Citation Nr: 20021391 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 17-64 784 DATE: March 25, 2020 ORDER Entitlement to special monthly compensation (SMC) based on the need for aid and attendance and/or housebound status is denied. FINDING OF FACT During the period on appeal, the preponderance of the evidence is against a finding that the Veteran is blind, or nearly blind, or institutionalized in a nursing home due solely to his service-connected disabilities; additionally, the Veteran’s service-connected disabilities did not render him unable to care for most of his daily personal needs without the regular aid and attendance of another person, and the evidence does not establish that the Veteran was housebound for any period on appeal due to his service-connected disabilities. CONCLUSION OF LAW The criteria for SMC based on the need for aid and attendance and/or housebound status have not been met for any period on appeal. 38 U.S.C. §§ 1114(l); 5107(b) (2012); 38 C.F.R. §§ 3.350(b); 3.352(a) (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from April 1967 to June 1969. The Veteran, his wife, and a family friend testified before the undersigned Veterans Law Judge (VLJ) at a January 2020 videoconference hearing and a transcript of the hearing has been associated with the claims file. Entitlement to SMC based on the need for aid and attendance and/or housebound status An increased rate of compensation in the form of SMC is provided under certain circumstances, including when a Veteran is permanently bedridden, blind or with visual acuity of 5/200 or less in both eyes, or in need of regular aid and attendance due to service-connected disability. The permanently housebound 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 and resultant confinement will continue throughout his or her lifetime. “Statutory” housebound may also be awarded when the claimant has a single permanent service-connected disability evaluated as 100 percent disabling and another disability, or disabilities, evaluated as 60 percent or more disabling; however, the Veteran does not meet these criteria for any period on appeal. 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. It is not required that all of the disabling conditions be found to exist before a favorable rating may be made. The particular personal functions that 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. “Bedridden” will be a proper basis for the determination of whether 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 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. Following a review of the evidence of record, the Board finds that the preponderance of evidence weighs against the Veteran’s claim of entitlement to SMC based on the need for aid and attendance and/or housebound status. The Veteran initially sought entitlement to SMC in March 2017. VA treatment records from that month document that the Veteran experienced functional limitations with mobility and self-care. The Veteran’s spouse reported that she had cared for the Veteran for years and that his needs were intensifying. The Veteran reported that he required medical care and assistance with most activities of daily living, and he requested that his primary care provider complete a VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance. That examination, completed by a physician’s assistant at the Beckley VAMC in March 2017, documents the Veteran’s diagnoses relevant to his required level of assistance as a thigh muscle injury, paralysis of the external popliteal nerve, and a buttocks injury. The examiner noted that the Veteran was not confined to the bed, and that he was able to feed himself although he was unable to stand at the stove to prepare his own meals. The examiner indicated that the Veteran did not require assistance in bathing and tending to other hygiene needs, but then wrote that he needed assistance “getting dressed [due to] trouble reaching and covering lower extremities.” It was further documented that the Veteran was not legally blind and did not require nursing home care. Additionally, the examiner documented that the Veteran required medication management (his wife administered shots and laid out his medication to remind the Veteran to take them) and that he did not have the ability to manage financial affairs (his wife takes care of the bills and checkbook. The Veteran appeared alert and oriented, well-groomed, appropriately dressed for weather, and in a wheelchair at the examination. His wife was with him and reported that she helped him get ready. The examiner identified the following restrictions related to the Veteran’s upper extremities: limited, weak grip due to arthritis, and a right shoulder shrapnel injury with some limited motion which required him to avoid using a bathtub and to shower with a shower chair. The restrictions of the Veteran’s lower extremities included a nonfunctional right leg due to shrapnel and nerve damage, with hip replacements, that was still weak and paralytic, and left side trouble with balance and weakness and shrapnel. Restrictions of the spine, trunk, and neck: included removal of a broken part of bone from his cervical spine which prohibited him from turning his neck very far, and removal of lower discs which caused lower back and leg pain down from sitting too much. As to all other pathology, the examiner noted some minor urinary incontinence due to kidney problems, limited memory loss, balance loss, and restrictions on the ability to ambulate. The Veteran reported that he only left that house to go to medical appointments one to two times per week. Within his December 2017 VA Form 9, Appeal to the Board, the Veteran reported that he was bound to a wheelchair and that his wife attended to my needs. He stated that he was unable to do any chores, could not go out to do any business, and that his right leg was totally numb. He concluded that his health was deteriorating and his quality of life was worsening. Subsequently, the Veteran submitted an additional VA Form 21-2680 completed by a VA physician at the Beckley VAMC in April 2019. Therein, the examiner noted the Veteran’s relevant diagnoses, including low back pain, obesity, neuropathy, colon polyp, hematuria, pulmonary embolism, deep vein thrombosis (DVT), macular degeneration, weakness, dyspnea, congestive heart failure (CHF), hip joint replacement, posttraumatic stress disorder (PTSD), and diverticulosis. The Veteran reported that he was confined to bed for 8 hours from 9 pm to 9 am, but did not report that he was otherwise confined to the bed during daytime hours. The examiner indicated that the Veteran was able to feed himself and to prepare his own meals, but that he required assistance with bathing and dressing, and experienced limitations upon walking without discomfort or exhaustion. Additionally, he noted that the Veteran was not legally blind, did not require nursing home care, and had the mental capacity to manage his benefit payments, though he required medication management. The examiner listed no restrictions regarding the Veteran’s upper extremities, and bilateral edema and weakness regarding the lower extremities. The Veteran also complained of lower back pain that hindered him from activity, and had multiple scars at the lateral right knee and distal leg. There was no other pathology or restrictions listed. The examiner concluded that the Veteran was able to leave the home or immediate premises as desired, with assistance. The lay evidence submitted by the Veteran includes a January 2020 buddy statement from a friend that reported that: Because of the severity of the wounds he received, the Veteran must have help in all of his daily activities. From the time he gets up in the morning until the time he retires at night, his wife is there to assist him in all the things that most people take for granted.... She makes sure he is taken care of at home plus getting him to all the doctor visits he has to go to. It is no easy job. From helping him get dressed every day, she has been there for him doing all the special needs he requires. It involves her being there for him every single day of their lives. At the January 2020 Board hearing, the Veteran testified that he required the regular aid and attendance of another person for his daily routine activities, including help with taking a bath and getting dressed. He stated that he was able to get in and out of bed onto his scooter and noted that when he went outside, he used a walker with wheels on it, and that he also had a wheelchair. While he noted that he was able to leave the home, he reported that his wife had to take him everywhere, including to medical appointments, because he was unable to drive due to sleep problems that caused him to fall asleep while driving. He further stated that he “partially” required the aid of another person to tend the wants of nature. Regarding his service-connected disabilities, the Veteran testified that he was most limited by his right-leg disability, which “just totally just took me out of the picture” and made it so he was “not able to do anything.” He noted that his right leg nerve problems took the use of his right leg “completely away” and required various assistance from VA, including a “riding machine” and a handicapped-accessible bathroom, including a shower lift. The Veteran’s wife testified that his right leg disability with foot drop resulted in him falling “a lot” when he tries to walk and that she would have to help him up. She noted that when he was driving, he would hit the gas and brake pedals at the same time, and also noted that he would fall asleep often throughout the day. She reported that she took care of the house and paid the bills. The Veteran’s friend and neighbor testified that he would come and visit with the Veteran in his garage and talk, and stated that he had seen a steady decline in the Veteran’s physical activities over the past 50 years, especially in the last four years since they have both been retired and interacted more with each other. He noted that the Veteran falls “all the time” and that his wife waits on him “hand and foot,” helps him get dressed, and helps him do anything that he needs that he can’t do for himself. While the Board acknowledges the above evidence regarding the Veteran’s various needs for assistance based upon his service-connected disabilities, including his right lower extremity paralysis with foot drop, the Board finds that the preponderance of the evidence is against a finding that the Veteran required the regular care of another person or to be housebound due to his service-connected disabilities. Notably, while the Board has considered the Veteran’s reports that he is bound to a wheelchair and unable to do anything but for the assistance of his wife, the Board finds that the Veteran’s own inconsistent statements regarding the level of severity of his condition lower the probative value of his assertion of entitlement to SMC due to his service-connected disabilities; moreover, as discussed below, the additional objective evidence of record does not weigh in favor of such a finding. For example, the Board has considered an October 2016 PTSD examination report wherein the Veteran reported that he used a motorized wheelchair, in addition to a walker and a cane. This is inconsistent with the Veteran’s assertion, including within his VA Form 9, that he is confined to a wheelchair, without mention of these additional, and less restrictive, ambulatory aids. Moreover, the Veteran’s January 2020 Board testimony referred to his use of a walker, as do prior VA treatment records from June 2017, which document that he used both a wheelchair and a cane at a medical appointment. Additionally, during the same October 2016 PTSD examination, the Veteran reported that he used to hunt in the past but that he could no longer do it as a result of his bad legs that caused difficulty with ambulation. However, the Board is mindful that just two months later, the Veteran was evaluated for surgery to repair a small right inguinal hernia and he specifically requested that the surgery be completed in March so that he could recover in time for hunting season in April, which would indicate that he was still hunting. Moreover, at a subsequent follow-up visit in February 2017, the Veteran again reported that he did not want to have the hernia procedure until mid-May, which was after turkey hunting season. Given the above, the Board concludes that the preponderance of evidence weighs against the appellant’s claim of entitlement to SMC based on the need for aid and attendance and/or housebound status. While the Board does not deny that the Veteran’s service-connected disabilities have required some assistance, largely from his wife, to accomplish various activities of daily living, the preponderance of the evidence is against the Veteran being in need of regular aid and attendance or that he is permanently housebound solely as a result of his service-connected disabilities. As such, SMC based on the need for the regular aid and attendance of another person or housebound status is not warranted. There is no reasonable doubt to be resolved, and the claim for SMC is denied. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Chad Johnson, Counsel 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.