Citation Nr: 20032811 Decision Date: 05/11/20 Archive Date: 05/11/20 DOCKET NO. 13-23 664 DATE: May 11, 2020 ORDER Entitlement to an initial rating in excess of 10 percent for hiatal hernia with gastroesophageal reflux disease (GERD) is denied. Entitlement to an initial compensable disability rating for abdominal scar, status post hiatal hernia repair is denied. Entitlement to service connection for an incisional hernia, to include as secondary to service-connected hiatal hernia, is denied. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance, or at the housebound rate, is denied. FINDINGS OF FACT 1. The Veteran’s hiatal hernia with GERD was manifested by heartburn (pyrosis), reflux, and regurgitation; there was no persistently recurrent epigastric distress, substernal arm or shoulder pain, or considerable to severe impairment of health. 2. The Veteran’s abdominal scar is 35 centimeters long and is neither unstable nor painful and covers a total area of 35 square centimeters. 3. An incisional hernia was not manifest during service; and, the preponderance of the evidence fails to establish that a present disability is etiologically related to service or to a service-connected disability. 4. The preponderance of the evidence is against a finding that the Veteran’s service-connected disabilities render him so helpless as to be in need of regular aid and attendance. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for hiatal hernia with GERD have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.114, Diagnostic Code 7346. 2. The criteria for an initial compensable rating for an abdominal scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.14, 4.27, 4.118, Diagnostic Code 7805. 3. The criteria for service connection for an incisional hernia, to include as secondary to service-connected hiatal hernia, have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310. 4. The criteria for entitlement to SMC based on the need for regular aid and attendance have not been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1968 to April 1971. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The Veteran testified before a Decision Review Officer at the RO in March 2013. A transcript of this proceeding has been associated with the claims file. This case was previously before the Board in December 2016 and October 2017 and was remanded for additional development by each of those Board decisions. The case is now again before the Board for further appellate action. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran’s disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App. 119 (1999), Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an initial rating in excess of 10 percent for hiatal hernia with gastroesophageal reflux disease (GERD) is denied. An October 2011 rating decision granted service connection for the Veteran’s hiatal hernia with GERD. An October 2011 rating decision codesheet reflects that the RO rated the hiatal hernia with GERD at 10 percent from February 2, 2011, under Diagnostic Code 7346. The Veteran contends that he is entitled to an initial rating in excess of 10 percent. There are diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition. Consequently, certain coexisting diseases in this area do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding. 38 C.F.R. §§ 4.14, 4.113. Accordingly, ratings for certain disabilities of the digestive system under DCs 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, are not to be combined. Rather, a single evaluation must be assigned under the diagnostic code that reflects the predominant disability picture. 38 C.F.R. § 4.114. The Veteran’s hiatal hernia with GERD is rated at 10 percent under Diagnostic Code 7346. 38 C.F.R. § 4.114. The Board finds that no diagnostic code other than 7346, better contemplates the symptomatology associated with the Veteran’s hiatal hernia with GERD. The following ratings apply under this Diagnostic Code, in pertinent part: a 10 percent rating is assigned when two or more of the symptoms associated with the 30 percent rating are present, but with less severity; a 30 percent rating is assigned when symptoms of gastroesophageal reflux disease (GERD) include persistently recurrent epigastric distress with dysphagia (difficulty swallowing), pyrosis (heartburn), and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health; a 60 percent rating is assigned when GERD causes symptoms of pain, vomiting, material weight loss and hematemesis (vomiting blood) or melena (black, tarry stool) with moderate anemia; or other symptom combinations productive of severe impairment of health. 38 C.F.R. § 4.114, Diagnostic Code 7346. In April 2011, the Veteran submitted a letter in which he reported that he gained weight from eating an excessive amount of food due to his acid reflux. He reported that he had surgery in May 2006 because his bowel became obstructed, but the mesh did not take. He had another surgery in 2007 to replace the mesh, which created a new incisional hernia that is quite large. He finds it hard to bend over, reach, and stretch because “it gets stuck and sore, but so far can use fingers to put back in place.” He reported that due to his hiatal hernia he chokes and coughs and feels pain that wake him up at night and he cannot get back to sleep. Over the last five years, he has been in bed a lot and uses a scooter and wheelchair. He reported needing aids for help and is too short of breath at times to even use the phone. An April 2011 radiology report revealed a small hiatal hernia was present and small gastroesophageal reflux into the lower esophagus is seen. The esophagus is distensible without mass, stricture, or filling defect. The Veteran was afforded a VA-contracted examination for esophageal conditions in April 2011. The Veteran reported heartburn, epigastric pain, passing of black-tarry stools, reflux and regurgitation of stomach contents and nausea and vomiting. The examiner reported the Veteran had no dysphagia, scapular pain, arm pain and hematemesis. The examiner reported a diagnosis of hiatal hernia and GERD. The examiner also diagnosed the Veteran with a large protruding incisional hernia, measuring 23 centimeters by 23 centimeters. The Veteran reported having discomfort and that he must be careful not to bend over and strangulate his bowel. The examiner reported that the Veteran weighed 390 pounds. The Veteran reported the following overall functional impairment(s): bending over, lifting, picking up items off the floor, and pulling much at times. He reported that his bowel gets a little restricted and then starts hurting a lot. The examiner reported that the Veteran’s daily activities are limited due to his stomach issues. A July 2011 VA medical record reported that he was admitted for shortness of breath in July. He was found to have a ventral hernia and the hernia was reduced. A September 2011 VA medical record documented the Veteran’s report that he was feeling pretty good that day, which was apparently a surprise to him as he has been finding it increasingly difficult to get out of bed. He believes his heart is giving out on him and that he is slowly dying from congestive heart failure. An October 2012 VA medical record reported that the Veteran spends up to 18 hour a day in bed. He reported that his sleep apnea is and that he sleeps six to eight hours in two-hour increments. In November 2012, the Veteran submitted a statement in which he described drinking 68 cans of diet cola each day to prevent regurgitation. He reported that he is afraid to sleep because he vomits in his throat and can’t get air. He reported his incisional hernia never healed and is now six to eight inches wide. He reported being hospitalized in July 2011 for bowel obstruction and that he still experienced food obstructions on a nearly a daily basis. A January 2013 VA treatment note reported that the Veteran felt like he might be in “heart failure exacerbation.” He reported that he can only take five to ten steps and then he feels like he cannot breathe. He reported sleeping “half-way up every night.” A January 2013 VA medical record reported that the Veteran experienced no nausea, vomiting, or diarrhea. An April 2013 VA medical record reported that the Veteran experienced no nausea, vomiting, or diarrhea. A July 2013 VA medical record reported that the Veteran denied nausea or worsening abdominal pain. An October 2013 VA medical record reported that the Veteran denied nausea or worsening abdominal pain. A July 2014 VA medical record reported that the Veteran had blood in his stool but today has a bowel movement with not blood. He denied having any abdominal or rectal pain with bleeding A September 2014 VA primary care note reported the Veteran had been doing well and had normal bowel sounds. An October 2014 VA medical record reported that the Veteran is unable to do much for himself because gets shortness of breath with minimal exertion. He was reported to be inconsistent with taking diabetes medications. He ate his main meal in the afternoon about and then eats sweets during the night. He feels some of the reason he does not eat better is because he has so little energy to make the effort to get something better. A November 2014 VA medical record reported the Veteran had significant shortness of breath that prevents activity, but during visit the visit he was able to ambulate well both with and without his cane. He reported spending a great deal of time in bed and does not sleep well due to nocturia. A January 2015 VA medical record reported that the Veteran had pain last night from a kidney stone moving around. He denied any further pain during the visit. An April 2015 private medical record reported that the Veteran developed sudden onset of nausea, vomiting, and abdominal pain. A CT scan showed a partial small bowel obstruction in the inferior portion of the ventral hernia, fatty infiltration of the liver, nonobstructing renal stones, and a small hiatus hernia. An April 2015 VA medical record reported that shortness of breath limited the Veteran’s activity. He reported that he wishes to be alone and feels shortness of breath, so he stays in bed. He reported that he was recently inpatient for a bowel obstruction. A September 2017 VA nutrition care note reported that the Veteran’s GI concerns were occasional diarrhea and constipation. A September 2017 VA medical record reported that the Veteran went three days without eating but now was drinking two Equate diet shakes per day that contain 25 percent of daily recommended allowance of Vitamin K. He reported feeling much better since starting the shakes and relays that he is working on getting more food in his home. The Veteran was afforded another VA examination for esophageal conditions in August 2019. The examiner diagnosed the Veteran with hiatal hernia, status post hiatal hernia repair, and GERD. The examiner reported the Veteran was taking continuous medication to treat his condition. The only symptom reported by the examiner was pyrosis. The examiner reported that the Veteran did not have an esophageal stricture, spasm of esophagus (cardiospasm or achalasia), or an acquired diverticulum of the esophagus. The examiner reported that the Veteran’s esophageal conditions do not impact his ability to work. Based on a review of the evidence, the Board finds that an increased disability rating in excess of 10 percent for the Veteran’s service-connected acid reflux and cough is not warranted because the Veteran does not satisfy the criteria for a higher rating under the applicable diagnostic code at any time during the appeal period. In making this finding, the Board accords significant probative weight to the VA examinations provided in April 2011 and August 2019. The record reflects the examiners reviewed the Veteran’s pertinent medical history, documented his current complaints, and rendered findings and diagnoses consistent with the remainder of the evidence of record, and therefore, the examinations are adequate for adjudication purposes. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The record does not show that the Veteran’s symptoms associated with his hiatal hernia with GERD more nearly approximate persistent symptoms such as epigastric distress that is associated with a 30 percent rating, even with consideration of the ameliorating effects of medication. Instead, the Veteran’s complaints of GERD symptoms have been consistent. His VA examinations have reported symptoms such as heartburn, reflux, regurgitation, epigastric pain, and vomiting. The Board acknowledges that while the Veteran has complained of heartburn, reflux, regurgitation, and vomiting, there is no indication that the listed symptoms are productive of considerable or severe impairment of his health even with consideration of the ameliorating effects of medication. In particular, during the latest VA examination in August 2019, the only related symptom reported was pyrosis (heartburn). The Veteran has reported complications that are due to his morbid obesity and other non-service-connected conditions, such as congestive heart failure and sleep apnea. In sum, the weight of the credible evidence is against a finding that the symptoms associated with the Veteran’s hiatal hernia with GERD more nearly approximate the criteria consistent with a higher rating. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Here, the evidence of record does not show that the Veteran’s hiatal hernia with GERD has been productive of considerable impairment of health. This is not to say that he has experienced no symptomatology, but the fact remains that a 10 percent rating is assigned in acknowledgement of symptoms such as intermittent coughing and heartburn, reflux, and regurgitation. As such, a schedular rating in excess of 10 percent is denied. 2. Entitlement to an initial compensable disability rating for abdominal scar, status post hiatal hernia repair, is denied. An October 2011 rating decision granted service connection for the Veteran’s scar on his abdomen. An October 2011 rating decision codesheet reflects that the RO rated the scars at zero percent from February 2, 2011, under Diagnostic Code 7805. The Board notes that in instances where the schedule does not provide for a 0 percent rating under a given diagnostic code, Diagnostic Code 7805 in this case, a 0 percent rating shall be assigned when the requirements for a compensable rating have not been met. 38 C.F.R. § 4.31. The Veteran is seeking a compensable rating for his abdominal scar. Diagnostic Code 7801 provides a 10 percent rating for scars that are deep and nonlinear in an area or areas exceeding 6 square inches (39 square centimeters). A deep scar is defined as one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801 Note (1). Diagnostic Code 7802 provides that burn scars or scars due to other causes, not of the head, face or neck, that are superficial and nonlinear of an area or areas of 144 square inches (929 square centimeters) or greater warrant a 10 percent evaluation. Diagnostic Code 7804 provides that one or two scars that are unstable or painful warrant a 10 percent evaluation. Three or four scars that are unstable or painful warrant a 20 percent evaluation. Diagnostic Code 7805 provides that any disabling affects (functional impairment) from scars not considered under the other diagnostic codes listed above should be considered under an appropriate diagnostic code. The Veteran was afforded a VA-contracted examination in April 2011. The examiner reported that the Veteran had a scar on the anterior side of his trunk for hernia repair (incisional and hiatal hernia). The linear scar measured 49 centimeters by 1 centimeter and was not painful on examination. The examiner described the scar as a disfiguring superficial scar with no underlying tissue damage. The scar did not limit the Veteran’s motion and there was no limitation of function due to the scar. At a March 2013 hearing before a Decision Review Officer, the Veteran testified that sometimes his scar is itchy. The Veteran was afforded a VA examination of his scar in August 2019. The examination revealed an abdominal scar measuring 35 centimeters by 1 centimeter, for a total area of 35 square centimeters. The examiner reported that the abdominal scar was a result of a 1981 hiatal hernia repair. He also reported that the Veteran has also undergone a cholecystectomy and an appendectomy using the same surgical site. The examiner found that the Veteran’s scar was not painful or unstable. The scar was not due to burns and was without underlying tissue damage. The examiner reported that the scar does not result in limitation of function. The Board finds that a higher rating is not assignable based on the manifested symptomatology. A separate rating is not warranted under DC 7800 as the abdominal scar is not located on the head, face, or neck. A separate rating is not warranted under DC 7801 because the Veteran’s scarring was not associated with underlying soft tissue damage. A separate rating is not warranted under DC 7802 because the Veteran’s scarring did not cover an area of 144 square inches (929 square centimeters) or greater. A separate rating is not warranted under DC 7804 because the Veteran’s scarring was not unstable or painful. For these reasons, the Board concludes that the preponderance of the evidence is against the claim for an increased (compensable) rating for the Veteran’s service-connected abdominal scar. Therefore, the claim must be denied. 38 U.S.C. § 5107(b); Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to service connection for an incisional hernia, to include as secondary to service-connected hiatal hernia. The Veteran contends that he has an incisional hernia, to include as secondary to service-connected hiatal hernia. The Veteran’s claim was denied by November 2005 and October 2011 rating decisions. An October 2017 rating decision found that new and material evidence has been received to reopen the claim of entitlement to service connection for an incisional hernia. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Service connection may be granted on a secondary basis where the evidence shows (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when: (1) the weight of the evidence supports the claim, or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Turning to the evidence, a review of the Veteran’s service treatment records does not reflect any complaints, findings, or treatment for any conditions related to an incisional hernia. At the Veteran’s March 2013 decision review officer hearing, the Veteran testified that his incisional hernia developed after his hiatal hernia surgery and was not diagnosed in service. He also testified that doctors have told him that the hiatal hernia repair could have weakened the original incision. A January 1981 private medical record reported that the Veteran underwent a hiatal hernia repair with Nissen II fundoplication and that his postoperative recovery was uneventful. An April 1995 VA medical record reported that the Veteran was hospitalized for two weeks after his colectomy and cholecystectomy performed on March 24, 1995, as the Veteran’s wound had opened and began to drain in the lower aspect of the wound. An April 1995 VA medical record reported that the Veteran sought medical care for an infected abdominal wound due to the cholecystectomy performed a few weeks earlier. The Veteran had been set up for home nursing care for the open abdominal wound. However, the Veteran felt that the “combinations were unacceptable” and left against medical advice. The Veteran was placed on IV Kefzol for wound cellulitis for three days and then discontinued after the cellulitis resolved. The wound was noted to be full of healthy granulation tissue and healing rapidly. The Veteran was discharged with enough dressing supplies to dress the wound at home for one month. A May 1995 discharge summary reported that a March 1995 colonoscopy found an adenomatous mass in the cecum, which resulted in the excision of the cecal adenoma, cecum, and gallbladder. The day after he was discharged, he went to the bathroom and the whole wound dehiscenced. This required three hours of surgery to clean up the wound and allow it to heal by secondary intention. A December 1997 VA treatment record reported that the Veteran had an incisional hernia secondary to a colectomy performed two years earlier. The Veteran was afforded a VA contracted examination to assess his hiatal hernia and GERD in April 2011. The Veteran reported the onset of his incisional hernia was in April 16 years ago after his second surgery. He reported that the condition began after he was sent home while still infected and returned to have emergency surgery. The examiner reported the Veteran had a protruding incisional hernia measuring 23 centimeters by 23 centimeters. A July 2011 VA medical record reported that he was admitted for shortness of breath in July. He was found to have a ventral hernia during the course of his workup and the hernia was reduced. The Veteran was afforded a VA examination for esophageal conditions in August 2019. The examiner diagnosed the Veteran with hiatal hernia, status post hiatal hernia repair, and GERD. The examiner opined that the Veteran’s incisional hernia was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event, or illness. As rationale, the examiner explained that there was no apparent incisional hernia at the time of the hiatal hernia diagnosis in January 1971. The examiner opined that the Veteran’s incisional hernia was less likely than not (less than 50 percent probability) proximately due to or a result of the Veteran’s service-connected hiatal hernia. As rationale, the examiner explained that (1) there was no evidence that the Veteran’s service-connected hiatal hernia caused the protrusion, the incisional hernia, which the Veteran now suffers, (2) the incisional hernia is due to the Veteran’s 1995 colectomy/cholecystectomy/appendectomy surgery, and (3) the Veteran did not have an incisional hernia prior to 1995. The examiner opined that the Veteran’s incisional hernia was less likely than not (less than 50 percent probability) aggravated beyond its natural progression by the Veteran’s service-connected hiatal hernia. As rationale, the examiner explained that (1) there was no evidence the Veteran’s service-connected hiatal hernia caused the protrusion, the incisional hernia, which the Veteran now suffers, (2) the incisional hernia is due to the Veteran’s 1995 colectomy/cholecystectomy/appendectomy surgery, and (3) the Veteran did not have an incisional hernia prior to this date. As previously described, the onset of the Veteran’s incisional hernia was in April 1995 after his abdominal wound became infected following surgery to excise his cecal adenoma, cecum, and gallbladder. The Board acknowledges the Veteran’s contentions that his incisional hernia was caused by or aggravated beyond its natural progression by his service-connected hiatal hernia with GERD. While the Veteran is competent to report symptoms observable to a layperson, such as pain, to the extent that he seeks to establish a nexus between a current disability and service, the Board finds lay witnesses are not competent to opine on such medical questions of etiology as this requires medical expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). For this purpose, the Board finds the Veteran’s statements are not competent medical evidence. Consequently, the Board gives more probative weight to the August 2019 VA examination report. After reviewing the Veteran’s claims file, the examiner opined that it was less likely than not incurred in or caused by an in-service injury, event, or illness, as there was no apparent incisional hernia at the time of the hiatal hernia diagnosis in January 1971. The examiner opined that the Veteran’s incisional hernia was less likely than not proximately due to or aggravated beyond its natural progression by the Veteran’s service-connected hiatal hernia. The examiner explained that (1) there was no evidence that the Veteran’s service-connected hiatal hernia caused the protrusion, the incisional hernia, which the Veteran now suffers, (2) the incisional hernia is due to the Veteran’s 1995 colectomy/cholecystectomy/appendectomy surgery, and (3) the Veteran did not have an incisional hernia prior to 1995. Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for an incisional hernia. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not helpful to this claimant. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Service connection has not been established and the Veteran’s claim for an incisional hernia must be denied. 4. Entitlement to SMC based on the need for regular aid and attendance is denied. SMC is payable to a veteran who has a service-connected disability or disabilities that render him so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b)(3). The following criteria are used to determine whether a claimant is in need of the regular aid and attendance of another person: the inability of the claimant to dress himself or herself or to keep himself or herself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliance which, by reason of the particular disability, cannot be done without aid; the inability of the claimant to feed himself or herself through the loss of coordination of the upper extremities or through extreme weakness; the inability to attend to the wants of nature; or, a physical or mental incapacity that requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352(a). It is not required that all of the conditions enumerated above be found to exist before a favorable rating may be made. The particular personal functions the veteran is unable to perform must be considered in connection with his or her condition as a whole. It is only necessary that the evidence establish that the veteran is so helpless as need of regular aid and attendance, not that there be a constant need. Determinations that the 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 remain in bed. They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352(a); see also Turco v. Brown, 9 Vet. App. 222, 224-25 (1996). The Veteran is service connected for the following disabilities: undifferentiated schizophrenia, now rated as 100 percent disabling; hiatal hernia with GERD, rated as 10 percent disabling; and an abdominal scar, rated at 0 percent disabling. Upon review of the record, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s service-connected disability renders him so helpless as to be in need of regular aid and attendance. In October 2010, the Veteran submitted a VA Form 21-2680 (Examination for Housebound Status or Permanent Need for Regular Aid and Attendance) in which the examiner listed the following diagnoses: atrial fibrillation, diabetes, deep vein thrombosis, pulmonary hypertension, morbid obesity, hypothyroidism, and anxiety disorder. The examiner indicated the following conditions affect the functioning of the Veteran’s lower extremities: history of deep vein thrombosis, chronic edema, bunions of feet, degenerative joint disease of big toes, and subluxation of other digits. The examiner also reported that the Veteran’s depression and anxiety affect his functioning. In January 2011, the Veteran submitted a VA Form 21-4138, Statement in Support of Claim, in which he stated that his service-connected disability has caused him to gain weight that has resulted in additional disabilities. He reported being unable to leave his home most of the time. In February 2011, the Veteran submitted a VA Form 21-4138, Statement in Support of Claim, in which he reported that his incisional hernia has grown to 8 inches. He also reported having very bad bowel dumping syndrome for 15 years in which he has lost partial control of bowel and bladder, which keep him home a lot to be near a bathroom. A September 2011 VA medical record documented the Veteran’s report that he was feeling pretty good that day, which was apparently a surprise to him as he has been finding it increasingly difficult to get out of bed. He reported that he had been sleeping 18 to 20 hours a day for most of the past five weeks. He said he just feels like someone drugged him and cannot do anything but sleep and, when he does get up, getting himself dressed wears him out. He believes his heart is giving out on him and that he is slowly dying from congestive heart failure. A January 2013 VA treatment note reported that the Veteran felt like he might be in “heart failure exacerbation.” He reported that he can only take five to ten steps and then he feels like he cannot breathe. He reported sleeping “half-way up every night.” An April 2014 home health note documented the Veteran’s report that it is difficult for him to get out of the house as he has limited energy. He reported having fatigue related to his heart as well as being overweight. An October 2014 VA medical record reported that the Veteran is unable to do much for himself because gets shortness of breath with minimal exertion. He was reported to be inconsistent with taking diabetes medications. He ate his main meal in the afternoon about and then eats sweets during the night. The Veteran felt some of the reason he does not eat better is because he has so little energy to make the effort to get something better. A November 2014 VA medical record reported the Veteran had significant shortness of breath that prevents activity, but during visit the visit he was able to ambulate well both with and without his cane. He reported spending a great deal of time in bed and does not sleep well due to nocturia. An April 2015 VA medical record reported that shortness of breath limited the Veteran’s activity. He reported that he wishes to be alone and feels shortness of breath, so he stays in bed. He reported that he was recently inpatient for a bowel obstruction. A September 2017 VA treatment note reported that the Veteran verbalized disinterest in following through with a VA application for aid and attendance due to reported pain brought on from a broken back in which he reported being unable to sit for no longer than 10 minutes. The Veteran also reported having a poor diet. He will go for days without food and, when he does eat, the food he prepares is questionable. An August 2019 VA treatment note reported that the Veteran sought emergency care for shortness of breath. He reported a history of congestive heart failure and believed his symptoms may be related. He reported decreased urine output, leg swelling, and a 14-pound weight gain. He weighed 360 pounds. The Veteran reported a history of Charcot’s foot and that he does not ambulate often, as he has a motorized wheelchair. The Veteran’s past medical history reported the following: atrial fibrillation, congestive heart failure, depression, diabetes mellitus, gout, hard of hearing, hiatal hernia, high cholesterol, hypertension, morbid obesity, psychosis, and sleep apnea, non-compliant with CPAP. The primary diagnosis was “acute on chronic right-sided congestive heart failure.” (Continued on the next page)   The evidence shows that the Veteran requires the aid of another person in the performance of activities of daily living due to morbid obesity and non-service-connected conditions. Accordingly, SMC based on the need for regular aid an attendance is denied. See 38 C.F.R. §§ 3.50(b)(3), 3.352. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Moore, Associate 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.