Citation Nr: 18150924 Decision Date: 11/16/18 Archive Date: 11/15/18 DOCKET NO. 15-28 504 DATE: November 16, 2018 ORDER Special Monthly Compensation (SMC) based on the need for regular aid and attendance or by reason of being housebound is denied. FINDINGS OF FACT 1. The Veteran, as the result of service-connected disability, does not have an anatomical loss or loss of use of both feet, or of one hand and one foot, or have blindness in both eyes with visual acuity of 5/200 or less, or is not permanently bedridden, or is not so helpless as to be in need of regular aid and attendance of another person. 2. The Veteran is not substantially confined to his house due to a service-connected disability, nor does he have a single service-connected disability ratable at 100 percent along with other unrelated disabilities, which combine to at least 60 percent. CONCLUSION OF LAW The criteria for entitlement to SMC based on the need for regular aid and attendance or by reason of being housebound are not met. 38 U.S.C. §§ 1521, 5103, 5103A; 38 C.F.R. §§ 3.350, 3.352(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1957 to July 1960, and from February 1976 to March 1976. The Veteran requested a BVA hearing; a hearing was scheduled for October 2018. The Veteran subsequently withdrew his request for a hearing. 1. Entitlement to SMC based on the need for regular aid and attendance or by reason of being housebound. SMC is payable if, as the result of service-connected disability, 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 regular aid and attendance of another person. 38 U.S.C. § 1114(l) (2012); 38 C.F.R. § 3.350(b) (2018). VA considers the following factors in order to determine whether a veteran is in need of regular aid and attendance of another person: the inability of the veteran to dress himself or to keep himself ordinarily clean and presentable; the frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without such aid; the inability to feed himself because of the loss of coordination of upper extremities or because of extreme weakness; the inability to attend to the wants of nature; or incapacity, physical or mental, that requires care or assistance on a regular basis to protect the veteran from the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a) (2018). A veteran need not demonstrate all of these conditions in order to obtain SMC based on aid and attendance. Instead, VA considers the particular personal functions that the Veteran is unable to perform in connection with his condition as a whole. Rather than meeting all of the above criteria, the veteran need only demonstrate that he is so helpless as to need regular aid and attendance, not that there is a constant need. 38 C.F.R. § 3.352(a) (2018); Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that the evidence of record must demonstrate at least one factor for a grant of SMC based on need for aid and attendance). In addition, a ‘bedridden’ veteran also warrants the regular aid and attendance of another person. 38 C.F.R. § 3.352(a) (2018). The term ‘bedridden’ means the condition that, through its essential character, actually requires that the veteran remain in bed. The fact that the veteran 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 does not suffice. 38 C.F.R. § 3.352(a) (2018). If a veteran does not qualify for increased benefits for aid and attendance, increased compensation benefits may still be payable if the veteran has a single service-connected disability rated as 100 percent and: (1) has 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; or (2) is permanently housebound by reason of service-connected disability or disabilities. 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. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). Turning to the facts in the instant case, the Veteran is service-connected for chronic severe dysthymic disorder, rated as 70 percent disabling; residuals of a laminectomy and discectomy L5-S1, with severe degenerative changes, rated as 20 percent disabling; and erectile dysfunction associated with chronic severe dysthymic disorder, rated as noncompensable. The Veteran’s schedular evaluation is 80 percent. The Veteran is additionally in receipt of a total disability rating based on individual unemployability (TDIU). In November 2014, a VAMC provider completed an examination for housebound status or permanent need for regular aid and attendance. The Veteran was diagnosed with a left above knee amputation, peripheral vascular disease, coronary artery disease, hyperparathyroidism, hyperlipidemia and benign prostatic hypertrophy. He noted that the Veteran could prepare microwave foods and stove top foods and was able to feed himself. It was noted that the Veteran was confined to bed for 10 hours. The examiner stated that the Veteran was not legally blind and did not require assistance in bathing or tending to other hygiene needs, medication management or nursing home care. The VA examiner stated that the Veteran’s above knee amputation decreases his mobility significantly and that he is competent with the walker but 50-100 feet was his present range. Restrictions related to his back were noted to be mild to moderate age-related limitations. It was noted that the Veteran needed transportation assistance to leave his home. The examiner stated that the Veteran would probably have decreased ability for locomotion and be at higher fall risk for the rest of his life, even with prosthesis, due to his peripheral vascular disease and above knee amputation on the left. In his March 2015 notice of disagreement, the Veteran stated that since the loss of his leg in September 2014 his quality of life had decreased significantly. He reported that he was unable to care for himself and do simple chores. He reported difficulty bathing himself. In his July 2015 substantive appeal the Veteran stated that although he was not completely bedridden he had limited mobility and needed assistance to perform his daily activities, shopping, doctor visits, bathing, and exercising. He also reported the need for someone to spot him when using crutches or a walker to prevent falls from losing balance. The Veteran reported that preparing dinner was too hard a task to perform. He stated that 70 percent of his day is spent in a wheelchair or bed while 30 percent is spent using crutches or a walker. The Veteran reported that his quality of life had diminished considerably since the amputation along and his need for aid and assistance had increased as a result of it. The Veteran submitted an additional May 2017 examination for housebound status or permanent need for regular aid and attendance. The private treating practitioner diagnosed the Veteran with cerebral infarction due to middle artery occlusion. It was noted that the Veteran was able to feed himself but needed assistance to cut food into small pieces. It was noted that the Veteran could not prepare his own meals, needed assistance in bathing and tending to other hygiene needs, and is not legally blind. The report states that the Veteran lives at a nursing home which provides assistance with all activities of daily living and instrumental activities of daily living. It was noted that the Veteran leaves for short outings with family and for medical appointments. A January 2018 VA back examination revealed that the Veteran’s back results in leg weakness and decreased range of motion. It was noted that his spine will allow sedentary activity with extensive accommodations. A January 2018 VA mental examination noted that the Veteran had suffered a severe stroke in June 2016, which had left him with a severe impairment in his ability to perform self-care activities, the ability to walk, or to speak. It is important for the Veteran to understand that the findings of the medical evidence of record provide evidence against his claim for aid and attendance as they indicate that nonservice-connected problems are the cause of many, if not most, of the Veteran’s issues. Turning to an application of the law to the facts in the instant case, the Board reiterates that SMC is payable if, as the result of service-connected disability, 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 regular aid and attendance of another person. The evidence demonstrates that the Veteran meets none of these criteria. The Veteran has not suffered the anatomical loss of the hands, he does not have blindness in both eyes with visual acuity of 5/200 or less, nor is he permanently bedridden. Although he has an above knee amputation of the left leg, this is not related a service-connected disability. The weight of the evidence indicates that the Veteran is not so helpless as to be in need of regular aid and attendance of another person, due to his service-connected psychiatric disability, back, or erectile disfunction. The evidence of record is against a finding that the Veteran is unable to keep himself ordinarily clean and presentable as a result of his service-connected disabilities. The Veteran does not have frequent need of adjustment of any special prosthetic or orthopedic appliances due to a service-connected disability. The weight of the evidence does not indicate that the Veteran has an inability to feed himself because of the loss of coordination of upper extremities or because of extreme weakness due to a service-connected disability. The medical evidence of record does not indicate that the Veteran has an inability to attend to the wants of nature, nor has the Veteran so argued. The weight of the evidence does not indicate that the Veteran has an incapacity, physical or mental, that requires care or assistance on a regular basis to protect the Veteran from the hazards or dangers incident to his daily environment, due to a service-connected disability. Upon review of the evidence of record, the weight of the evidence of record does not support a finding that the Veteran is so helpless as to need regular aid and attendance, due to a service-connected disability. With regard to the Veteran’s housebound status, the Board notes that the Veteran has been awarded TDIU based on his service-connected psychiatric disability. Therefore, although his PTSD is not rated as 100 percent, for SMC purposes this disability satisfies the requirement of a ‘service-connected disability rated as total.’ See Buie v. Shinseki, 24 Vet. App. 242, 251; see also Bradley v. Peake, 22 Vet. App. 280, 293 (2008). Nevertheless, the Veteran is not service-connected for any other additional disabilities which combine to a 60 percent rating. Furthermore, the evidence does not suggest that the Veteran has at any time been permanently housebound by reason of service-connected disability. Accordingly, the Board concludes that the Veteran is not entitled to SMC based on the need for aid and attendance or housebound status. In rendering this decision, it is important for the Veteran to recognize that, as the recipient of a TDIU, and an 80 percent schedular evaluation, VA has already acknowledged the great severity of the Veteran’s disabilities. As stated above, however, the evidence of record simply does not meet the criteria for the additional award of SMC based on the need for regular aid and attendance or being housebound due to a service-connected disability. As the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364-65 (Fed. Cir. 2001) (holding that ‘the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant’); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A.M. Clark, Counsel