Citation Nr: 21061982 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 16-17 963 DATE: October 6, 2021 ORDER Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to SMC based on housebound status is denied. FINDINGS OF FACT 1. The evidence is at least in equipoise that the Veteran is in need of regular aid and attendance of another person due to his service-connected disabilities. 2. The preponderance of the evidence weighs against a finding that the Veteran has service-connected disability rated as total and has additional service-connected disability or disabilities independently ratable at 60 percent or more. 3. The preponderance of the evidence weighs against a finding that the Veteran is permanently housebound due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to SMC based on the need for aid and attendance have been met. 38 U.S.C. § 1114(l); 38 C.F.R. §§ 3.350(i), 3.352(a). 2. The criteria for entitlement to SMC based on housebound status have not been met. 38 U.S.C. § 1114(s); 38 C.F.R. §§ 3.350(i), 3.352(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1962 to February 1965. The Veteran testified at a Board of Veterans' Appeals (Board) hearing in February 2010 before a Veterans Law Judge (VLJ) who has since required. VA law and regulations require that the VLJ who conducted a hearing on appeal must participate in any decision made on that appeal. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. In August 2021, VA sent the Veteran a letter offering him the opportunity to present testimony at an additional optional Board hearing before a VLJ who would decide his case. The Veteran did not respond to that letter and it was not returned as undeliverable; therefore, his case has been reassigned to the undersigned VLJ. See 38 C.F.R. § 20.106(b). Although all the evidence of record has been thoroughly reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). The analysis in this decision focuses on what the evidence shows or fails to show with respect to the matters decided herein. The Veteran should not assume that pieces of evidence not explicitly discussed herein have been overlooked. See Allday v. Brown, 7 Vet. App. 517, 527 (1995) (finding that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Relevant Procedural History Initially, the Board notes that in its prior remands, it incorrectly indicated that these claims were on appeal from a November 2015 rating decision. Rather, the procedural history reflects that they are on appeal from an April 2007 rating decision. The Veteran appealed that rating decision by filing a timely Notice of Disagreement, his claim was readjudicated in a September 2009 Statement of the Case, and he perfected his appeal to the Board by way of a September 2009 Substantive Appeal (VA Form 9). His claim was first before the Board in June 2011 and was remanded as inextricably intertwined with service connection claims which were also remanded and required further development. His claim was next before the Board in May 2019 and the Board instructed the Agency of Original Jurisdiction (AOJ) to obtain an examination and opinion, which was accomplished in November 2019. In February 2021, the Veteran's claim was again remanded to obtain a clarifying addendum opinion, which was obtained in March 2021 and to obtain outstanding treatment records, which have been associated with the evidence of record. Thus, the Board finds there has substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Factual Background and Analysis The Veteran is claiming entitlement to SMC based on the need for aid and attendance under 38 U.S.C. § 1114(l) and based on the housebound rate under 38 U.S.C. § 1114(s). 1. Entitlement to SMC based on aid and attendance SMC based on aid and attendance is available when a veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both feet, or of one hand and one foot, or is blind in both eyes, with 5/200 visual acuity or less, or is permanently bedridden or with such significant disabilities as to be in need of regular aid and attendance. 38 U.S.C. § 1114(l). The criteria for determining that a veteran is so helpless as to be in need of regular aid and attendance are contained in 38 C.F.R. § 3.352(a). A factual need for aid and attendance includes the inability to dress, undress, keep ordinarily clean and presentable, feed oneself, attend to the wants of nature, or protect oneself against the hazards or dangers incident to a claimant's daily environment. 38 C.F.R. § 3.352(a); see also Prejean v. West, 13 Vet. App. 444, 447-48 (2000). The Veteran attended a November 2019 examination to determine his current level of impairment due to his service-connected disabilities. The Veteran attended the examination alone; he reported he was able to transfer to his wheelchair, groom himself, drive, and perform self-care skills. It was noted that imbalance affected his ability to ambulate constantly and that he required am ambulatory aid. He has a prosthetic for his left below the knee amputation but was currently unable to use it due to breakdown of the stump. It was noted the Veteran was able to handle his financial affairs that his wife did most of the grocery shopping and meal preparation. In a February 2021 addendum opinion, the examiner explained that he or she interpreted the question as "why was [SMC] currently being paid to the Veteran?" Thus, the answer was "it appears [SMC] is due to service connected disabilities." The examiner indicated it was not his or her intent to convey that the Veteran required assistance from another person to protect him from the hazards or dangers incident to his daily environment due to service-connected impairments. The examiner explained that the Veteran is able to perform activities of daily living independently, he maintained a current driver's license, and it appeared he used it to drive himself. The examiner further noted that the Veteran is high functioning in spite of his impairment and does not require the supervision or protection of another. The Veteran attended a January 2021 family caregiver assessment with his spouse who indicated that she assists the Veteran with his activities of daily living, such preparing meals, shopping, transferring/drying him after bathing, helps him dress, and assists with stump care. While the Veteran could generally transfer himself independently, he sometimes slips. He is unable to walk over 25 feet due to a protruding bone and misfitted prosthesis that impeded his ability to walk distances. She ensures the Veteran takes his medication. She stated she is concerned for the Veteran's safety when she is gone and worries he will fall when she leaves the house; she leaves him once or twice a day for no more than an hour or two. The social worker's summary of the assessment was that the Veteran's leg amputation has directly impacted his ability to engage in most activities of daily living without supervision or direct support from his wife. She assists him in monitoring transfers, dressing himself, drying after bathing, preparing meals, shopping, managing his medication and medical appointments, and transportation. The social worker concluded that the Veteran required daily assistance from his wife to monitor or provide hands on assistance with various activities of daily living; due to safety precautions and fall risk, the Veteran is not left home often. Based on the foregoing, the Board finds the evidence is at least in equipoise that the Veteran's service-connected disabilities require the aid and attendance of another to perform activities of daily living (dressing, bathing, preparing meals, transferring) and also to protect him from the hazards and dangers incident to his daily environment. With respect to the latter, the Board notes that the Veteran is a significant fall risk and has suffered several falls throughout the appeal period. Accordingly, entitlement to SMC based on aid and attendance is granted. The AOJ will set the effective date of this grant in an implementing rating decision, as this preserves the Veteran's right to appeal the effective date in the first instance. 2. Entitlement to SMC based on housebound status SMC under the statutory housebound rate is available when a veteran has a service-connected disability rated as total (100 percent disabling) 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. 38 U.S.C. § 1114(s). The requirement of "permanently housebound" will be considered to have been met when the veteran is substantially confined to such veteran's house (ward or clinical areas, if institutionalized) or immediate premises due to a service-connected disability or disabilities which it is reasonably certain will remain throughout such veteran's lifetime. Id. Initially, the Board notes that during the appeal period the Veteran does not have one service-connected disability rated as total with an additional service-connected disability independently rated as 60 percent disabling. The Board acknowledges that the Veteran is in receipt of entitlement to total disability rating based on individual unemployability (TDIU) beginning March 19, 2014. Notably, entitlement to TDIU may satisfy the requirement for a single disability rated total, if awarded on the basis of a single disability. See Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). However, in the case at hand, the Veteran's receipt of TDIU is predicated on his service-connected below the knee amputation and mental health disorder. See June 2014 Rating Decision. The Board does not find that TDIU could have been awarded based on one of these disabilities alone, and therefore, SMC under the statutory housebound rate is not warranted. Next, the Board will turn to whether the Veteran's service-connected disabilities render him permanently housebound. Following a review of the record, the Board finds that the Veteran is not substantially confined to his dwelling and the immediate premises as a result of his service-connected disabilities. Although he experiences mobility issues and generally remains in bed most of the day, he can walk 25 feet without assistance and regularly leaves his house to attend medical appointments. Further, he maintains a driver's license and he occasionally drives. Consideration has been given to the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim, it is not applicable. See 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board O'Connell, Jessica L. 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.