Citation Nr: 18146561 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 14-35 049 DATE: October 31, 2018 ORDER Entitlement to special monthly compensation (SMC) based on aid and attendance/housebound status for accrued benefits purposes is denied. FINDING OF FACT The probative, competent evidence of record is against a finding that the Veteran was in need of the regular aid and attendance of another by reason of his service-connected disabilities. CONCLUSION OF LAW The criteria for SMC based on aid and attendance/housebound status for accrued benefits purposes have not been satisfied. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.350(b), 3.352(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1954 to August 1956. The Veteran died in January 2017. In April 2017 the Veteran’s widow was properly substituted as the appellant. In August 2016, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In December 2016 and January 2018, the Board of Veterans’ Appeals (Board) remanded the issue on appeal for additional development. The issue has now been returned to the Board for appellate review. The previously remanded issue relating to service connection for ulcerative colitis is no longer in appellate status as that claim was granted by a June 2018 rating decision. Special monthly compensation is payable under 38 U.S.C. § 1114(l) if, as the result of service-connected disability, a veteran is permanently bedridden or is so helpless as to be in need of regular aid and attendance of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). The need for aid and attendance means being so helpless as to require the regular aid and attendance of another person as determined under criteria enumerated in 38 C.F.R. § 3.352(a). Under 38 C.F.R. § 3.352(a), the following factors will be accorded consideration in determining whether the veteran was in need of regular aid and attendance of another person: (1) inability of a veteran to dress or undress himself, or to keep himself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without such aid; (3) inability of a veteran to feed himself because of the loss of coordination of upper extremities or because of extreme weakness; (4) inability to attend to the wants of nature; or (5) physical or mental incapacity which requires care or assistance on a regular basis to protect a veteran from the hazards or dangers incident to his daily environment. 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 was unable to perform should be considered in connection with his former condition as a whole. It is only necessary that the evidence establish that the veteran was so helpless as to need regular aid and attendance, not that there was a constant need for aid and attendance. 38 C.F.R. § 3.352(a); see Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in § 3.352(a) must be present to grant special monthly compensation based on the need for aid and attendance). An individual who is bedridden shall also be considered to require regular aid and attendance. “Bedridden” constitutes a condition that through its essential character actually requires that an individual remain in bed. The fact that a claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for a lesser or greater portion of the day to promote convalescence or cure will not suffice. 38 C.F.R. § 3.352(a). A person will be considered to be permanently housebound when he is substantially confined to his house (ward or clinical areas, if institutionalized) or immediate premises by reason of a disability or disabilities reasonably certain to remain throughout his lifetime. 38 C.F.R. § 3.351(d). The appellant contends that she is entitled to SMC for accrued benefits purposes because during his lifetime the Veteran required the regular aid and attendance of another person. During his lifetime the Veteran was service-connected for acute myeloid leukemia, spinal stenosis of the lumbar spine secondary to degenerative disc disease, lumbar radiculopathy of the left and right lower extremities, and right knee osteoarthritis. In June 2018 service connection for ulcerative colitis was awarded. In May 2017 the Department of Veterans Affairs (VA) examiner was asked to provide an opinion regarding the Veteran’s need of regular aid and attendance due to his service-connected disabilities. The examiner noted that the opinion only took into account the Veteran’s acute myeloid leukemia. The other service-connected conditions were not considered. He opined that he could not provide an opinion without resorting to mere speculation. He reviewed the course of the Veteran’s treatment and noted that in January 5, 2017 the Veteran was reported to be “extremely frail.” He reported that the Veteran died 18 days later and noted the interval history was not available for review. He explained that without further information he was unable to determine whether the Veteran required aid and attendance during the last few weeks of his life. In May 2018 the same VA examiner was asked to provide an opinion as to whether all of the Veteran’s service-connected disabilities rendered him so helpless as to be in need of regular aid and attendance. The examiner explained that 18 days prior to his death the Veteran was able to get out of his house. He reported that the Veteran was described as fatigued and extremely frail, but that there was no evidence that the Veteran could not dress or use the toilet. He noted the Veteran’s symptoms and responded that while the evidence showed that the Veteran was seriously ill, the evidence did not reflect an ongoing need for permanent assistance with dressing, feeding, or toileting from 2014 until his death. He explained that during short periods of acute sepsis and hospitalizations the Veteran would have been sick enough to require nursing assistance; however, he reported the record also indicates periods of remission following the diagnosis of leukemia in 2014 during which he was fully capable of self-care. The examiner explained that there was no evidence that the Veteran’s orthopedic disabilities rendered him in need of aid and attendance and that the evidence suggests that much of the Veteran’s disability was due to his non-service connected heart disease. He opined that it was less likely as not that the Veteran’s service-connected disabilities, to include ulcerative colitis, at least until January 5, 2017, rendered him so helpless as to be in need of regular aid and attendance. Treatment reports of record demonstrate a level of impairment commensurate with that reported by the VA examiner. In September 2015 the Veteran’s private treatment provider reported that the Veteran had been receiving chemotherapy since November 2014. He noted given his age and poor risk disease the Veteran would require ongoing treatment and supportive care. In the January 2015 claim for SMC the Veteran asserted that due to his advanced age and weakness from leukemia he would require in-home care. He asserted that he was bed-ridden. The Veteran asserted that he had been hospitalized for the past seven weeks and required chemotherapy and additional help with his activities of daily living. Similarly, during his August 2016 Board hearing the Veteran testified that he could not maneuver without the use of a cane and could not walk for a lengthy period of time without rest. He testified that he would fall without the use of the cane. He testified that he was in a power chair when he was first diagnosed with leukemia and his leukemia has resulted in a loss of energy. He stated that he had difficulty using two hands and that he had difficulty standing. In the December 2016 appellate brief the Veteran asserted that he had instances of sepsis, fevers, weight changes, sleep problems, mood disturbances, skin changes, and fecal incontinence. The appellant asserts that as a result of the Veteran’s disabilities he often could not make it to the bathroom in time and that he needed to be cleaned up because he did not have the strength to do so himself. She stated that there were many days that the Veteran was home-bound because he was unable to hold his bowels or due to pain. She reported that the Veteran was unable to eat due to appetite suppression and that he was unable to prepare anything himself. She reported that over time the remission periods were less often and the Veteran’s sphincter muscles were no longer functional due to so many violent flare-ups. She reported that she fed, cleaned and dressed the Veteran throughout his entire chemotherapy treatment for leukemia as he was unable to care for himself. She reported that the Veteran’s fecal incontinence began in 2006 before his leukemia was diagnosed and may have gotten worse after the leukemia and chemotherapy. See July 2018 Statement. The Board finds that the evidence of record does not support that the Veteran was housebound or required the regular aid and attendance of another person. The preponderance of the evidence is against finding that the Veteran was substantially confined to his home or immediate premises by reason of his service-connected disabilities or that he required assistance on a daily basis to protect from hazards incident to his daily environment. Notably, the VA examiner opined that as a result of his service-connected disabilities the Veteran was not so helpless as to require the aid and attendance of another. He reported that the Veteran, while seriously ill and frail and fatigued, did not have an ongoing need for permanent assistance with dressing, feeding, or toileting from 2014 until his death. He explained that during “short periods of acute sepsis and hospitalizations” the Veteran would have been sick enough to require nursing assistance; however, he reported the record also indicates periods of remission following the diagnosis of leukemia in 2014 during which he was fully capable of self-care. He noted the Veteran’s orthopedic disabilities, but reported that his non-service connected heart condition was the cause of much of his disability. In the October 2018 appellate brief the appellant’s representative argues that this suggests that the Veteran did require aid and attendance for various periods due to service-connected disabilities. The Board does not find this argument persuasive. It is recognized that the need for aid and attendance need not be constant, but it does need to be regular. 38 C.F.R. § 3.352(a). In this case, the examiner, after review of the relevant evidence including the lay statements, determined that such care would only have been necessary for “short periods.” This does not rise to the level of a need for “regular aid and attendance” as required by 38 C.F.R. § 3.352(a). The Board acknowledges that the Veteran was seriously ill, which is reflected by the 100 percent disability rating assigned and that the appellant helped care for him. While the appellant asserts that she fed, cleaned, and dressed the Veteran, the evidence of record does not reflect that the Veteran’s service-connected disabilities were of such severity that he was unable to feed himself due to extreme weakness or loss of coordination, dress or undress himself without assistance, keep himself clean and presentable, or attend to the wants of nature without assistance. The evidence discussed above indicates that the Veteran was able to leave his home prior to his death and that while his functioning was diminished he could still perform tasks such as dressing and hygiene. The evidence does not reflect that regular care or assistance was necessary to keep the Veteran safe. While the Veteran stated he was bed-ridden, the evidence does not such suggest he was actually required to remain in bed and he was not confined to his bed or home. As the preponderance of the evidence is against the claim for SMC based on the need for regular aid and attendance or being housebound; the benefit-of-the-doubt rule does not apply and special monthly compensation for accrued benefits purposes is not warranted. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Gonzalez, Associate Counsel