Citation Nr: 21069281 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 18-42 713 DATE: November 18, 2021 ORDER Entitlement to special monthly compensation (SMC) based on the need for the regular aid and assistance of another person is denied. FINDINGS OF FACT 1. The Veteran does not have a single disability rated as 100 percent disabling and, therefore, is not eligible for SMC based on being permanently housebound. 2. The Veteran is not housebound or in need of the regular aid and attendance of another person as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for an award of SMC based on aid and attendance and/or housebound status, have not been met. 38 U.S.C. § 1114 (s); 38 C.F.R. §§ 3.102, 3.350(b), 3.352(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION Prior to discussing the appeal at hand, the Board of Veterans' Appeals (Board) would be remiss if it did not recognize the Veteran's outstanding service. The Veteran, who served on active duty from March 1972 to December 1976 and received the National Defense Service Medal, was clearly a credit to the United States Marine Corps and to his family, and his service to his country is greatly appreciated. Unfortunately, during the pendency of the appeal, VA received notice of the Veteran's death in August 2017. See August 2017 Death Certificate. His surviving spouse, the appellant, was properly substituted as the claimant for his pending claim. See May 2020 VA Notification Letter. In August 2020, the appellant testified at a video conference hearing (hearing) before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. 1. Entitlement to special monthly compensation (SMC) based on the need for the regular aid and assistance of another person The appellant contends that the Veteran was entitled SMC based on the need for the regular aid and attendance of another person. See March 2017 VA Form 21-2680, Examination for Housebound Status of Permanent Need for Regular Aid and Attendance. Legal Criteria Generally, with respect to claims of entitlement to SMC based on the need for the regular aid and attendance of another person, such claims will be granted when a veteran, due to a service-connected disability, has 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. See 38 U.S.C.§ 1114 (l); 38 C.F.R. § 3.350 (b). Determinations as to the need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to the following: inability of a veteran to dress or undress himself/herself or to keep himself/herself 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 aid; inability of a veteran 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, physical or mental, which requires care or assistance on a regular basis to protect a veteran from the hazards or dangers inherent in his/her daily environment. Bedridden will be a proper basis for the determination, and is defined as that condition which, through its essential character, actually requires that the veteran remain in bed. It is not required that all of the disabling conditions listed above be found to exist before a favorable rating may be made. The particular personal functions that a veteran is unable to perform should be considered in connection with his/her condition as a whole. It is only necessary that the evidence establish that a veteran is so helpless as to need regular aid and attendance, not that there be a constant need. 38 C.F.R. § 3.352(a). In addition, special monthly compensation (SMC) is payable at a specified rate if the Veteran, as the result of service-connected disability, has a service-connected disability rated as total, and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or, (2) by reason of such veteran's service-connected disability or disabilities, is permanently housebound. For the purpose of this subsection, the requirement of permanently housebound will be considered to have been met when the veteran is substantially confined to such veteran's house (ward or clinical areas, if institutionalized) or immediate premises due to a service-connected disability or disabilities which it is reasonably certain will remain throughout such veteran's lifetime. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (b). Relevant Facts and Analysis Prior to his death, the Veteran was service connected for the following disabilities: 1) anxiety disorder with traumatic brain injury (TBI), rated 70 percent; 2) headaches associated with painful scar, rated 30 percent; 3) skull loss residuals, rated 10 percent; 4) painful scar, right temporal region, rated 10 percent; 5) facial scar, rated 10 percent and 6) tinnitus, rated 10 percent. See August 2017 Rating Decision Codesheet. In March 2017 aid and attendance or housebound examination report, the examiner noted the Veteran's weakness, impaired gait, and polyneuropathy restricted his functional ability. See March 2017 VA Form 21-2680, Examination for Housebound Status of Permanent Need for Regular Aid and Attendance. The examiner indicated that the Veteran was not legally blind or confined to a bed. He did not require nursing home care and was unable to prepare his own meals. Id. He required occasional assistance in feeding himself and needed assistance in bathing and tending to other hygiene needs. The Veteran ambulated with a motorized scooter. The examiner noted that the Veteran's bilateral lower extremity weakness impaired his gait and ability to stand. She further noted that Veteran was homebound and only leaves residence for medical appointments. Id. The claim for SMC based aid and attendance/housebound was denied in an August 2017 rating decision. The appellant filed a notice of disagreement (NOD) in October 2017 disagreeing with the August 2017 rating decision, because she asserted that the "Veteran was dependent on upon me [M.V.] to perform daily living activities." See October 2017 NOD. In a statement dated July 2018 submitted in support of the substantive appeal, the appellant asserted that the Veteran required aid and assistance from her and that the Veteran's "TBI caused great pain and extreme weakness, physical and mental incapacity to shower, dress, go to the bathroom, eat and travel to clinic appointment and treatments." See July 2018 Statement from Mrs. M.V. She further stated that the "TBI caused pain and was increased from the daily radiation treatments on his neck over several months." Id. She also reported that the Veteran was diagnosed with esophageal cancer in July 2012. The appellant stated that he was stationed at Camp Lejeune from 1972 to 1976 and was exposed to toxic contaminants in the water supply. Id. The appellant also averred that the Veteran's "[p]rimary physician Dr[.] Dempsey in Murfreesboro filed for Aid and Attendance in March 2017." Id. During the August 2020 Board hearing, the appellant testified that she aided and assisted the Veteran in performing his daily functions such as bathing, dressing, using toilet, transporting him to his medical appointment, and preparing his meals. She also reported he used a walker, wheelchair and had knee braces. See Hearing Transcript. She also contended that he was unable to use his legs due to his TBI condition. Id. Turning to the medical evidence, a May 2009 VA examiner for TBI found that the Veteran did not have any weakness, paralysis, or gait problems due to a head injury. See May 2009 VA Compensation and Pension Examination Report for Brain and Spinal Cord. Similarly, a September 2014 VA examiner found that the Veteran did not require assistive devices for ambulation as a result of his skull fracture. See September 2014 VA Compensation and Pension Report for Bones (Fractures and Bone Disease). Private treatment records from June 2016 confirmed that the Veteran had recently underwent a decompressive cervical laminectomy. See June 2016 Vanderbilt University Medical Center Treatment Record. The private physician noted that the Veteran had debilitating neuropathic pain which was resolved by the surgery. The Veteran endorsed symptoms of numbness and tingling in his hands and neck pain. However, he was able to ambulate freely and demonstrated good strength. Id. A June 2016 skilled nurse evaluation for home health indicated that the Veteran had functional limitations in endurance and ambulation primarily due malignant neoplasm of the stomach. See June 2016 Home Health Certification and Plan of Care. Upon admission to homecare services, the private registered nurse indicated that the Veteran was admitted for diagnosis of gastric cancer. See June 2016 Guardian Homecare Services Narrative Note. The nurse also noted that the Veteran "began to have increased pain and weakness in bilateral upper extremities as well as increased weakness, bone lesions and spinal cord compression were found and surgery was done." She also noted that the Veteran's wife (appellant) assisted the Veteran with activities of daily living (ADL), and independent ADLs. In July 2017, the Veteran was assessed for a stair lift. See July 2017 VA Kinesiotherapy Consult, in CAPRI received August 2017. The VA clinician noted that the Veteran was debilitated "secondary to a stomach and throat cancer." Id. He further noted that the Veteran was impaired and would benefit from a stair lift and power chair. Id. For the following reasons, the Board finds that entitlement to SMC based on the need for aid and attendance or housebound status is not warranted. In this case, the evidence of record does not reflect that the Veteran has the anatomical loss or loss of both feet or one hand and one foot or is blind in both eyes. See 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). In addition, the Veteran does not have a service-connected disability rated as total, in addition to service-connected disability or disabilities independently rated at 60 percent or more. Indeed, he has not contended otherwise. The Board acknowledges that the March 2017 examiner noted that the Veteran was homebound and only leaves his home for medical appointments. See March 2017 VA Form 21-2680, Examination for Housebound Status of Permanent Need for Regular Aid and Attendance. However, the disabilities listed in the March 2017 examination were disabilities for non-service-connected disabilities. Additionally, the March 2017 examiner noted the homebound, meaning that he only left his house for medical appointments, this definition significantly differs from homebound as defined in the SMC context, as outlined above. Here, none of the above criteria for housebound are met because the Veteran does not meet the schedular requirements. As such, this evidence does not indicate that the Veteran was permanently housebound due to his service-connected disabilities. Overall, the Board finds that the evidence did not indicate that the Veteran was permanently housebound due to his service-connected disabilities. Thus, the question is whether he is permanently bedridden or so helpless as to be in need of regular attendance due to his service-connected disability. While medical the evidence does reflect, he requires regular assistance from another person for daily self-care functions, such need is not due to his service-connected disabilities, alone, but in large measure is due to co-existing nonservice-connected disabilities of gastric cancer, neck pain, and bilateral lower extremity pain. See March 2017 VA Form 21-2680, Examination for Housebound Status of Permanent Need for Regular Aid and Attendance. Notably, the VA examiner opined that the Veteran's bilateral lower extremity condition impaired his ability to stand. Similarly, the VA clinician noted that the Veteran was debilitated "secondary to a stomach and throat cancer." See July 2017 VA Kinesiotherapy Consult, in CAPRI received August 2017. However, unfortunately the Veteran's is not service-connected for any bilateral lower extremity condition or stomach and throat cancer. Consequently, the criteria for establishing entitlement to SMC based on the need for aid and attendance are not met. The Board acknowledges that the appellant and the Veteran are competent to describe his symptoms, their observations, and the effects of his symptoms on his daily life. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board considered the appellant's contention that the Veteran's TBI resulted in pain and weakness in his legs, which necessitated aid and assistance. See i.e., Hearing Transcript. She also averred that she believed "that his Service-connected disabilities caused extreme weakness and great pain in the treatment of his cancer caused from exposure to toxic contaminants in the water supply at Camp Legune [sic] North Carolina. See July 2018 Statement from Mrs. M.V. The Board is sympathetic to the appellant in that it is clear she sincerely believes that the Veteran required aid and attendance due to his service-connected disabilities. However, the Board finds that her statements regarding the need for aid and attendance are not competent to the extent the statements appear as medical opinions. Importantly, the appellant has not shown she has the expertise necessary to render medical opinions on complex medical conditions including TBI and stomach cancer, and whether such conditions resulted in the need for aid and assistance. In analyzing the evidence as to entitlement to SMC based on aid and attendance and/or housebound, while a veteran and other laypersons may "opine as to their needs as they are related to [the veteran's disability], they are not qualified to provide the medical nexus between their disabilities and the perceived [aid and assistance] needs [of the veteran]." Howell v. Nicholson, 19 Vet. App. 535, 539 (2006). As such, the appellant's statements to the extent they provide medical opinions are not considered competent medical evidence, and are not probative. In sum, the Board finds that the Veteran was not, as the result of service-connected disabilities, with such significant disabilities as to be in need of regular aid and attendance and was not, by reason of service-connected disabilities, permanently housebound. As such, the Board concludes that the criteria for SMC based on the need for aid and attendance or housebound status have not been met. 38 U.S.C. §§ 1114 (l), (s), 5121; 38 C.F.R. §§ 3.350, 3.352, 3.1000, 3.1010. Accordingly, entitlement to SMC based on the need for aid and attendance or housebound status, for accrued benefits purposes, is denied. The Board is grateful to the Veteran for his service, and regrets that it cannot render a favorable decision in this matter. . YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Lilly, 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.