Citation Nr: 18152654 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 16-35 710A DATE: November 23, 2018 ORDER The appeal of entitlement to service connection for prostate cancer is dismissed. The appeal of entitlement to service connection for diabetes mellitus is dismissed. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is denied. Entitlement to SMC based on housebound status prior to July 18, 2017 is denied. FINDINGS OF FACT 1. During an August 2017 Decision Review Officer Hearing, the Veteran stated his desire to withdraw from appeal his claims of entitlement to service connection for diabetes mellitus and prostate cancer. 2. The Veteran is in receipt of service connected benefits for the following conditions: posttraumatic stress disorder (PTSD) rated as 30 percent disabling prior to July 18, 2017, and thereafter as 100 percent; implanted cardiac pacemaker rated as 30 percent; dyspnea rated as 30 percent; hypertensive retinopathy rated as 20 percent; tinnitus rated as 10 percent; and bilateral hearing loss and hypertension rated as noncompensable. 3. Service-connected disability has not resulted in the Veteran being blind or nearly blind in both eyes, in being institutionalized in, or confined to, a nursing home or other facility due to physical or mental incapacity, or in needing regular aid and attendance to perform activities necessary for daily living. 4. Prior to July 18, 2017, the Veteran was not permanently and substantially confined to his immediate premises due service-connected disability. CONCLUSIONS OF LAW 1. The appeal of the issue of entitlement to service connection for diabetes mellitus has been withdrawn, and this appeal is dismissed. 38 U.S.C. § 7105 (b), (d) (2012); 38 C.F.R. § 20.204 (2018). 2. The appeal of the issue of entitlement to service connection for prostate cancer has been withdrawn, and this appeal is dismissed. 38 U.S.C. § 7105 (b), (d) (2012); 38 C.F.R. § 20.204 (2018). 3. The criteria for entitlement to SMC based on need for aid and attendance have not been met. 38 U.S.C. § 1114 (2012); 38 C.F.R. §§ 3.350, 3.352 (2018). 4. The criteria for entitlement to SMC based on housebound status prior to July 18, 2017 have not been met. 38 U.S.C. § 1114 (2012); 38 C.F.R. §§ 3.350, 3.352 (2018).   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1974 to September 1977 and from October 1990 to June 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). Withdrawn Issues 1. The issue of entitlement to service connection for prostate cancer is dismissed. 2. The issue of entitlement to service connection for diabetes mellitus is dismissed. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2018). Withdrawal may be made by the Veteran or by his authorized representative. 38 C.F.R. § 20.204. At an August 2017 Decision Review Officer hearing, the Veteran, through his authorized representative, withdrew the issues of entitlement to service connection for diabetes mellitus and prostate cancer. The record indicates that he understood the consequences of the withdrawal of these issues. He did not later address these issues. He did not respond to a February 2018 letter from the RO notifying him that no further action would be taken on these issues. And the representative did not address the withdrawn claims in the October 2018 Informal Hearing Presentation. As such, with regard to these issues, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal as to these issues and they are dismissed. Special Monthly Compensation 3. Entitlement to SMC based on need for aid and attendance Special Monthly Compensation is available when, as the result of service-connected disability, a veteran suffers additional hardships above and beyond those contemplated by VA’s schedule for rating disabilities. Breniser v. Shinseki, 25 Vet. App. 64, 68 (2011) (citing 38 U.S.C. § 1114). 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); 38 C.F.R. § 3.350 (b). Under 38 C.F.R. § 3.352 (a), the following factors will be accorded consideration in determining whether the Veteran is 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 (5) physical or mental incapacity which 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). 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 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 is so helpless as to need regular aid and attendance not that there is 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). For the purposes of 38 C.F.R. § 3.352 (a), “bedridden” will be a proper basis for the determination that the Veteran is in need of regular aid and attendance of another person. “Bedridden” will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that a claimant 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 will not suffice. 38 C.F.R. § 3.352 (a). The need for regular aid and attendance must be caused solely by service-connected disability. 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.352 (a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran contends that he is entitled to SMC based on need of aid and attendance because he requires constant care from his wife in performing activities of daily living, management of medications, and transportation to his medical appointments. The Veteran is in receipt of service connected benefits for the following conditions: posttraumatic stress disorder (PTSD) rated as 30 percent prior to July 18, 2017, and thereafter, rated as 100 percent; implanted cardiac pacemaker rated as 30 percent; dyspnea rated as 30 percent; hypertensive retinopathy rated as 20 percent; tinnitus rated as 10 percent; and bilateral hearing loss and hypertension rated as noncompensable. Initially, it is noted that there is no indication in the claims file that the Veteran’s service-connected disabilities resulted in loss of use of both feet, one hand and one foot, blindness in both eyes with visual acuity of 5/200 or less, or rendered the Veteran permanently bedridden. See September 2014, September 2015, July 2016, and March 2018 aid and attendance examination report. As to whether the Veteran’s service-connected disabilities rendered him so helpless that he is in need of the regular aid and attendance of another person, it is acknowledged that the Veteran has been very dependent on his wife for his activities of daily living, transportation, and guidance when it comes to taking his medication. However, a review of the competent medical evidence does not show that the Veteran is in need of regular aid and attendance solely due to the severity of his service-connected disabilities. The medical records also show that the Veteran has significant non-service connected condition, to include prostate cancer stage IV which has metastasized to the spine and pelvis, and diabetes mellitus. The Veteran was diagnosed with prostate cancer in April 2014. He underwent chemotherapy and radiation treatment. VA and private medical records show that the Veteran complained of dizziness, weakness, malaise, and joint pain following his chemotherapy treatment sessions. The Veteran initiated his claim for SMC in August 2014. In support of his claim, he submitted a September 2014 examination for aid and attendance completed by a treating VA medical provider, and it showed that the Veteran had current diagnoses of atrial fibrillation, diabetes mellitus, low back pain, hypertension, and prostate cancer. It was felt that he required assistance with his activities of daily living. He had limited range of motion secondary to his back pain, and he required transportation to his chemotherapy sessions to treat his prostate cancer. He was occasionally in a wheelchair. In an October 2014 statement, the Veteran’s daughter noted that the Veteran had been diagnosed with prostate cancer and was undergoing chemotherapy treatment. She observed that the Veteran’s wife was his primary caregiver because the Veteran was unable to perform activities of daily living and depended on his wife to transport him to his medical appointments. In a March 2015 private medical statement, his treating physician stated that the Veteran has a need of assistance on regular basis to perform daily activities of living as he needs assistance with dressing, undressing, and bathing. She further noted that the Veteran had a fear of being alone and his PTSD symptomology has increased. In September 2015, the same private treating physician completed an examination for regular need of aid and attendance, and noted the Veteran’s current diagnoses including diabetes mellitus, atrial fibrillation, prostate cancer, metastatic bone cancer, and coumadin therapy. She observed that the Veteran required assistance with his activities of daily living, such as hygiene, toileting, dressing, and meal preparation, due to joint pain in his hands, legs, feet, and back. He also needed assistance with management of medications and management of his finances because of memory impairment. In a July 2016 examination for regular aid and attendance completed by the Veteran’s treating VA medical provider, the examiner noted that the Veteran requires assistance with activities of daily living and management of medications and finances. The Veteran is wheelchair bound, and he required assistance with standing up and transitioning to a chair. She observed that the Veteran has weakness in bilateral lower extremity, chronic pain in lower back, and poor balance, and he was confined to wheelchair due to metastatic bone cancer and degenerative joint disease. In a November 2016 private medical statement, the Veteran’s treating private physician noted that the Veteran continues to require care from his to assist him in his activities of daily living due to the severity of his medical conditions, to include prostate cancer with metastatic bone cancer, lower back pain, atrial fibrillation, diabetes mellitus, and depression. On examination in March 2018, the VA examiner noted that the Veteran was unable to prepare own meals, and he needed assistance with bathing and other hygiene needs. The VA examiner noted that the Veteran required management of medications and his finances due to his service-connected disabilities which impacted his vision, hearing, and memory. The VA examiner also found that the Veteran’s gross motor skills are likely impaired by all his medical conditions and medications. In an addendum statement, the VA examiner noted that the Veteran needed assistance with activities of daily living due to generalized weakness and abnormal gait caused by his diabetes mellitus. It was also noted that the Veteran was dyspneic from any activity due to his implanted cardiac pacemaker with atrial fibrillation and dyspnea. Based on the above, the Board finds entitlement to SMC based on the need for aid and attendance is not warranted. Although the evidence reflects the Veteran has had a need for regular aid and attendance from another to accomplish his activities of daily living, the evidence indicates that the need is primarily due to nonservice-connected disability. The medical records show that the Veteran’s non-service connected prostate cancer stage IV which has metastasized to the spine and pelvis, and diabetes mellitus, have been the primary causes of his inability to function and care for himself, and his need of regular aid and attendance from his wife. VA and private medical records show that the Veteran complained of dizziness, weakness, malaise, and joint pain following his chemotherapy sessions. The record further shows that the Veteran has limited mobility and he has been confined to a wheelchair due to poor balance, bilateral leg weakness, and chronic low back due to metastatic bone cancer and degenerative joint disease. See VA and private treatment records; May 2016 statement in support of the case; and September 2014, September 2015 and July 2016 examination for aid and attendance reports. Although the examination reports and Veteran’s statements refer to shortness of breath with activities due to cardiac implanted pacemaker and atrial fibrillation with dyspnea, the medical evidence and the Veteran’s statements generally attribute his restriction of activities/function to his nonservice-connected prostate cancer with metastases to spine and pelvis, and diabetes mellitus. The record also refers to memory and cognitive problems for the Veteran’s need of management of his medications and finances. However, the evidence indicates that memory and cognitive issues are not associated with service-connected PTSD but rather to nonservice-connected disabilities, to include medications used to treat nonservice-connected disorders. Notably, the report of a November 2017 VA PTSD examination shows no finding of memory impairment associated with service-connected psychiatric disability. The VA examiner specifically noted that the Veteran was assisted with information from his wife during clinical evaluation, but there was no objective evidence of memory problems when evaluated. Nevertheless, even if memory problems relate to PTSD, entitlement to aid and attendance would still be unwarranted. It appears from the evidence that memory problems necessitated assistance with medication management. But memory difficulty has not rendered the Veteran so helpless as to be in regular need of aid and attendance. In sum, the medical evidence does not show that service-connected disability alone results in the Veteran being so helpless as to be in need of regular aid and attendance. As the preponderance of the evidence is against the claim, SMC based on the need for aid and attendance is denied. See Gilbert and Alemany, both supra. 4. Entitlement to SMC based on housebound status prior to July 18, 2017 Special monthly compensation may be awarded at the housebound rate if a veteran has a single service-connected disability rated as total and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) by reason of service-connected disability or disabilities, is permanently housebound. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350. A veteran will be considered housebound where the evidence shows that, as a direct result of his service-connected disability or disabilities, he is substantially confined to his 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 lifetime. Id. As of July 18, 2017, the Veteran has been awarded SMC based on housebound status. Prior to July 18, 2017, the Veteran did not have a single disability ratable at 100 percent disabling, and there is no indication that the Veteran was confined to his dwelling or the immediate premises due to service-connected disabilities. In this regard, the lay and medical evidence demonstrates that the Veteran attends his appointment at medical facilities, and he goes out to eat and visit with family and friends, as well as attends church on occasion prior to July 2017. Accordingly, there is no basis to determine he was permanently housebound due to his service connected disabilities prior to July 2017. See VA treatment records, including April 2016 and November 2016 VA treatment records; see also September 2014, September 2015, and July 2016 examination for aid and attendance reports. For these reason, entitlement to SMC based on housebound status prior to July 18, 2017 must be denied. CHRISTOPHER MCENTEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Murray, Counsel