Citation Nr: 21069380 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 20-23 458 DATE: November 18, 2021 ORDER Entitlement to total disability based on individual unemployability (TDIU) is dismissed as moot. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance is denied. FINDINGS OF FACT 1. The Veteran has been awarded separate 100 percent disability evaluations for anxiety/depression from August 6, 2014 and for diabetic nephropathy (from March 13, 2020). He has also been awarded SMC under the provisions of 38 U.S.C. § 1114 (s). 2. The Veteran is not blind, is not bedridden, and his service-connected disabilities do not render him unable to care for his daily personal needs or to protect himself against the hazards and dangers incident to his daily environment. CONCLUSIONS OF LAW 1. The claim of entitlement to a TDIU rating is dismissed. 38 U.S.C. § 1114, 1155; 38 C.F.R. § 4.16 (a). 2. The criteria for establishing entitlement to SMC based on the need for regular aid and attendance are not met. 38 U.S.C. §§ 1114 (s), 5107; 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from September 1965 to April 1969 including service in the Republic of Vietnam. He was awarded a meritorious Bronze Star Medal and Combat Infantryman Badge. These matters are before the Board of Veterans' Appeals (Board) on appeal from an October 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). A May 2020 rating decision granted SMC based on housebound criteria from March 13, 2020. In October 2020 and September 2021 The Board remanded these matters, as well as SMC based on housebound prior to March 13, 2020. A September 2021 rating decision granted an earlier effective date of SMC based on housebound of August 6, 2014. 1. Entitlement to TDIU. In this case, the Veteran has been assigned a 100 percent rating for anxiety and depression effective August 6, 2014, the earliest effective date for service connected disabilities along with SMC benefits based on statutory housebound status, effective August 6, 2014. 38 U.S.C. § 1114 (s). This combination of a 100 percent schedular rating and SMC renders the TDIU claim moot. 2. Entitlement to SMC based on the need for regular aid and attendance. Special monthly 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 with visual acuity of 5/200 or less, or is permanently bedridden or so helpless as to need regular aid and attendance. 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 such conditions as: 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 aid; 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, physical or mental, which requires care or assistance on a regular basis to protect the claimant from the hazards or dangers incident to his daily environment. "Bedridden" will be a proper basis for the determination, and is defined as that condition which, through its essential character, requires that the claimant remain in bed. It is not required that all the disabling conditions enumerated above be found to exist before a favorable rating may be made. The personal functions that the claimant is unable to perform should be considered in connection with his condition. It is only necessary that the evidence establish that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. 38 C.F.R. § 3.352 (a). The Veteran is service connected for anxiety/depression (100 percent from August 6, 2014), diabetic nephropathy (60 percent prior to June 15, 2018, 80 percent from June 15, 2018, and 100 percent from March 13, 2020), hypertrophy associated with type 2 diabetes mellitus (20 percent from August 6, 2014), right and left lower extremity peripheral neuropathy (sciatic nerve) (each 10 percent from November 20, 2015, and 20 percent from February 12, 2018), right and left upper extremity peripheral neuropathy (each 20 percent from May 3, 2018), type 2 diabetes mellitus (10 percent from August 6, 2014), right and left lower extremity peripheral neuropathy (internal saphenous nerve) (each rated 0 percent from February 12, 2018), right and left lower extremity peripheral neuropathy (obturator nerve) (each rated 0 percent from February 12, 2018), right and left lower extremity peripheral neuropathy (external cutaneous nerve) (each rated 0 percent from February 12, 2018), hypertension (rated 0 percent from October 17, 2019), and residuals of a scar associated with diabetic nephropathy (rated 0 percent from October 17, 2019). The evidence does not show or suggest that the Veteran is blind or has loss of use of both feet or of a hand and a foot due to service-connected disability. His claim, therefore, turns on whether he is bedridden or requires aid and attendance due solely to his service-connected disabilities. On January 2015 diabetes mellitus examination, it was noted that the Veteran's diabetes did not impact the Veteran's ability to work. On February 2015 PTSD examination, the Veteran was found to be capable of managing his financial affairs. On a December 2019 VA Form 21-8940 the Veteran reported that he was last employed in December 2015. The Veteran reported completing four years of college. On January 2016 diabetes mellitus examination, it was noted that the Veteran's diabetes and peripheral neuropathy did not impact his ability to work. A January 2016 urinary tract conditions examination notes the Veteran's benign prostatic hypertrophy did not impact his ability to work. On January 2017 kidney conditions examination, it was noted that the Veteran's diabetic nephropathy did not impact his ability to work. On January 2017 hypertension examination, it was noted that the Veteran's hypertension did not impact his ability to work. On January 2017 diabetes mellitus examination, it was noted that the Veteran's diabetes did not impact his ability to work. On February 2018 aid and attendance examination report, the examiner noted the Veteran could leave his home anytime without restrictions. It was noted that the Veteran was able to feed himself and prepare his own meals. It was noted that the Veteran did not need assistance in bathing and tending to other hygiene needs, was not legally blind, did not require nursing home care, and did not require medication management. It was noted that the Veteran could manage his own finances. Normal position and gait were noted, no restrictions of upper extremities, lower extremities, or the spine neck and truck were noted. A May 2018 mental disorders examination notes the Veteran was able to manage his own finances. On May 2018 diabetes mellitus examination, it was noted that the Veteran posed a safety risk of falls as well as a risk of low blood sugar in employment. Regulation of activities as part of medical management of diabetes mellitus was not shown. On May 2018 hypertension examination, it was noted that the Veteran's hypertension did not impact his ability to work. A May 2018 peripheral nerves conditions examination notes the Veteran posed a risk of falls, and of not feeling extreme temperatures in a work setting. An October 2019 private kidney conditions examination notes the Veteran's kidney condition did not impact his ability to work. On November VA Form 21-8940 the Veteran reported last working full time in December 2015. A February 2020 VA preventive health screening noted the following: independent feeding, bathing, grooming, dressing; continence of bowel and bladder, independent mobility on flat surfaces and on stairs. Independent traveling via car or public transportation and medication use. A March 2020 mental disorders examination notes the Veteran could manage his own finances. On November 2020 kidney conditions examination, it was noted that the Veteran's kidney condition resulted in the loss of more than five weeks of work in the last twelve months. It was noted that the Veteran required dialysis three times per week in the community, and the Veteran was afraid to travel out of state. A November 2020 diabetic peripheral neuropathy examination notes the Veteran was limited in carrying and picking up objects, difficulty with doing anything that required fine dexterity (buttoning a shirt), driving, prolonged walking, standing, and house chores. On November 2020 hypertension examination, it was noted that the Veteran was "unable to eat everything he wants" due to hypertension. The overall evidence reflects that, considering the limitations due to his service-connected disabilities, the Veteran remains capable of tending to most activities of daily living and can function in his environment. Notably, the Veteran's service-connected disabilities result in functional impairment. However, the degree to which service-connected disabilities caused functional impairment are contemplated by the currently assigned ratings, and such impairment is not shown to result in requiring regular aid and attendance. Accordingly, the preponderance of the evidence is against the claim of entitlement to SMC based on the need for regular aid and attendance, and the appeal in this matter must be denied. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Staskowski, 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.