Citation Nr: 21063429 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 16-09 543 DATE: October 14, 2021 ORDER Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is denied. Entitlement to SMC based on housebound criteria is denied. FINDINGS OF FACT 1. The Veteran's only service-connected disability is bilateral hearing loss, currently evaluated as noncompensable. 2. The Veteran's service-connected bilateral hearing loss is not shown to have caused any of the following conditions: an anatomical loss or loss of use of both feet, or of one hand and one foot; blindness in both eyes with visual acuity of 5/200 or less; being permanently bedridden; or being so helpless as to be in need of regular aid and attendance of another person. 3. The Veteran's service-connected bilateral hearing loss does not render him permanently housebound, and he does not have a single service-connected disability rated at 100 percent with an additional service-connected disability or disabilities rated at 60 percent or more. CONCLUSION OF LAW The criteria for SMC based on the need for regular aid and attendance of another person or housebound status have not been met. 38 U.S.C. §§ 1114(l), 1114(s), 5107; 38 C.F.R. §§ 3.350(b), 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1952 to August 1954. This matter is on appeal from a September 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied entitlement to SMC based on the need for regular aid and attendance of another person or housebound status. The Veteran timely perfected an appeal. See September 2014 Notice of Disagreement; February 2016 Statement of the Case; March 2016 VA Form 9. In December 2017, June 2020, and April 2021, the Board remanded this matter for additional development. The Board parenthetically notes that the Veteran has been sent applications for non-service connected pension on two occasions. See July 2015 Notification Letter; February 2016 Notification Letter. To date, the Veteran has not returned these forms to VA. As discussed below, SMC is not warranted in this case; however, the Veteran is once again advised that he should file a claim for non-service connected pension using VA Form 21-527EZ, Application for Pension, at his local regional office. SMC The Veteran is seeking entitlement to special monthly compensation based on the need for regular aid and attendance of another person or housebound status. Under 38 U.S.C. § 1114(l), SMC based on the need for aid and attendance is payable if, as the result of service-connected disability, the Veteran has suffered: (1) anatomical loss or loss of use of both feet; (2) anatomical loss or loss of use of one hand and one foot; (3) blindness in both eyes with visual acuity of 5/200 or less; (4) being permanently bedridden; or (5) being so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). To be deemed so helpless as to be in need of regular aid and attendance, there must be at least one of the following: (1) an inability to dress or undress or to keep ordinarily clean and presentable independently; (2) frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without assistance; (3) an inability to feed independently through loss of coordination of upper extremities or through extreme weakness; (4) an inability to attend to the wants of nature; or (5) incapacity, either physical or mental, that requires care or assistance on a regular basis to protect from hazards or dangers incident in the daily environment. 38 C.F.R. § 3.352(a); Turco v. Brown, 9 Vet. App. 222 (1996). A condition requiring the claimant to remain in bed is also a proper basis for such a determination. 38 C.F.R. § 3.352(a). The need for aid and attendance does not have to be constant. Id. Under 38 U.S.C. § 1114(s), SMC based on housebound status is payable if a Veteran has a single service-connected disability rated as 100 percent disabling, and: (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) is permanently housebound by reason of service-connected disability or disabilities. The latter requirement is met when a Veteran is substantially confined as a direct result of service-connected disability or disabilities 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 the Veteran's lifetime. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). In the present case, the Veteran's only service-connected disability is bilateral hearing loss, which is rated as noncompensable. The record in this case reflects that the Veteran is severely disabled due to meningoencephalitis. In this regard, a November 2009 VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, shows that due to meningoencephalitis, the Veteran is unable to prepare his own meals; needs assistance with bathing and tending to other hygiene needs; requires medication management; and is unable to manage his financial affairs. An August 2014 VA Form 21-2680 shows that due to "severe encephalitis resulting in chronic cognitive decline," the Veteran is confined to his bed; is unable to prepare his own meals; needs assistance with bathing and tending to other hygiene needs; requires medication management; is unable to manage his financial affairs; needs assistance shaving, dressing, eating, and going to the bathroom; cannot walk more than a quarter of a block; and can only leave his home with assistance of family or caregivers for medical treatment. See also June 2015 VA Form 21-2680 (impairment due to severe encephalitis causing cognitive decline); August 2015 VA Form 21-2680 (impairment due to "cognitive disorder since encephalitis"). Thus, while the evidence clearly reflects that the Veteran is so helpless as to be in need of regular aid and attendance of others and that he is permanently housebound, the record also clearly reflects that this is due to non-service connected meningoencephalitis/cognitive decline. See August 2021 Rating Decision (denying entitlement to service connection for encephalitis). Therefore, the Veteran's service-connected disability has not caused him to be permanently bedridden, or so helpless that he is in need of the regular aid and attendance of another person. Similarly, the Veteran's only service-connected disability, bilateral hearing loss, does not cause anatomical loss or loss of use of both feet, or of one hand and one foot, nor is the Veteran blind in both eyes due to a service-connected disability. With regard to SMC under 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i), the Veteran does not have a single service-connected disability rated as 100 percent disabling. While the Board is cognizant of the Veteran's honorable service in defense of his country and is sympathetic to his claims, the Board is bound by the law and is without authority to grant benefits on an equitable basis. In this case, the evidence of record does not reflect that service-connected disabilities have resulted in the Veteran being housebound or permanently bedridden, with the anatomical loss or loss of use of both feet or one hand and one foot, or blind in both eyes, or in need of regular aid and attendance. See 38 U.S.C. § 1114(l); 38 C.F.R. §§ 3.350(b), 3.352(a). As the Veteran does not have a single service-connected disability rated as 100 percent disabling with an additional service-connected disability or disabilities rated at 60 percent or more, he also does not meet 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. As the preponderance of the evidence is against the claims, there is no reasonable doubt to resolve. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990); see also 38 C.F.R. § 3.102. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Kipper, 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.