Citation Nr: 21004493 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 13-09 500 DATE: January 27, 2021 ORDER Entitlement to special monthly compensation based on the need for regular aid and attendance or housebound status is denied. FINDING OF FACT For the period on appeal, the Veteran was not permanently housebound and did not have a single service-connected disability either rated at 100 percent or warranting a TDIU on its own. CONCLUSION OF LAW The criteria for entitlement to special monthly compensation under 38 U.S.C. § 1114(s) have not been met. 38 U.S.C. §§ 1114(s), 5107; 38 C.F.R. §§ 3.102, 3.350. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1975 to September 1978, from May 1993 to June 1993, and from August 2006 to August 2007. The Veteran also served in the Army Reserve and was transferred to the Retired Reserve in July 2008. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2015, March 2017, November 2018, and February 2019, the Board remanded the Veteran’s claim for entitlement to special monthly compensation. In September 2019, the Board denied the Veteran’s claim for entitlement to special monthly compensation. The Veteran appealed the September 2019 decision to the United States Court of Appeals for Veterans Claims (Court) where the Court granted a Joint Motion for Partial Remand in August 2020. The Court’s Order vacated the September 2019 decision’s denial of entitlement to special monthly compensation and remanded the matter to the Board for consideration consistent with the terms of the joint motion. The case is now again before the Board for further appellate action. Entitlement to special monthly compensation based on the need for regular aid and attendance or housebound status is denied. Special monthly compensation provided by 38 U.S.C. § 1114(s) is payable when a veteran has a service-connected disability rated as 100 percent and has 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. 38 U.S.C. § 1114(s)(1). Special monthly compensation under 38 U.S.C. § 1114(s) is also payable when a veteran has a service-connected disability rated as 100 percent and is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s)(2). This requirement is met when a veteran is substantially confined as a direct result of service-connected disabilities to his or her 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 or her lifetime. Id. Turning to the evidence, a July 2012 VA note documented the Veteran’s report that he had chronic pain due to septic joint in his right knee. He reported that he had to have the joint scraped, which resulted in the shortening of his leg. He now has chronic pain and degenerative disc disease. He reported that his walking difficulty is causing pain in his back. He is a nurse and has had difficulty at work due to his pain. He reported some nausea and diarrhea today but felt that it was due to the stress with his girlfriend. A November 2012 VA psychiatry note reported that the Veteran had returned to work from his knee surgery in October 2012. The Veteran reported that he felt depressed due to the destruction of his father’s home by fire in October and the recent death of a friend by suicide. He admitted to fleeting suicidal thoughts but convincingly denied intent or plan. A January 2013 private treatment record reported that the Veteran was experiencing low back pain and radicular pain due to spinal stenosis. He had benefitted from periodic epidural steroid injections. Shortly after treatment for his back pain in December 2012, he developed plantar fasciitis. The Veteran reported his back symptoms had recurred with a pain level at 7.5 on a 0 to 10 scale. A May 2013 VA knee examination reported that he had been unable to work since July 2010 due to his right knee condition. He reported that he also had multiple surgeries with his left knee, starting at age 16. He had to seek emergency treatment for his left knee in May 2010 after his knee locked. The Veteran has also experienced back pain for at least 10 years. A computed tomography scan of the lumbar spine in 2000 showed significant degenerative disc disease L5-S1, at which time he underwent epidural injections and had several more over the years. He states that his back pain started to become worse after his left knee locked in May 2010. A September 2013 VA psychiatry note reported that the Veteran was diagnosed with major depression. He reported feeling depressed and that he had an upcoming appointment with a pain specialist. The Veteran was on probation from work due to unexcused absences. The Veteran reported he was resigning because “I cannot physically do my job.” The treating nurse practitioner reported that the Veteran’s mood seemed to brighten after their discussion, as he seemed more talkative and relaxed. The Veteran admitted to fleeting suicidal ideation but denied any plan or intent. He reported that his sister has been a good support system. The Veteran talked with her husband every two to three days. The Veteran had joined a hockey club to increase his socialization. A September 2013 VA pharmacy note reported that the Veteran was going through several significant stressors: his father just died, he was losing his job, and had numerous medical conditions. An October 2013 private treatment record reported that the Veteran had severe L5-S1 disc degeneration with low back pain and lower extremity radicular pain due to epidural fibrosis and foraminal stenosis. He also has ongoing knee and foot pain. He found the amount of breakthrough pain unacceptable. He reported having increasing difficulty functioning at work and will look into applying for Social Security disability. The Veteran last had an epidural steroid injection to help with radicular pain in January 2013. However, his symptoms have increased over the past few months. He reported his current average pain level is rated at 8 on a 0 to 10 scale. In November 2013, the Veteran stated on a Social Security Administration form that he was transferred to smaller facilities and going part time to compensate for his “severe chronic pain/physical impairments, as well as mental impairments starting in 2008.” In November 2013, the Veteran completed a Social Security Administration function report, providing the following summary of how his illnesses and conditions limit his ability to work: Due to massive/untreated right knee infection x7 days on active duty in 2007 which required 2 surgeries and one month of continuous IV medications. Since 2007, I have continuously suffered from progressive lower back/lumbar disc degeneration till bone on bone. Requiring increasing narcotics that make me unable to both physically and mentally unable to perform my duties as an Emergency Room Nurse. I’m unable to use narcotics as a licensed medical provider on duty. So pain control is difficult. The combination of narcotics & psych meds [affects] my concentration and function at work. The Veteran submitted a November 2013 statement in which he stated that he had terminated his employment as a nurse on October 17, 2013. He stated that, earlier in the year, he began to experience a significant increase in the severity of his low back pain. He reported an August 2013 MRI showed complete degeneration of his L5-S1. In early October 2013, his pain management specialist stated he needed a lumbar fusion of his L5-S1 and was at a therapeutic end point. The specialist also mentioned that his knees and continued pain and dysfunction had been a factor in the deterioration of his back. According to the Veteran, he was currently on increased Oxycontin and Vicodin and repeated steroid tapers to control the symptoms in his back as well as his right knee. He reported that he came to the conclusion that he was unable to physical and mentally continue practicing as a nurse. A December 2013 VA psychiatry note reported that the Veteran’s chief complaint was his severe disc degeneration. He stated that he was going to undergo a fusion of his L5-S1. The Veteran reported that he felt helpless and worthless due to his limitations because of his pain. He lacked motivation and concentration but felt that his mood was “overall stable.” The Veteran reported that he quit his job in October 2013 due to pain and limitations. He admitted to having fleeting suicidal thoughts but denied any plan or intent. He remains future oriented with a desire to live. He reported that his sister has been a good support system by helping him financially since he was unable to work. He reported that “[h]e lives for his family and to have back surgery to relieve his pain.” A January 2014 Social Security Administration disability decision indicated that the Veteran became disabled on October 16, 2013. The decision reported that the Veteran stated he was disabled due to severe back disease, major depression, chronic knee pain, bilateral foraminal stenosis with bilateral radiculopathy, plantar fascitis. The record does not reflect that the Veteran is substantially confined as a direct result of service-connected disabilities to his dwelling and the immediate premises. A June 2017 VA mental health note reported the Veteran lives alone and does not need assistance to get around. He reported no change in his ability to do routine activities and reports always using a seat belt. An October 2018 VA psychiatry notes indicates the Veteran was “relieved after his reactivation of [his registered nurse] license so he could volunteer in free clinics.” A November 2019 VA mental health note reported that the Veteran had chronic pain that makes it hard on some days to do what he would like to. He stated that “some days I get out and about and others I sleep all day.” He reported he had a new girlfriend who is a nurse and has animals. He has really enjoyed being around them. The evidence does not reflect the Veteran has a service-connected disability rated as 100 percent disabling. In reaching this finding, the Board expressly considered whether Bradley v. Peake, 22 Vet. App. 280, 294 (2008) applied. In Bradley, the Court determined that a TDIU rating predicated on one disability (although perhaps not ratable at the schedular 100 percent level) when considered together with another disability or disabilities separately rated at 60 percent or more could warrant special monthly compensation under 38 U.S.C. § 1114(s). Although the Veteran stated in November 2013 that “I cannot physically do my job” and stated in December 2013 that he quit his job in October due to pain and limitations, the evidence reflects that a combination of the Veteran’s physical mental impairments resulted in the termination of his employment. In November 2013, the Veteran stated that he concluded he was unable to physical and mentally continue practicing as a nurse. The June 2014 rating decision, which granted a total disability rating based on individual unemployability (TDIU), expressly indicated that TDIU was predicated upon the Veteran’s physical and mental disabilities. Notably, the Veteran consistently reported that both his physical and mental service-connected disabilities prevented him from securing or following any substantially gainful employment. The Veteran submitted a November 2013 statement in which he reported that he came to the conclusion that he was unable to physical and mentally continue practicing as a nurse. A January 2014 Social Security Administration disability decision reported that the Veteran stated he was disabled due to severe back disease, major depression, chronic knee pain, bilateral foraminal stenosis with bilateral radiculopathy, plantar fascitis. A review of the record does not show that the Veteran’s TDIU could have been granted based solely on his service-connected mood disorder or his service-connected right knee disability. The Veteran is not permanently housebound and does not have a single service-connected disability rated as 100 percent disabling. Therefore, he does not meet any of the above criteria for entitlement to statutory special monthly compensation under 38 U.S.C. § 1114(s). Thus, entitlement to special monthly compensation based on the need for regular aid and attendance or housebound status is denied. 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.