Citation Nr: 18145691 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 17-02 011 DATE: October 29, 2018 ORDER Entitlement to a temporary total rating based on hospitalization over 21 days due to service connected disability from August 28, 2013 to October 4, 2013 is granted. Entitlement to special monthly compensation (SMC) based on need for regular aid and attendance/housebound status is denied. REMANDED Entitlement to an initial compensable evaluation for disability due to disseminating strongyloides infection is remanded. Entitlement to a total disability rating due to individual unemployability due to service-connected disability (TDIU) is remanded.   FINDINGS OF FACT 1. During the period under appeal, the Veteran was hospitalized for more than 21 days, from August 28, 2013 to October 4, 2013, because of his service-connected disability due to disseminating strongyloides infection. 2. The Veteran can perform activities of daily living independently, and he is not bedridden or permanently housebound. CONCLUSIONS OF LAW 1. The criteria for entitlement to a temporary total evaluation based on hospitalization over 21 days from August 28, 2013 to October 4, 2013 for service-connected disability have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.29, 4.30. 2. The criteria for an award of special monthly compensation based on the need for regular aid and attendance or housebound status are not met. 38 U.S.C. §§ 1114 (s), 5101, 5107, 5121; 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from April 1953 to March 1956. In his January 2017 notice of disagreement to the RO’s initial assigned noncompensable rating for service connection for disability due to disseminating strongyloides infection, the Veteran also asserted that a temporary total rating under 38 C.F.R. § 4.29 should be considered. Accordingly, the issue is considered part of the initial increased rating claim and it has been included on appeal as shown on the first page. With regard to the claim for TDIU listed on the cover page, the United States Court of Appeals for Veterans Claims (Court) has held that a request for TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate “claim” for benefits, but rather is part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Here, the Veteran has asserted that a TDIU is warranted based on the severity of his major depressive disorder. See February 2017 notice of disagreement. This statement raises the issue of TDIU as part of the claim for increased rating. 1. Entitlement to a temporary total rating based on hospitalization for service-connected disability due to disseminating strongyloides infection The Veteran asserts that he is entitled to a temporary total rating based on hospitalization in excess of 21 days because of his service-connected disability due to disseminating strongyloides infection. A total disability rating (100 percent) will be assigned without regard to other provisions of the Rating Schedule when it is established that a service-connected disability has required hospital treatment in a VA or an approved hospital for a period in excess of 21 days, or that hospital observation at VA expense is required for a service-connected disability for a period in excess of 21 days. 38 C.F.R. § 4.29. A total disability rating (100 percent) also will be assigned without regard to other provisions of the Rating Schedule when it is established by report at hospital discharge (regular discharge or release to non-bed care) or outpatient release that entitlement to a temporary total convalescence rating is warranted, effective from the date of hospital admission or outpatient treatment and continuing for a period of one, two, or three months from the first day of the month following such hospital discharge or outpatient release. 38 C.F.R. § 4.30. Entitlement to a temporary total convalescence rating is warranted if treatment of a service-connected disability results in: (1) surgery necessitating at least one month of post-operative convalescence; (2) surgery with severe post-operative residuals, such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of a one major joint or more, application of a body cast, the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30 (a). This regulation only authorizes the assignment of a disability rating and payment of compensation for service-connected disabilities. Based on a careful review of all the evidence, the Board finds that a temporary total evaluation based on hospitalization in excess of 21 days because of a service-connected disability is warranted. The Veteran is currently service-connected for disability due to disseminating strongyloides infection, effective from August 28, 2013, the date of claim. VA treatment records show that following his hospitalization for strongyloides hyperinfection and other complications, on August 9, 2013, the Veteran was transferred to a VA in-patient rehabilitation facility to recover from deconditioning from his prolonged hospitalization. VA treatment records show that the Veteran was discharged from the VA rehabilitation facility on October 4, 2013. The record shows that during the period under appeal, the Veteran required in-patient treatment at VA facility for over 21 days because of his service-connected disability. Accordingly, entitlement to a temporary total evaluation based on VA hospital treatment for more than 21 days from August 28, 2013 to October 4, 2013 under 38 C.F.R. § 4.29 is warranted. However, entitlement to temporary total evaluation for convalescence under 38 C.F.R. § 4.30 is not warranted as there is no evidence that surgery for his service-connected disability was needed during the period under appeal. A temporary 100 percent evaluation based on VA hospitalization in excess of 21 days is granted from August 28, 2013 through October 4, 2013, subject to the applicable criteria governing the payment of monetary benefits. 2. Entitlement to special monthly compensation based on need for regular aid and attendance or housebound status The Veteran seeks SMC based on the need for regular aid and attendance of another person or on the account of housebound status. SMC is payable in addition to the basic rate of compensation otherwise payable on the basis of degree of disability for service-connected disability. 38 U.S.C. § 1114; 38 C.F.R. § 3.350. Increased compensation at the aid and attendance rate is payable when a veteran has anatomical loss or loss of use of both feet, one hand and one foot, blindness in both eyes with visual acuity of 5/200 or less or being permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). The factors for factual need for aid and attendance include: 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 C.F.R. § 3.352 (a). Being permanently bedridden is a proper basis for a factual need for aid and attendance. For this purpose, “bedridden” will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that 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. It is not required that all of the disabling conditions enumerated in 38 C.F.R. § 3.352 (a) 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); cf. Turco v. Brown, 9 Vet. App. 222, 224 (1996) (finding that at least one of the factors must be present but not necessarily all of them). SMC may be awarded at the housebound rate if a veteran has a single 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 service-connected disability or disabilities, is permanently housebound. A veteran will be determined to be permanently housebound when he is substantially confined to his house (or ward or clinical areas, if institutionalized) or immediate premises due to disability or disabilities when it is reasonably certain that such a condition will remain throughout his lifetime. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). The claimant bears the burden of presenting and supporting a claim for benefits. 38 U.S.C. § 5107 (a) (2012); Fagan v. Shinseki, 573 F.3d 1282, 128688 (Fed. Cir. 2009). In making determinations, VA is responsible for ascertaining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). The Veteran is service-connected for disability due to disseminating strongyloides infection. In regard to compensation at the housebound rate, because the Veteran has only a single service-connected disability, the entitlement to the statutory housebound rate is not for consideration. See 38 U.S.C. § 1114 (s); 38 C.F.R. §§ 3.350 (i). In regard to compensation at the aid and attendance rate, because the Veteran does not have the requisite anatomical losses, the question is whether he has a factual need for aid and attendance. See 38 U.S.C. § 1114 (l); 38 C.F.R. §§ 3.350 (b), 3.352(a). Based on review of the claims folder, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s service-connected disability resulted in a factual need for aid and attendance during the applicable period under appeal. See 38 U.S.C. § 1114 (l); 38 C.F.R. §§ 3.350 (b), 3.352(a). The Veteran’s VA medical treatment records show that from June 28, 2013 to October 4, 2013, he required hospital treatment for his service-connected disseminated strongyloides infection and other complications. The October 2013 VA hospital discharge summary noted that following the prescribed 6-weeks treatment regime, it was noted that the Veteran had done progressively well in rehab. It was felt the Veteran had an overall general improvement in health and he was back to baseline functional status. A November 2013 VA primary care treatment record noted that the Veteran presented for his first follow-up session after his 3-month hospitalization for disseminating strongyloides infection and other complications. It was note that the Veteran “feels ok, except he still feels weak” and he could walk by himself. A March 2013 VA geriatric treatment record shows that the Veteran still complained of weakness, but he reportedly was walking about a mile a day and he was active around the house. He further had physical therapy sessions 3 to 4 times a week and he was helping his daughter with renovation of a rental property. It was also noted that the Veteran was the primary caregiver for his wife. The March 2013 VA treatment record noted that the Veteran was considered independent in his activities of daily living as well as independent in some of his instrumental activities of daily living (such as shopping, food preparation, laundry, and driving). Subsequent VA treatment record continue to show that the Veteran complained of generalized weakness which impacted his ability to walk more than 200 yards without stopping, but these records consistently show he was considered independent in all his activities of daily living. See August 2014, January 2016, April 2016, and October 2016 VA treatment records. In the report of a November 2016 VA medical opinion report, the VA examiner concluded that the Veteran did not meet the criteria for regular need of aid and attendance based on a review of the claims folder. The VA examiner noted that the Veteran’s VA treatment records showed he was independent in his activities of daily living and instrumental activities of daily living. He could drive himself places and he was the primary caregiver for his wife. In review of the evidence of record, the Board has considered the statement from the Veteran and his daughter concerning the amount of assistance the Veteran needs around his home. The Board notes that they are competent to report that which they have perceived through the use of their senses and their experiences, including the occurrence of the Veteran’s residual weakness and his daily limitations. See 38 C.F.R. § 3.159 (a)(2) (2017); Charles v. Principi, 16 Vet. App. 370 (2002) (finding the veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting that lay evidence is competent with regard to facts perceived through the use of the five senses). They are not, however, competent to state whether the Veteran’s symptoms warrant a specific type of rating under the schedule for rating disabilities or a specific type of compensation, and accordingly, the Board finds that the objective medical findings are more probative. See Jandreau v. Nicholson, 492 F.3d 1372, 137677 (Fed. Cir. 2007); see also 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995); Prejean v. West, 13 Vet. App. 444, 4489 (2000). The competent medical evidence in the VA treatment records, which shows the Veteran was consistently evaluated as independent in his activities of daily living, directly relates to the question of whether the Veteran requires regular need of aid attendance. Moreover, the November 2016 VA examiner specifically concluded that the Veteran does not meet the criteria for regular need of aid and attendance as he is independent in his activities of daily living and instrumental activities of daily living. The evidence establishes the common theme that the Veteran experiences generalized weakness, which impacts his activities of daily living, but does not preclude his independence in performing those activities. Furthermore, all of the medical evidence reveals that the Veteran is ambulatory, albeit being limited in walking distance covered. The Veteran’s reports that he can drive himself places establishes that he is not permanently bedridden and that he is able to travel beyond his domicile. The evidence establishes that the Veteran is uninhibited in his ability to perform activities of daily living, and he does not require care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. Accordingly, since the Veteran is not permanently bedridden or considered so helpless to be in regular need of aid and attendance, special monthly compensation at the rate for aid and attendance on that basis is not warranted. See 38 U.S.C. § 1114 (l); 38 C.F.R. §§ 3.350 (b), 3.352(a). The Board has considered that the Veteran required rehabilitation for deconditioning following his prolonged hospital stay because of his service-connected disability and other complications, and during the in-patient rehabilitation, the Veteran was clearly in need of aid and attendance. See August 2013 VA treatment records as well as August 2013 Disability Benefits Questionnaire for Examination. However, as with housebound in fact, the disability and need for regular aid and attendance should be permanent, and not simply based during a period of temporary total rating under 38 C.F.R. §§ 4.28, 4.29, or 4.30. As the subsequent VA treatment records show that the Veteran was able to regain his functional capacity to perform all his activities of daily living following his hospitalization, his need for aid and attendance was only transitory and not on a permanent basis. Based upon all the above observations, the Board finds that the most probative evidence of record shows that the Veteran does not require care and assistance on a regular basis due to his service-connected disability, either with the activities of daily living or to protect himself from hazards or dangers incident to his daily environment. Additionally, the record does not show that the Veteran is bedridden or housebound due to his service-connected disabilities. Accordingly, the claim for special monthly compensation based on the need for regular aid and attendance or on the account of being housebound is denied. 38 U.S.C. § 1114 (l), (s); 38 C.F.R. §§ 3.350 (b), (i), 3.352(a). Based upon the foregoing, as the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the claim must be denied. See 38 U.S.C. §§ 501, 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). REASONS FOR REMAND 1. Entitlement to an initial compensable evaluation for disability due to disseminating strongyloides infection is remanded. The Veteran’s service-connected disability due to disseminating strongyloides infection is evaluated under 38 C.F.R. § 4.88b, Diagnostic Code 6320 for parasitic diseases not otherwise specified. This diagnostic code provides for the assignment of a 100 percent evaluation for active disease; thereafter, residuals are rated under the appropriate system. Here, the competent medical evidence demonstrates that the Veteran’s disseminating strongyloides infection has been not in the active disease stage following his 2013 hospitalization. A July 2013 stool study was clear of parasites, and there has been no reoccurrence of active parasitic disease. Accordingly, the Veteran’s disability needs to be evaluated based on the residuals from disseminating strongyloides infection. See 38 C.F.R. § 4.88b, Diagnostic Code 6320. The Veteran asserts that his residuals of disseminating strongyloides infection includes the following: generalized weakness, fatigue, urinary frequency, mood changes, sleep disturbances, gastrointestinal complaints, and mitral valve endocarditis. He asserts that separate evaluations are warranted for his residuals of disseminating strongyloides infection. He has submitted the report of an October 2018 private medical opinion in support of his claim. The Veteran was afforded VA examinations in April 2018 to evaluate his residuals of disseminating strongyloides infection, to include gastrointestinal complaints. Although the VA examiner noted that the Veteran had weakness as a residual of his disseminating strongyloides infection, the examiner was unable to test muscle weakness and noted that a VA rheumatology examination was needed. The record does not reflect that the Veteran has been afforded with such a VA examination to evaluate his residual muscle weakness. Accordingly, a remand is needed to afford the Veteran with a new VA examination. A remand is also needed to obtain medical opinions on whether the Veteran’s depression disorder and cardiac valvular disorder (mitral regurgitation) were permanently aggravated by his service-connected disseminating strongyloides infection. The October 2018 private medical opinion supports a relationship between the Veteran’s mitral regurgitation and depression to his service-connected disseminating strongyloides infection, but it does not address issue of aggravation of these conditions which existed prior to the Veteran’s 2013 hospitalization. In a November 2016 VA medical opinion report, the VA examiner found that the Veteran’s prior mitral regurgitation and depression conditions were not permanently worsened by disseminated strongyloides infection. However, the VA examiner did not discuss the increase in severity of the Veteran’s mitral regurgitation from mild on a June 2009 ECHO to moderate-severe on a December 2013 ECHO, or discuss the Veteran’s complaints of mood changes associated with his lifestyle changes following his 2013 hospitalization for disseminated strongyloides infection. The Board finds that new VA medical opinions are needed to address whether the Veteran has mitral regurgitation and depression disorder as residuals of his service-connected disseminated strongyloides infection. 2. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. A claim for TDIU has been raised by the record, and is considered intertwined with the claim for increased rating for major depressive disorder. A remand will allow for the RO to provide proper notice regarding this issue, complete any needed development on the matter, and consider the merits of the claim in the first instance. The matters are REMANDED for the following action: 1. Provide the Veteran with appropriate notice regarding a TDIU claim and request that he complete a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. Ask the Veteran to submit any additional evidence in support of a TDIU claim, to specifically include information on his work history, salary, and educational history. 2. Update the claims folder with the Veteran’s VA treatment records dated since November 2016 to Present. 3. Obtain a VA medical opinion that addresses whether the Veteran’s cardiac valvular disorder (mitral regurgitation) was permanently aggravated beyond the natural progression of the disease by his service-connected disseminating strongyloides infection. In doing so, the VA examiner is asked to the discuss the infective endocarditis during the 2013 hospitalization for disseminating strongyloides infection and the increase in severity of the Veteran’s mitral regurgitation from mild on a June 2009 ECHO to moderate-severe on a December 2013 ECHO. The VA examiner should also consider the prior medical opinions of record. 4. Obtain a VA medical opinion that addresses whether the Veteran’s depression disorder was permanently aggravated beyond the natural progression of the disease by his service-connected disseminating strongyloides infection. In doing so, the VA examiner is asked to the discuss the Veteran’s complaints of mood changes associated with his lifestyle changes following his hospitalization for disseminated strongyloides infection. The VA examiner should also consider the prior medical opinions of record. (Continued on the next page)   5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected disseminating strongyloides infection, to include residual generalized weakness. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected disability. N. RIPPEL Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs