Citation Nr: 21072350 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-00 717 DATE: December 2, 2021 REMANDED Entitlement to special monthly compensation (SMC) based on housebound status is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1967 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. This matter was previously before the Board in July 2019 and July 2021 wherein the Board remanded for additional development. The matter has returned to the Board for adjudication. In the July 2021 Board decision, the matter was remanded as the Board found that the VA SMC examination from September 2020 required an addendum medical opinion because the VA examiner provided an opinion based on both service-connected and nonservice-connected disabilities when providing the housebound opinion. In this regard, the examiner indicated that the Veteran was restricted to his home or its immediate vicinity due to idiopathic pulmonary fibrosis, his neck disability, right rotator cuff repair, right ulnar nerve transposition, and right pelvic fracture. The Veteran is only service connected for posttraumatic stress disorder (PTSD) with a 100 percent rating, a neck disability with a 30 percent rating, and a right knee scar, currently rated at 10 percent disabling. An addendum opinion was obtained in August 2021 and the VA examiner found that the Veteran can never leave the home or immediate premises unless someone is to drive him. In the diagnosis section, the examiner stated that the Veteran had pulmonary fibrosis, right cubital tunnel syndrome, and cervical disc fusion. In September 2021, the RO obtained another addendum opinion as the VA examiner did not determine whether the Veteran is housebound due to the functional impairment(s) stemming from his service-connected disabilities, which include PTSD, a neck disability, and right knee scar. The VA examiner responded that it is less likely than not that the Veteran would be housebound from his PTSD, neck disability, and right knee scar without adding in his nonservice-connected pulmonary fibrosis. He stated that without the lung disease, the Veteran would be at least as likely as not able to drive short distances. Upon review of the Veteran's file, a VA examination for peripheral nerves was conducted in March 2017 in conjunction with a claim for SMC based on aid and attendance. The VA examiner found that the Veteran had cervical radiculopathy and ulnar neuropathy. The examiner stated that there was mild to moderate incomplete sensory and motor deficit of the right hand and forearm from a combination of lower cervical radiculopathy due to his service-connected cervical spine disease and ulnar neuropathy. He stated that he cannot determine the relative contribution of each without speculating. In this regard, the RO denied the claim for aid and attendance, but did not address the cervical radiculopathy that was associated with the Veteran's service-connected cervical spine condition. SMC at the housebound rate is payable to a Veteran who has a single service-connected disability rated 100 percent disabling and either (a) has an additional service-connected disability, or disabilities, independently rated 60 percent, which (i) is/are separate and distinct from the service-connected disability rated 100 percent and (ii) involve(s) different anatomical or bodily symptoms; or (b) is permanently housebound by reason of a service-connected disability or disabilities. The latter requirement is met when the Veteran is substantially confined to his dwelling and the immediate premises as a direct result of service-connected disabilities, and it is reasonably certain that the disabilities will continue throughout her lifetime. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). A TDIU based on a single service-connected disability can count as a single service-connected disability rating at 100 percent. See Bradley v. Peake, 22 Vet. App. 280 (2008). The Veteran does not meet the requirements for statutory housebound SMC because he does not have a combined 60 percent disability rating independent from a 100 percent rating. However, as noted above, the RO did not address the fact that the March 2017 VA examination found that the Veteran had cervical radiculopathy. Given this finding, the Veteran may potentially meet the requirements for statutory housebound if he has a combined 60 percent disability rating independent from his 100 percent rating for PTSD, with the addition of his cervical radiculopathy. In the case the Veteran does not meet the requirements for statutory housebound, he may still be eligible for housebound-in-fact. Here, the evidence indicates that the Veteran cannot drive and needs help with leaving his house. See October 2014 Statement in Support of Claim. In November 2014, Dr. J.F. stated that the Veteran is a patient of his and has cervical disc disease and PTSD. He cannot drive and needs help with leaving his house. In a January 2015 statement, the Veteran stated that due to his medications, hydrocodone, Zanaflex, and Neurontin that he should not drive and that he could not properly grip a steering wheel. A December 2015 VA treatment record notes that the Veteran reported he is not able to leave the house without assistance and is not able to drive, he depends on family and church members to assist him. He reported that since he has right side ulnar neuropathy, he is not able to have a strong grip and weakness in the extremity including limited range of motion. He is also concerned that with current medications for pain/anxiety/muscle relaxer he is not safe to operate a motor vehicle due to drowsiness. The Veteran reported his activities are limited secondary to pain and he is in bed 20-22 hours a day. See December 2015 VA treatment record. The April 2016 private SMC examiner noted that the Veteran has a history of cervical spine surgery and is not able to have prolonged riding and transport in vehicle due to onset of pain and wears a soft neck brace to travel to appointments at the VA Medical Center. He also stated the Veteran is not driving due to right upper extremity paresthesia and requires travel assistance to leave the home for appointments and that generally, he is home unless he has transportation assistance. An April 2016 VA treatment record notes that he cannot go anywhere unless someone takes him and that he cannot get his mail unless someone brings it to him. He does have access to the Choice program but still cannot get to appointments unless someone from his church or a friend in the community takes him. In May 2016, the Veteran reported he does not drive after receiving a DUI because he had prescribed narcotics in his system. See May 2016 VA treatment record. In December 2016, another private examiner stated he can only leave the house one to two times per month. A January 2017 SMC examination indicated that the Veteran no longer drives. The examiner also stated that he is not able to grasp normally and has marked difficulty with activities of daily living. The Board notes, in order to be considered "permanently housebound," the requirement that the Veteran be "substantially confined" to the home or its immediate premises is broadly construed and met when the Veteran is simply unable to leave the home to earn a living, as opposed to requiring that the Veteran be unable to leave the house at all. 38 U.S.C. § 1114(s). Substantially confined does not mean that the Veteran is unable to leave his dwelling and the immediate premises at all. Hartness v. Nicholson, 20 Vet. App. 216 (2006); Howell v. Nicholson, 19 Vet. App. 535 (2006). While the evidence indicates the Veteran was able to attend his medical appointments, he needed to rely on others for transportation because he could not drive due to his cervical neck disability and cervical radiculopathy. Although the most recent SMC examiner found that the Veteran was unable to leave his house due to his pulmonary fibrosis, the evidence prior to the September 2021 medical opinion implies that the Veteran was essentially unable to drive and leave the premises of his house due to difficulty in driving from his neck and radiculopathy symptoms as well as the effects of his medication from his service-connected disabilities. As such, the Board finds that remand is necessary to properly adjudicate the Veteran's cervical radiculopathy and whether he may be entitled to SMC based on housebound status. The matters are REMANDED for the following action: 1. Obtain VA treatment records from November 2019 to present. All reasonable attempts should be made to obtain any identified records. All action taken in this regard should be documented. 2. After completion of the above, readjudicate the Veteran's claim for cervical radiculopathy to determine if it is related to his service-connected herniated nucleus pulposus, C5-6 and C6-7, status post diskectomy and anterior fusion to include scar associated with PTSD and whether the Veteran is entitled to SMC housebound status on a statutory basis. 3. If the RO determines that the Veteran is not entitled to SMC housebound status on a statutory basis, determine if he is entitled to housebound in-fact by taking into account the effects of his service-connected conditions, to include PTSD, neck disability, right knee scar, and cervical radiculopathy (if found to be service connected) and his limitations in driving and the effects of the medications for his service-connected conditions. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Kim, 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.