Citation Nr: 21064605 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 19-11 942 DATE: October 21, 2021 ORDER Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is granted. Entitlement to SMC based on being housebound is dismissed. REMANDED Entitlement to a disability evaluation in excess of 30 percent for service-connected coronary artery disease is remanded. Entitlement to a disability evaluation in excess of 10 percent prior to April 30, 2015, and to a disability evaluation in excess of 10 percent from July 1, 2015, to the present, for service-connected left knee arthroscopy (previously rated as left knee torn medial meniscus (also claimed as arthritis)) is remanded. FINDINGS OF FACT 1. Due to his service-connected disabilities, the Veteran needs regular aid and attendance of another person. 2. The grant of entitlement to SMC based on aid and attendance renders moot the housebound claim. CONCLUSIONS OF LAW 1. The criteria for entitlement to special monthly compensation based on the need for aid and attendance have been met. 38 U.S.C. § 1114(l); 38 C.F.R. §§ 3.350, 3.351, 3.352. 2. The claim for SMC based on being housebound is dismissed. 38 U.S.C. § 1114(s); 38 C.F.R. §§ 3.350, 3.351. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1976 to July 1985. This matter again comes before the Board of Veterans' Appeals (Board) on appeal from June 2015 and July 2015 rating decisions issued by the Department of Veteran's Affairs (VA) Regional Office (RO) in Waco, Texas. The Board previously remanded this matter in April 2020. As a preliminary matter, the Board notes that in a February 2021 rating decision, the RO granted a temporary total disability evaluation for the Veteran's left knee disability and special monthly compensation based on being housebound from April 30, 2015, to July 1, 2015. Therefore, the Board, in this decision, will not address entitlement to an increased disability evaluation for the Veteran's service-connected left knee arthroscopy or entitlement to SMC during the period from April 30, 2015, to July 1, 2015. 1. Aid and Attendance Special monthly compensation is payable to individuals who are permanently bedridden or are so helpless as a result of service-connected disabilities as to need 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), and 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 a 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/herself, or to keep himself/herself ordinarily clean and presentable; frequent need of adjustment or 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/herself 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/her daily environment. 38 C.F.R. § 3.352(a). The personal functions that the Veteran is unable to perform are considered in connection with the Veteran's overall condition. 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 need 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. In Turco v. Brown, 9 Vet. App. 222, 224 (1996), the United States Court of Appeals for Veterans Claims (Court) held that eligibility for special monthly compensation by reason of regular need for aid and attendance requires that at least one of the factors set forth in the VA regulation is met. The Veteran has been awarded service connection for the following disabilities: posttraumatic stress disorder evaluated as 70 percent disabling effective June 21, 2005; degenerative arthritis of the spine, spinal fusion spinal stenosis, and intervertebral disc syndrome evaluated as 20 percent disabling effective April 7, 2008, and 40 percent disabling effective November 9, 2020; right upper extremity radiculopathy evaluated as 40 percent disabling effective November 9, 2020; coronary artery disease evaluated as 30 percent disabling effective May 10, 2006; left upper extremity radiculopathy evaluated as 30 percent disabling effective April 7, 2008; degenerative disc disease of the lumbar spine status post lumbar laminectomy evaluated as 20 percent disabling effective May 10, 2006; right lower extremity radiculopathy evaluated as 20 percent disabling effective May 10, 2006; left lower extremity radiculopathy evaluated as 20 percent disabling effective May 10, 2006; tinnitus evaluated as 10 percent disabling effective December 8, 2006; hypertension evaluated as 10 percent disabling effective July 19, 2011; left knee arthroscopy (previously rated as left knee torn medial meniscus (also claimed as arthritis)) evaluated as 0 percent disabling effective February 1, 1988, 10 percent disabling effective May 10, 2006, 100 percent disabling effective April 30, 2015, and 10 percent disabling effective July 1, 2015; left ear hearing loss evaluated as 0 percent disabling effective December 8, 2006; anterolateral neck scar evaluated as 0 percent disabling effective April 7, 2008; posterior neck scar evaluated as 0 percent disabling effective April 7, 2008; and residual surgical scar evaluated as 0 percent disabling effective October 7, 2006. The Veteran's claims folder contains numerous examinations and evaluations reflecting that his service-connected disabilities cause him to need the regular aid and attendance of another person. During an April 2014 evaluation, the examiner found that the Veteran needed assistance bathing and tending to other hygiene needs due to a sensory and motor deficit as exhibited with poor range of motion of his upper and lower extremities and due to his back pain. See April 2014 VA 21-2680 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance (received in May 2014). Additionally, the examiner found that the Veteran's wife is at home and attends to his wants "24/7" in addition to managing his medications. See id. Even though the Veteran was able to manage his own financial affairs, because of his poor sensory motor capacity of the upper extremities, the examiner found that the Veteran's wife needs to assist him with feeding, dressing, and bathing. See id. In August 2015, the Veteran submitted a recertification of Home Health Certification and Plan of Care, signed in March 2014, indicating that the Veteran would continue using a Home Health Aid. During provider visits in November and December 2015, the Veteran indicated that he was getting home health to help him approximately two times per week and that he needed permanent help. See November 2015 VA Primary Care Physician Note; December 2015 VA Mental Health Outpatient Note. A few months later, in March 2016, the Veteran told his provider that he started receiving private help. See March 2016 VA Mental Health Outpatient Note. A July 2019 note indicates that the Veteran's limited mobility is related to his service-connected conditions and that he is a fall risk as evidenced by using a walker in his home and a scooter outside the home. The provider reported that the Veteran experienced difficulty "completing his homemaker needs such as chore services, meal preparation, etc." See July 2019 VA Social Work Consult. The provider stated that the Veteran's wife usually would assist with activities of daily living, but as she was recently hospitalized, the Veteran would benefit from homemaker services. See id. More recently, in October 2019, the Veteran's provider submitted a letter concluding that the Veteran's chronic lumbar spine condition limited his ability to complete daily activities such as shopping, transportation, and meal preparation. See October 2019 VA Form 21-4138 submitted by S.A., M.D. (received in November 2019). When he was visiting his private provider in December 2019, the Veteran stated that he needs assistance for cleaning, cooking, and light laundry. His provider noted that the Veteran had an unsteady gait and was using a walker and cane for assistance with ambulation. See December 2019 Sandknop Health Group Family Practice Note. Additionally, various examinations from January 2019, March 2019, and November 2019, indicate that the Veteran has continuously needed assistance with dressing, bathing, and ambulation, including as due to his service-connected hypertension and bilateral lower extremity neuropathy. See January 2019, March 2019, and November 2019 OASIS-D Evaluations (received in October 2020). Upon review of the evidence, the Board finds that the Veteran has a factual need for regular aid and attendance due to his inability to prepare meals, need for assistance with bathing, grooming, dressing, and assistance to attend to the wants of nature because of his service-connected disabilities. The medical evidence clearly indicates that the Veteran's lumbar spine disability and bilateral upper and lower extremity radiculopathies cause him to need aid and attendance in various areas. As such, the Board finds that due to his service-connected disabilities, the Veteran needs regular aid and attendance to dress/undress himself, keep himself ordinarily clean and presentable, and attend to the wants of nature. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7, 3.352(a). As the Veteran has met more than one factor set forth in VA regulations in determining the need of regular aid and attendance, the Board finds the criteria of an award of special monthly compensation have been met. See Prejean v. West, 13 Vet. App. 444, 448 (2000); Turco v. Brown, 9 Vet. App. 222 (1996). 2. Housebound SMC may be granted to a Veteran based on the need for regular 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. As special monthly compensation by reason of the need for aid and attendance of another person is a greater monthly benefit than special monthly compensation by reason of being housebound, the Board need not address housebound status as it is moot. 38 U.S.C. §§ 1114(l), (s). REASONS FOR REMAND 1. Coronary Artery Disease Regarding the Veteran's claim for an increased disability evaluation for his coronary artery disease, the Board acknowledges receipt of not only a November 2020 examination noting the current severity of his condition, but also records from his private providers. However, there appears to be a significant gap between dates of treatment and lack of specific information as to previous testing. Specifically, there is an April 2015 note indicating that Nuclear Perfusion Testing was performed approximately two months prior and found no ischemia and "normal EF." See April 2015 Texas Cardiac Associates Record (received in September 2020). However, there is no indication as to what the Veteran's ejection fraction measured. Therefore, the Board requests the specific record of Nuclear Perfusion Test performed in February 2015 be obtained from Texas Cardiac Associates. Furthermore, the Board notes that after a June 2017 stress test was conducted, the VA received records from Texas Cardiac Associates dated January 2020 reflecting that the Veteran had previously been seen approximately 5 months prior. The record of the Veteran's appointment from 5 months prior, and from June 2017 to January 2020, are not associated with the claims file. On remand, the Board requests that the Veteran's records from Texas Cardiac Associates from June 2017 to January 2020 be obtained. As these records could indicate a change in severity of the Veteran's service-connected coronary artery disease, the Board requests an addendum opinion regarding the nature and severity of the Veteran's coronary artery disease throughout the period on appeal. 2. Left Knee Arthroscopy Concerning the Veteran's claim for entitlement to a higher disability evaluation for his service-connected left knee disability, the Board finds that the November 2020 examination is inadequate. Specifically, the examiner stated that the Veteran did not have and has never had a meniscal condition which directly contradicts the Veteran's medical records stating that he in fact tore his meniscus and the examiner noted that the Veteran underwent a meniscectomy. See November 2020 VA Knee and Lower Leg Conditions C&P Examination; October 2013 Lake Pointe Bone and Joint Record; October 2013-December 2013 Sandknop Family Practice Records; February 2014 Orthopedic & Sports Medicine Center Records; May 2014 Orthopedic & Sports Medicine Center Record; January 2015 Orthopedic & Sports Medicine Center Record; May 2015 Orthopedic & Sports Medicine Center Record. Therefore, the Board finds that this examination is based, in part, on an inaccurate factual premise and is therefore inadequate. See Reonal v. Brown, 5 Vet. App. 458 (1993); Monzingo v. Shinseki, 26 Vet. App. 97 (2012). Furthermore, the examiner did not consider in her opinion the Veteran's various lay statements and history of his left knee giving way and to thereby evaluate his history of instability of the left knee. See November 2020 VA Knee and Lower Leg Conditions C&P Examination; January 2014 Orthopedic & Sports Medicine Center Note; May 2014 VA Form 21-4138; January 2015 Orthopedic & Sports Medicine Center Note; March 2015 VA Knee and Lower Leg C&P Examination (indicating that the Veteran's left knee will occasionally give way secondary to instantaneous sharp pain). Therefore, the Board requests an addendum opinion be obtained as to the Veteran's service-connected left knee arthroscopy (previously rated as left knee torn medial meniscus (also claimed as arthritis)) throughout the period on appeal. The matters are REMANDED for the following action: 1. The RO should request the Veteran to submit authorization to obtain records from Texas Cardiac Associates Records including but not limited to a February 2015 Nuclear Perfusion Test and records from June 2017 to January 2020. The Veteran should also be invited to submit these records himself. All actions to obtain the requested records should be documented in the claims file. If they cannot be located or no such records exist, the Veteran and his representative should be so notified in writing. 2. After completing the foregoing development, forward the claims file to a clinician with the appropriate expertise, who has not previously provided an opinion in this case, to determine the nature and severity of the Veteran's coronary artery disease from May 10, 2006, to the present. If the clinician determines that a new examination (or telehealth interview, etc., if an in person-examination is not feasible) would be beneficial, one is to be provided. The clinician should provide an assessment of the Veteran's exercise capacity from May 10, 2006, to the present, in terms of METs and left ventricular function. In this regard, the examiner must comment as to whether, at any time from May 10, 2006, to the present, the Veteran's coronary artery disease is manifested by an activity level equivalent to more than one episode of acute congestive heart failure in a period of 12 months; or workload greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of 30 to 50 percent. In formulating his or her opinion, the examiner should consider and discuss the competent medical and lay evidence of record, including but not limited to his treatment records from Texas Cardiac Associates and his competent lay statements regarding the continuity of his symptomatology throughout the period on appeal. The clinician must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. 3. Forward the claims file to a clinician with the appropriate expertise, who has not previously provided an opinion in this case, to determine the nature and severity of the Veteran's service-connected left knee arthroscopy from June 10, 2013, to the present. Based on review of the claims file, including the Veteran's VA and private medical records and his competent lay statements regarding his left knee giving way, the clinician should render an opinion addressing whether, at any point from June 10, 2013, to the present, the record reflects any change(s) in the severity of the Veteran's left knee arthroscopy, and, if so, the approximate date(s) of any such change(s) including the degrees of additional range of motion lost during flare-ups, if possible, and range of motion measurements for active motion, passive motion, and in weight-bearing and nonweight-bearing. The clinician, in formulating his or her opinion, should consider the various diagnostic codes pertaining to evaluations of the knee and whether said diagnostic codes apply to the Veteran's condition. If the clinician cannot provide a retrospective estimate, the clinician should explain why and provide a reasoned explanation for the determination. 4. Thereafter, the RO should readjudicate the following issues: (a) Entitlement to a disability evaluation in excess of 30 percent for the Veteran's service-connected coronary artery disease; (b) Entitlement to a disability evaluation in excess of 10 percent prior to April 30, 2015, and to a disability evaluation in excess of 10 percent from July 1, 2015, forward, for the Veteran's service-connected left knee arthroscopy (previously evaluated as left knee torn medial meniscus (also claimed as arthritis)). 5. If any of the above-sought benefits remain denied, the RO should issue a Supplemental Statement of the Case (SSOC) to the Veteran and his representative. An appropriate period of time should be allowed for response before returning the appeal to the Board. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Hoffman 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.