Citation Nr: 18142093 Decision Date: 10/15/18 Archive Date: 10/12/18 DOCKET NO. 15-45 209 DATE: October 15, 2018 ORDER Special monthly compensation (SMC) based on housebound status is granted. SMC based on the need for aid and attendance is denied. FINDINGS OF FACT 1. The Veteran meets the criteria for a total evaluation based on individual unemployability (TDIU) due to his service-connected diabetes and complications related thereto; the Veteran also has additional disabilities ratable at 60 percent or more. 2. The evidence does not demonstrate that the Veteran is in the need of aid an attendance as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for SMC at the housebound rate have been met. 38 U.S.C. §§ 1114(s), 5107; 38 C.F.R. §§ 3.350, 3.351, 3.352. 2. The criteria for entitlement to SMC based on the need for aid and attendance as a result of service-connected disabilities have not been met. 38 U.S.C. §§ 1114(s), 5107; 38 C.F.R. §§ 3.350, 3.351, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1969 to February 1971. The Board observes that the Regional Office (RO) issued a statement of the case in September 2015 for the issue on appeal, as well as for entitlement to a specially adaptive housing/special home adaptation grant and automotive adaptive equipment benefits. Subsequently, in November 2015, the Veteran submitted a new application for disability and compensation benefits, which included entitlement to SMC, and the RO accepted this as a valid substantive appeal. However, as the Veteran did not file a valid substantive appeal as to the issues regarding entitlement to specially adaptive housing/special home adaptation grant and automotive adaptive equipment benefits, these issues are no longer part of this appeal. SMC 1. Entitlement to SMC based on housebound status The Veteran asserts that he is entitled to SMC based on housebound status or the need for aid and attendance. SMC at the housebound rate is warranted if the veteran has a service-connected disability rated as total, and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or, (2) by reason of such veteran’s service-connected disability or disabilities, is permanently housebound. This requirement is met when the veteran is substantially confined as a direct 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 is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 U.S.C. § 1114(s); C.F.R. § 3.350(i). As emphasized by the Court, 38 U.S.C. § 1114(s) permits that a TDIU based on a single disability can satisfy the statutory requirement of a total rating. Bradley v. Peake, 22 Vet. App. 280, 291-94 (2008). In this case, the Board determines that SMC at the housebound rate is warranted. With respect to the statutory requirement for a total rating, the Board determines that the medical evidence, including from VA examinations in January 2013, September 2015, and January 2016, reflect that the Veteran is unable to obtain and retain substantially gainful employment due to his service-connected diabetes and disabilities related thereto, to include bilateral upper and lower extremity neuropathy, retinopathy, and hypertension. As such, TDIU is warrant solely for these disabilities. Next, the Veteran’s psychiatric disorder is rated at 70 percent, and therefore satisfies the requirement for a combined disability rating of 60 percent or more that is apart from the total (TDIU) rating. Therefore, entitlement to SMC at the housebound rate is established on a schedular basis. 2. Entitlement to SMC based on the need for aid and attendance 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. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b)(3). 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 by reason of his service-connected disabilities 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). See also 38 C.F.R. § 3.351(b), (c). 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). 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 demonstrate that SMC is warranted based on the need for aid and attendance. As an initial matter, the evidence does not indicate and the Veteran does not assert that he was blind or was a patient in a nursing home. Next, the evidence also does not demonstrate a factual need for aid and attendance under 38 C.F.R. § 3.352(a). Specifically, after a detailed and comprehensive review of the record, including the Veteran’s prior VA examinations, the March 2014 and August 2015 VA examiners opined that although the Veteran had diabetes and complications thereto, including hypertension, renal dysfunction, and polyneuropathy, the Veteran was able to feed himself, manage his own financial affairs, and ambulate without the assistance of another person. Further, while the Veteran uses a cane, needs assistance bathing and to leave the house, the Veteran was nevertheless able to leave his house, go grocery shopping, and ambulate without the assistance of another person. Moreover, while the Veteran had issues with bladder control, there is no evidence that he was unable to attend to his own wants. Additionally, to the extent the Veteran had difficulties preparing his own meals, buttoning his clothes, and shaving, it appears these difficulties are also substantially related to his nonservice-connected right arm amputation and electrocution. Although the Board acknowledges the statements from the Veteran that he experiences limitations from his service-connected disabilities, the evidence does not indicate that the Veteran’s service-connected disabilities caused significant inference with his daily activities, such as his ability to feed, dress, and take care of his finances, which would require the need for regular aid and attendance of another person. Instead, as discussed, the medical evidence indicates that the most significant problems are a result of his nonservice-connected right arm disorder. Moreover, the evidence also does not indicate that assistance is required to protect him from the hazards and dangers of his daily environment as a result of his service-connected disabilities. Therefore, a factual need for aid and attendance has not been established. As such, SMC is not warranted based on the need for aid and attendance. L. B. CRYAN Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Meyer, Associate Counsel