Citation Nr: 21003773 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 12-31 362 DATE: January 22, 2021 ORDER For the appellate period prior to June 1, 2012, special monthly compensation (SMC) for regular aid and attendance or for being housebound is denied. FINDING OF FACT Prior to June 1, 2012, the Veteran was not so helpless as to need regular aid and attendance due to his service-connected disabilities. CONCLUSION OF LAW Prior to June 1, 2012, the criteria for SMC based upon the need of regular aid and attendance or by reason of being housebound, to include on an extraschedular basis, are not met. 38 U.S.C. §§ 1502, 1521; 38 C.F.R. §§ 3.351, 3.352. Preliminary Matters The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1986 to April 1990. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from a January 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). By way of procedural background, this matter was previously before the Board in August 2017. The Board remanded for further development. While on remand, the RO awarded the Veteran SMC for aid and attendance, effective June 1, 2012, in a September 2020 rating decision. Prior to June 1, 2012, the issue of entitlement to SMC for aid and attendance has been returned for appellate consideration. In June 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ) via videoconference hearing. A copy of the hearing transcript is of record and has been reviewed. The VLJ, during the June 2017 Board hearing, complied with the duties as a hearing officer. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). Additionally, the Veteran has not alleged that there were any deficiencies in the Board hearing under section 3.103(c)(2) as of the date of this remand. 1. Prior to June 1, 2012, special monthly compensation (SMC) for regular aid and attendance or for being housebound, to include on an extraschedular basis, is denied. The Veteran asserts that his service-connected disabilities render him so helpless as to warrant SMC based on being homebound or for the need for regular aid and attendance. See February 2, 2011 VA Form 21-2680. SMC may be granted to a Veteran for aid and attendance from another person or for being housebound. In other words, a Veteran may receive SMC for either needing the regular aid and attendance of another person or for being housebound but not for both simultaneously. SMC by reason of the need for regular aid and attendance of another person is a greater monthly benefit than SMC by reason of being housebound. 38 U.S.C. § 1114(l), (s). Bedridden means the Veteran is, in fact, required to remain in bed. 38 C.F.R. § 3.352(a). The fact that the Veteran 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. In determining the need for aid and attendance of another person, several factors are for consideration. These include: (1) the inability of the Veteran to dress or undress himself or to keep himself ordinarily clean and presentable, (2) the frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the Veteran’s 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.), (3) the inability of the Veteran to feed himself through loss of coordination of his upper extremities or through extreme weakness, (4) the inability of the Veteran to attend to the wants of nature, (5) 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, and (6) the Veteran being bedridden. Id. Granting SMC for aid and attendance requires at least one of the above disabling factors be met. Turco v. Brown, 9 Vet. App. 222 (1996). Regarding being bedridden, however, a favorable determination will not be based solely upon an opinion that the Veteran’s condition is such as would require him to be in bed. 38 C.F.R. § 3.352(a). Such a determination instead must be based on the actual requirement of personal assistance from others. Id. As implied from above, it is not required that all the disabling factors be found to exist before a favorable determination is made. The particular personal functions the Veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary the evidence establish the Veteran is so helpless as to need regular aid and attendance, not that there is a constant need. The performance of the necessary aid and attendance service by a relative or other member of the Veteran’s household will not prevent a favorable determination. 38 C.F.R. § 3.352(c). The regulations also provide additional compensation based on being housebound where the veteran (1) has, in addition to a single, permanent service-connected disability rated 100 percent disabling, excluding ratings based on unemployability under 38 C.F.R. § 4.17. However, the total and permanent disability rating is additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. A veteran will be considered housebound where the evidence shows that, as a direct result of his service-connected disability or disabilities, he is substantially confined to his dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his lifetime. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). Substantially confined does not mean that the Veteran is unable to leave his dwelling and the immediate premises at all. Hartness v. Nicholson, 20 Vet. App. 216 (2006); Howell v. Nicholson, 19 Vet. App. 535 (2006). Turning to the evidence of record, VA treatment records show the Veteran was able to attend numerous appointments at VA throughout the appellate period. A February 2011 VA discharge summary reported the Veteran was admitted in January 2011 for left leg paralysis related to prostatectomy and was discharged February 4, 2011. During the hospitalization, he was afforded occupational and physical therapies, but he was discharged from these therapies due to his increased mobility and modified independence in activities of daily living. The Veteran had severe femoral and sciatic neuropathy per an EMG study. The Veteran was prescribed home health care for physical therapy to try a trial for left quadricep electrical stimulation. The treatment record noted that the Veteran had cancelled other VA appointments that day because he had other errands he needed to accomplish. The Veteran also requested to be switched from Methadone to a Fentanyl patch to manage his neuropathy pain. In a February 2011 VA addendum treatment record, a nurse called to follow up with the Veteran to find out if the Fentanyl patch was helping. The Veteran reported that he had not yet started the Fentanyl patch because his physician told him to wait until a date certain after he received his last dose of Methadone. See February 2011 VA treatment record addendum. The Veteran submitted a February 2011 VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular aid and Attendance. The examiner, a VA physician, indicated that he was diagnosed with non-service connected prostate cancer status-post prostatectomy resulting in non-service connected depression and service-connected femoral and sciatic neuropathies with pain. The Veteran was able to feed himself, was not legally blind, did not need assistance in bathing or tending to other hygiene needs, had the ability to manage his own financial affairs, and did not require nursing home care. He was unable to prepare his own meals due to limited painful mobility, and he required medication management, although the physician noted a pill box had been ordered to remedy this issue. He was in no acute distress and was alert times 4. The Veteran’s bilateral upper extremities were within normal limits as to active range of motion and strength. The restrictions applicable to the lower extremities were described as left hip flexion and left knee extension were 1 out of 5, left knee flexion was 3 out of 5, and distal strength was good. He had atrophy of the quadricep. He had no restrictions of the spine, trunk or neck. He also had urinary incontinence due to the non-service connected prostatectomy and wore adult diapers. The examiner indicated the Veteran could leave his home when he had medical appointments, although he had a history of missing appointments secondary to pain. The Veteran used canes, braces, crutches, or the assistance of another person for locomotion, and he could travel one block using these ambulation aids. In March 2011, the Veteran requested approval for transportation to his appointments by VA. His girlfriend had taken him before, but she was sick and unable to drive him. He was waiting for his scooter and ramp to arrive. He received a “Kafo” brace, an orthotic, and needed PT to show him how to use it. In June 2011, the Veteran attended physical therapy at VA. He ambulated independently four steps on with a cane on carpet, tile, and stepped up a 7-inch curb. He also reported that the left leg orthosis fit well and allowed him to ambulate longer distances. He also had improved pain with fentanyl patches. Overall, he was doing well and requested to change from a walker to a cane since his brace helped him walk. The Veteran asserted in the June 2012 notice of disagreement that he disagreed with the denial of aid and attendance because he was unable to attend to his daily living needs due to the bilateral upper and lower extremity neuropathies. No further details pertaining to his activities of daily living were provided. In September 2020, VA obtained an advisory opinion from Compensation and Pension service regarding whether the Veteran was entitled to SMC based on the need for aid and attendance, to include on an extraschedular basis. The Director of Compensation Service indicated that, prior to June 1, 2012, the Veteran was able to bathe and attend to his hygiene needs according to the February 2011 VA examination report. The Veteran did not require nursing home care and he was able to leave his home without assistance. Upon review of all evidence of record, the Board finds that special monthly compensation based on the need for regular aid and attendance of another person or on account of being housebound, to include on an extraschedular basis, is not warranted prior to June 1, 2012. Regarding housebound status, the threshold schedular statutory requirement is that the Veteran must have a single permanent disability rated at 100 percent and have additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. The Veteran does not have a single disability rated at 100 percent disabling. Although the Veteran has been awarded a total disability rating due to individual unemployability, it is not based on a single disability, but instead, the TDIU is based on his multiple neuropathies of the bilateral upper and lower extremities. Thus, the Veteran does not meet the threshold criteria for SMC for being housebound. Additionally, the Veteran has not been permanently housebound by reason of service-connected disabilities prior to June 1, 2012. VA treatment records and the February 2011 examination report for aid and attendance did not note the Veteran was confined to bed at any time during the day or night and did not indicate he required the personal assistance of others prior to June 1, 2012. He was able to leave his home to attend multiple medical appointments at VA and run errands prior to June 1, 2012. See February 2011 VA treatment record. The medical evidence of record also does not show the Veteran has suffered the anatomical loss or loss of use of both feet, has suffered the anatomical loss or loss of use of one hand and one foot, is blind in both eyes, or is with such significant disabilities/so helpless as to be in need of regular aid and attendance prior to June 1, 2012 due to service-connected disabilities. The February 2011 examination report indicated he could ambulate at least one block with a walker or cane. VA treatment records showed that he was able to walk with a cane, walker, and step up a 7-inch curb during this period on appeal. He was also provided a scooter. The evidence does not show that the Veteran had anatomical loss or loss of use of both feet or of one foot and one hand. He is not service-connected for an eye disability. Furthermore, the February 2011 examination report also indicated the Veteran was unable to make his own meals because of painful ambulation, but the evidence does not show the Veteran is regularly in need of another person’s aid in order to perform this activity. As discussed above, the evidence shows that the Veteran was able to ambulate short distances with the aid of a cane or walker, and he was provided a scooter and ramp, thereby negating the reason he could not prepare his meals (e.g. difficulty ambulating). The evidence does not show that anyone else, in fact, prepared his meals for him, or that another person was required to regularly prepare his meals. The February 2011 examination report also indicated the Veteran had difficulty managing his medications, but that difficulty was remedied by ordering a pill box. The evidence also did not show he required the aid and attendance of another person to manage his medications once the pill box was provided. Indeed, VA treatment records during this period on appeal show that he was switched from Methadone to Fentanyl patches for his pain. When the nurse called to follow up, the Veteran correctly reported the physician’s directions for heavy narcotics. See February 2011 VA treatment record addendum. Again, this is an example of the Veteran’s ability to manage his medications without the necessity of the aid and attendance of another person. Additionally, the evidence, including his medical records, does not show the Veteran required the aid of another person to use any special prosthetic, could not feed himself or attend to the wants of nature due to a service-connected disability, or was incapable of protecting himself from dangers of his daily environment prior to June 1, 2012. Collectively, this evidence does not establish on a facts found basis that the Veteran utilized, or otherwise required, the need for the aid and attendance of another person within the meaning of VA regulations. Prior to June 1, 2012, the Veteran’s disability picture was not so unusual to warrant an extraschedular SMC rating for aid and attendance. Rather, prior to June 1, 2012, he remained capable of performing the tasks of daily living without assistance from another person. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. Therefore, the claim is denied. Finally, the Board notes that neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Harper, 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.