Citation Nr: 18144665 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 16-28 678 DATE: October 25, 2018 ORDER Entitlement to special monthly compensation based on the need for aid and attendance or on being housebound is denied. FINDING OF FACT The Veteran is not so helpless as to be in need of regular aid and attendance of another person and is not permanently housebound as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for special monthly compensation based on the need for regular aid and attendance or on being housebound are not met. 38 U.S.C. § 1114(l), (s) (2012); 38 C.F.R. §§ 3.350(b), (i), 3.352(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1972 to October 1984. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. Jurisdiction of the case subsequently transferred to the RO in Portland, Oregon. Entitlement to special monthly compensation based on aid and attendance or on being housebound. Special monthly compensation (SMC) provided by 38 U.S.C. §1114(l) is payable for being so helpless as to be in need of regular aid and attendance. 38 C.F.R. § 3.350(b). The criteria for determining that a veteran is so helpless as to be in need of regular aid and attendance are contained in 38 U.S.C. § 3.352(a). 38 C.F.R. § 3.350(b)(3). Under 38 U.S.C. § 3.352(a), the following is accorded consideration in determining the need for regular aid and attendance: inability of claimant to dress or undress himself (herself), or to keep himself (herself) 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 (herself) 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. 38 U.S.C. § 3.352(a). It is not required that all of the above disabling conditions be found to exist before a favorable rating may be made. The particular personal functions which a 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 a veteran is so helpless, as to be in need of regular aid and attendance are based on the actual requirement of personal assistance from others. Special monthly compensation provided by 38 U.S.C. § 1114(s) is payable where a veteran has a single service-connected disability rated as total and is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i)(2). 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. Id. For purposes of satisfying the requirements of 38 U.S.C. § 1114(s), a total disability rating based on individual unemployability due to a service-connected disability (TDIU) may be considered a total rating. See Bradley v. Peake, 22 Vet. App. 280, 291-93 (2008). However, multiple disabilities, even if able to be combined and considered as a single disability for purposes of 38 C.F.R. § 4.16(a), do not meet the criteria for “a service-connected disability rated as total” for SMC under 38 U.S.C. § 1114(s). Id. at 290-91. The Veteran’s service-connected disabilities are: status post right radical mastectomy with absence of pectorals major and pectorals minor muscles, rated as 50 percent disabling; residuals of traumatic brain injury, evaluated as 40 percent disabling; residual scar associated status post right radical mastectomy with absence of pectorals major and pectorals minor muscles, evaluated as 20 percent disabling; and tension headaches, rated as noncompensable. A TDIU is granted from October 23, 2008. As reflected in statements from the Veteran received in November 2015 and January 2016, the Veteran states that his service-connected removal of muscles on the right chest causes side bending and unusual movement and stress on his left flank and hip; therefore, he is unable to support his body weight and often stumbles and occasionally falls. He also states that due to service-connected removal of muscles on his right chest, he is unable to stand or walk for long enough to do any chores around the house, such as cooking meals or going grocery shopping. He asserts that he requires personal aid and attendance, which is currently given by his wife. In a June 2015 evaluation report, the Veteran’s VA physician noted diagnoses of left flank pain, right chest wall pain status post muscle excision, and severe chronic obstructive pulmonary disease (COPD). The physician indicated that it was the Veteran’s severe COPD with shortness of breath that restricted his activities and functions. Specifically, the Veteran was not able to prepare his own meal because he could not stand or prolonged periods although he was able to feed himself. He needed assistance in bathing or tending to other hygiene needs. He was not legally blind. He did not require nursing home care or medication management. He was able to manage his financial affairs. The Veteran had upper extremity weakness but good range of motion. He also experienced low back pain, pain on standing and walking for prolonged periods. He had postural dizziness and significant shortness of breath even with walking 50 feet. He was able to leave the home or immediate premises daily but with difficulty. He needed aids, such as canes, braces, crutches or the assistance of another person. In an October 2015 evaluation report, the same VA physician noted diagnoses of severe COPD, liposarcoma status post surgical removal, and low back pain. This time, the physician listed history of liposarcoma in addition to severe COPD as disabilities restricting the Veteran’s activities/functions. The physician indicated that the Veteran was not able to prepare his own meals. He was able to feed himself and did not need assistance in bathing or tending to other hygiene needs. He was not legally blind. He did not require nursing home care or medication management. The Veteran was in need of a cane to assist with ambulation secondary to history of liposarcoma which was surgically repaired with significant residual pain and complications to the left side. He had difficulty with coordination of left arm especially with fine movement. He could not stand or walk for long distances with significant pain to the left flank area and low back area. He also had significantly limited balance especially when standing up and bending forward with restricted movement of spine, which caused the inability to cook meals or do chores arounds the house. He drove but was limited due to flank pain and low back pain. While the Veteran asserts that he requires aid and attendance due to his service-connected right mastectomy with absence of pectoral muscles, the medical evidence does not show that his functional problems result primarily from his service-connected disabilities of status post right radical mastectomy with absence of pectorals major and pectorals minor muscle. Concerning this, in the October 2015 evaluation report, the Veteran’s VA physician clearly indicated that the Veteran’s severe COPD and shortness of breath were the disabilities that caused his inability to stand or walk for any prolonged periods. The Board does not question that the Veteran experiences significant pain and limitation of movement due to his service-connected status post right radical mastectomy with absence of pectorals major and pectorals minor muscles. Indeed, the Veteran’s VA treatment records as well as the evaluation reports submitted in support of this claim support his statements as to symptoms of left flank pain and swelling and upper extremity weakness. Nevertheless, the evidence simply does not show that the Veteran is so helpless as to be in need of regular aid and attendance due to his service-connected disabilities. He is also not housebound for VA purposes as he is able to leave the house or immediate premises. The Veteran did not explain how he was substantially confined as a direct result of service-connected disabilities to his dwelling and the immediate premises. Even if he was substantially confined his dwelling secondary to inability to walk very long, the VA physician appears to relate the Veteran’s inability to walk any distance to nonservice-connected severe COPD and shortness of breath. Furthermore, there is no explanation of how any one of the Veteran’s service-connected disabilities, each rated 50 percent or less, might be considered to warrant a “total” rating. Thus, a preponderance of the evidence is against a finding that the Veteran is so helpless as to be in need of regular aid and attendance, or is permanently housebound, as a result of his service-connected disabilities. Accordingly, SMC based on the need for regular aid and attendance or by reason of being permanently housebound is not warranted. (Continued on the next page)   The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. J. In, Counsel