Citation Nr: 18157467 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 14-34 255A DATE: December 12, 2018 ORDER Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance or at the housebound rate is denied. FINDINGS OF FACT 1. The Veteran’s service connected disabilities did not render him so incapable of performing the activities of daily living that he required care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. 2. The Veteran was not substantially confined to his house because of his service-connected disabilities, and he was not shown to have a single service-connected disability ratable at 100 percent. CONCLUSION OF LAW The criteria for SMC based on the need for regular aid and attendance or at the housebound rate have not all been met. 38 U.S.C. §§ 1114, 5107 (2012); 38 C.F.R. §§ 3.350, 3.352 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1961 to April 1965. The Veteran died in May 2016. The appellant is the Veteran’s surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The appellant testified before the undersigned via videoconference at a hearing in May 2018. A transcript of the hearing is of record. Special Monthly Compensation The appellant seeks entitlement to SMC based on the need for regular aid and attendance of another person or at the housebound rate. Special monthly compensation is payable if, as the result of service-connected disabilities, a veteran is so helpless as to be in need of regular aid and attendance of another person. 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 a veteran is in need of regular aid and attendance of another person: (1) the 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; and (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 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 a veteran is unable to perform should be considered in connection with his or her condition as a whole. It is only necessary that the evidence establish that a veteran is so helpless as to need regular aid and attendance, not that there is a constant need. Id. After a review of the record, the Board finds that the criteria for SMC have not all been met. While the record reflects that the Veteran required aid and attendance prior to his death, this was not the result of service-connected disabilities. Service connection has been established for the following disabilities: posttraumatic stress disorder (PTSD), evaluated at 70 percent disabling; headaches, evaluated as 50 percent disabling; scars, evaluated as 30 percent disabling; bilateral hearing loss, evaluated at 30 percent disabling; residuals, fracture of the right thumb, evaluated as 10 percent disabling; tinnitus, evaluated as 10 percent disabling; chronic otitis externa, evaluated as 10 percent disabling; and traumatic brain injury (TBI), evaluated as 10 percent disabling. Service connection has also been established at a noncompensable level for residuals, fracture of the nose, sinusitis, occipital nerve entrapment, scar behind the left ear, and peripheral vestibular disorder. A February 2011 private examination indicated that the Veteran had an unbalanced gait, required his food be liquid or be cut up for him, and required toilet and bathing assistance due to severe arthritis of the right hand and left hand. The examiner indicated the Veteran had heart surgery in December 2010 and hernia surgery in January 2011. The examiner also noted the Veteran had spinal stenosis of the lumbar spine and must wear Depends due incontinence from prostate cancer. Of note, service-connection has not been established for the Veteran’s heart condition, hernia, spinal stenosis, or prostate cancer. The Veteran is service-connected for residuals, fracture of the right thumb, but service connection has not been established for arthritis of the hands, wrists, or elbows. The examiner did not provide any explanation as to how the Veteran’s service-connected conditions alone impair his function to the extent that he required aid and attendance. A July 2012 private examination indicated that the Veteran had an unbalanced gait, was unable to feed himself, and needed assistance in bathing and tending to other hygiene needs. The examiner stated that the Veteran required assistance getting in and out of bed. He also stated that the Veteran had the conditions of migraine headaches, TBI, painful scars, hearing loss, arthritis, a thumb facture, and a gallbladder condition. He indicated the Veteran’s lower extremities were limited due to spinal stenosis and chronic back pain. A June 2013 private examination also stated that the Veteran had an unbalanced gait, was unable to cook for himself because he could not stand, and required complete care in bathing and hygiene. The examiner indicated that the Veteran was stooped over and required help walking and changing clothes. He also noted that the Veteran has spinal stenosis with neuropathy and atrophy both legs and feet. A February 2015 private examination found the Veteran had a loss of balance, was unable to feed himself due to chronic pain, needed assistance in bathing and with other hygiene needs because of muscle weakness and a history of falls. The examiner identified that the Veteran had degenerative joint disease of the knees and noted that the Veteran used a cane, crutches, walker, and scooter for mobility. As noted above, service connection has not been established for any lower extremity disability or back disability. None of the private examiners provided an explanation as to how the Veteran’s service-connected disabilities alone limited his ability to feed himself, attend to hygiene, or accomplish other activities of daily living. While these private examinations indicated that the Veteran required assistance, the primary reason for this assistance appears to be weakness, difficulty ambulating, and difficulty standing. The examiners did not provide an explanation as to how these limitations arose from his service-connected disabilities. Rather, based on the examiners’ statements, it appears they arose from the Veteran’s back and lower extremity conditions, for which service connection has not been established. The Board acknowledges the Veteran’s statements he submitted in support of his claim regarding the need for aid and attendance. In an August 2012 letter he wrote that has in-home nursing care three days a week and is completely homebound. The Veteran indicated that he fell during one of his migraine attacks and perforated his gallbladder. Subsequently, he had gallbladder surgery, liver surgery, renal failure, small intestine surgery, gastro-radiation intervention surgery, and fistula surgery. As such, he stated he is dependent for feeding, medication management, dressing, medical bandaging, organ tube flushing (which is required 3-4 times a day), and transportation. In October 2012, the appellant also submitted a statement indicating that she needs to take care of the Veteran on a daily basis. She wrote that he needed assistance in flushing his drainage tubes, assistance walking, bathing, and toileting, and in wound management, behavior management, and nutrition. The Board notes that the Veteran required several surgeries for his gastrointestinal (GI) conditions in 2012. He was diagnosed with sepsis, and required a gastrostomy tube for feeding. He also had several drains inserted to manage infections and feeding. While the Board acknowledges that aid and attendance was required for these conditions, service connection was not established for any of the Veteran’s GI conditions. At the May 2018 Board hearing, the Veteran’s spouse and daughter testified that they took care of the Veteran on daily basis. They stated that he was unable to walk and needed assistance with feeding and washing. The Veteran’s daughter stated that his legs stopped working it began too painful to walk. She stated that his hand would shake so he was unable to feed himself, and due to his headaches, he would stay in the dark. The Veteran’s spouse also testified that the Veteran’s perception of reality was off, which the representative attributed to a combination of old age, dementia, and TBI. The Board acknowledges that the Veteran required the aid and attendance. However, the preponderance of the evidence is against finding that he required aid and attendance based on his service-connected disabilities. The record does not support that the Veteran’s PTSD, headaches, scars, hearing loss, residuals, fracture of the right thumb, tinnitus, chronic otitis externa, and TBI resulted in the need for care or assistance on a regular basis to protect the veteran from the hazards or dangers incident to his daily environment. Based on the evidence of record, the Veteran’s back condition, neuropathy, knee condition, and GI conditions are those that required care or assistance on a regular basis to protect the Veteran from hazards or dangers incident to his daily environment. As noted above, service connection has not been established for these conditions, so SMC cannot be granted. The Board has also considered whether the Veteran is entitled to SMC based on the housebound rate. Under 38 U.S.C. § 1114(s), SMC is payable at the housebound rate if the Veteran has a single service-connected disability rated as 100 percent and either of the following are met: (1) there is 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 (statutory housebound); or (2) he or she is permanently housebound by reason of service-connected disability or disabilities (housebound in fact). 38 U.S.C. 1114(s); 38 C.F.R. § 3.350(i). The requirement of “permanently housebound” will be considered to have been met when the veteran is substantially confined to his or her house (ward or clinical areas, if institutionalized) or immediate premises due to a service-connected disability or disabilities which it is reasonably certain will remain throughout his or her lifetime. Id. The Veteran does not have a single service-connected disability rated as 100 percent or a single service connected disability that warrants a total disability rating based on individual unemployability (TDIU). The Veteran was granted a TDIU in an April 2010 rating decision. However, the rating decision found that the Veteran’s service connected conditions of headaches, traumatic brain injury, and residuals of fracture of the right thumb render him unemployable. As such, the TDIU was based on multiple disabilities. In addition, the Veteran is not permanently housebound as a result of his service-connected disabilities. The record does not support that the Veteran’s service-connected conditions alone would confine him to his house. The Board notes that the Veteran was effectively confined to his house during the last few years of his life. However, this was primarily due to his physical limitations from his non-service-connected impairments. The Veteran was confined to a wheelchair as a result of his lower extremity, knee, and back disabilities, in addition to sepsis and complications arising from his GI conditions. Service connection has not been established for these conditions. (CONTINUED ON NEXT PAGE)   As such, the Board finds that the preponderance of the evidence is against granting SMC based on aid and attendance or at the housebound rate. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Norah Patrick, Associate Counsel