Citation Nr: 1807964 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 09-33 754 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance or on account of being housebound. REPRESENTATION Appellant represented by: Loreain Tolle, Agent WITNESSES AT HEARING ON APPEAL Veteran and Appellant ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty from January 1965 to January 1969. He died in February 2013. His surviving spouse has been substituted in this appeal by the Regional Office (RO) and she was notified in a May 2013 notice letter. See 38 C.F.R. § 3.1010 (2016). This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In April 2011, the Veteran and his wife testified at a hearing before the undersigned Veterans Law Judge at the RO. They both also testified at the RO before a Decision Review Officer (DRO) in May 2010. Transcripts of both hearings are of record. In January 2012, January 2013, and February 2017, the Board remanded the case for further action by the originating agency. The case has now returned to the Board for further appellate action. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran was in receipt of service connected benefits for posttraumatic stress disorder (PTSD) evaluated as 100 percent disabling. 2. As a result of his service-connected disability, the Veteran was not blind or nearly blind in both eyes; was not institutionalized in, or confined to, a nursing home or other facility due to physical or mental incapacity; and did not need regular aid and attendance to perform activities necessary for daily living. 3. The Veteran was not permanently and substantially confined to his or her immediate premises due solely to his service-connected disability. CONCLUSIONS OF LAW 1. The criteria for SMC based on the need for the regular aid and attendance of another person have not been met. 38 U.S.C. §§ 1114, 5107 (2012); 38 C.F.R. §§ 3.350, 3.352 (2017). 2. The criteria for SMC based on housebound status are not met. 38 U.S.C. §§ 1114, 5107 (2017); 38 C.F.R. §§ 3.351, 3.352 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran sought SMC based on the need for aid and attendance or on housebound status. SMC is payable to a Veteran for anatomical loss or loss of use of both feet, one hand and one foot, blindness in both eyes with visual acuity of 5/200 or less, or being permanently bedridden or so helpless as a result of service-connected disability that he or she is in need of the regular aid and attendance of another person. 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). To establish entitlement to SMC based on housebound status under 38 U.S.C. § 1114 (s), the evidence must show that a Veteran has a single service-connected disability evaluated as 100 percent disabling and an additional service-connected disability, or disabilities, evaluated as 60 percent or more disabling that is separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or, the Veteran has a single service-connected disability evaluated as 100 percent disabling and due solely to service-connected disability or disabilities, the Veteran is permanently and substantially confined to his or her immediate premises. 38 C.F.R. § 3.350 (i). The Veteran was in receipt of service connected benefits for posttraumatic stress disorder (PTSD) evaluated as 100 percent disabling, effective January 29, 2009. In psychiatric evaluations dated in January 2009, August 2009, and May 2010 the Veteran was noted to be very dependent on his wife for daily routines and guidance when it comes to taking his medication. She has to be alert for him in noting what is going on with his actions. The Veteran stayed home 95 percent of the time. The provider stated that the Veteran should be rated as housebound. The Veteran was afforded a VA examination with regard to his PTSD in April 2009. The examiner reported that the Veteran's spouse forced the Veteran to shower, shave, and brush his teeth. He had difficulty maintaining his home and providing for himself. He did not cook and could only do very light chores around the house, given his slow difficult recovery from surgery and his shortness of breath. He could not concentrate well enough to pay bills or handle finances. When he last did this it would take him over an hour to write a check and because of this his wife took over all the financial matters and paperwork. The Veteran no longer drives. He felt unsafe driving at that time and felt he is not physically strong enough to handle driving and also to concentrate on his driving. The examiner commented that based on the Veteran and the Veteran's wife's comments about his physical limitations and the severity of his psychiatric illness, the Veteran appeared to be housebound. He left his house very, very infrequently and then only with the complete aid of his wife. Upon examination in June 2010 the Veteran was accompanied by his wife who drove him to the examination. The Veteran was not hospitalized, permanently bedridden or legally blind. His wife handled the finances. The Veteran was able to identify and respond appropriately to dangers or hazards in his daily environment. He was independent with toileting, bathing, dressing, and shaving. His wife prepared the meals and cleaned the home. She also dispensed his medications because he often would forget to take them. Veteran got up in the morning went to the bathroom and may not get dressed if he had no reason to go out that day. He spent most of the day watching television. He went to a PTSD group twice a week. The examiner noted that at that time, the Veteran's spouse worked 3 hours a day and that the Veteran was alone during that period. The examiner noted that because of the PTSD and the effects of his esophageal cancer surgery he did not like to go out very much but could go out if he chose. The examiner noted that earlier in the year he and his wife took a four-day bus trip. At a hearing before a DRO in May 2010 the Veteran's spouse reported that she worked part time, 3 hours a day close to home. She left work in May, before his surgery, and returned in December. At the hearing before the undersigned in April 2011 the Veteran was noted to not leave the house without the aid of his wife. The Veteran's wife reported that she used to work but quit her job because she did not feel comfortable leaving him for any length of time. In a September 2010 treatment note the Veteran's spouse sought help at home for the Veteran. The provider reported that the Veteran was currently independent in activities of daily living and ambulatory. Thereafter, in a statement dated in January 2013 a VA provider noted that the Veteran has tried to be as independent as possible during all of the surgery and multiple chemotherapy treatment that followed. She stated that the Veteran was mostly homebound. He came out for his medical appointments but nothing else. He no longer drove. He had poor concentration. He was fatigued most of the time. He spent his day sitting in a chair. He had little strength to do anything else. He got depressed and relied on his wife for his care. She had taken over managing the household including his medications, meals, fluids, and chores. In a VA treatment record dated in February 2013 the Veteran was noted to use a scooter for community mobility and to ambulate at home without assistive device. In other VA treatment records dated in February 2013 the Veteran was noted to not be dangerous to himself or others, not have a lack of cognitive ability to make relevant decisions, not have physical or mental impairments that increased risk of harm to self or others. The Veteran did not use an assistive device to needing a cane, was staff assisted for hygiene/dressing and shaving/nail care, was independent with bathing to requiring help, and completed oral hygiene himself. A retrospective medical opinion was obtained in October 2017. The examiner noted that the claims file was reviewed. Review of the evidence revealed that the Veteran was seriously impaired by multiple conditions, including both service-connected and nonservice-connected conditions. The examiner provided a synopsis of the March 2003 VA examination report. In the March 2003 examination report it was documented that the Veteran worked for 31 years in the outdoor advertising business putting up billboards. This permitted him to work by himself, the only circumstances under which he could have worked given the severity of his PTSD. He was forced into retirement when the company was sold in April 2000. Since 2001 he had driven a school bus to earn some health benefits for himself and his wife. The Veteran and his wife described their family relationships as healthy. They have been on good terms as husband and wife and as parents. His wife noted that the Veteran's symptoms became much more intense after he retired. He stated that he lost his very few true friends, Vietnam Veterans who he trusted. He had one surviving friend and many acquaintances. He no longer had any leisure time pursuits. He lost interest in hunting 8 years prior when one of his friends died. In summary he has a solid support in his wife and his treatment providers. He appeared higher functioning than he was, as his symptoms of PTSD have significantly intensified since his retirement a few years prior, restricting his social activities and restricting his employability. It was noted that the Veteran was receiving mental health treatment on an outpatient basis, participating in a support group, individual therapy, and taking medication. Synopses of April 2009 and June 2010 VA examination reports were also included. The examiner stated that integrating the findings of these evaluations over time, and taking into consideration the treatment notes and private medical opinions contained in VBMS and CPRS, the best estimation of the impairment due solely to PTSD was documented in the March 2003 evaluation report. The examiner noted that the report was conducted at a time when the Veteran's symptoms of severe PTSD were prominent, but before his esophageal condition had progressed and been treated surgically. The subsequent PTSD evaluations in 2009 and 2010 clearly note that the esophageal condition amplified the Veteran's PTSD; however, in the absence of the esophageal condition, the expected clinical course for the PTSD would have been for the condition to persist at the severe and significantly impairing level documented in 2003. There is limited support for the contention that, in the absence of the esophageal condition and its physical and emotional sequelae, the PTSD alone would have rendered Veteran unable to dress or undress, to keep himself ordinarily clean and presentable, or to protect himself from the hazards or dangers incident to his daily environment. Prior to the progression and surgical treatment of the esophageal condition, the Veteran was able to maintain this level of functioning despite his severe PTSD pathology. Similarly, prior to the progression and surgical treatment of the esophageal condition, the PTSD did not prevent Veteran from being able to leave his immediate premises. The examiner concluded the following: To clearly state the requested opinion, the evidence of record is insufficient to support with 50 [percent] or greater certainty that Veteran was unable to dress or undress, or to keep himself ordinarily clean and presentable, or to protect himself from the hazards or dangers incident to his daily environment, solely due to the service-connected PTSD for the period from February 2009 to February 2013. The evidence of record is also insufficient to support with 50 [percent] or greater certainty that Veteran was unable to leave his immediate premises due solely to PTSD for the period from February 2009 to February 2013. Entitlement to SMC based on the need for regular aid and attendance is not warranted. During the entire period on appeal the Veteran was in receipt of service-connected benefits for PTSD, evaluated as 100 percent disabling; that is his only service-connected disability. Initially, it is noted that there is no indication in the claims file that the Veteran's service-connected disability 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. As to whether the Veteran's service-connected PTSD rendered the Veteran so helpless that he was in need of the regular aid and attendance of another person, it is acknowledged that the Veteran has been noted to have been very dependent on his wife for daily routines and guidance when it came to taking his medication and that it was reported that his wife had to be alert regarding what was going on with the Veteran's actions. It is further acknowledged that it was identified that the Veteran could no longer take care of financial matters and paperwork and did not have the concentration to drive. However, at a VA examination in June 2010 the Veteran was noted to be able to identify and respond appropriately to dangers or hazards in his daily environment and was independent with toileting, bathing, dressing, and shaving. In September 2010 the Veteran was noted to be independent in activities of daily living. Finally, in an October 2017 retrospective medical opinion it was reported that the evidence of record is insufficient to support with 50 percent or greater certainty that Veteran was unable to dress or undress, or to keep himself ordinarily clean and presentable, or to protect himself from the hazards or dangers incident to his daily environment, solely due to the service-connected PTSD for the period on appeal. The rationale being that the level of severity of the Veteran's disability attributable solely to PTSD was best estimated from a March 2003 examination report, prior to progression and treatment of the Veteran's esophageal condition amplifying the Veteran's PTSD. Prior to the progression and surgical treatment of the esophageal condition, the Veteran was able to maintain this level of functioning despite his severe PTSD pathology. Therefore, as there is no indication that the Veteran's service-connected disability 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, and the preponderance of the evidence is against a finding that. the preponderance of the evidence is against a finding that the Veteran's service-connected PTSD rendered the Veteran so helpless that he was in need of the regular aid and attendance of another person, entitlement to SMC based on the need for regular aid and attendance is denied. Entitlement to SMC on account of the Veteran being housebound is not warranted. It is acknowledged that a provider, on a number of occasions, has indicated that the Veteran was housebound and has indicated that the Veteran stayed home 95 percent of the time. However, as late as February 2013 the Veteran was noted to have a scooter for community mobility and to ambulate either without assistive device or with a cane. In addition, the Veteran was noted to attend counseling sessions once a week. Finally, in October 2017 a VA examiner rendered the opinion that the evidence of record is also insufficient to support with 50 percent or greater certainty that Veteran was unable to leave his immediate premises due solely to PTSD for the period on appeal. The examiner provided the rationale that prior to the progression and surgical treatment of the esophageal condition, the PTSD did not prevent Veteran from being able to leave his immediate premises. As such, although the Veteran had a single service-connected disability evaluated as 100 percent disabling, the Veteran was not permanently and substantially confined to his immediate premises solely by this disability. Thus, entitlement to SMC on account of the Veteran being housebound is denied. ORDER Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance or on account of being housebound is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs