Citation Nr: 20022476 Decision Date: 04/01/20 Archive Date: 04/01/20 DOCKET NO. 10-09 796 DATE: April 1, 2020 ORDER Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance of another person and/or housebound status is denied. FINDING OF FACT The Veteran has not been permanently housebound or in need of regular aid and attendance of another person due to his service-connected disabilities; nor has he been shown to have a total (100 percent) disability rating for a single service-connected disability, with additional service-connected disabilities rated as a combined 60 percent or more. CONCLUSION OF LAW The criteria for an award of SMC based on aid and attendance and/or housebound status, have not been met. 38 U.S.C. §§ 1114 (s); 38 C.F.R. §§ 3.102, 3.350(b), 3.352(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran’s claim was remanded by the Board for additional development in November 2016, July 2017, February 2018, and October 2019. Review of the completed development reveals that, at the very least, substantial compliance with the remand directives was obtained. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 1. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance (A&A) of another person The Veteran seeks entitlement to SMC based on the need for the regular aid and attendance of another person or by reason of being housebound. Generally, with respect to claims of entitlement to SMC based on the need for the regular aid and attendance of another person, such claims will be granted when a veteran, due to a service-connected disability, has 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. See 38 U.S.C.§ 1114 (l); 38 C.F.R. § 3.350 (b). Determinations as to the need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to the following: inability of a veteran to dress or undress himself/herself or to keep himself/herself 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; inability of a veteran to feed himself/herself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect a veteran from the hazards or dangers inherent in his/her daily environment. “Bedridden” will be a proper basis for the determination, and is defined as that condition which, through its essential character, actually requires that the veteran remain in bed. It is not required that all of the disabling conditions listed above be found to exist before a favorable rating may be made. The particular personal functions that a veteran is unable to perform should be considered in connection with his/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 be a constant need. 38 C.F.R. § 3.352 (a). In addition, special monthly compensation is payable at a specified rate if the Veteran, as the result of service-connected disability, has a 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 such veteran’s service-connected disability or disabilities, is permanently housebound. For the purpose of this subsection, the requirement of “permanently housebound” will be considered to have been met when the veteran is substantially confined to such veteran’s 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 such veteran’s lifetime. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (b). The Veteran is in receipt of service connection for the following disabilities: bilateral hearing loss, rated 80 percent disabling; degenerative joint disease, lumbar spine, rated 40 percent disabling; and tinnitus, rated 10 percent disabling. For the following reasons, the Board finds that entitlement to SMC based on the need for aid and attendance or housebound status is not warranted. In this case, the evidence of record does not reflect that the Veteran has the anatomical loss or loss of both feet or one hand and one foot or is blind in both eyes. See 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). In addition, while the Veteran is in receipt of a total disability rating, the Veteran does not have a service-connected disability rated as total, in addition to service-connected disability or disabilities independently rated at 60 percent or more. The Board notes that the Veteran’s total disability rating based upon individual unemployability was granted based upon the combined impairment caused by the Veteran’s service-connected conditions. Accordingly, the evidence does not support a finding that the Veteran has service-connected disability or disabilities independently rated at 60 percent or more from the conditions that have resulted in his TDIU. Thus, the question is whether he is permanently bedridden or so helpless as to be in need of regular attendance due to his service-connected disabilities. While the evidence of record is clear that the Veteran receives day to day care in an assisted living facility, the evidence of record does not indicate that the Veteran needs regular aid and attendance or is housebound solely due to service-connected disabilities. For example, the Veteran was provided a VA examination in January 2020 regarding his ability to care for himself. The 2020 examiner noted that the Veteran had diagnoses of service-connected conditions that include degenerative joint disease of the lumbar spine, hearing loss, and tinnitus; however, the examiner also noted nonservice-connected disabilities that include peripheral polyneuropathy of bilateral upper and lower extremities, coronary artery disease (CAD), gastroesophageal reflux disease (GERD), hypertension, and venous insufficiency. The 2020 examiner indicated that the Veteran was not legally blind or confined to a bed. While the examiner indicated that the Veteran was unable to perform self-care tasks such as dressing and undressing, bathing, and toileting independently, the evidence indicates that the Veteran’s inability to perform these tasks is not due to his service-connected disabilities. The examiner reported that the Veteran’s service-connected conditions (lumbar spine disability, hearing loss and tinnitus) result in difficulty with prolonged walking and prolonged standing, but does not significantly affect his ability to dress, groom, feed, use the toilet, or the Veteran’s need for assistance in protecting himself from hazards in his daily environment. The evidence of record also includes a Vitality Resident Assessment, dated February 11, 2020, submitted by the Veteran. The report states that the Veteran is able to eat and use the toilet independently. It also indicates that he requires assistance with grooming; bathing; dressing; transfers; and his medications. It also indicates that he requires staff to assist with nebulizer treatments. Additionally, a February 2020 statement from P.Z., M.D. indicates that the Veteran suffers from dementia and that he is unable to make informed decisions with respects to his finances and day to day activities. The Board finds that the above evidence reflects that the Veteran is not in need of aid and attendance due to his service-connected lumbar spine disability, hearing loss and tinnitus. The weight of the medical and lay evidence reflects that he does not have physical or mental incapacity from his service-connected disabilities that results in incapacity requiring the care or assistance of another on a regular basis. The Board finds probative the opinion of the 2020 examiner that the Veteran’s service-connected conditions (lumbar spine disability, hearing loss and tinnitus) result in difficulty with prolonged walking and prolonged standing, but does not significantly affect his ability to dress, groom, feed, use the toilet, or the Veteran’s need for assistance in protecting himself from hazards in his daily environment. Rather, while the Veteran does require this care it is due to nonservice-connected conditions such as peripheral polyneuropathy of bilateral upper and lower extremities, which causes the Veteran difficulty in using his hands to dress and groom himself; his nonservice-connected dementia described by P.Z., M.D., which interferes with his taking of medications and attending to necessary day to day tasks; and his need for regular assistance with his nebulizer treatments as reported by the February 2020 Vitality Resident Assessment. Moreover, the Board notes that multiple VA 21-2680 Examinations for Housebound Status or Permanent Need for Regular Aid and Attendance from April 2012, August 2013, and July 2018 each indicate that the Veteran’s inability to perform self-care tasks or protecting himself from hazards in his daily environment are due to nonservice-connected conditions such as his peripheral polyneuropathy, anemia, and CAD. (Continued on the next page)   Thus, he does not meet the criteria for SMC based on aid and attendance. Moreover, the above medical and lay evidence reflects that he is not permanently housebound by reason of his service-connected disabilities. Therefore, the Veteran does not meet the criteria for the award of SMC based upon housebound status. For the foregoing reasons, the preponderance of the evidence is against the claim for SMC based on aid and attendance and/or housebound rate. The benefit of the doubt doctrine is therefore not for application and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.M. 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.