Citation Nr: 18148019 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 15-32 065 DATE: November 6, 2018 ORDER 1. Entitlement to Special Monthly Compensation (SMC), to include Aid an Attendance is denied. REMANDED 2. Entitlement to service connection for a right knee disability is remanded. 3. Entitlement to an increased rating in excess of 30 percent for total left knee arthroplasty, to include entitlement to an extension of temporary total evaluation beyond March 1, 2015, based on the need for convalescence following surgery of the service-connected left knee is remanded. FINDING OF FACT The Veteran’s need for aid and attendance is not due to his service-connected disabilities, but rather due to his non-service connected stroke and other non-service connected disabilities. CONCLUSION OF LAW The criteria for SMC based on Aid and Attendance or at the housebound rate are not met. 38 C.F.R. §§ 1114 (l); 38 C.F.R. §§ 3.350, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1969 to January 1970. This appeal is before the Board of Veterans’ Appeals (Board) from June 2014 and October 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). A June 2014 rating decision reflects that the RO granted a 100 percent rating for total left knee arthroplasty, effective January 9, 2014 and then continued the rating at 30 percent, effective March 1, 2015. The RO also assigned a 10 percent rating for instability of the left knee, effective January 9, 2014. An October 2014 rating decision reflects that the RO denied service connection for his right knee disability. The issue on the title page for the left knee has been rephrased to better reflect his claim. Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to Special Monthly Compensation (SMC), to include Aid and Attendance. Under 38 U.S.C. § 1114 (l), SMC (as opposed to special monthly pension, which would be based on all disabilities rather than only those which are service connected) is payable if, as the result of service-connected disabilities, the Veteran has an anatomical loss or loss of use of both feet, or of one hand and one foot, has blindness in both eyes with visual acuity of 5/200 or less, is permanently bedridden, or is so helpless as to be in need of the 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 equates to being so helpless as to require the regular aid and attendance of another person. 38 U.S.C. § 3.350 (b). As it pertains to the present case, criteria for establishing such need include whether the Veteran was permanently bedridden or so helpless as to have required regular aid and attendance, during the pendency of his original appeal, as determined under criteria enumerated under 38 C.F.R. § 3.352 (a). Pursuant to 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 the 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 the 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 incapacity, physical or mental, which requires care or assistance on a regular basis to protect the Veteran from the hazards or dangers incident to his daily environment. It is not required that all 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 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. 38 C.F.R. § 3.352 (a); see also Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in section 3.352(a) must be present for a grant of SMC based on need for aid and attendance). For the purposes of 38 C.F.R. § 3.352 (a), “bedridden” will be a proper basis for the determination of whether the Veteran needs regular aid and attendance of another person. “Bedridden” will be that condition which, through its essential character, requires that the claimant remain in bed. The fact that the Veteran had voluntarily taken to bed or that a physician had 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). The Veteran submitted a claim for SMC based on Aid and Attendance in February 2015. The Board does not dispute that he needs aid and attendance. (See OMEGA Care Planning Council Statement of Attending Physician; and Form 21-2680). Specifically, the medical evidence reflects he resides at North Carolina State Veterans Home in Kinston, North Carolina. He needs assistance from another person to attend to his daily activities, to include bathing, dressing, toileting, cleaning, and feeding himself. (See February 2015 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance). Importantly, the objective medical evidence reflects that his need for aid and attendance was a result of his non-service connected stroke and resulting cognitive impairment in January 2015. (See July 2015 VA examination). A January 2014 treatment record reflects he had total replacement of his left knee, while recovering, he had a stroke (basal ganglion portion of the brain) on January 16, 2015. The stroke affected both sides of his body. His family stated that he could currently only eat unassisted and needed extensive assistance with all other tasks. As explained above, his non-service connected stroke and other non-service-connected disabilities (i.e., seizure disorder, and cognitive impairment/dementia) rendered him wheelchair bound and in constant need of care. (See February 2015 Written Statement). Under 38 U.S.C. § 1114 (l), SMC is payable if, as the result of service-connected disabilities is so helpless as to need the regular aid and attendance of another person. In this instance, the Veteran’s need was not due to his service-connected disabilities but rather due to his non-service connected disabilities. As such, the Board finds that the criteria for aid and attendance are not warranted. REASONS FOR REMAND 1. Entitlement to service connection for a right knee disability. 2. Entitlement to an increased rating in excess of 30 percent for total left knee arthroplasty, to include entitlement to an extension of temporary total evaluation beyond March 1, 2015, based on the need for convalescence following surgery on the service-connected left knee is remanded. The July 2015 VA examination of the left knee is inadequate because the examiner did not attempt to separate, if possible, the symptomatology of the left leg attributed to his service-connected left knee disability versus impairment of the leg from his stroke despite the Veteran’s lack of ability to be examined because of his severe impairments. (See Mittlieder v. West, 11 Vet. App. 181 (1998)). On remand, the RO should obtain a medical opinion analyzing the medical record to determine severity and separate symptomatology, if possible. The Board notes that a medical examination would be futile because the Veteran is unable to be tested because of his severe impairments. (See July 2015 VA examination). It is alleged that his sequence of falls in January 2015 and February 2015 made his left knee worse. On remand, the RO should attempt to obtain any updated or missing VA treatment records (i.e., VA Hospital in Durham, NC), to include any private treatment records that are not already of record. For example, private treatment records from Dr. Bart S. Arthur at Carolina Orthopedics for treatment of the right knee in 1985 Right Knee to present located at 738 Newman Road; New Bern, North Carolina 28562. Lastly, the record reflects the Veteran is in receipt of Social Security Disability Income (SSDI) in 2006, in part, for dementia-some memory problems/loss, difficulty performing some tasks, disorientation to time and place. Arthritis and joint problems of the hip, knee and back, tremor of right hand, high blood pressure and seizures. (See Doc 9 in Caseflow filed July 6, 2006). On remand, the RO should attempt to obtain these records. Golz v. Shinseki, 590 F. 3d 1317 (2010). The matter is REMANDED for the following action: 1. Obtain any updated or missing VA treatment records on remand. 2. Invite the Veteran/and fiduciary agent to identify any private medical providers who treated him (i.e., Carolina Orthopedics). After receiving this information and any necessary releases, contact the named medical providers and obtain copies of the related medical records which are not already in the claims folder. 3. Attempt to obtain his SSA records. All attempts to obtain these records should be documented in the claims file. 4. Obtain a medical opinion to determine nature and severity of the left knee disability before and after his non-service connected stroke. The examiner is requested to analyze the medical evidence and attempt to separate symptomatology attributed to his service-connected left knee and nonservice-connected stroke, if possible. The Veteran is unable to physically be tested because of his severe impairments. 5. If examiner can separate left knee symptomatology from his non-service connected disabilities, the RO should reconsider entitlement to an extension of temporary total evaluation beyond March 1, 2015 based on the need for convalescence following surgery on the service-connected left knee. 6. If warranted after development, obtain a medical nexus opinion for his right knee, to include on a secondary basis. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs