Citation Nr: 21067538 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 15-24 796 DATE: November 4, 2021 ORDER Entitlement to Special Monthly Compensation (SMC) based on the need for aid and attendance and/or housebound status is denied. FINDING OF FACT 1. The probative evidence of record does not show that the Veteran was in need of regular aid and attendance of another person to perform routine activities or that she was permanently bedridden due to her service-connected disabilities. 2. The probative evidence of record does not show that the Veteran had a single service-connected disability rated at 100 percent and a separate service disability or disabilities rated at 60 percent or more for purposes of entitlement to SMC by reason of being permanently housebound. CONCLUSION OF LAW The criteria for entitlement to SMC based on the need for aid and attendance and/or housebound status have not been met. 38 U.S.C. §§ 1114 (k), (l), (s), 1502, 5107; 38 C.F.R. §§ 3.350, 3.351, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1976 to May 1979 and August 1979 to December 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was scheduled for a Board hearing in August 2018 and failed to report. Neither she nor her representative has offered a good cause for her absence. Accordingly, her request is considered withdrawn. 38 C.F.R. § 20.704 (d). The issue was before the Board in September 2018, September 2020, and April 2021. The most recent remand of April 2021 mandated the RO to provide a supplemental opinion addressing the lay statements recorded in the October 2014 examination, including the loss of bladder control and the inability to attend to the wants of nature, because of her service-connected abdominal hysterectomy and bilateral salpingo-oophorectomy. In April 2021 and July 2021, the Veteran was afforded VA addendum opinions. Together, the opinions considered the medical evidence and lay statements of record. The examiners provided explanations for their opinions. Thus, the Board finds that opinion are adequate, and thus, there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Entitlement to SMC based on the need for aid and attendance and/or housebound status is denied. Compensation at the aid and attendance rate is payable when a Veteran's service-connected disability or disabilities cause the anatomical loss or loss of use of both feet or one hand and one foot, cause the Veteran to be blind in both eyes, or render him 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). Determinations as to the need for regular aid and attendance are factual and must be based upon the actual requirements for personal assistance from others. In making such determinations, consideration is given to such conditions as: The inability of the 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 assistance. The inability of the 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 a claimant from hazards or dangers incident to one's daily environment. It is not required that all of the disabling conditions enumerated be present before a favorable rating is made. The personal functions that the claimant is unable to perform should be considered in connection with her entire condition. It is only necessary that the claimant be so helpless as to need regular aid and attendance, not that there is a constant need. "Bedridden" constitutes a condition which, through its essential character, requires that an individual remains in bed. 38 C.F.R. § 3.352 (a); Turco v. Brown, 9 Vet. App. 222, 224 (1996) (eligibility for special monthly compensation by reason of the regular need for aid and attendance requires that at least one of the factors outlined in VA regulation is met.) The evidence must show that the Veteran is so helpless as to need regular aid and attendance; constant need for aid and attendance is not required. 38 C.F.R. § 3.352 (a). The fact that a claimant has voluntarily taken to bed or that a physician has prescribed bed rest for a lesser or greater portion of the day will not suffice. Id. The need must be based on the actual requirement of personal assistance from others. The regulations also provide additional compensation on the basis of being housebound where the veteran (1) has, in addition to a single, permanent service-connected disability rated 100 percent disabling, additional service-connected disability or disabilities independently evaluated as 60 percent or more disabling, which are 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. A veteran will be considered housebound where the evidence shows that, as a direct result of her service-connected disability or disabilities, she is substantially confined to 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 her lifetime. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350. The Veteran contends that special monthly compensation based on aid/housebound is warranted. The record does not reflect that the Veteran had the anatomical loss or loss of both feet or one hand and one foot or is blind in both eyes, and nor does she so contend during the period on appeal. 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). The evidence of record shows that the Veteran is service-connected for abdominal hysterectomy and bilateral salpingo-oophorectomy, at 50 percent disabling; migraine headaches, at 50 percent disabling; bronchial asthma, at 30 percent disabling; bilateral hallux valgus, 10 percent disabling, each foot; and residual burns left forearm, and right hand, at a non-compensable disability rating. The Veteran was also receiving a total individual unemployability since October 1992, based on a finding that her service-connected disabilities rendered her unable to secure or maintain substantially gainful employment. Treatment notes dated in July 2014 show admittance to Saint Francis Health System, Emergency Room, for a complaint of right lower extremity swelling and pain. She reported recurrent episodes of painfulness and redness in her right lower extremity. In October 2014, the Veteran provided an Examination for Housebound Status or Permanent Need for Regular Aid and Attendance. It was noted that the Veteran was confined to bed for four hours per day and that she was able to feed herself but was not able to prepare her own meals. She needed assistance in bathing and tending to other hygiene needs, specifically with back washing. She was not noted to be legally blind, nor did she require nursing home care. She needed medication management some of the time, and she was not able to manage her finances. Further, it was noted that for a description of her posture and appearance, that she was constantly in pain. Regarding restrictions of the upper extremities, it was also noted that the Veteran was in pain. As for restriction of the lower extremities, it was noted that the Veteran endured swelling and pain. For restriction of the spine, trunk, and neck, the examiner noted that there was pain, difficulty bending, frequent loss of balance, and falls. Addressing how often the Veteran was able to leave her home or immediate premises, it was noted as monthly. The Veteran used an assistive device for locomotion. The Board notes that for this examination, the examiner did not provide a complete diagnosis or note what disabilities restricted the Veteran's activities and functions. In December 2014, the physician who conducted the October 2014 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance re-submitted the same form, but wrote additional information on it. It was noted that the Veteran carried diagnoses of chronic obstructive pulmonary disease (COPD), coronary artery disease (CAD), posttraumatic stress syndrome (PTSD), Chronic Pain Syndrome, with fibromyalgia, and said disabilities restricted her activities/functions. It was also noted that the Veteran was confined to her bed for four hours per day and that she was able to feed herself but was unable to prepare her own meals. She needed assistance in bathing and tending to other hygiene needs, especially with back washing and cleaning of the feet. The Veteran was not noted to be legally blind, nor did she require nursing home care. She needed medication management most of the time. The examiner noted that she was not able to manage her finances. Further, it was noted that for the description of her posture and appearance, that she was constantly in pain. Regarding restrictions of the upper extremities, it was also noted that the Veteran was in pain. As for restriction of the lower extremities, it was noted that the Veteran endured swelling and pain. For restriction of the spine, trunk, and neck, it was noted that there was pain, difficulty bending, frequent loss of balance, and falls. A loss of bladder control due to stress incontinence and bladder prolapse was noted. Addressing how often the Veteran was able to leave her home or immediate premises, it was noted as monthly. The Veteran used a cane for locomotion a 12 block. In December 2020, the Veteran was afforded another Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, based on her service-connected abdominal hysterectomy and bilateral salpingo-oophorectomy. The examiner noted that the Veteran was restricted to her home or its immediate vicinity but was not hospitalized. The Veteran did not require an attendant in reporting for the examination. The examiner noted that the Veteran had been hospitalized from July 2020 to December 2020. Also, the Veteran was not permanently bedridden nor used an orthopedic or prosthetic appliance. The examiner indicated no complaints of dizziness loss of memory. The Veteran reported poor balance due to pain in her back, which was affecting ambulation. She also had difficulty with dressing and bathing due to back pain. She also reported that she remained home and only went out for doctor appointments. Regarding restrictions of the upper extremities, no functional restrictions nor amputations were noted. As for restriction of the lower extremities, functional restrictions were noted but no amputations. Regarding restriction of the spine, trunk, and neck, it was noted that there was no deformity, but the Veteran had difficulty bending over. The Veteran was unable to walk without the assistance of another person and used a walker when ambulating 20 feet and for support and balance. The examiner noted that the Veteran was able to leave home or immediate premises minimally for medical appointments. Also, her best-corrected vision was not worse than 5/200 in both eyes. The examiner diagnosed lumbar degenerative changes, disc building, and disc desiccation. She also noted that her abdominal hysterectomy and bilateral salpingo-oophorectomy did not contribute to the Veteran's need for aid and attendance. The examiner noted that the Veteran was able to handle the money and pay the bills herself. In an addendum opinion of April 2021, a VA examiner opined that it was less likely than not that the inability to attend to the wants of nature was due to the service-connected abdominal hysterectomy and bilateral salpingo-oophorectomy. She explained that the Veteran was diagnosed with mixed incontinence, which means that she retains urine and has overflow incontinence, as well as stress incontinence, [which] can occur with age regardless of whether the uterus is intact or not. It is also noted that she has issues due to an overextended bladder, which can cause overflow incontinence. The overextended bladder can be due to a variety of issues and is not known to be caused by a hysterectomy/oophorectomy. In a follow-up addendum opinion of June 2021, the examiner noted the Veteran's loss of bladder control due to stress incontinence and bladder prolapse as mentioned in the October 2014 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance. She explained that there was no change in the previous April 2021 opinion "because the stress incontinence can occur with age and especially in women who have given birth. The Veteran was 59 years old in 2014, and it is not uncommon to have stress incontinence. Bladder prolapse can also occur due to aging process, menopause, childbirth, straining." Regarding the Veteran's inability to attend to the wants of nature because of her service-connected disabilities, the examiner noted that the Veteran would likely need to wear an incontinence pad if traveling, as do most women who have urinary incontinence. The examiner stated, [t]he Aid and Attendance examination [of October 2014] has mention of pain to be the contributing issue to attend to 'wants of nature,' stress incontinence is the leakage of urine typically with a cough, sneeze or anything which causes increased abdominal pressure and is the most common type in women. It is not constant but occurs when these types of activities occur. [The] majority of women have this condition and can still attend to the wants of nature and continue a normal lifestyle. In addition to the medical evidence of record, the Board acknowledges the lay statement provided in September 2014. The Veteran reported that she was unable to take care of herself, clean her house, cannot remember to take her medication or pay bills. She needs the assistance of another to cook, clean, pay bills, remind her of things, and give her a shower. Similarly, a statement by her neighbor, S. H., who lives above her, states that before C[.] was there to help, [the Veteran] wouldn't feed herself, forget to eat, burn food, not take properly take her medication; now, she bathes on a regular basis, dressing appropriately and cleanly; C[.] cooks for her, makes sure she eats, and runs her errands." Lastly, another statement from her friend, G.A., stating that they have been friends since 2002, and "prior to C[.], [the Veteran] would not take regular baths or eat properly. After a review of the lay and medical evidence of record, the Board finds that the criteria for SMC based on the need for the aid and attendance or by reason of being housebound have not been met. No examiner or clinician has noted that the Veteran was in need of the aid and attendance or was housebound due to her service-connected disabilities. The most recent VA Examination for Housebound Status or Permanent Need for Regular Aid and Attendance diagnosed lumbar degenerative changes, disc building, and disc desiccation and noted for restriction of the lower extremities. Neither the Veteran's back disabilities nor disabilities of the lower extremity are service connected. Regarding the Veteran's inability to attend to 'wants of nature' and stress incontinence, the examiner noted that it was due to various issues, none of which are the result of hysterectomy/oophorectomy. The evidence of records does not show that the Veteran was in need of regular aid and attendance of another person to perform routine activities or that she was permanently bedridden, due to a service-connected disability; or was substantially confined to her home or immediate premises due to a service-connected disability or that she had a single service-connected disability rated at 100 percent and a separate service disability or disabilities rated at 60 percent or more. For the above reasons, the preponderance of the evidence is against a finding that the Veteran is entitled to SMC, to include aid and attendance or housebound benefits. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and special monthly compensation for aid and attendance/housebound must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Stevens, 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.