Citation Nr: 21064714 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 16-20 094 DATE: October 21, 2021 ORDER Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance, being permanently housebound, or at the housebound rate prior to February 8, 2017, and from June 1, 2017, to December 22, 2019, is denied. FINDING OF FACT 1. Prior to February 8, 2017, the Veteran did not have a single service-connected disability rated 100 percent with separate service-connected disabilities rated 60 percent or more and the Veteran was not permanently confined to his immediate premises as a result of service-connected disabilities, and the evidence does not show the actual need for aid and attendance of another person. 2. From June 1, 2017, to December 22, 2019, the Veteran did not have a single service-connected disability rated 100 percent with separate service-connected disabilities rated 60 percent or more and the Veteran has not been permanently confined to his immediate premises as a result of service-connected disabilities, and the evidence does not show the actual need for aid and attendance of another person. CONCLUSION OF LAW The criteria for entitlement to special monthly compensation based on the need for regular aid and attendance, being permanently housebound, or at the housebound rate prior to February 8, 2017, and from June 1, 2017, to December 22, 2019, have not been met. 38 U.S.C. §§ 1114, 1502, 1521, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1970 to January 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Saint Louis, Missouri. In February 2021, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. In September 2018, April 2020, and May 2021, the Board remanded these claims to the Agency of Original Jurisdiction for additional action. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). 1. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance, being permanently housebound, or at the housebound rate prior to February 8, 2017, and from June 1, 2017, to December 22, 2019. Special monthly compensation (SMC) is payable under 38 U.S.C. § 1114(l) if, as the result of service-connected disability, the Veteran is permanently bedridden or is so helpless as to be in need of regular aid and attendance of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). The need for aid and attendance means being so helpless as to require the regular aid and attendance of another person. 38 C.F.R. § 3.350(b). The criteria for establishing that need include whether the Veteran is permanently bedridden or is so helpless as to be in need of regular aid and attendance as determined under criteria enumerated under 38 C.F.R. § 3.352(a). The following factors will be accorded consideration in determining whether the Veteran is in need of regular aid and attendance of another person: (1) inability of the Veteran to dress or undress himself, or to keep himself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without such aid; (3) inability of the Veteran to feed himself because of the loss of coordination of upper extremities or because of extreme weakness; (4) inability to attend to the wants of nature; or (5) physical or mental incapacity which requires care or assistance on a regular basis to protect the Veteran from the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). It is not required that all of the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found to exist before a favorable rating may be made. The particular personal functions which the Veteran is unable to perform should be considered in connection with his 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 is a constant need for aid and attendance. Turco v. Brown, 9 Vet. App. 222 (1996) (at least one factor listed in 38 C.F.R. § 3.352(a) must be present to grant special monthly compensation based on the need for aid and attendance). Special monthly compensation at the housebound rate is payable when a Veteran has a single service-connected disability rated 100 percent and (1) has additional service-connected disability or disabilities independently rated 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)(1). The requirements of 38 U.S.C. § 1114(s)(2) are met when a Veteran is substantially confined as a direct result of service-connected disabilities to his dwelling and the immediate premises or, if institutionalized, to the ward or clinical area, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his lifetime. 38 C.F.R. § 3.350(i)(2). The Veteran asserts that special monthly compensation based on the need for regular aid and attendance, being permanently housebound, or at the housebound rate prior to February 8, 2017, and from June 1, 2017, to December 22, 2019, is warranted as the service-connected disabilities resulted in the need for regular aid and attendance of another individual to perform activities of daily living, made him permanently housebound, and/or met the criteria for special monthly compensation at the housebound rate. The Board, after a thorough review of the relevant medical and lay evidence of record, finds that the criteria for an allowance of the claim are not met. The Veteran has established service connection for coronary artery bypass graft; renal failure; bilateral hearing loss; and a chest scar. Excluding a period of total disability, the combined service-connected disability rating is 80 percent prior to February 8, 2017, and 80 percent from June 1, 2017, to December 22, 2019. The Veteran has already been awarded entitlement to SMC from February 8, 2017 to June 1, 2017; and from December 23, 2019, to present in conjunction with a 100 percent rating for service-connected coronary artery bypass graft and a 60 percent rating for renal failure. Entitlement to TDIU was established in a May 2021 Board decision. A February 2012 VA PTSD examination notes that the Veteran had maintained gainful employment and had successfully managed and operated his own construction business for 20 years prior to giving the business to his sons after two heart attacks in the previous spring. During a December 2014 examination for housebound status or permanent need for regular aid and attendance, the examiner noted the Veteran as having heart disease, angina, peripheral arterial disease, and coronary vascular disease. The Veteran was found to be limited to a recliner during the daytime and unable to prepare his own meals. The examiner stated that the Veteran needed help bathing and getting to the bathroom. The Veteran was able to feed himself and manage his own financial affairs. The physician stated that the Veteran had profound dizziness inhibiting his ability to bathe and walk straight. The examiner also stated that the Veteran could not go out without assistance and only left his house for medical appointments, accompanied by his son. In a private August 2014 letter, the Veteran's cardiologist stated that the Veteran had a dramatic drop over the past year in functional capacity and now had issues performing activities of daily living including eating and drinking. His family was quite concerned and was caring for him daily. With the current issues, gainful employment was not possible for the Veteran because of the advanced nature of his medical condition, nor would it likely ever be possible again based on the progressive nature of his vascular disease. At an April 2015 VA heart examination, the Veteran's condition was found to have no functional impact on the ability to work. In January 2017, the Veteran underwent a cardiac catherization. In February 2017, the Veteran underwent coronary artery bypass graft (CABG). In a March 2017 rehabilitation note, the Veteran reported avoiding stair climbing and not doing much level surface walking either. He reported getting dizzy when he stood, and then sat back down, but that did not prevent him from walking to the bathroom or front room from his bedroom. His son had been preparing meals and the Veteran ate them in the front room. The Veteran lived in the upstairs level of a two flat with 25 steps to enter his unit. His two sons lived in the lower level. The Veteran's sons drove him wherever he needed to go. The Veteran used a straight cane and a front wheeled walker at home but was independent in activities of daily living, though his sons did provide some assistance with certain activities such as laundry and shopping. In a June 2017 cardiology note, the Veteran stated that prior to the CABG, he had chest pain and left arm pain with ambulating stairs. However, after the CABG, he has had no further exertional chest pain. He could climb two floors of stairs without chest pain or dyspnea. After the CABG, he was initially more fatigued but stated that he improved to a steady baseline about a month after CABG. In an August 2017 social work outpatient note, the Veteran was noted as being independent in activities of daily living. The Veteran's son did the housekeeping, laundry, and shopping. The Veteran stated that he had a driver's license, but only occasionally drove since a heart attack in 2011. His son provided transportation and the son filled the Veteran's pill box, but the Veteran took his own medications. The Veteran spent his time watching television and had friends from grade school for socialization. He shot pool with his friends and his son. The Veteran used his computer at home. He also completed some three dimensional jigsaw puzzles. Prior to open-heart surgery, he did more and enjoyed gardening. His son did the gardening now. At a December 2019 VA heart examination, the Veteran's condition was found to cause the Veteran shortness of breath and fatigue, that would make physically demanding work difficult. The examiner explicitly stated that the Veteran was not in need of aid and attendance at the time of the examination and was capable of managing his affairs. At a February 2021 Board hearing, the Veteran reported being able to go to the grocery store and eat independently, but stated that he otherwise relied on his sons to help around the house. In an August 2021 opinion, a physician stated that the Veteran was a 69-year-old right-handed man who mentioned that he has had at least two instances of myocardial infarction and has had coronary artery stents. The Veteran also reported that he had an ischemic stroke at age 39, in 1991. The Veteran mentioned that he now had shortness of breath. However, the etiology of that complaint as voiced by the Veteran was unclear from the history obtained, the physical examination findings and the claims file as sent for this the evaluation. The Veteran had a normal ejection fraction of 63 percent, with no additional documentation or report of any additional pulmonary or cardiac reason to have the reported shortness of breath. He mentioned that he had not had congestive heart failure or any rhythm disturbances. He currently sat around and watched television and took frequent naps throughout the day. The Veteran mentioned that he also used hearing aids and has been told he had poor hearing. The Veteran did not have hearing aids at the time of this examination, ambulated without difficulty, and could communicate and understand conversational speech. The Veteran did not have functional impairment in the upper or lower extremities. The Veteran was not undergoing dialysis, did not have an AV fistula to begin dialysis, and he was not under evaluation for consideration of a kidney transplant. The Veteran stated that his adult children helped him prepare meals even though the Veteran had no paralysis or gait impairment. He could write, use tools, shower, and use the restroom by himself. He had no documented cognitive impairment that would preclude him from preparing a meal or remembering to prepare a meal. In addition, the Veteran could ambulate, was not bedridden, and could eat, feed himself, shave, take his medications, use the restroom including using a shower, urinate, and have a bowel movement without assistance. He could communicate at a conversational level without his hearing aids. He had no documented or reported cognitive complaints, and could make inferences and use deductive reasoning as per the exchange at the examination, including answering in complete sentences, and comment on past and current events in his life including demonstrating insight into his medical diagnoses. He was able to exercise agency including making decisions about his own medical care. The Veteran was not paralyzed, had all extremities with no amputations, and could see, write, get up and down from a chair and an examination table, and report on symptoms. He was not under any confinement due to any medical diagnosis or resulting functional impairment. The Veteran did not use any prosthetic devices and did not have or use canes or walkers. The examiner explicitly found that the Veteran was not restricted to his home or its immediate vicinity, was not permanently bedridden, could walk without the assistance of another person and was capable of performing self-care skills. Accordingly, the Board finds that the Veteran was not entitled to SMC based on the need for regular aid and attendance of another person as a result of service-connected disabilities prior to February 8, 2017; or from June 1, 2017, to December 22, 2019. The Board finds that the weight of the evidence of record does not show that the Veteran was permanently bedridden, was unable to dress or undress himself consistently or keep himself ordinarily clean and presentable, required assistance adjusting any special prosthetic or orthopedic appliances, was unable to feed himself, was unable to attend to the wants of nature, or required care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment as a result of the service-connected connected disabilities. The evidence also does not show that the Veteran was substantially confined to his home or premises due to the service-connected disabilities. The Board acknowledges that the Veteran received some help while in the house from his sons and experienced some shortness of breath and fatigue as a result of the service-connected disabilities. However, there is no indication or evidence of record that the Veteran was unable to perform the activities of daily living or that he required protection from the hazards or dangers present in his daily life as a result of service-connected disabilities alone. There is no indication that the Veteran was permanently bedridden or housebound as a result of service-connected disabilities. The medical evidence of record shows that the Veteran has a number of severe, nonservice-connected disabilities, which cannot be considered in adjudication of this claim. The Veteran has not presented medical evidence that the Veteran required assistance or restriction of his activities as a result of service-connected disabilities prior to February 8, 2017; or from June 1, 2017, to December 22, 2019. Therefore, the Board finds that the Veteran is not entitled to SMC based on the need for regular aid and attendance of another person as a result of service-connected disabilities prior to February 8, 2017; or from June 1, 2017, to December 22, 2019. The Board acknowledges that the Veteran may have needed some assistance with activities requiring mobility. However, the Veteran himself acknowledged the ability to go grocery shopping and eat independently. Therefore, the Board finds that the weight of the evidence of record does not show that the service-connected disabilities kept him permanently bedridden, unable to stay ordinarily clean and presentable, unable to feed himself, unable to attend to the wants of nature, or unable to protect him from hazards or dangers incident to his daily environment. As the Veteran's need for aid and attendance was not due to service-connected disability, special monthly compensation cannot be granted for aid and attendance prior to February 8, 2017; or from June 1, 2017, to December 22, 2019. Additionally, the Board finds that the Veteran is not entitled to SMC by reason of being housebound, as there is no indication from the record that he was confined to his home or the immediate premises as he was able to leave as he desired, although with the assistance, at times. Further, the Veteran was not in receipt of a single service-connected disability rated 100 percent and also did not have a combined 100 percent service-connected disability rating of associated disabilities prior to February 8, 2017; or from June 1, 2017, to December 22, 2019. The Board recognizes the statements of the Veteran to the effect that his disabilities make him housebound and require the aid and attendance of another. With respect to those contentions, the Board acknowledges that the Veteran can attest to factual matters of which he has first-hand knowledge, such as ongoing physical problems and symptoms. Washington v. Nicholson, 19 Vet. App. 362 (2005). However, to the extent that the Veteran has reported that he was unable to perform tasks due to service-connected coronary artery bypass graft, renal failure, hearing loss, or scar, those assertions are outweighed by the objective clinical findings suggesting that the Veteran is able to perform such activities. The Board finds that the August 2021 opinion is the most persuasive evidence in this case as it was made by an objective medical professional and focused on what limitations were due to the service-connected disabilities. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to SMC based on the need for the regular aid and attendance of another person or being housebound prior to February 8, 2017; or from June 1, 2017, to December 22, 2019 is not warranted. Therefore, the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mondesir, Eric 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.