Citation Nr: 21000966 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 18-41 659 DATE: January 6, 2021 REMANDED Entitlement to special monthly compensation based on the need for aid and attendance of another person or housebound status (SMC AA/HB) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1989 to August 1992 with no foreign service. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a March 2020 hearing before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. In May 2020, the Board remanded the issue on appeal as it was inextricably intertwined with pending claims for service connection. Entitlement to SMC AA/HB is remanded. The Veteran contends that her disabilities warrant an award of SMC based on the need for regular aid and attendance of another person or due to being housebound. She contends her mobility is severely limited primarily due to her service-connected back condition. See VA 21-0820 Report of General Information (May 2017). She obtained VA Form 21-2680 to support her claim in April 2015, February 2017, and October 2018. See VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance. The Veteran’s representative argues that entitlement to SMC is warranted based on loss of use of her legs. See Appellate Brief (November 2020). SMC is payable to a veteran who, as a result of service-connected disabilities, is so helpless as to need or require the regular aid and attendance of another person. 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 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). Factual need for aid and attendance is based on criteria set out at 38 C.F.R. § 3.352(a) although it is not required that all of the disabling conditions enumerated therein be found to exist to establish eligibility. In addition, a veteran may receive housebound-rate special monthly compensation if he or she has a service-connected disability rated as permanent and total (but not including a total rating based upon unemployability under 38 C.F.R. § 4.17) and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) by reason of disability or disabilities, is permanently housebound but does not qualify for special monthly pension at the aid and attendance rate. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). A veteran will be determined to be permanently housebound when he or she is substantially confined to the house (or ward or clinical areas, if institutionalized) or immediate premises due to disability or disabilities which it is reasonably certain will remain throughout his or her lifetime. 38 U.S.C. § 1502(c); 38 C.F.R. § 3.351(d)(2). Here, the Veteran is service connected for the following disabilities: lumbar degenerative disease (40%), left upper extremity radiculopathy (40%), asthma (30%), right upper extremity radiculopathy (20%),right lower extremity radiculopathy (20%), left lower extremity radiculopathy (10%), cervical degenerative disease associated with lumbar degenerative disease (10%), and foraminotomy surgery scar (0%). Her combined rating is 90 percent. She has been in receipt of a total rating based upon unemployability since June 21, 2013. To ensure that VA has met its duty to assist, the claim must be remanded for further development. The medical evidence is inadequate to decide the appeal. An April 2015 Aid and Attendance examination form completed by the Veteran’s medical provider reflects diagnoses of cervical and lumbar spine degenerative disc disease. The report shows as follows: (1) The Veteran was not permanently bedridden or hospitalized and traveled beyond her domicile for grocery shopping and doctors’ appointments; (2) the Veteran was ambulatory with poor balance but prolonged standing and climbing caused parasthesia of the right leg; (3) the Veteran had difficulty holding her urine for long; (4) the Veteran was unable to prepare her own meals but could feed herself; and paresthesias of the hands caused difficulty with hair combing and washing, fine manipulation of the fingers such as writing, and holding plates and forks. The examiner further noted that the Veteran was able to manage her financial affairs and did not require medication management or nursing home care. April 2016 VA examinations for back and shoulder conditions reflect that prolonged and extended periods of standing, leaning, lifting or carrying of heavy items may be cause discomfort and pain with overuse of the back and an inability to raise the left arm due to pain. The examiner noted that the Veteran’s story and findings regarding left shoulder disability appear out of proportion. A July 2016 VA examination for peripheral nerve conditions documented normal muscle strength (5/5) in the right upper extremity and slightly decreased (4/5) in the left. A February 2017 Aid and Attendance examination form completed by another of the Veteran’s medical provider reflects diagnoses of low back and neck pain due to herniated discs. The examination form was incomplete; however the following was noted (1) posture compensating to the left due to high pain level on the right side; (2) able to feed herself; (3) unable to prepare own meals; (4) needing assistance bathing and tending to other hygiene needs; (5) she is not legally blind or in a nursing home, but the examiner indicated nursing home care was required; (6) she did not require medication management; and (7) was able to manage her financial affairs. No explanation was provided for the limitations indicated. As to upper extremities, the left hand had lost significant motor function. She had limited motion in the right leg and hip. As to the spine/trunk/neck, she had severely decreased range of motion in the lumbar and cervical spine. Poor balance was noted “due to her conditions.” She “left the house up to five times” due to water therapy and other rehabilitations. The record reflects that a VA medical provider, Dr. Mina Charon, ordered home health services for the Veteran from September 2017 to November 2017. See Medical Treatment Record - Non-Government Facility (December 2017). The record indicates home health care services continued to at least October 2018. See Medical Treatment Record - Non-Government Facility (November 2018). The Veteran received assistance with bathing, preparing meals, eating, transferring, ambulating, and urinary and bowel incontinence. In an April 2018 statement, Dr. Charon indicated the Veteran requires assistance with most of her activities of daily living (ADLs) such as bathing, incontinence, and application of medications. See Third Party Correspondence (November 2018). June 2018 VA examination for cervical spine conditions reflects the Veteran’s reports of an inability to hold her head up or turn it or use her left hand to do activities like writing with a pen, eating, or reaching and carrying. An August 2018 Aid and Attendance examination from completed by Dr. Charon reflects diagnoses of right sciatica (no extremity noted), spinal stenosis in cervical and lumbar regions, and morbid obesity (a nonservice-connected condition). The examiner noted that the Veteran (1) is not confined to bedrest; (2) is unable to feed herself; (3) is unable to prepare her own meals due to weakness in the forearms; (4) needs assistance bathing and tending to other hygiene needs (no reason indicated); (5) is not legally blind or in a nursing home; (6) she did not require medication management; and (7) was able to manage her financial affairs. Further, the Veteran was described as well groomed, morbidly obese, and in a wheelchair. As to upper extremities, bilateral forearms were very weak and hand grip was “very weak.” Lumbar sciatica and spinal stenosis caused chronic pain in the right side with prolonged standing and limited ambulation. Spine/trunk/neck disability caused the same problems. Lumbar sciatica and spinal stenosis caused unsteady gait and balance. She left her home for doctors’ appointments. The examiner noted that increased aid and attendance “can be of help to patient with her limited use of upper extremities and ambulation.” An October 2018 statement from Dr. Charon indicated that due to cervical and spinal stenosis, a left shoulder problem and decreased strength in the left extremity, and morbid obesity, the Veteran has difficulty performing activities of daily living and (ADLs) and instrumental activities of daily living (IADLs) such as transferring, toileting, cooking, and doing house chores. See Medical Treatment Record-Government Facility (March 2020). In February 2020, Dr. Charon reported the Veteran was “very limited with her ADLs and IADLs” due to cervical and spinal stenosis as well as left shoulder problem. The Veteran had decreased strength in her left upper extremity, and pain limited use of her left upper arm and lower extremities. Dr. Charon noted the Veteran could benefit from assistance given by the aid and attendance program. VA treatment records from February 2019 reflect the Veteran can bear weight and walk with a cane. See CAPRI (March 2019). Her incontinence was thought to be due to weight rather than her spinal issue. After careful consideration of the evidence of record, the Board finds that it is inadequate to the decide the appeal because (1) the Aid and Attendance forms completed on behalf of the Veteran by her medical providers do not reflect consideration of the impact of all of the Veteran’s service-connected disabilities; (2) these examinations reflect consideration of nonservice-connected disabilities (left shoulder condition, morbid obesity); and (3) these examinations do not reflect that the Veteran is so helpless as to need or require the regular aid and attendance of another person or is permanently housebound due to service-connected disability alone. Further, the Board observes that no medical evidence has been associated with the record which might otherwise allow the Board to evaluate entitlement to the benefit sought; and that VA has not obtained a VA Aid and Attendance Examination in conjunction with this appeal that considers only the Veteran’s service connected conditions when addressing whether she requires the regular aid and attendance of another person, or is housebound. Therefore, remand is necessary. The matter is REMANDED for the following action: Schedule the Veteran for a VA Aid and Attendance/ Housebound Examination by an appropriate clinician. All relevant tests and studies should be undertaken. The entire claims file and a copy of this REMAND must be made available to the examiner for review. To the extent that she is unable to perform ADLs and/or IADLs, indicate whether limitation is caused by or otherwise attributable to service-connected disability. The examiner should address whether the Veteran's service-connected disabilities have resulted in any of the following: (a.) Blindness or near blindness so as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to five degrees or less; (b.) An inability to dress or undress himself, or to keep himself ordinarily clean and presentable; (c.) Frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; (d.) Inability to feed himself through loss of coordination of upper extremities or through extreme weakness; (e.) Inability to attend to the wants of nature; (f.) Incapacity, physical or mental, which requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment; (g.) The loss or loss of use of either (A) both lower extremities; or (B) one lower extremity and one upper extremity, such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; or (h.) The loss or permanent loss of use of one or both feet. A full rationale must be provided for all opinions expressed. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C.E., 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.