Citation Nr: 21000716 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 10-10 176 DATE: January 6, 2021 ORDER Entitlement to special monthly compensation (SMC) based on loss of use of one foot pursuant to 38 U.S.C. § 1114(k) is denied. Entitlement to SMC based on loss of use of both feet pursuant to 38 U.S.C. § 1114(l) is denied. Entitlement to SMC based on loss of use of both legs pursuant to 38 U.S.C. § 1114(m) is denied. Entitlement to SMC based on aid and attendance pursuant to 38 U.S.C. § 1114(l) is denied. Entitlement to SMC based on housebound pursuant to 38 U.S.C. § 1114(s) is denied. Entitlement to SMC based on bedridden pursuant to 38 U.S.C. § 1114(l) is denied. FINDINGS OF FACT 1. As a result of service-connected disabilities, the Veteran did not have loss of use of one foot, both feet or both legs. 2. As a result of service-connected disabilities, the Veteran was not with such significant disabilities as to be in need of regular aid and attendance. 3. The Veteran does not have a service-connected disability rating as total. 4. As a result of service-connected disabilities, the Veteran was not permanently bedridden. CONCLUSIONS OF LAW 1. The criteria for entitlement to SMC pursuant to 38 U.S.C. § 1114(k) have not been met. 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a). 2. The criteria for entitlement to SMC pursuant to 38 U.S.C. § 1114(l) have not been met. 38 U.S.C. § 1114(l); 38 C.F.R. §§ 3.350(b), 3.352. 3. The criteria for entitlement to SMC pursuant to 38 U.S.C. § 1114(m) have not been met. 38 U.S.C. § 1114(m); 38 C.F.R. § 3.350(c). 4. The criteria for entitlement to SMC pursuant to 38 U.S.C. § 1114(s) have not been met. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(i). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1967 to April 1970, to include service in the Republic of Vietnam. He was awarded the Purple Heart and the Combat Infantryman Badge. He testified before the undersigned Veterans Law Judge at a March 2020 Board hearing. Procedural History On a November 2006 VA Form 21-4138, the Veteran stated that “[t]his is to claim [service connection] for special K award – for loss of use of lower (L) extremities.” In the March 2007 rating decision on appeal, the agency of original jurisdiction (AOJ) denied entitlement to SMC “based on loss of use,” with reference to 38 U.S.C. §§ 1114(k) and 1114(l). The Board remanded this claim in September 2013 and characterized the issue on appeal as entitlement to SMC under 38 U.S.C. § 1114(l). The Board stated in the introduction that “in an April 2012 statement, the Veteran indicated that he had been bedridden, which is a separate basis for an award of [SMC] under” 38 U.S.C. § 1114(l). A January 2016 Supplemental Statement of the Case (SSOC) characterized the issue on appeal as entitlement to SMC “due to loss of use of lower extremities and the need for aid and attendance or being housebound.” The Board remanded this claim in June 2020 and characterized the issue on appeal similarly, as did an August 2020 SSOC. In review, during the appeal the AOJ and the Board have variously referenced entitlement to different types of SMC. As will be outlined further below, entitlement to different types of SMC have distinct requirements. As such, the Board has characterized as separate issues on appeal the different types of SMC relevant in this appeal. 1. SMC Based on Loss of Use of One Foot Pursuant to 38 U.S.C. § 1114(k) 2. SMC Based on Loss of Use of Both Feet Pursuant to 38 U.S.C. § 1114(l) 3. SMC Based on Loss of Use of Both Legs Pursuant to 38 U.S.C. § 1114(m) Legal Criteria 38 U.S.C. § 1114(k) provides, as relevant, that compensation is warranted “if the veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of…one foot.” See also 38 C.F.R. § 3.350(a). 38 U.S.C. § 1114(l) provides, as relevant, that compensation is warranted “if the veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both feet.” See also 38 C.F.R. § 3.350(b). 38 U.S.C. § 1114(m) provides, as relevant, that compensation is warranted “if the veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use…of both legs with factors preventing natural knee action with prostheses in place.” See also 38 C.F.R. § 3.350(c). 38 C.F.R. § 3.350(a)(2) provides that “[l]oss of use of…a foot will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below…knee with use of a suitable prosthetic appliance” and that “[t]he determination will be made on the basis of the actual remaining function, whether the acts…of balance, propulsion, etc., in the case of the foot, could be accomplished equally well by an amputation stump with prosthesis.” Analysis Upon review, the Board finds that entitlement to SMC based on loss of use of one foot, both feet or both legs pursuant to 38 U.S.C. §§ 1114(k), 1114(l) or 1114(m) is not warranted. The Veteran is service-connected for multiple disabilities, to include peripheral vascular disease of the right lower extremity and left lower extremity (assigned separate 60 percent ratings from February 2006) and peripheral neuropathy of the right lower extremity and left lower extremity (assigned separate 10 percent ratings from February 2006). The Board acknowledges the Veteran’s contentions. The Veteran’s most specific contention was from his November 2007 notice of disagreement (NOD), where he stated “[r]egarding the limited use or inability to use my lower legs – (loss of use) – I am no longer able to stand still for more than 5 minutes, the pain is unbearable and my legs start getting num[b]” and that “I can walk maybe twenty feet until I start to limp than I have to stop.” The Veteran also provided relevant testimony at the March 2020 Board hearing. He testified that he would not be able to walk a block. He also referenced needing a walker to walk. He stated that, without the walker, he guessed he could walk “not too far.” He also stated that “I can walk, but the pain is…severe. Extreme.” The Board notes that the Veteran’s statements, as outlined, did not indicate the loss of use of his feet or legs. As indicated, the Veteran reported being able to walk some distance, though it was noted as a limited distance with pain and the use of a walker. This demonstrated that actual remaining function of the feet and legs existed, to include as to balance and propulsion. Extensive VA treatment records are of record and do not otherwise indicate the loss of use of the Veteran’s feet or legs. In this regard, various VA treatment records across many years during the relevant period referenced the Veteran as standing and walking, though, similar to the Veteran’s statements above, such was noted at times as being for limited distance, with pain, and requiring the use of assistive devices. See, e.g., September 2007 Treatment Record (“Veteran indicating he is unable to walk because of pain to legs and feet. Veteran also states he is unable to stand for long periods of time”); March 2008 Treatment Record (“has pain to his left lower extremity after he walks a short distance”); October 2010 Treatment Record (“has marked difficulty with ambulation…has difficulty when ambulating long distances such as at mall, grocery, flea market. Looking for mobility device to help in community. Generally OK getting around inside the home”); July 2015 Treatment Record (“He ambulates short distances and in home without difficulty”); October 2015 Treatment Record (“walks with difficulty due to pain”); December 2016 Treatment Record (“Ambulatory but using wheelchair for longer distances…states he is unable to tolerate walking for long distances”); November 2017 Treatment Record (noting that the Veteran complained of trouble walking and requested a cane); August 2018 Treatment Record (“unsteady and unsafe gait without [assistive device]” and noting fitting of a walker); August 2019 Treatment Record (“has trouble walking more than ten steps as he was able to do in the past”); February 2020 Treatment Record (“Ambulates in: athletic shoes [w]ith the assistance of a walker”). The Board finds probative the extensive VA treatment records across many years that indicated that the Veteran retained the ability to stand and walk. VA examinations and opinions during the relevant period also did not indicate the loss of use of the Veteran’s feet or legs. A November 2011 examination report (for a claimed brain condition) noted the Veteran’s report of “occasionally has difficulty walking and this occurs 10 time(s) a day” and noted upon physical examination that the Veteran “walks with a normal gait. In regards to a tandem gait, the [Veteran’s] walk is normal.” A March 2017 opinion stated that “[b]ased on information available, it is very difficult, albeit problematic, to arrive at a definitive conclusion(s) regarding the Veteran’s capabilities for ambulation” and that “no definitive assessment can be made at this time without further evaluation.” As cited above, evidence dated after March 2017 indicated that the Veteran was capable of ambulation. Also, a May 2020 Artery and Vein Condition Disability Benefits Questionnaire (DBQ) stated that the Veteran “notes pain in his legs if he tries to walk even 20 feet.” The DBQ also noted claudication on walking less than 25 yards and noted occasional walker use and stated “Veteran uses walker when he has to go long distances and uses scooter if he goes to grocery store.” It was noted that the Veteran’s vascular condition impacted his ability to work and noted was “[n]o prolonged walking or standing.” In addition, the examiner marked no in response to a question of whether “[d]ue to a vascular condition, is there functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis.” Upon review, various evidence, to include lay and medical, across the many year appeal period did not indicate the loss of use of the Veteran’s feet or legs. As outlined, evidence variously indicated that the Veteran was able to stand and walk, though such was for limited distance with pain and the use of assistive devices. As such, it was demonstrated throughout the appeal period that the Veteran had actual remaining function of the feet and legs, to include as to balance and propulsion. In sum, therefore, the Board finds that, as a result of service-connected disabilities, the Veteran did not have loss of use of one foot, both feet or both legs. As such, the Board concludes that the criteria for entitlement to SMC pursuant to 38 U.S.C. §§ 1114(k), 1114(l) or 1114(m) have not been met and, to this extent, the Veteran’s claims are therefore denied. 38 U.S.C. §§ 1114(k), 1114(l), 1114(m); 38 C.F.R. §§ 3.350(a), 3.350(b), 3.350(c). 4. SMC Based on Aid and Attendance Pursuant to 38 U.S.C. § 1114(l) Legal Criteria 38 U.S.C. § 1114(l) provides, as relevant, that compensation is warranted “if the veteran, as the result of service-connected disability…is…with such significant disabilities as to be in need of regular aid and attendance.” 38 C.F.R. § 3.350(b)(3) states that “[t]he criteria for determining that a veteran is so helpless as to be in need of regular aid and attendance are contained in § 3.352(a).” 38 C.F.R. § 3.352(a) provides, as relevant, that: The following will be accorded consideration in determining the need for regular aid and attendance…: inability of claimant 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 (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of claimant 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 the claimant from hazards or dangers incident to his or her daily environment….It is not required that all of the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made. The particular personal functions which the veteran is unable to perform should 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 to need 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 be in bed. They must be based on the actual requirement of personal assistance from others. Analysis Upon review, the Board finds that entitlement to SMC based on aid and attendance pursuant to 38 U.S.C. § 1114(l) is not warranted. The Board has considered the Veteran’s contentions. At the March 2020 Board hearing, the Veteran was asked if he needed help when he was at home and he stated “I guess so. See, more than anything I get paranoid. When I take a shower.” He indicated that he thinks he is going to fall. He also stated that “I have difficulty making food…I don’t have difficulty in eating it.” He indicated that he can go to the grocery store to buy food and bring it home (though he used a scooter at the store). When asked if was able to change his clothes by himself, the Veteran stated “I need to be sitting down…to be able to put my pants on.” He reported that giving himself his medications was “not a problem.” He also reported that he lives by himself and that nobody comes to check on him from time to time. When asked if he needed aid and attendance, the Veteran stated “I do need somebody” and when asked if he needed somebody to come and help him, he stated “Yeah…I’m old.” The Board notes that the Veteran’s statements, as outlined, did not indicate that, as the result of service-connected disability, he was with such significant disabilities as to be in need of regular aid and attendance. Initially, the Veteran reported living alone and that nobody checked on him, indicating that he was not receiving aid and attendance. In addition, his testimony indicated that he was able to dress himself (though he needed to sit down to put pants on), that he was able to keep himself clean by way of showering (though he was paranoid while showering) and that he was able to feed himself (though he had difficulty making food). His testimony did not address or otherwise indicate the frequent need of adjustment of any special prosthetic or orthopedic appliances or that he had an inability to attend to the wants of nature. Also, while the Veteran referenced needing somebody to help him, he did not identify what exactly he needed help with or why he needed such help, to include whether such help was needed as a result of service-connected disability. In this regard, as noted, he referenced needing help because of his age, rather than a service-connected disability. Extensive VA treatment records are of record and do not otherwise indicate the need for regular aid and attendance as a result of service-connected disability. In this regard, various VA treatment records referenced the Veteran as be able to perform activities of daily living (ADLs). January 2018, July 2018 and March 2019 treatment records stated that “[t]he [Veteran] is ABLE to perform routine ADLs.” December 2016 and January 2017 treatment records stated “[n]eed for in-home support services—[V]eteran is independent with ADL’s.” Various treatment records included the Katz Index of Independence in ADLs, which included references to bathing, dressing, toileting and feeding. The records variously noted the Veteran as being “18/18” on this scale and it was noted that “[a] high index indicates independence, a low index means dependence on others to help with [ADLs].” See February 2018 Treatment Record, July 2016 Treatment Record, March 2016 Treatment Record, April 2015 Treatment Record. A September 2015 treatment record was unclear in that, while it noted needing assistance bathing only one part of the body, needing assistance tying shoes and assistance toileting, it also noted a score of 18/18. A September 2013 treatment record used a different scale (the Barthel Index), which included references to bathing, toilet use, feeding and dressing, and the Veteran was noted with a score of 20 and it was noted that “score 18-20 Functional ability within normal limits.” A May 2011 treatment record noted a score of 16 on the Barthel Index, with the Veteran noted as being incontinent to bowels and having occasional bladder accidents, though he was noted as being independent in toilet use. It was not indicated that any bowel or bladder issues were the result of a service-connected disability. It was otherwise noted that the Veteran was independent as to grooming, feeding, transferring, mobility, dressing and bathing. Some VA treatment records referenced, in the context of treatment related to Alzheimer’s drug therapy, that the Veteran had a regular caregiver to assist with medication and care and required assistance in some regards (to include as to choosing proper clothing or decreased ability to perform complex tasks). See August 2016 Treatment Record, March 2016 Treatment Record, November 2015 Treatment Record, July 2015 Treatment Record. The references to the Veteran having a regular caregiver conflicts with other evidence of record, such as what was discussed above. In any event, these records were related to treatment for Alzheimer’s and the Veteran is not service-connected for this disability. The Board also notes that the Veteran stated at the March 2020 Board hearing “I black out” and he referenced that this does not occur daily but “maybe three, four times a week.” He indicated that this results in him falling and that it takes him about half an hour to get up after he has fallen because he does not have places to grab. See March 2020 Board Hearing Transcript, Pages 15-16. VA treatment records addressed what the Veteran described as syncope episodes. It is not clear that the reported episodes are caused by a service-connected disability. A February 2019 VA cardiology treatment record noted an assessment of orthostatic hypotension and stated “associated symptoms…syncope…due to chronic volume depletion as the [Veteran] does not drink fluids (habit and lack of thirst mechanism)…but exacerbated by his glucosuria/polyuria and possibly contributed to by patient’s multiple centrally and peripherally acting psychotropic medications” and “needs to work with [primary care provider] on his diabetic control since he has the hyperglycemia/glucosuria but no compensating increased thirst.” This note indicated that the Veteran’s had orthostatic hypotension and that syncope was an associated symptom due to chronic volume depletion, which may have been exacerbated by his service-connected diabetes or contributed to by medication used for service-connected PTSD. Even assuming (without deciding) for purposes of this decision that the Veteran’s syncope is caused by a service-connected disability, the evidence did not indicate that the Veteran is in need of regular aid and attendance in regard to the syncope episodes. As outlined, 38 C.F.R. § 3.352(a) includes as consideration in determining the need for regular aid and attendance “incapacity, 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.” As noted, the Veteran reported at the March 2020 Board hearing that his black outs do not occur daily but “maybe three, four times a week.” An April 2020 VA treatment record noted an assessment of “dizziness/syncope/presyncope” and stated “[b]outs of episodes are ‘not infrequent.’ When he has them, they happen at least once per week.” It was also noted that “[i]f he is not holding onto something supportive, he ends up falling.” A September 2019 VA treatment record stated that the Veteran “says that he is losing consciousness suddenly while walking around his house. He is supposed to use a walker at home but doesn’t because he says his apartment is too small so instead he uses the walls to support him while ambulating.” Also, a November 2019 record stated “Veteran states that he had blacked out 3 [times] in the last few days and fallen once unexpectedly in the kitchen.” Upon review, the Board finds that the nature of the Veteran’s falls does not render him to have physical incapacity that requires the care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. As outlined, the reported black out episodes do not occur daily and VA treatment records also indicated that the Veteran did not fall during every episode. In addition, it was referenced that the Veteran falls “[i]f he is not holding onto something supportive.” Various evidence indicated the Veteran’s use of a walker and the September 2019 record noted that this use was supposed to include while at home. This suggests that the Veteran’s use of his walker would prevent falls and indicates that the Veteran does not need regular aid and attendance to prevent falls. Overall, the intermittent nature of the Veteran’s falls, combined with the fact that such falls only occur when he is not holding onto something supportive like his walker, indicates that these falls are not of the severity contemplated by 38 C.F.R. § 3.352(a). In sum, the Board finds that, as a result of service-connected disabilities, the Veteran was not with such significant disabilities as to be in need of regular aid and attendance. As such, the Board concludes that the criteria for entitlement to SMC pursuant to 38 U.S.C. § 1114(l) have not been met. 38 U.S.C. § 1114(l); 38 C.F.R. §§ 3.350(b), 3.352. 5. SMC Based on Housebound Pursuant to 38 U.S.C. § 1114(s) Legal Criteria 38 U.S.C. § 1114(s) provides, as relevant, that compensation is warranted “if the veteran 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.” See also 38 C.F.R. § 3.350(i). Analysis Upon review, the Board finds that entitlement to SMC based on housebound pursuant to 38 U.S.C. § 1114(s) is not warranted. As noted, a requirement for entitlement to SMC under 38 U.S.C. § 1114(s) is “a service-connected disability rated as total.” In this case, the Veteran does not have a service-connected disability rated as total. He is service-connected for multiple disabilities that result in a combined total rating, but no single disability is rated as total (the highest is rated at 70 percent). The Veteran’s combined total rating does not qualify as “a service-connected disability rated as total” pursuant to 38 U.S.C. § 1114(s). See Bradley v. Peake, 22 Vet. App. 280, 290 (2008) (“it is clear from the use of the language and the structure of the sentence that Congress did not intend that a 100% combined rating suffices for ‘a service-connected disability rated as total’”). In addition, the Board notes that the AOJ granted entitlement to a TDIU for a period prior to the November 2006 claim on appeal, specifically from February 2002 to February 2006 (the AOJ discontinued the TDIU as of the date of the Veteran’s combined schedular total rating). Even if consideration was given to the TDIU in effect prior to the November 2006 claim on appeal, the TDIU was not granted based on a single disability. In this regard, the March 2004 rating decision stated that “[e]ntitlement to [a TDIU] is granted because you are unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.” As such, the Veteran’s TDIU would not qualify as “a service-connected disability rated as total” pursuant to 38 U.S.C. § 1114(s). See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011) (“although a total disability rating for individual unemployability may satisfy the ‘rated as total’ element of section 1114(s), the Court today holds that a total disability rating based on individual unemployability that is based on multiple underlying disabilities cannot satisfy the section 1114(s) requirement of ‘a service-connected disability’ because that requirement must be met by a single disability”). In sum, the Bord finds that the Veteran does not have “a service-connected disability rated as total.” As such, the Board concludes that the criteria for entitlement to SMC pursuant to 38 U.S.C. § 1114(s) have not been met and, to this extent, the Veteran’s claim is therefore denied. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(i). 6. SMC Based on Bedridden Pursuant to 38 U.S.C. § 1114(l) Legal Criteria 38 U.S.C. § 1114(l) provides, as relevant, that compensation is warranted “if the veteran, as the result of service-connected disability…is permanently bedridden.” See also 38 C.F.R. § 3.350(b). 38 C.F.R. § 3.350(b)(4) states “Permanently bedridden. The criteria for rating are contained in § 3.352(a).” 38 C.F.R. § 3.352(a) provides, as relevant, that “‘bedridden’ will be that condition which, through its essential character, actually requires that the claimant remain in bed” and that “[t]he 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.” Analysis Upon review, the Board finds that entitlement to SMC based on bedridden pursuant to 38 U.S.C. § 1114(l) is not warranted. As noted above, the Board stated in the introduction of a September 2013 remand that “in an April 2012 statement, the Veteran indicated that he had been bedridden.” This appears to have been in reference to an April 2012 VA Form 21-0820, which documented a phone call with the Veteran. It was noted that “[t]he Veteran states that he has been bed ridden.” The Board notes that this statement provided no information as to the duration or reason for the reported bedridden status. In any event, the extensive lay and medical evidence of record, to include that discussed above, indicated that the Veteran was not permanently bedridden as required pursuant to 38 U.S.C. § 1114(l). In this regard, evidence indicated that the Veteran was able to stand and walk and also that he regularly left his house to attend VA appointments, to include extensive medical treatment over the appeal period and the March 2020 Board hearing. As such, the Board finds that, as a result of service-connected disabilities, the Veteran was not permanently bedridden. Accordingly, the Board concludes that the criteria for entitlement to SMC pursuant to 38 U.S.C. § 1114(l) have not been met and, to this extent, the Veteran’s claim is therefore denied. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Hoopengardner, 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.