Citation Nr: 18150008 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 14-40 134 DATE: November 14, 2018 ORDER Special monthly compensation (SMC) based on the need for aid and attendance, or by reason of being permanently housebound, is denied. VETERAN’S CONTENTIONS The Veteran contends that special monthly compensation for aid and attendance is warranted as he needs much assistance with daily living. He does not specifically assert that he needs assistance due to his service-connected posttraumatic stress disorder (PTSD). Rather, he is seeking aid and attendance benefits in association with ischemia and residuals of a cerebrovascular accident so that he can live at home with his wife, rather than at a care facility. He believes that living at home rather than a care facility would be beneficial because it would enable him to have closer relationships with friends and family, and to attend his regular Alcoholics Anonymous meetings. FINDINGS OF FACT 1. The Veteran’s sole service-connected disability is PTSD, rated as 70 percent disabling. He is in receipt of a total disability rating based on individual unemployability (TDIU) secondary to PTSD. 2. The Veteran is dependent in all functional tasks as a result of a nonservice-connected cerebrovascular accident with residual right hemiparesis; his service-connected PTSD in and of itself does not result in the need for the regular aid and attendance of another person. 3. The Veteran does not have additional service-connected disabilities independently ratable at 60 percent or more when combined, and he is not permanently housebound, or substantially confined to his house, or immediate premises as a direct result of his service-connected PTSD. CONCLUSION OF LAW The criteria for special monthly compensation based on the need for aid and attendance, or by reason of being permanently housebound are not met. 38 U.S.C. §§ 1114 (l), 5107(b); 38 C.F.R. §§ 3.102, 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1968 to September 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. Compensation at the aid and attendance rate is payable when a veteran's service-connected disability or disabilities cause the anatomical loss or loss of use of both feet or one hand and one foot, cause the Veteran to be blind in both eyes, or render him 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). Determinations as to the need for regular aid and attendance are factual and must be based upon the actual requirements for personal assistance from others. In making such determinations, consideration is given to such conditions as: the inability of the 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 assistance; the inability of the claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; the inability to attend to the wants of nature; or incapacity, either physical or mental, which requires care or assistance on a regular basis to protect a claimant from hazards or dangers incident to one's daily environment. It is not required that all of the disabling conditions enumerated be present before a favorable rating is made. The particular personal functions that the claimant is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the claimant be so helpless as to be in need of regular aid and attendance, not that there is a constant need. "Bedridden" constitutes a condition which, 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 bed rest for a lesser or greater portion of the day, will not suffice. 38 C.F.R. § 3.352(a). In Turco v. Brown, 9 Vet. App. 222, 224 (1996), the Court held that eligibility for SMC by reason of regular need for aid and attendance requires that at least one of the factors set forth in VA regulation is met. In addition, determinations that the 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. See Turco, 9 Vet. App. at 224. The evidence must show that the claimant is so helpless as to need regular and attendance; constant need for aid and attendance is not required. 38 C.F.R. § 3.352(a). SMC is also payable if a veteran is permanently housebound. See 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). The law provides for two avenues through which to receive this benefit: "statutorily housebound," see 38 C.F.R. § 3.350(i)(1), and "housebound-in-fact," see 38 C.F.R. § 3.350(i)(2). Under both avenues, the veteran must first have a single service-connected disability rated as 100 percent disabling. 38 C.F.R. § 3.350 (i). To be found statutorily housebound, the veteran must have additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. 38 C.F.R. § 3.350(i)(1). To be found housebound-in-fact, the Veteran must be permanently housebound by reason of service-connected disability or disabilities. 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. The Court has held that section 1114(s) does not limit a service-connected disability rated as total to only a schedular rating of 100 percent, and the Secretary's current regulation permits a TDIU rating based on a single disability to satisfy the statutory requirement of a total rating. See Bradley v. Peake, 22 Vet. App. 280, 293 (2008). At the outset, the Board notes that for purposes of entitlement to special monthly compensation based on aid and attendance, the scope of review is limited to the Veteran's functioning as a consequence of his service-connected disabilities. Here, the Veteran is only service-connected for posttraumatic stress disorder (PTSD), rated as 70 percent disabling. For the purposes of entitlement to special monthly compensation by reason of being permanently homebound, the Veteran is in receipt of a TDIU based on a single disability (service-connected PTSD). This satisfies the total (100 percent) rating requirement. Id. However, as the Veteran is only service-connected for PTSD, he does not have additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. Therefore, the discussion will be limited to whether the Veteran is housebound in fact. After review of the lay and medical evidence of record, the Board finds that the criteria for special monthly compensation based on the need for the aid and attendance, or by reason of being permanently housebound are not met. In this regard, the evidence of record includes a February 2012 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance. The clinician who filled out the report indicated current diagnoses including pancreatis, anemia, PTSD, benign prostatic hyperplasia, GERD, hypertension, chronic obstructive pulmonary disease, gout, hyperlipidemia, craniotomy, stoke, and peptic ulcer disease; and indicated that the Veteran needs much assistance to feed himself, is unable to prepare his own meals, needs assistance in bathing and tending to other hygiene needs, and requires medication management. The examiner concluded that the Veteran is dependent for all functional tasks, unable to propel himself, and unable to manage basic self-care to include bowel and bladder. The examiner further reasoned that the Veteran’s activities and functions were restricted due to his recent stroke and craniotomy. The examiner indicated that the Veteran would only be able to leave the immediate premises with direct physical assistance from a caregiver. Th evidence of record also includes a May 2015 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance. The May 2015 examiner noted that current medical problems included degeneration of cervical intervertebral disc, PTSD, chronic pain syndrome, incontinence, depressive disorder NOS, chronic obstructive pulmonary disease, tricuspid/aortic/mitral valve insufficiency, and stroke; and indicated that the Veteran is unable to prepare his own meals, requires nursing home care, requires medication management, and needs assistance with bathing and all self-care tasks. The examiner concluded that recent stroke, degenerative disc disease, and chronic pain restricted the Veteran’s activities and functions. The examiner indicated that the Veteran occasionally left the immediate premises to go home with family on the weekends and holidays. In addressing entitlement to special monthly compensation based on the need for aid and attendance, the competent medical evidence indicates that the stroke residuals, including the craniotomy, degenerative disc disease, and chronic pain render the Veteran in need of regular aid and attendance. However, service connection has not been established for stroke, craniotomy, degenerative disc disease, or chronic pain. As indicated above, the Veteran is only service-connected for PTSD. To the extent that the Veteran’s spouse believes that his stroke was caused by ischemic heart disease, which she in turn believes is related to in-service exposure to herbicide agents, the record does not support a current diagnosis of ischemic heart disease. Although the Veteran’s stroke was determined to be ischemic in nature, he has been diagnosed only with valvular heart disease and hypertension. The stroke has not been determined to be related to ischemic heart disease. Thus, although sympathetic to the Veteran and the severity of his non-service connected medical conditions, there is no indication that the Veteran requires aid and attendance due solely to his service-connected disability, in this case, PTSD. (Continued on the next page)   In addressing special monthly compensation by reason of being permanently housebound, although sympathetic to the Veteran and the severity of his medical conditions, there is no indication that the Veteran is permanently housebound due to his service-connected PTSD. The examiners indicated that the Veteran occasionally left the immediate premises to go home with family on the weekends and holidays. The examiners also indicated that the Veteran would be able to leave the immediate premises with direct physical assistance from a caregiver. Moreover, the Veteran himself has indicated that he is seeking aid and attendance benefits because such benefits would enable him to be more social, including as a result of being able to attend regular Alcoholics Anonymous meetings. This evidence weighs strongly against a finding that his PTSD renders him housebound. For these reasons, the preponderance of the evidence is against a finding that the Veteran is entitled to special monthly compensation based on the need for aid and attendance, or by reason of being housebound. 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. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Smith-Jennings, Associate Counsel