Citation Nr: 21069561 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 19-17 625 DATE: November 18, 2021 ORDER Entitlement to a higher level of special monthly compensation (SMC) is denied. FINDINGS OF FACT 1. The probative evidence of record shows that the Veteran is currently receiving SMC based on housebound rate, for his having one disability at 100 percent disabling and another at 60 percent or above. 2. The probative evidence of record does not show that the Veteran needed regular aid and attendance of another person to perform routine activities or that he was permanently bedridden due solely to his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a higher level of special monthly compensation have not been met. 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1968 to October 1969. The issue comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of May 2018 by a Department of Veterans Affairs (VA) Regional Office. In April 2021, the Veteran and his spouse, T. P., testified at a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ). A copy of the transcript is of record. Entitlement to a higher level of SMC is denied. The Veteran seeks a higher level than the regular rate of SMC based on housebound rate. The Veteran is currently receiving SMC based on housebound effective July 28, 2014, under 38 U.S.C. § 1114 (s) and 38 C.F.R. § 3.50 (i). The evidence of record shows that the Veteran is service connected for posttraumatic stress disorder, at 100 percent disabling; coronary atherosclerosis, at 100 percent disabling; tinnitus, at 10 percent disabling; and bilateral hearing loss, at a noncompensable disability rating. 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. In February 2018, the Veteran provided an Examination for Housebound Status or Permanent Need for Regular Aid and Attendance. The examiner diagnosed major depressive disorder, asthma, obstructive sleep disorder, SSS pacemaker, and neurocognitive decline. It was noted that the Veteran's neurocognitive decline disability restricted his activities and functions. It was also noted that the Veteran was able to feed himself but was not able to prepare his own food. He needed help getting dressed and grooming. He was not legally blind, nor did he require nursing home care. The Veteran's wife managed his medication and his finances. Regarding restrictions of the upper extremities, the clinician noted none but the "mental ability to perform these functions [wa]s declining." As for restriction of the lower extremities and of the spine, trunk, and neck, the clinician noted no restrictions. The clinician indicated that the memory and functional decline necessitated the need for him to be with someone throughout the day. Addressing when and under what circumstances the Veteran leaves home, the clinician noted that it was "ad lib but with another person to ensure safety." The Veteran needed the assistance of another for locomotion. In October 2018, VA received an Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, conducted in July 2018. It was noted diagnoses of neurocognitive decline, a-fib, obstructive sleep apnea, and hypertension. It was also noted that the Veteran was unable to feed himself and unable to cook. He was unable to differentiate the differences between food and ingredients. He needed assistance in bathing and tending to other hygiene needs. His wife turns on the shower and sits there, and the Veteran is able to self-bathe. The Veteran was not noted to be legally blind, nor did she require nursing home care. He required medication management. The examiner noted that he was not able to manage her finances. His wife was his fiduciary. Further, it was noted that for the description of his posture and appearance, that he had a walker but must stop because of shortness of breath. Regarding restrictions of the upper extremities, it was also noted that the Veteran needed assistance with changing clothes, and his wife must put his belt through the loops. As for restriction of the lower extremities, it was noted that the Veteran had leg weakness and ankle pain and used a walker. For restriction of the spine, trunk, and neck, it was noted that there was back pain when getting up from a sitting position. A loss of bladder control, memory loss, and dependency on traveling were noted. Addressing how often the Veteran was able to leave her home or immediate premises, it was noted he only leaves for medical appointments and requires care and assistance on a regular basis to protect him from dangerous incidents to his environment. He was bedridden and could only walk to the next home. In October 2018, the Veteran was afforded a Worksheet for Aid and Attendance. The examiner noted that the Veteran was not permanently bedridden nor currently hospitalized. The Veteran was able to travel beyond his current domicile restricted to his home or its immediate vicinity. His wife was his attendant and provided daily care, including grooming, meals, medication management, financial management. The Veteran did not use an orthopedic or prosthetic appliance. Regarding the Veteran's ability to protect himself from daily hazards/dangers, the examiner noted that there was intermediate dizziness; severe short/long term memory; and his balance intermittently affected his ability to ambulate. Also, the Veteran was unable to perform self-feeding, dressing, and undressing, bathing, and grooming. The Veteran's general appearance and posture were normal. He was able to walk without the assistance of another person, greater than 100 feet. He, however, needed aid for ambulation in the form of a cane. The Veteran left his home for medical care only. His best-corrected vision was not 5/200 in the bilateral eye. There were no limitations of motion or deformity of the cervical and thoracolumbar spines. The function of the upper extremities was normal. However, it was not for the lower extremity. There was a lack of coordination. The examiner indicated that the Veteran had a history of dementia and hip arthralgia. The examiner diagnosed dementia, paroxysmal atrial fibrillation, S/P permanent pacemaker placement, hypertension, type 2 diabetes, sleep apnea with CPAP use, depression, and COPD. Regarding his mental capacity, the examiner noted that the Veteran did not know the amount of his benefit payment; did not prudently handle payments; knew not the amounts of his monthly bills; did not personally handle money and pay bills; and was not capable of managing his financial affairs. In addition to the medical evidence of record, the Board acknowledges the lay statement provided by the Veteran in June 2019 Form 9 where he indicated that he "was told by his doctor that he could not be left alone. He need[ed] help with taking meds, bathing, dressing, grooming, preparing food. [He was] not allowed to drive." Additionally, during his Board hearing, his wife testified that he needed aid and attendance because of his heart condition. She also testified that her husband would be in danger and hurt himself with sharp knives. He also heard things that were not there, and left doors unlocked at night before he fell asleep. She was scared that he would fall and had to take his tools away for fear that he would hurt himself. After a review of the lay and medical evidence of record, the Board finds that the criteria for SMC based on the higher rate have not been met. No examiner or clinician has noted that the Veteran was in need of the aid and attendance based solely on his service-connected disabilities. Instead, his need was based on his neurocognitive decline, a-fib, obstructive sleep apnea, hypertension, type 2 diabetes, depression, and COPD. The Board notes that while depression and a-fib were noted, the Veteran is fully compensated at 100 percent each for a heart disability and PTSD. He is not service connected for neurocognitive decline, sleep apnea, hypertension, diabetes, and COPD. The evidence of record does not show that the Veteran's service-connected disabilities resulted in blindness, a combination of blindness and deafness, and anatomical loss and/or loss of use of the extremities. The Board finds the Veteran competent and credible in his reports of what his doctors have told him. The Board also finds the Veteran's wife competent and credible in her reports on how his disabilities affect him. Layno v. Brown, 6 Vet. App. 465 (1994). However, neither is shown by the evidence of record to have the training, experience, or skills needed to determine whether his service-connected disabilities solely necessitated regular aid and attendance of another person to perform routine activities. The findings of the medical professionals are most probative. Thus, the examinations are afforded more probative weight. For the above-said reasons, the preponderance of the evidence is against a finding that the Veteran is entitled to a higher level of SMC benefits. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and special monthly compensation at the higher rate 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.