious hepatitis. The lack of mobility, which figures prominently in the aid and attendance determination, has been determined to be related to a stroke he suffered in December 2009. Since that time, he has had several episodes of loss of consciousness and now requires a 4-wheeled walker for ambulation as opposed to a cane. For this reason, the Board gives less weight to the December 2013 statement by a physician concluding that the Veteran is homebound as the physician did not solely consider the Veteran's service-connected disabilities. The Board acknowledges the statements of the Veteran and his wife that the Veteran's PTSD prevents him from leaving the house. In an April 2011 statement, the Veteran stated that he cannot be around crowds because he has difficulty handling stressful situations and he has blackouts when under stress. In a February 2011 statement, the Veteran's wife confirmed his paranoia and anxiety, which results in her being responsible for all the household responsibilities. However, in a July 2010 statement, the Veteran's wife cited her husband's stroke in stating that she has had to work full-time to support their income as he could no longer independently bathe, put on his clothes, and eat at that time. The Board also notes that there are indications that the Veteran's condition has not regularly exhibited the ascribed symptoms above. For example, in March 2014, the Veteran reported that he was independent in all of his activities of daily living. In May 2015, he discussed with his medical provider that he was going to travel for the next month to see his children and grandchildren. Additionally, during a July 2016 medical appointment, the Veteran drove from his home alone to the appointment. In fact, during the Veteran's September 2016 housebound examination, the Veteran was determined to be able to travel beyond his current domicile when accompanied by a family member. He could perform all self-care functions and walk without a walker up to a few hundred yards. Previously, the Veteran reported to his healthcare provider that his daughter had a car accident and that he would spend the month of August there to assist her. During a March 2014 neuropsychological evaluation, the Veteran was only partially oriented to self as he could not remember his age, date, or current events. It was at this time that the Veteran was diagnosed with major vascular neurocognitive disorder, without behavioral disturbance. The diagnosis indicates that the Veteran's memory loss is due to his stroke. The September 2016 VA examiner, who evaluated the Veteran's PTSD, also determined that it is at least as likely as not that the Veteran's learning and memory deficit pattern is compounded by affective interference effects from his anxiety conditions. Even giving the Veteran the benefit of the doubt and attributing all of his memory loss to his PTSD, the Veteran's memory loss problems still do not make him housebound. As described previously, the Veteran continues to be mostly independent in his activities of daily living and his memory issues do not require him to stay at home. The critical requirement in 38 U.S.C. § 1114(l) is that the aid and attendance must be necessary as the result of a service-connected disability or disabilities. The Board understands that the Veteran has multiple debilitating disabilities. However, as the Veteran's service-connected PTSD and hepatitis infection alone would not necessitate aid and attendance, the Board must deny his claim. Housebound If not in need of regular aid and attendance, a veteran may also be entitled to special monthly compensation for housebound benefits if, in addition to having a single permanent disability rated 100 percent disabling under the VA Schedule for Rating Disabilities (not including ratings based upon unemployability under 38 C.F.R. § 4.17 of this chapter), the Veteran either: * Has an additional disability or disabilities independently ratable at 60 percent or more, separate and distinct from the permanent disability rated as 100 percent disabling and involving different anatomical segments or bodily systems; or * Is "permanently housebound" by reason of disability or disabilities. This requirement is met when the Veteran is substantially confined to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical area, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. See 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i) (2017). While the total disability requirement must be met by a single disability, the 60 percent requirement may be met by applying the combined rating of the Veteran's remaining disabilities. See Bradley v. Peake, 22 Vet. App. 280 (2008) (noting that combined ratings to satisfy the second requirement but not the first). Moreover, in order to be considered "permanently housebound," the requirement that the Veteran be "substantially confined" to the home or its immediate premises is broadly construed and met when the Veteran is simply unable to leave the home to earn a living, as opposed to requiring that the Veteran be unable to leave the house at all. 38 U.S.C. § 1114(s). The Board determines that the requirements for SMC based on housebound status have not been met. The Veteran is service-connected for two disabilities, which are PTSD and a history of infectious hepatitis. He is rated at 100 for the former, and noncompensable for the latter. In order to be eligible for SMC housebound, the Veteran must be assigned a total disability rating with another 60 percent rating. See 38 U.S.C. § 1114(s). As the Veteran has been assigned a total disability rating, but not another 60 percent rating, his claim for SMC housebound benefits must be denied. Alternatively, the Veteran could demonstrate that he is permanently housebound due to service-connected disabilities. However, for the reasons explained previously, the Veteran is not considered to be permanently housebound due to his service-connected disabilities for VA disability purposes. The Board has also considered the Veteran's statements regarding the severity of his symptoms as to warrant SMC for aid and attendance or based on housebound status. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his service-connected disabilities or render an opinion as to their effect on his activities of daily living. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). On the other hand, such competent evidence concerning the nature and extent of the Veteran's service-connected disabilities and his ability to live independently has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. In conclusion, the evidence does not support the Veteran's claim for SMC by reason of the need for regular aid and attendance of another person or by reason of being housebound. As the weight of the evidence is against his claim for entitlement to SMC, the appeal is denied. ORDER SMC by reason of the need for regular aid and attendance of another person or by being housebound is denied. ____________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs