Citation Nr: 21067591 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 15-26 993 DATE: November 4, 2021 ORDER An earlier effective date than October 9, 2014 for the grant of service connection for a sleep disability is denied. An earlier effective date than October 9, 2014 for the grant of service connection for a fecal incontinence disability is denied. For the initial disability rating period on appeal from October 9, 2014, a rating of 30 percent for a sleep disability, but no higher, is granted. For the initial disability rating period on appeal from October 9, 2014, a rating in excess of 10 percent for a fecal incontinence disability is denied. For the increased rating period on appeal, a rating in excess of zero percent for a right upper extremity neurological disability is denied. For the increased rating period on appeal, a rating in excess of 10 percent for a right shoulder surgery scar is denied. Special monthly compensation (SMC) based on the need for the aid and attendance of another or by reason of being housebound is denied. A temporary total rating for right shoulder surgery convalescence beyond the three-month period from December 29, 2010 to April 1, 2011 is dismissed. REMANDED A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. No claim, formal or informal, for service connection for the sleep and fecal incontinence disabilities was received by VA prior to October 9, 2014. 2. For the initial rating period on appeal from October 9, 2014, the sleep disability has been manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal) due to such symptoms as chronic sleep impairment and anxiety. 3. For the initial rating period on appeal from October 9, 2014, the Veteran experienced impairment of sphincter control with occasional moderate leakage occurring a few times per day. 4. For the increased rating period on appeal, the right upper extremity neurological disability was not manifested by mild incomplete paralysis of the upper radicular group. 5. For the increased rating period on appeal, the residual right shoulder scar was not manifested by three to four scars that were painful. 6. During the Veteran's lifetime the impairment caused by the service-connected disabilities, to include the right shoulder disability, did not require the care or assistance of another on a regular basis and did not render the Veteran housebound. 7. A temporary total rating for right shoulder surgery convalescence beyond the three-month period from December 29, 2010 to April 1, 2011 may not be awarded as a matter of law. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to October 9, 2014 for the grant of service connection for a sleep disability have not been met. 38 U.S.C. §§ 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.156(c), 3.157, 3.159, 3.400. 2. The criteria for an effective date prior to October 9, 2014 for the grant of service connection for a fecal incontinence disability have not been met. 38 U.S.C. §§ 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.156(c), 3.157, 3.159, 3.400. 3. Resolving reasonable doubt in favor of the appellant, the criteria for an initial rating of 30 percent, but not higher, for a sleep disability have been met for the rating period from October 9, 2014. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.1010, 4.3, 4.7, 4.130, Diagnostic Code 9422. 4. The criteria for an initial rating in excess of 10 percent for a fecal incontinence disability have not been met or more nearly approximated for the period from October 9, 2014. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.114, Diagnostic Code 7332. 5. The criteria for an increased rating in excess of zero percent for a right upper extremity neurological disability have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8710. 6. The criteria for an increased rating in excess of 10 percent for a right shoulder surgery scar have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code 7804. 7. The criteria for SMC under 38 U.S.C. § 1114 based on the need for the regular aid and attendance of another person or by reason of being housebound have not been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352. 8. The criteria for a temporary total rating based on convalescence for right surgery beyond April 1, 2011 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.29, 4.30. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1976 to August 1996. The Veteran died in July 2017. The appellant has been recognized by the Agency of Original (AOJ) Jurisdiction as the Veteran's surviving spouse, and has been substituted in this claim. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010(a). In a September 20, 2021 written statement, the appellant withdrew a hearing request. As such, the Board finds there is no hearing request pending at this time as the previous request has been withdrawn. 38 C.F.R. § 20.702(e). In the September 20, 2021 written statement, the appellant also requested an additional 30 days to submit "supplemental legal argument and/or additional evidence." To date, and more than 30 days after the September 20, 2021 request, no additional argument or evidence has been received; therefore, the Board will proceed with appellate review. 1. Effective Date for Sleep Disability 2. Effective Date for Fecal Incontinence Disability For claims received prior to March 24, 2015, as in this case, a "claim" is defined as a formal or informal communication, in writing, requesting a determination of entitlement, or evidencing a belief in entitlement to a benefit and VA is required to identify and act on informal claims for benefits. 38 C.F.R. §§ 3.1(p), 3.155(a); see also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). Pursuant to 38 C.F.R. § 3.155, any communication or action indicating intent to apply for one or more VA benefits, including statements from a veteran's duly authorized representative, may be considered an informal claim. Such an informal claim must identify the benefit sought. 38 C.F.R. § 3.1(p) defines application as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999). The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1. Under the former regulations governing informal claims, and pertinent in this case, reports of examination or hospitalization from VA, private physicians, or state or other institutions, may be accepted in certain circumstances as claims for increase or claims to reopen. 38 C.F.R. § 3.157(a) (2014). Significantly, receipt of such reports of examination or hospitalization may only be accepted as an informal claim for increased benefits if a formal claim for compensation has been previously allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree. 38 C.F.R.§ 3.157(b). With respect to evidence from a private physician or layman in particular, the date of receipt of such evidence will be accepted as the date of receipt of an informal claim when the evidence furnished by or in behalf of the claimant is within the competence of the physician or lay person and shows the reasonable probability of entitlement to benefits. 38 C.F.R. § 3.157(b)(2) (2014). Throughout the course of this appeal, the appellant's representative has essentially contended that an earlier effective date is warranted under the old 38 C.F.R. § 3.157(a) (2014). Procedurally, a May 2020 rating decision granted secondary service connection for the sleep and fecal incontinence disabilities, effective August 18, 2015 (date of claim for service connection). A May 2020 rating decision granted an earlier effective date of October 9, 2014 for disabilities, the date VA received an informal claim for the sleep and fecal incontinence disabilities. The Board finds that the appellant is not entitled to an effective date prior to October 9, 2014 for the award of service connection for the sleep and fecal incontinence disabilities. VA statute and regulations, which provide that the effective date for service connection claims is the later of the date of receipt of claim or the date entitlement arose, do not provide for an effective date earlier than the date the October 9, 2014 informal claim received by VA. For the above reasons, an earlier effective date of October 9, 2014 for the grant of service connection for the sleep and fecal incontinence disabilities is not warranted. 38 U.S.C. § 38 C.F.R. § 3.157(a),(b). 3. Initial Rating for Sleep Disability Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). The sleep disability is rated under 38 C.F.R. § 4.130, Diagnostic Code 9422. Pertinent in this case, the General Rating Formula provides that that a 10 percent rating is assigned for occupational and social impairment due to mild and transient symptoms that decrease work efficiency and ability to perform occupational tasks only during significant stress or with symptoms controlled by continuous medication. A 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130. A 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped, speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. A 70 percent rating will be assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). A 100 percent schedular rating contemplates total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130. The use of the term "such as" in the General Rating Formula for Mental Disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disability, and the effect of those symptoms on his/her social and work situation. In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that VA "intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms." The Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." The appellant contends generally that the Veteran's service-connected disability was manifested by more severe symptoms and impairment than contemplated by the 10 percent disability rating assigned. After a review of the evidence, both lay and medical, the Board finds that, for the rating period on appeal from October 9, 2014, the frequency, severity, and duration of the sleep disorder symptoms caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, to meet the criteria for a higher 30 percent rating under Diagnostic Code 9422. The evidence of record includes the December 2015 VA examination report reflecting that the Veteran reported four hours of sleep per night for previous three years and that he woke throughout the night experiencing symptoms of anxiety. Various statements, to include a September 2016 statement, reflect the Veteran indicated that sleep disturbance and anxiety manifested as "severe" symptoms. The December 2015 VA examiner also assessed chronic sleep impairment. As such, a review of the relevant lay and medical evidence reveals that the Veteran experienced occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks as described for a higher 30 percent rating under Diagnostic Code 9422. See 38 C.F.R. § 4.130. Based on the above, the Board also finds that, for the initial rating period from October 9, 2014, the sleep disability has not more nearly approximated occupational and social impairment with reduced reliability and productivity. While the evidence demonstrates that the Veteran experienced occupational and social impairment due to mild symptoms, VA examination reports indicate the Veteran was alert and oriented in all spheres and thought processes were logical. In addition, no examiner has assessed that the sleep disability manifested as occupational and social impairment with reduced reliability and productivity. For these reasons, the totality of the evidence demonstrates that the Veteran did not have occupational and social impairment with reduced reliability and productivity due to sleep disability symptoms and impairment as listed or similar to those listed under the 50 percent rating for any period on appeal. As such, the Board finds that the symptomology and occupational and social impairment more nearly approximate the criteria for a 30 percent rating from October 9, 2014. 4. Initial Rating for Fecal Incontinence During his lifetime the Veteran was in receipt of a 10 percent disability rating for fecal incontinence under 38 C.F.R. § 4.115b, Diagnostic Code 7332. Under Diagnostic Code 7332, fecal incontinence is rated as impairment of sphincter control under 38 C.F.R. § 4.114. Under Diagnostic Code 7332, healed or slight impairment of sphincter control is to receive a 0 percent (noncompensable) rating. Constant slight or occasional moderate leakage is assigned a 10 percent rating. Impairment of sphincter control that causes occasional involuntary bowel movements necessitating wearing of pads is assigned a 30 percent rating. Impairment of sphincter control that causes extensive leakage and fairly frequent involuntary bowel movements is assigned a 60 percent rating. Complete loss of sphincter control is assigned a total, 100 percent rating. Based on review of the evidence discussed above, both medical and lay, the Board finds that impairment of sphincter control did not more nearly approximate the criteria for a 30 percent rating under Diagnostic Code 7332. The appellant has not contended, and the record does not otherwise suggest, that the Veteran suffered from occasional involuntary bowel movements necessitating wearing of pads. See VA and private treatment records. The December 2015 VA examiner also did not discern the wearing of a pad for fecal incontinence or occasional involuntary bowel movements, and the Veteran did not report otherwise. See December 2015 VA examination report. As such, a 30 percent rating under Diagnostic Code 7332 has not been more nearly approximated. 38 C.F.R. §§ 4.1, 4.7, 4.114. 5. Rating Right Upper Extremity Neurological Disability During his lifetime the Veteran's right upper extremity neurological disability was in receipt of an initial noncompensable (0 percent) rating under 38 C.F.R. § 4.124a, Diagnostic Code 8710, pertaining to median nerve paralysis and rated on the provisions regarding neuralgia of the upper radicular group. Diagnostic Code 8710 (neuralgia of the upper radicular group). Pursuant to Diagnostic Code 8710, mild incomplete paralysis of the upper radicular group is rated as 20 percent for both the major (dominant) and minor (non-dominant) extremity. Moderate incomplete paralysis is rated as 40 percent for the major extremity and 30 percent for the minor extremity. Severe incomplete paralysis is rated as 50 percent for the major extremity and 40 percent for the minor extremity. Complete paralysis warrants higher ratings. 38 C.F.R. § 4.124A. The Board notes that the record reflects the Veteran was right hand dominant (his right side is the major upper extremity). Words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for a higher disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. After a review of the evidence, both lay and medical, the Board finds that the weight of the relevant medical and lay evidence demonstrates that the criteria for a disability rating in excess of zero percent for the service-connected right upper extremity neuralgia have not been met for any part of the rating period. The weight of the lay and medical evidence demonstrates that the right upper extremity nerve disability did not more nearly approximate mild incomplete paralysis of the affected nerve(s). The July 2015 VA examiner did not discern constant pain, intermittent pain, paresthesias, dysesthesias, or numbness in the right upper extremity. The July 2015 VA examiner also noted normal reflex and muscle strength tests. The July 2015 VA examination report also reflects normal examinations of the radial, median, and ulnar nerves. Significantly, the July 2015 VA examiner indicated that the Veteran's reported subjective symptoms were inconsistent with the objective medical evidence of record, to include the July 2015 VA examination findings. In this case the Veteran is also in receipt of a 20 percent disability rating for a right shoulder disability under Diagnostic Code 5201 for the period from April 1, 2011 to July 22, 2015, and a 50 percent rating under Diagnostic Code 5200 from July 22, 2015. Under Diagnostic Code 5201 for limitation of motion, a 20 percent rating is warranted for limitation at shoulder level. Diagnostic Code 5200 rates ankylosis of the scapulohumeral articulation and provides a maximum 50 percent rating with unfavorable, abduction limited to 25 degrees from side, for which the Veteran is in receipt of from July 22, 2015. In this case, it would be pyramiding to assign a higher rating under Diagnostic Code 8710 for limitation of elevation of the right shoulder that results in symptoms of pain and weakness as these symptoms are based in part on joint rating (Deluca) factors, which are fully contemplated under Diagnostic Code 5200 and Diagnostic Code 5201 as episodes of guarding due to pain and weakness. Rating the symptoms of pain and weakness (causing limitation of motion) as mild incomplete paralysis under Diagnostic Code 8710 would result in rating the same symptoms under different disabilities and would compensate the Veteran twice for the same symptomology as the 20 percent disability rating assigned under Diagnostic Code 5201 and the 50 percent disability rating under Diagnostic Code 5200, which already encompasses all functional limitations and impairments of the right shoulder/upper extremity, to include painful motion and weakness. See 38 C.F.R. §§ 4.14, 4.40, 4.45, 4.59, DeLuca; see also Esteban,6 Vet. App. at 261 (the critical element is that none of the symptomatology for any condition is duplicative of or overlapping with the symptomatology of the other condition), Lyles 29 Vet. App at 107 (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). Based on the above, the Board finds that a disability rating in excess of zero percent is not warranted under Diagnostic Code 8710 for the right upper extremity neurological disability. 38 C.F.R. §§ 4.3, 4.7. 6. Increased Rating for Right Shoulder Surgery Scar For the increased rating period on appeal, the residual right shoulder surgery scar has been rated as 10 percent disabling under Diagnostic Code 7804. Under Diagnostic Code 7801, scars other than on the head, face, or neck that are deep or cause limited motion are rated as 10 percent disabling for areas exceeding 6 square inches (39 square centimeters), 20 percent disabling for areas exceeding 12 square inches (77 square centimeters), 30 percent disabling for areas exceeding 72 square inches (465 square centimeters), and 40 percent disabling for areas exceeding 144 square inches (929 square centimeters). Note (2) under Diagnostic Code 7802 provides that a deep scar is defined as one associated with underlying soft tissue damage. Under Diagnostic Code 7802, a 10 percent rating is warranted for superficial scars that do not cause limited motion, in an area or areas of 144 square inches (929 square centimeters) or greater. Note (2) under Diagnostic Code 7802 provides that a superficial scar is defined as one not associated with underlying soft tissue damage. Under Diagnostic Code 7803, a 10 percent rating is warranted for superficial and unstable scars. Note (1) under Diagnostic Code 7803 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Under Diagnostic Code 7804, a 10 percent rating is warranted for 1 or 2 scars that are unstable or painful. A 20 percent rating is warranted for 3 to 4 scars that are unstable or painful. A 30 percent disability rating is warranted for 5 or more scars that are unstable or painful. Note (1) states that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, add 10 percent to the rating that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118. Any disabling effects of other scars (including linear scars), and other effects of scars rated under Diagnostic Codes 7800, 7801, 7802, and 7804 not considered in a rating provided under Diagnostic Codes 7800 through 7804 are to be rated under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805. After a review of all the evidence, lay and medical, the Board finds that, for the entire rating period on appeal, the scar disability has not been manifested as three or more scars that unstable or painful. Findings from the December 2019 VA examination report reveals one scar. As such, the criteria for a rating of 20 percent under Diagnostic Code 7804 for three or more painful scars is not warranted. 38 C.F.R. §§ 4.3, 4.7. The Board also finds that no other higher or separate rating is warranted under any of the other diagnostic codes pertaining to scars. Here, the scar at issue is not located on the head, face, or neck; therefore, Diagnostic Code 7800 is not for application. The evidence of record also does not reflect that the Veteran has superficial, nonlinear scars in an area of 929 square centimeters or greater; and/or deep, nonlinear scars in an area of 39 square centimeters or greater; therefore, Diagnostic Code 7801 and Diagnostic Code 7802 are not for application. 7. SMC Compensation at the aid and attendance rate is payable when the veteran, due to 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). 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; the 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 particular personal functions that the claimant is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the claimant be so helpless as to be in need of regular aid and attendance, not that there is a constant need. "Bedridden" constitutes a condition which, through its essential character, actually requires that an individual remain in bed. 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. 38 C.F.R. § 3.352(a). In Turco v. Brown, 9 Vet. App. 222, 224 (1996), the 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 VA regulation is met. In addition, determinations that the claimant 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. See Turco, 9 Vet. App. at 224. 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 his service-connected disability or disabilities, he is substantially confined to his 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 lifetime. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350. The appellant seeks SMC based on the need for the aid and attendance of another or housebound status. After review of the lay and medical evidence of record, the Board finds that the criteria for SMC based on the Veteran's need for the aid and attendance of another during his lifetime have not been met because the weight of the evidence shows no need for the regular aid and attendance of another due to service-connected disabilities. The evidence shows that during his lifetime the Veteran did not suffer the anatomical loss or loss of use of both feet or one hand and one foot, was not blind in both eyes, was not permanently bedridden and was not so helpless as to be in need of regular aid and attendance due to any service-connected disability or service-connected disabilities. During his lifetime, the Veteran was not service connected for any disability involving the feet or lower extremities, is not shown to have loss of use of one hand, and is not service-connected for any disability involving the eyes. The weight of the evidence also shows that the Veteran was not bedridden due to service-connected disability. Although a December 2015 examiner noted that the use of a wheelchair and motorized scooter, the December 2015 VA examiner added that the Veteran used a motorized scooter as needed, which is evidence against finding that the Veteran must actually remain in bed. The service-connected fecal incontinence disability was manifested by constant slight leakage and occasional moderate leakage, which indicates some inability to attend to the wants of nature due to service-connected disability. Although the service-connected right upper extremity disability was manifested by pain and limited range of motion, the symptoms were not shown to be severe enough to result in the inability of the Veteran to feed himself through loss of coordination of upper extremities or through extreme weakness. Although the Veteran's physician indicated on a December 2013 examination that the Veteran was unable to feed himself with the right hand, the private examiner went on to explain that the Veteran was unable to cut food with the right hand, but was able to use the left hand for the basic activities of daily living. In this case the Board finds that the inability to cut food with one hand does not amount to the inability to feed oneself as requiring assistance with medication management, meal preparation, or assistance dressing on some days does not constitute the inability of the Veteran to dress or undress himself, or to keep himself ordinarily clean and presentable; the inability of the Veteran to feed himself through loss of coordination of upper extremities or through extreme weakness; the 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. The symptoms and functional impairment associated with the service-connected sleep disorder are not of the severity to cause any mental incapacity because the Veteran does not need protection from hazards or dangers incident to his daily environment. See December 2015 VA mental disorders examination (noting chronic sleep impairment which manifested as occupational and social impairment due to mild or transient symptoms). Furthermore, the evidence shows no frequent need of adjustment of any special prosthetic or orthopedic appliances without assistance. For these reasons, the Board finds that the criteria for entitlement to SMC based on the need for the aid and attendance of another person have not been met. The Board next finds that the criteria for SMC based on housebound status have not been met or approximated. The evidence does not show that the Veteran was housebound due to service-connected disabilities at any time during the period. The Veteran was neither substantially confined to his dwelling and the immediate premises as a result of the service-connected disabilities nor institutionalized due to the service-connected disabilities. For these reasons, the Board finds that the criteria for entitlement to SMC by reason of being housebound have not been met, and the appeal must be denied. 8. Temporary Total Rating A temporary total rating of 100 percent is assigned effective the date of hospital admission or outpatient treatment and continuing for a period of one, two, or three months from the first day of the month following such hospital discharge or outpatient release, if the treatment of a service-connected disability resulted in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe post-operative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. See 38 C.F.R. § 4.30 (emphasis added). The appellant contends that Veteran was entitled to temporary total rating for surgery and time of convalescence beyond April 1, 2011. Treatment records show that the Veteran had right shoulder surgery in December 2010. The Veteran was assigned a temporary total disability rating of 100 percent for the period from December 29, 2010 to April 1, 2011, a period of three months, which is the maximum period for convalescence 38 C.F.R. § 4.30. As such, the controlling regulations prevent the Board from awarding a rating beyond the maximum three month period of convalescence as a matter of law. 38 C.F.R. § 4.30 ; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). As such, this claim must be dismissed. REASONS FOR REMAND 9. TDIU The Board's instant decision grants a 30 percent disability rating for the sleep disability for the entire initial rating period on appeal from October 9, 2014. In implementing the Board's grant, the Agency of Original Jurisdiction will assign the disability rating for the respective rating period. Thus, the issue of a TDIU is inextricably intertwined with implementing the grant of a higher rating for the sleep disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). The issue of TDIU is REMANDED for the following action: After implementing the Board's grant of a 30 percent disability rating for the sleep disability for the entire initial rating period on appeal from October 9, 2014, readjudicate the issue of a TDIU. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Tenney, 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.