Citation Nr: 18151541 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 17-54 228 DATE: November 20, 2018 ORDER Entitlement to special monthly compensation based on the need for regular aid and attendance is granted. FINDING OF FACT The weight of the evidence shows that the Veteran is unable to perform the basic functions of self-care and is helpless due to his service-connected disabilities as to be in need of the regular aid and attendance of another individual. CONCLUSION OF LAW The criteria for an award of special monthly compensation benefits based on the need for regular aid and attendance have been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. § 3.352(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran in this case seeks entitlement to special monthly compensation based on the need for the regular aid and attendance of another person or on the basis of being housebound. In that regard, compensation at the aid and attendance rate is payable when the veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114(l). Determinations as to the need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to such conditions as: inability of the 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; inability of the 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 the hazards or dangers inherent in his/her daily environment. “Bedridden” will be a proper basis for the determination, and is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. It is not required that all of the disabling conditions enumerated above be found to exist before a favorable rating may be made. The particular personal functions which the claimant is unable to perform should be considered in connection with his/her condition as a whole. It is only necessary that the evidence establish that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. 38 C.F.R. § 3.352(a). Special monthly compensation is also payable where the veteran has a single service-connected disability rated as 100 percent, without resort to individual unemployability, and, in addition: (1) has a 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 result of his or her 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). In this case, service connection is in effect for degenerative arthritis of the lumbar spine, rated 40 percent disabling; degenerative arthritis, cervical spine, rated 30 percent disabling; degenerative changes, right shoulder, rated 20 percent disabling; bilateral hearing loss, rated 20 percent disabling; degenerative changes, right knee, rated 10 percent disabling; tinnitus, rated 10 percent disabling; and, headaches, post occipital, rated 0 percent disabling. A December 2015 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance reflects diagnoses of degenerative arthritis, Parkinson’s disease, arthritis of the hip with bilateral arthroplasty, malignant neoplasm of prostate, and osteoarthrosis. With regard to being able to feed himself, the Veteran needs standby assistance and an adaptive reacher to pick things up. He is unable to prepare meals as he is unable to stand up or reach for things. He needs assistance with bathing and hygiene needs, as he is unable to walk to the shower chair, he needs soap/cloth handed to him, and he is able to spot clean only. He needs help out of the bath. He is not legally blind; he wears bifocals. He does not require nursing home care and is able to manage his own financial affairs. With regard to medication management, pills must be put within reach and organized. He has severe spinal stenosis of the lumbar spine and has limited motion in the arm. His right cuff injury makes his shoulder hang and he cannot lift his arms properly. He has a shuffling gait due to arthritis and knee dysfunction. He has a stiff appearance due to his cervical spine condition. He has urgency and an inability to reach the toilet due to ambulation issues. He uses a walker with a supportive person or is in a wheelchair. He leaves the house for medical appointments only. A December 2016 evaluation reflects right knee recurrent patella instability with gross polyethylene failure, patella component, multiple episodes of instability resulting in marked negative effect on the Veteran’s quality of life, marked interference with activities of daily living with symptoms nonresponsive to conservative measures of treatment. 07/17/2017 Medical Treatment Record-Non-Government Facility. A July 2017 VA examination pertaining to the lumbar spine reflects functional loss with bending, turning, and lifting things. Testing was not conducted because the Veteran was in a wheelchair and was unable to stand. Pain was noted on rest/non-movement. He has less movement than normal, and interference with sitting and standing. He has unfavorable ankylosis of the entire spine. He uses a wheelchair due to back pain/stiffness and bilateral knees. He is encouraged to only use a walker if someone assists him. A July 2017 VA examination with regard to the right shoulder reflects that he has pain and limited mobility with movement. He has difficulty lifting items. He has functional loss/impairment with regard to raising the arm, lifting, writing, and eating. He was in too much pain to conduct range of motion testing. The examiner indicated that he had less movement than normal and weakened movement. A July 2017 VA examination with regard to the cervical spine reflects limited range of motion and pain. He has functional loss with driving, and looking down, left and right. A July 2017 VA examination with regard to the right knee reflects pain, stiffness, heat, and swelling. He is consistently in a wheelchair and has functional loss with regard to walking and standing on his own. A January 2018 VA examination reflects the Veteran’s report of constant back pain since surgery in December 2014. His pain will elevate if he does not take his pain medication. The Veteran is limited with walking and standing so he does not participate in physical activities. He has used a walker and a wheelchair since his back surgery in 2014. He can stand only for very brief periods of time and needs constant assistance. The examiner stated that the Veteran is limited with standing due to a limited ability to maintain his position without assistance due to weakness and pain in his back. It was again noted that the Veteran is wheelchair bound and is limited with standing for brief periods of time. The examiner stated that the Veteran has pain and weakness in his back which makes the majority of tasks very difficult. He needs 24-hour care and assistance in performing activities of daily living such as toileting, dressing, and bathing. He is able to feed himself. The Veteran can only perform light physical and sedentary tasks due to his diagnosis. Based on the opinion detailed above and the VA examinations detailed hereinabove, the Board concludes that there is a state of equipoise of the positive and the negative evidence. While acknowledging that the Veteran has nonservice-connected disabilities that contribute to his need for aid and attendance, as detailed above, his arthritis of the lumbar spine, right knee, right shoulder and cervical spine has resulted in limited mobility requiring assistance, and he needs assistance with bathing and hygiene needs. He further needs assistance with feeding and medication management. His limited mobility and inability to reach renders him unable to reliably keep himself from the hazards or dangers inherent in his daily environment. While he does not always need aid and attendance to function, such as with financial affairs, the Board notes that it is only necessary that the evidence establish regular aid and attendance, without the requirement that such need be shown to be constant. See 38 C.F.R. § 3.352(a). Due to his limited mobility, he needs assistance with making food, taking medication, grooming, and ensuring that he maintains a safe environment. The opinion and objective examinations lead to a finding that the Veteran’s disabilities of the lumbar spine, cervical spine, right knee, and right shoulder render him incapable of handling all of his personal affairs, and prevents his ability to function and complete all of the activities of daily living and maintain a safe living environment. With the positive and the negative evidence in a state of approximate balance, the Board finds that the criteria for aid and attendance benefits have been met. 38 U.S.C. § 5107(b). (Continued on the next page)   As special monthly compensation based on the need for aid and attendance is a higher benefit than special monthly compensation based on housebound status, the question of whether the Veteran is housebound is rendered moot. 38 C.F.R. § 3.351(d). Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel