Citation Nr: 21069521 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-42 137 DATE: November 18, 2021 ORDER Entitlement to special monthly compensation based on the need for aid and attendance and/or housebound status is denied. FINDING OF FACT The most probative evidence does not reach the level of equipoise as to whether the Veteran requires aid and attendance or is permanently housebound due to his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to special monthly compensation based on the need for aid and attendance and/or housebound status have not been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.350, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from March 1984 to February 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge during a hearing in October 2020. A transcript of the hearing is associated with the claims file. Legal Criteria Special Monthly Compensation A veteran is entitled to special monthly compensation under 38 U.S.C. § 1114(l) if, as the result of service-connected disability, he or she has suffered the anatomical loss or loss of use of both feet, or of one hand and one foot, or is blind in both eyes, with 5/200 visual acuity or less, or is permanently bedridden or with such significant disabilities as to be in need of regular aid and attendance. Under 38 U.S.C. § 1114(m), special monthly compensation may be granted if the veteran has suffered the anatomical loss or loss of use of both hands, or of both legs with factors preventing natural knee action with prostheses in place, or of one arm and one leg with factors preventing natural elbow and knee action with prostheses in place, or has suffered blindness in both eyes having only light perception, or has suffered blindness in both eyes, rendering such veteran so significantly disabled as to be in need of regular aid and attendance. Under 38 U.S.C. § 1114(s), special monthly compensation may be granted if the veteran 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 C.F.R. § 3.350(i)(2). Determinations as to need for aid and attendance must be based on actual requirement of personal assistance from others. In making such determinations, consideration is given to such conditions as: inability of 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 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 hazards or dangers incident to his or 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 claimant remain in bed. It is not required that all of the disabling conditions enumerated above 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/her 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 be a constant need. 38 C.F.R. § 3.352(a). 1. Entitlement to special monthly compensation based on the need for aid and attendance and/or housebound status The Board finds that the most probative evidence does not reach the level of equipoise in the claim of entitlement to special monthly compensation (hereinafter "SMC") due to a need for aid and attendance and/or housebound status. Therefore, the claim may not be granted. Initially, the Board notes that the Veteran suffers from numerous ailments that are not service-connected, including diabetes mellitus type II, liver cirrhosis, chronic obstructive pulmonary disease, hypertension, and neuropathy. See CAPRI, August 2016. In rendering its decision herein, the Board may only consider functional impairment due to his service-connected disorders, including lumbar spine degenerative disc and joint disease, left and right lower extremity radiculopathy, residuals of left ankle injury, impairment of the left thigh, right hip limitation of flexion and extension, and left hip limitation of flexion and extension. See 38 U.S.C. § 1114; Rating Decision Codesheet, April 2018. However, where the functional impairment cannot be clearly differentiated between service-connected and nonservice-connected disorders, the Board will consider it as coming from the service-connected disorders. See Mittleider v. West, 11 Vet. App. 181 (1998). Turning to the evidence of record, the Veteran submitted VA Forms 21-2680 completed by his primary care physician, Dr. A.G., in 2014, 2015, 2016, 2017, and 2020. In 2014, Dr. A.G. found that the Veteran was able to feed himself, but not prepare his own meals, needed assistance in bathing, did not require nursing home care, required medication management, and was able to manage his own financial affairs. He noted that the Veteran used a motorized scooter, but was able to stand, sit up, and walk short distances. He found that the Veteran was able to feed himself, button clothing, shave, and attend to the needs of nature, although his hand grip and fine motor were affected by carpal tunnel syndrome. Dr. A.G. noted that the Veteran stayed home during a typical day and watched TV or did computer activity, and left home about three times per week, including to get fast food and attend appointments, and may take his daughter to school or pick her up. In October 2015, Dr. A.G. concluded that the Veteran was able to feed himself and did not need assistance with bathing or hygiene needs. He reported that the Veteran was able to walk with a cane for a short distance, and usually goes out to eat or to the store three to four times per week. He stated that the Veteran's chronic low back pain, internal derangement of the right knee, and liver cirrhosis restricted the activities and listed functions. In March 2016, a VA social worker noted that the Veteran was in a wheelchair, but was able to ambulate to a chair with a cane. The Veteran indicated that his wife assisted with showering, dressing, medication, and meal management. The social worker indicated that no services were currently needed at home. In December 2016, the Veteran told a VA mental health clinician that he and his wife had spent three days at a theme park, and had a good time despite his physical limitations. In February 2017, Dr. A.G. reported that the Veteran was able to feed himself, required assistance with bathing and with medication management, but is able to manage his own financial affairs with help from his wife. He noted that the Veteran had tremors and neuropathy restricting his upper extremity functions, but was clean looking and used a motorized scooter. He found that the Veteran usually stays at home, and only leaves when going to doctor's appointments or for dinner/lunch, usually accompanied by his wife. Dr. A.G. attributed the functional impairment to degenerative disc disease of the lumbar spine, peripheral neuropathy, internal derangement of the knee, and liver cirrhosis. During a VA nutrition consultation in April 2017, the clinician reported that the Veteran was no longer driving. In June 2017, the Veteran told his nutritionist among other things, that he was worried about his wife, who was juggling a job, appointments, and coming home daily to give him insulin shots because his tremors are a hindrance. The Veteran had a VA interventional pain consultation in February 2018. The clinician indicated that the Veteran's activities of daily living are "moderately limited", and that the Veteran reported 80 percent of the pain is in the low back area while 20 percent of the pain is in the bilateral thigh/legs to the ankles and is mainly of "a neuropathic nature." A physical examination showed that the Veteran could sit down and stand up normally, and his gait, balance and posture were normal. He exhibited full active range of motion and normal strength in the arms, and leg strength and extensor hallucis longus were normal and equal bilaterally. The clinician assessed 60 percent lower back pain and 40 percent leg pain, and prescribed an implanted spinal cord stimulation device. In July 2020, Dr. A.G. found that the Veteran is able to feed himself, needs assistance in bathing due to a risk of falling and with taking medications, and has the capacity to manage his financial affairs with help from his wife. He stated that the Veteran has difficulty walking, weightbearing, and balancing related to his lumbar spine and cervical spine disorders, knee disorder, and peripheral neuropathy. He noted that the Veteran has difficulty with upper extremity tasks due to tremors and neuropathy. Dr. A.G. stated that the Veteran usually stays at home, and only leaves to go to doctor's appointments and when going out with his wife and family. The Veteran had a VA examination for his lumbar spine disorder in September 2020. The examiner found that the Veteran had invertebral disc syndrome but did not have incapacitating episodes meeting the appropriate definition within the past 12 months. He found that the Veteran's functional impairment would be equivalent to an inability to climb ladders, climbing one stair with assistance, ambulation limited to 10 yards, and standing limited to 5 minutes. During the Veteran's hearing, he testified, among other things, that his physicians have not decided to do home care for him, he normally leaves home only to go to doctor's appointments, and that he falls about three times per month. After careful review of the record, the Board finds that the most probative evidence does not reach the level of equipoise as to the claim for SMC based on aid and attendance or housebound status. Initially, the Board finds that the Veteran does not meet the relevant criteria for aid and attendance allowance due to his service-connected disorders. The record shows that he has consistently been found able to feed himself, dress himself, attend to the wants of nature, button his clothes, and is competent to manage his financial affairs. The February 2018 clinician noted that the Veteran's activities of daily living were only "moderately impaired." His arms manifested normal strength and range of motion, and his leg strength was normal and equal bilaterally. The functional impairment from his back and radiculopathy disorders, including as noted by the September 2020 VA examiner, does not preclude the Veteran from limited standing and ambulation. The Board also notes that Dr. A.G. found that the Veteran's restrictions of the upper extremities are due to tremors and neuropathy, neither of which are service-connected. Thus, the preponderance of the evidence does not suggest a level of functional impairment consistent with incapacity due to service-connected disorders requiring care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment to the extent that aid and attendance allowance is appropriate. See 38 C.F.R. §§ 3.350, 4.7. Regarding housebound status, the record reflects that the Veteran was able to drive himself for part of the rating period, and to take a vacation to a theme park in December 2016. Although his wife now does the driving, the record shows that the Veteran is able to leave his home for medical appointments and "when going out with his wife and family," as noted by Dr. A.G. See Howell v. Nicholson, 19 Vet. App. 535, 540 (2006) (holding that the Board may considered a veteran's ability to leave the home for medical appointments as a factor against a finding of housebound status as long as it is not the sole basis for the denial). As the Veteran is able to leave the house with his wife and family, this does not suggest to the Board that the Veteran is permanently housebound on a factual basis within the meaning of applicable regulations. See 38 U.S.C. § 1114(s). Regarding the statutory criteria for housebound status, the Veteran's highest rated service-connected disorders are a lumbar spine disorder, rated as 60 percent; left lower extremity radiculopathy, rated as 20 percent, both from February 14, 2011. See Rating Decision Codesheet, April 2018. To qualify for the rate of special monthly compensation listed at 38 U.S.C. § 1114(s), the Veteran would need a disability rated as total (to include a TDIU), in addition to another disorder independently ratable as 60 percent or greater. Bradley v. Peake, 22 Vet. App. 280, 293 (2008). However, a TDIU that has been granted based on multiple disabilities may not serve as a single service-connected disability rated as total. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). In this case, the record does not support that the Veteran's TDIU was awarded based on a single disorder or that any of his service-connected disorders, by themselves, result in eligibility for a TDIU. Moreover, as discussed above, the most probative evidence does not support that the Veteran is substantially housebound due to his service-connected disorders. The Board is grateful for the Veteran's honorable military service. However, given the record before it, the Board finds that the evidence does not reach the level of equipoise in the claim of entitlement to SMC based on the need for aid and attendance and/or housebound status. See 38 U.S.C. § 5107(a) ("[A] claimant has the responsibility to present and support a claim for benefits...."); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (recognizing that "[w]hether submitted by the claimant or VA... the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Reed, Associate 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.