Citation Nr: 20002272 Decision Date: 01/10/20 Archive Date: 01/09/20 DOCKET NO. 19-08 984 DATE: January 10, 2020 ORDER Entitlement to special monthly compensation based on the need for aid and attendance or housebound status is denied. FINDING OF FACT The Veteran is not housebound due to his service-connected disabilities and is not in need of the regular aid and attendance of another person. CONCLUSION OF LAW The criteria for special monthly compensation based on the need for aid and attendance or housebound status have not been satisfied. 38 U.S.C. §§ 1114(s); 38 C.F.R. §§ 3.350, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from December 1968 to November 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that on August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. Notably, a VA Form 10182 Decision Review Request: Board Appeal (Notice of Disagreement) was received on March 28, 2019, in which the Veteran elected Direct Review by a Veterans Law Judge under the modernized review system. 84 Fed. Reg. 138, 177 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 19.2 (d)). Appeals of initial decisions the AOJ issued on or after February 19, 2019 are considered under the AMA system. Appeal of a legacy decision where the AOJ issued an SOC (statement of the case) or SSOC (supplemental SOC) on or after February 19, 2019 and the appellant responded by electing the AMA system within the time allowed for filing a substantive appeal will also be considered under the AMA system. Unfortunately, a review of the record reveals that the statement of the case (SOC) for this issue was issued prior to February 19, 2019, which is the implementation date for the AMA. As such, this issue cannot be processed under the AMA framework, and cannot be appealed directly to the Board on a VA Form 10182. Rather, as the appeal has been properly perfected, it will be appealed under the legacy appeals system. Entitlement to special monthly compensation based on the need for aid and attendance or housebound status is denied. Special monthly compensation is payable to individuals who are permanently bedridden or are so helpless as a result of a service-connected disability as to be in need of the regular aid and attendance of another person under the criteria set forth in 38 C.F.R. § 3.352(a), 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350 (b)(3). A veteran will be considered in need of regular aid and attendance if he or she: (1) is blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; or (2) is a patient in a nursing home because of mental or physical incapacity; or (3) establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). 38 C.F.R. § 3.351(c). The following factors will be accorded consideration in determining the need for regular aid and attendance: inability of a claimant to dress or undress himself, or to keep himself 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 (this will not include the adjustments of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of a claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, either physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352(a). A finding that a veteran is “bedridden” will provide a proper basis for the determination. Bedridden will be that condition which, through its essential character, actually requires that the veteran remain in bed. Id. The particular personal functions that the Veteran is unable to perform are considered in connection with the Veteran's 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 be a constant need. Determinations that a Veteran is so helpless as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant's condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others. Id. In adjudicating claims for special monthly compensation, VA must consider all of the enumerated factors listed in the regulation and, if at least one of the factors is present, special monthly compensation should be awarded. Prejan v. West, 13 Vet. App. 444, 448 (2000) (citing Turco v. Brown, 9 Vet. App. 222(1996)). Special monthly compensation is alternatively payable for being permanently housebound by reason of a service-connected disability or disabilities. This requirement is met when the Veteran has a single service-connected disability rated at 100 percent and (1) another service-connected disability rated at 60 percent or more, or (2) is permanently housebound by reason of a service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). 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 will continue throughout his or her lifetime. Id. The Veteran asserts that special monthly compensation is warranted from May 7, 2008. Specifically, his representative maintains that his service-connected coronary artery disease alone precludes him from securing and following substantial gainful employment from February 1, 2007, which he argues constitutes one disability rated as total. In addition, the Veteran’s representative asserts that his disability ratings for posttraumatic stress disorder (PTSD) rated as 50 percent disabling from May 7, 2008; diabetes mellitus type II rated as 20 percent disabling from June 29, 2004; right distal tibia fracture rated as 10 percent disabling from June 29, 2004; left lower extremity peripheral neuropathy rated as 10 percent disabling from June 29, 2004; and right lower extremity peripheral neuropathy rated as 10 percent disabling from June 29, 2004 combine to more than 60 percent. Thus, he asserts that the Veteran’s disabilities meet the criteria for special monthly compensation under 38 U.S.C. § 1114(s)(1). See January 2017 Notice of Disagreement (NOD). However, the Board finds that entitlement to SMC by reason of the need for regular aid and attendance of another person or by reason of being housebound is not warranted. All requirements for this benefit on either basis are not met. None of the Veteran’s service-connected disabilities have been assigned a total 100 percent evaluation, so the prerequisite for the disability rating requirement for SMC by reason of the need for regular aid and attendance of another person or by reason of being housebound has not been satisfied. With respect to the Veteran being permanently bedridden, the Board finds that there is no indication that the Veteran is required to remain in bed as a result of his service-connected disabilities. The Board nots that the Veteran is currently in receipt of a total disability rating based on individual unemployability (TDIU) from May 7, 2008 for a combination of his service-connected coronary artery disease and PTSD and the medical and lay evidence of record supports this finding ( see May 2008 VA Form 21-8940 where the Veteran claims TDIU due to diabetes mellitus and PTSD; June 2013 VA examination report where the Veteran reports symptoms of his PTSD affecting his ability to function in the workplace; and June 2016 VA heart examination report). Therefore, the award of TDIU based on more than one disability does not satisfy the requirement of a single service-connected disability rated as total. Thus, because the Veteran does not have a single service-connected disability rated as total, the criteria for special monthly compensation under 38 U.S.C. § 1114(s)(1) are not met. Additionally, the Veteran is not permanently housebound by reason of service-connected disabilities to warrant special monthly compensation under 38 U.S.C. § 1114(s). The record shows that the Veteran attended multiple VA medical appointments in person. Housebound status requires that the Veteran be substantially confined as a direct result of service-connected disabilities to her dwelling and the immediate premises. See 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350 (i). The evidence does not show that the Veteran is permanently housebound by reason of service-connected disabilities as he was able to leave his home and attend medical appointments and during a January 2016 VA heart examination, he reported that walking and caring for his animals for exercise. Moreover, during a January 2016 VA housebound aid and attendance examination, he reported driving himself to his appointment and being able to perform activities of daily living (ADLs). Additionally, the examiner found that the Veteran does not need assistance of another person to walk; does not need aid for ambulation; can leave the home with no restrictions; does not have any permanent functional impairments; does not have worse than 5/200 vision in either eye; has no limitation of motion or deformity of the thoracolumbar spine; normal functioning in the bilateral upper and lower extremities; and is capable of handling his own financial affairs. Notably, there is no evidence to the contrary as neither the Veteran nor his representative have asserted otherwise. The Board has considered the Veteran’s contention that his service-connected disabilities cause in his need for regular aid and attendance, but has placed greater probative value competent medical evidence of record, but finds that the preponderance of the evidence is against the claim. Therefore, special monthly compensation based on the need for aid and attendance or housebound status is denied. For the reasons outlined above, the evidence does not show that the Veteran’s service-connected disabilities render him in need of regular aid and attendance. In sum, the Board finds that as the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and special monthly compensation based on the need for regular aid and attendance or for being housebound must be denied. 38 U.S.C. § 5107 (b) (2012). James A. DeFrank Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Asante The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.