Citation Nr: 21064118 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 14-99 803A DATE: October 19, 2021 ORDER Entitlement to special monthly compensation at any point based on the need for aid and attendance or housebound status, due to service-connected disabilities is denied. FINDING OF FACT The evidence of record precludes a finding that the Veteran was housebound due to his service-connected disabilities or else was in need of the regular aid and attendance of another person due to his service-connected disabilities. CONCLUSION OF LAW The criteria for special monthly compensation based on the need for aid and attendance or housebound status, due to service-connected disabilities have not been met. 38 U.S.C. §§ 1114(s), 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from March 1972 to November 1972, and also has other service in the U.S. Army National Guard from May 1978 to May 1984. This claim comes before the Board of Veterans' Appeals (Board) on appeal of a June 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. This case has a long procedural history. This claim, along with other claims no longer on appeal, was first remanded by the Board on September 18, 2018. The Veteran's remaining claims then returned to the Board on December 18, 2019. At that time, the Board determined that throughout the period on appeal, the Veteran was in receipt of a 100 percent rating for one disability, and there was no period on appeal during which a total disability rating based upon individual unemployability (TDIU) could apply when the 100 percent rating did not apply. For this reason, the Board dismissed the claim for a TDIU as moot, because it is a lesser granted benefit compared to one disability rated as 100 percent disabling. See VAOPGCREC 6-99; 64 Fed. Reg. 52, 375 (1999). Meanwhile, on December 18, 2019, the Veteran's remaining claimsone for service connection for bilateral pes planus, and the claim for special monthly compensation on appealwere remanded. After December 18, 2019, the Veteran's claim for service connection for bilateral pes planus was granted. See Rating Decision (June 23, 2021). As a result, the Veteran's claim for service connection for bilateral pes planus has been granted in full; therefore, it is no longer in appellate status at this time. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). The Board notes in passing that should the Veteran disagree with the propriety of any portion of his initial rating, he is free to file a Notice of Disagreement to that effect, but this must be received within one year of this rating decisionin other words, in this case, by June 23, 2022. Meanwhile, the Board notes that due to the Veteran's award of bilateral pes planus rated as 50 percent disabling effective May 13, 2021, he accordingly satisfies the housebound criteria under 38 C.F.R. § 1114(s) from that date. See Rating Decision (June 23, 2021), supra. The Board notes that the Veteran has already been awarded special monthly compensation under 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i) due to the 100 percent rating for posttraumatic stress disorder (PTSD) and additional service-connected disabilities of lumbar degenerative disc disease and degenerative joint disease with scoliosis, bilateral pes planus, ratable at 60 percent or more since May 13, 2021. In short, the Board remanded the Veteran's claim for special monthly compensation in December 2019 because previous examinations pertaining to entitlement to special monthly compensation did not exclusively focus on service-connected disabilities. A remand was required for an examination that ignored effects of any non-service-connected disability. This examination was performed on January 8, 2020. The Board concludes that with this examination, the Veteran has been afforded substantial compliance with previous remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to special monthly compensation based on the need for aid and attendance or housebound status due to service-connected disabilities is denied. Special monthly compensation is payable to individuals who are permanently bedridden or are so helpless as a result of a service-connected disability as to be in need of the regular aid and attendance of another person under the criteria set forth in 38 C.F.R. § 3.352(a), 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b)(3). A veteran will be considered in need of regular aid and attendance if he or she: (1) is blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; or (2) is a patient in a nursing home because of mental or physical incapacity; or (3) establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). 38 C.F.R. § 3.351(c). The following factors will be accorded consideration in determining the need for regular aid and attendance: inability of a claimant to dress or undress himself, or to keep himself 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 adjustments of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of a claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, either 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). A finding that a veteran is "bedridden" will provide a proper basis for the determination. Bedridden will be that condition which, through its essential character, actually requires that the veteran remain in bed. Id. The particular personal functions that the veteran is unable to perform are considered in connection with the veteran's condition as a whole. It is only necessary that the evidence establish that the veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that a veteran is so helpless as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant's condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others. Id. In adjudicating claims for special monthly compensation, VA must consider all of the enumerated factors listed in the regulation and, if at least one of the factors is present, special monthly compensation should be awarded. Prejean v. West, 13 Vet. App. 444, 448 (2000) (citing Turco v. Brown, 9 Vet. App. 222 (1996)). Special monthly compensation is alternatively payable for being permanently housebound by reason of a service-connected disability or disabilities. This requirement is met when the veteran has a single service-connected disability rated at 100 percent and (1) another service-connected disability rated at 60 percent or more, or (2) is permanently housebound by reason of a service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). This requirement is met when the 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 will continue throughout his or her lifetime. Id. After the December 2019 remand, the Veteran submitted to an examination dated January 8, 2020. See VA Exam (Jan. 8, 2020) (rec'd Jan. 9, 2020). The examiner noted that the "Veteran reports he is able to take care of all ADL's [activities of daily living] independently at this time. Veteran states he needed the Aid & Attendance when he was treated for lung cancer 2015-2019 and had to pay caregivers for assistance in the home at that time since he lives alone." See id. at Question No. 19. While the Board does not intend to minimize the effects that lung cancer may have had on the Veteran's life and on the rest of his family, this statement appears to preclude a finding that aid and attendance is attributable to any combination of the service connected PTSD, a lumbar degenerative disc disease, or bilateral pes planus, without the influence of any non-service-connected disability. Additionally, the January 2020 VA examiner found that the Veteran does not need assistance of another person to walk; does not need aid for ambulation; can leave the home with no restrictions; does not have any permanent functional impairments; does not have worse than 5/200 vision in either eye; has no limitation of motion or deformity of the thoracolumbar spine; normal functioning in the bilateral upper and lower extremities; and is capable of handling his own financial affairs. There is no evidence to the contrary, and neither the Veteran nor his representative have asserted otherwise. The Board notes that an April 2015 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance (VA Form 21-2680) completed by Dr. S.S. attributed the Veteran's limitation in performing his activities of daily living such as requiring assistance with medication management to his chronic neck and low back pain as well as his vascular dementia; the Board notes that the Veteran is not service connected for a cervical spine disorder or vascular dementia. In addition, this April 2015 VA Form 21-2680 indicates that the Veteran requires help with medication management due to his cognitive disorder, which is not service connected. A September 2017 VA Form 21-2680 completed by Dr. S.S. attributed the Veteran's limitations in his activities of daily living such as requiring assistance for hygiene to his small cell carcinoma of the lung, which is not service connected. A January 2018 VA Form 21-2680 completed by this same physician attributed the Veteran's limitation in performing his activities of daily living such as requiring assistance for hygiene to his small cell carcinoma of the right lung, cerebrovascular accident (CVA) residual weakness and vascular dementia, which are not service connected. Such submissions are therefore insufficient to substantiate entitlement to special monthly compensation. Finally, the Board notes that the Veteran's service-connected disabilities are limited to the following: PTSD rated 100 percent disabling; a lumbar degenerative disc disease rated 10 percent disabling; and bilateral pes planus, rated 10 percent disabling prior to September 10, 2019 and 30 percent thereafter until special monthly compensation has already been awarded. This makes the Veteran's total disability picture no more severe than 40 percent independent of the PTSD rated as 100 percent by itself. There is no competent or credible evidence of record suggesting that the Veteran satisfied the criteria for special monthly compensation under 38 U.S.C. § 1114(s)(1) any earlier than May 13, 2021the date on which this entitlement is already in effect. See also 38 C.F.R. § 3.350(i). The Board has considered the Veteran's contentions that his service-connected disabilities caused in his need for regular aid and attendance but has placed greater probative value on competent medical evidence of record, and accordingly finds that the preponderance of the evidence is against the claim. Therefore, special monthly compensation based on the need for aid and attendance or housebound status is denied. For the reasons outlined above, the evidence does not show that the Veteran's service-connected disabilities render him in need of regular aid and attendance. In sum, the Board finds that as the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and special monthly compensation based on the need for regular aid and attendance or for being housebound must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael B. Engle, 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.