Citation Nr: 21003484 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 12-16 042 DATE: January 21, 2021 ORDER Entitlement to special monthly compensation (SMC) based on aid and attendance/housebound is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran was shown to require aid and attendance of another person to assist with walking, bathing, and additional activities of daily living (ADL) prior to his death. CONCLUSION OF LAW The criteria for entitlement to A&A Housebound have been met. 38 U.S.C. §§ 1114(l), (s), 5107(b); 38 C.F.R. §§ 3.350(2)(a), 3.352(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Board remanded this case in March 2013 for additional development which the Agency of Original Jurisdiction (AOJ) endeavored to accomplish and remanded again in 2018 and 2020. See 03/19/2013 Remand BVA; 04/06/2018 Remand BVA; 01/10/2020 BVA Decision. The January 2020 remand also included the issue of entitlement to compensation under 38 U.S.C. § 1151 for severe degenerative joint disease (DJD) with subluxation, spurring, and destruction of the joint of the right hip. The Board deemed the SMC issue to have been intertwined with the issue. While the case was on remand the AOJ granted the 38 U.S.C. § 1151 claim and also denied the SMC claim. See 05/29/2020 SSOC, 2nd Entry. In the post-remand appellate brief submitted on behalf of the appellant, her representative urges the Board to ensure that the remand directives were complied with. See 11/18/2020 Appellate Brief. As discussed further in the decision below, the Board finds substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to SMC based on aid and attendance/housebound is granted. Applicable Legal Requirements Compensation at the aid and attendance rate is payable when the veteran, due to service-connected disability, has suffered 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. 38 U.S.C. § 1114(l). 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 such conditions as: inability of the 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; inability of the 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 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 claimant remain in bed. It is not required that all of the disabling conditions enumerated above be found to exist before a favorable rating may be made. The particular personal functions which the claimant 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 the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. 38 C.F.R. § 3.352(a). The following basic considerations are critical in determining the need for the regular aid and attendance of another person: inability of the Veteran to dress or undress him or herself, or to keep him or 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 him or 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. 38 C.F.R. § 3.352(a). Determinations as to the need for aid and attendance must be based on actual requirements of personal assistance from others. Id. It is not required that all of the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found to exist before a favorable rating may be made. The particular personal functions which a 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 a veteran is so helpless as to need regular aid and attendance, not that there is a constant need. Id. “Bedridden” will be a proper basis for the determination for the need for aid and attendance. “Bedridden” will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that a 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. 38 C.F.R. § 3.352(a). In Turco v. Brown, 9 Vet. App. 222, 224-25 (1996), the Court of Appeals for Veterans Claims held that it was not required that all of the disabling conditions enumerated in the provisions of 38 C.F.R. § 3.352(a) be found to exist to establish eligibility for aid and attendance and that such eligibility required at least one of the enumerated factors be present. In adjudicating these claims, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay testimony is competent to establish the presence of observable symptomatology and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (stating that lay person competent to testify to pain and visible flatness of his feet). Once evidence is determined to be competent, the Board must determine whether it is also credible. See Layno, 6 Vet. App. at 469 (distinguishing between competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Discussion An October 2010 rating decision denied SMC for aid and attendance. At the time of the decision service connection was in effect for residuals of injury to left lower extremity (LLE) with diabetic polyneuropathy, rated 80 percent disabling; type II diabetes mellitus (DM2), rated 20 percent disabling; hypertension due to DM2, rated 10 percent disabling; and, diabetic peripheral neuropathy UEs and RLE, rated 10 percent disabling for each affected extremity. There were other disabilities that were rated noncompensable. See 10/10/2010 Rating Decision – Narrative, Codesheet. An October 2009 medical statement for consideration of aid and attendance reflects that the Veteran could not walk unaided due to the loss of use of his right hip because of infection and arthritis. The statement reflects further that while he could feed himself, he required assistance via cutting up the food, etc. The Veteran could not prepare meals, and he needed assistance with hygiene and attending to the needs of nature. He was not ambulatory, and he required assistance is transferring from bed to a wheelchair. He also used a motorized scooter. The statement notes that the Veteran did not require residency in a nursing home, but he could not leave home without assistance, and that he required supervision and assistance with all of his ADLs. See 10/20/2009 Medical Statement. A November 2009 VA report for aid and attendance reflects that the Veteran required the daily health care assistance of a skilled provider, without which he would require hospital, nursing home, or other institutional care. See 11/06/2009 VA 21-2680. A November 2009 VA examination report (11/06/2009 VA Examination) reflects that the peripheral nerves examiner also completed the November 2009 VA 21-2680. The November 2009 report contains two examinations, peripheral nerves and DM2. The peripheral nerves examiner opined that the Veteran did not have a stroke but a subdural hematoma, which was vacated on 2008. Hence, he diagnosed the hematoma; a seizure disorder due to the hematoma; and, bilateral neuropathy of the UEs and LEs, both due to the DM2. The examiner opined that the subdural hematoma was not due to the Veteran’s DM2, and he noted that the Veteran’s weakness was the result of multifactorial events, including the right hip disease. Nonetheless, the examiner opined the Veteran needed aid and attendance. Exam Report, P. 3, 5. The DM2 part of the examination was conducted by a different examiner. The examiner noted that the Veteran was walking with his neuropathy before the surgical fusion of the service-connected left ankle and right hip involvement. The DM2 examiner opined that the Veteran did sustain a stroke, and that his primary disability in his RLE was due to the stroke residuals and his right hip. Further, he was doing well with his polyneuropathy and still walking prior to the stroke and right hip surgery and resulting sepsis. “The superimposed [stroke residual and post-operative right hip sepsis] is what led to the major disability as we now see it and the Veteran’s inability to do [ADLs]. The examiner opined that the Veteran’s stroke was related to his DM2 but not his right hip. 11/06/2009 VA Examination, P. 6-7, 9. Although the October 2010 rating decision denied the 38 C.F.R. § 1151 claim for the right hip, in denying the claim for aid and attendance, the AOJ did not note or address the fact that the DM2 examiner had opined that the stroke was related to the DM2. The 2020 SSOC reflects that the AOJ noted that the right hip claim had been granted, but it continued to deny SMC. The sole rationale stated for the continued denial was that the Veteran did not have a single disability that was rated at 100 percent disabling for any disability. See 05/29/2020 SSOC. Although that was the case, the AOJ did not address whether he qualified under 38 C.F.R. § 3.352. The SSOC notes those criteria, but the AOJ did not apply them to the facts of the Veteran’s case. The Veteran was not blind, nor did he meet the definition of bedridden. Nonetheless, the Board finds that the evidence set forth above is at least in equipoise as to whether the Veteran met the criteria of § 3.352. Even if the stroke or subdural hematoma is deemed to be not service connected, the evidence of record does not parse out to what extent it was responsible for the Veteran’s need for constant assistance with his ADLs. The DM2 examiner opined that it was a combination of the stroke residuals and the post-operative right hip sepsis, which is now service connected under § 1151. When it cannot be determined whether symptoms are due to a service-connected or a nonservice-service disability, then it is deemed to be due to the former. See Mitleider v. Brown, 11 Vet. App. 181 (1998). With the evidence in equipoise, all reasonable doubt is resolved in the Veteran’s favor. 38 C.F.R. § 3.102. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. T. Snyder 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.