Citation Nr: 21064680 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 20-08 945 DATE: October 21, 2021 ORDER Special monthly compensation (SMC) based on the need for the regular aid and attendance of another person is granted. REMANDED Entitlement to SMC at a higher rate than that provided under 38 U.S.C. § 1114(r) is remanded. FINDING OF FACT The Veteran's service-connected disabilities render him so helpless as to be in need of the regular aid and attendance of another person. CONCLUSION OF LAW The criteria for SMC based on the need for the regular aid and attendance of another person have been met. 38 U.S.C. §§ 1114, 5103(a), 5103A, 5107, 5121A; 38 C.F.R. §§ 3.102, 3.350, 3.351, 3.352, 3.1010. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from January 1966 to September 1969, including foreign and/or sea service. For his meritorious service, the Veteran was awarded (among other decorations) the Vietnam Service Medal with one Bronze Star and the Vietnam Campaign Medal. He testified during a June 2021 virtual hearing. A transcript of this proceeding has been associated with the record. Of note, the Veteran has also perfected appeals seeking higher ratings for his skin, psychiatric, and migraine disabilities under the AMA appellate system. See July 2020 and September 2020 rating decisions; February 2021 VA Form 10182. As discussed with the Veteran during his June 2021 hearing, these matters will be separately adjudicated under the AMA in due course. SMC The Veteran is currently pursuing SMC benefits based on his regular need for the aid and attendance of another person, or alternatively on account of his housebound status. SMC based on the need for aid and attendance of another is payable when the veteran, due to a service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or 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). Under 38 C.F.R. § 3.352(a), the following criteria are to be considered for determining whether a claimant is in need of the regular aid and attendance: (1) The inability of the claimant to dress himself or herself or to keep himself or herself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliance which, by reason of the particular disability, cannot be done without aid (not to include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); (3) the inability of the claimant to feed himself or herself through the loss of coordination of the upper extremities or through extreme weakness; (4) the inability to attend to the wants of nature; or, (5) a physical or mental incapacity that requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his or her daily environment. "Bedridden," which is a proper basis for the determination, is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. 38 C.F.R. §§ 3.350(b)(4), 3.352(a). Further, SMC at the housebound rate is payable where a veteran has a single service-connected disability rated as 100 percent, and, in addition has either: (1) A 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; or, (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). The permanently housebound criteria are met when a veteran is substantially confined as a result of his or her 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. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). Leaving one's house for medical purposes cannot, by itself, serve as the basis for finding that one is not substantially confined for purposes of housebound benefits. Howell v. Nicholson, 19 Vet. App. 535, 540 (2006). Here, the probative evidence establishes that the Veteran's combined service-connected disabilities have rendered him so helpless as to be in need of regular aid and attendance. The Veteran is currently service-connected for a multitude of disabilities, including a back disorder with secondary radiculopathy, paralysis, and incontinence; diabetes; migraines; and posttraumatic stress disorder (PTSD). During the June 2021 hearing, he offered competent and credible testimony as to the impact of his disabilities on his capacity to function independently, noting that he was confined to a motorized wheelchair and often required assistance with bathing, clothing, cooking, and administering medications, including topical ointments required to treat a service-connected skin disability. The Veteran also demonstrates bowel and urinary incontinence, and has repeatedly found himself unable to attend to the wants of nature or clean himself without assistance. Additionally, the Veteran frequently falls out of his wheelchair and is unable to lift himself up without assistance. He also shows chronic and significant psychiatric and migraine symptoms, including flashbacks, sleep impairment, and headaches, which make it difficult for the Veteran to protect himself "from the hazards of [his] daily environment." See June 2021 hearing transcript; Layno v. Brown, 6 Vet. App. 465, 469 (1994); Miller v. Wilkie, 32 Vet. App. 249 (2020). The competent medical evidence directly supports the Veteran's testimony on this point. Notably, a March 2020 VA examination classifies the Veteran as a paraplegic, such that he is unable to walk and requires a motorized wheelchair for locomotion. Although the Veteran is able to feed himself and did not require medication management, he was unable to prepare his own meals and requires assistance with bathing and tending to his basic hygiene. Neurogenic bladder and bowel were also reported, which affected the Veteran's ability to perform self-care. Given this disability picture, the Veteran was only able to leave the home or immediate premises with assistance. See also February 2017 and April 2018 VA examinations (depicting similar disability pictures, including that the Veteran was confined to a wheelchair and could not perform certain tasks of daily living without assistance, including cooking and bathing). Concurrent VA treatment records and lay statements further support the Veteran's testimony in this case, and show that he has been rendered as paraplegic due to his back disability. Thus, he is confined to a wheelchair and requires assistance with the majority of his daily tasks, including tending to the wants of nature. In sum, the preponderance of the evidence demonstrates that the Veteran is so helpless as to be in need of regular aid and attendance. Due to his combined service-connected disabilities, he is commonly unable to bathe, dress, or attend to the wants of nature without assistance. Further, his is so physically and mentally incapacitated that he is unable to protect himself against the hazards or dangers incident to his daily environment, as shown by frequent flashbacks, migraines, and falls from his wheelchair. Although the Veteran is able to perform certain tasks without assistance (such as feeding himself), he is generally unable to perform the tasks of daily living without the aid and attendance of another person. Accordingly, SMC based on the need for the regular aid and attendance of another person is hereby granted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In so finding, the Board acknowledges that the Veteran was alternatively seeking entitlement to SMC on a housebound basis. However, entitlement to SMC based on aid and attendance constitutes a greater benefit than SMC at the housebound rate, such that further consideration of the latter theory does not serve the Veteran's best interests and has been rendered moot by the determination herein. REASONS FOR REMAND Despite the grant contained herein, the Board notes that there are higher levels of SMC available to the Veteran under the law. 38 U.S.C. § 1114; 38 C.F.R. § 3.350. However, as noted in the introduction, the Veteran has multiple claims pending under the AMA system. Thus, to offer a determination as to whether a higher level of SMC is warranted would be premature; rather, remand of this issue is necessary, as the matters are all inextricably intertwined. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). The matter is REMANDED for the following action: Following adjudication of the Veteran's pending AMA appeals (specifically seeking higher ratings for his skin, psychiatric, and migraine disabilities), adjudicate whether a higher level of SMC is now warranted. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kovarovic, 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.