Citation Nr: 21073164 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 14-35 133A DATE: December 7, 2021 ORDER Entitlement to an initial rating in excess of 30 percent for left ventricular hypertrophy is denied. Entitlement to special monthly compensation based on the need for regular aid and attendance of another person or housebound status is denied. FINDINGS OF FACT 1. The preponderance of the evidence demonstrates the Veteran's left ventricular hypertrophy disability is manifested by an activity level consistent with a workload of greater than 5 metabolic equivalents (METs) but not greater than 7 METs resulting in dyspnea, fatigue, angina, and dizziness. 2. The Veteran was not bedridden and is not unable to care for himself with respect to dressing, hygiene, feeding, toileting, and protection from hazards or dangers in his daily environment due to service-connected disabilities. He is not substantially confined to his dwelling and the immediate premises due to service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 30 percent disabling for left ventricular hypertrophy disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, Diagnostic Code (DC) 7020. 2. The criteria for an award of special monthly compensation by reason of the need for regular aid and attendance of another person or by reason of being housebound are not met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1972 through April 1983. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a May 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2017, March 2020, and July 2021, the Board remanded these matters to the Agency of Original Jurisdiction (AOJ) for additional development. There has been substantial compliance with the prior remand directives and the matter is again before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability shall be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. 1. Entitlement to an initial rating in excess of 30 percent for left ventricular hypertrophy is denied. The Veteran is currently assigned a 30 percent rating for his service-connected left ventricular hypertrophy disability. The Veteran contends that the severity of his symptoms warrants a higher rating. The Veteran's left ventricular hypertrophy disability is rated 30 percent disabling under DC 7020 for disability manifested by a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A rating of 60 percent is assigned for more than one episode of congestive heart failure within the past year, or where a workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or where there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A rating of 100 percent is assigned for chronic congestive heart failure, or where a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or where there is left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104. One MET (metabolic equivalent) is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory decision of METs by exercise testing cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) resulting in dyspnea, fatigue, angina, dizziness, or syncope may be used. Note 2, 38 C.F.R. § 4.104. Turning to the evidence of record, a September 2010 treatment note recorded the Veteran's cardiovascular assessment of regular and strong pulses. He had no edema or chest pain. In September 2012, the Veteran was afforded a VA examination for his left ventricular hypertrophy disability. The Veteran denied having arrhythmia, a pacemaker, or heart attack. He reported that he had no problem with his heart. The report referenced a September 2012 EKG that was normal. An interview-based METs test noted associated symptoms with activity of dyspnea and fatigue. He had a METs level of 5 to 7 consistent with walking two flights of stairs, golfing without a cart, mowing the lawn with a push motor, and heavy yard work. The METs level was not due solely to the Veteran's heart condition. Seventy to ninety percent of the limited METs level was attributable to his back condition and ten percent to thirty percent due to deconditioning. His lower extremity neuropathy was also a contributing factor. In January 2014, the Veteran went to the emergency room after waking up and having symptoms of sweating profusely, weakness, and lightheadedness. An EKG showed normal sinus rhythm without ectopy. In May 2015, the Veteran had an abnormal EKG with sinus tachycardia at 124. The Veteran reported that he had missed his medication that day. His heart was normal on Xray imaging. In August 2015, the Veteran had a cardiology consult. He had a negative EKG response. He also underwent a nuclear stress test that was abnormal. Imaging after stress testing demonstrated no consistent evidence of ischemia or scarring. His left ventricle was normal with borderline left ventricular hypertrophy. His left ventricular ejection fraction was mildly reduced with mild inferior hypokinesis. His LVEF was 53 percent at rest and 56 percent with stress. His ejection fraction estimate was 55-60 percent. In January 2018, the Veteran submitted to another VA examination for his cardiac disability. He reported that he had dull chest pain and fatigue when he was calm. He did not have congestive heart failure. An interview-based stress test indicated that the Veteran had no associated cardiac symptoms. His METs level was 1 to 3 METs consistent with activities, such as eating, dressing, taking a shower, and slow walking for one to two blocks. The examiner documented that the Veteran's METs level was not due solely to the heart condition. The examiner explained that the Veteran led a sedentary lifestyle, and his activity level could not be estimated. In March 2018, the January 2018 VA examiner submitted an addendum opinion that clarified that the Veteran's LVEF of 56 percent, noted in August 2015, is the most effective at measuring the Veteran's current cardiac status. At a September 2020 VA examination, the Veteran informed that he has intermittent palpation a couple times a month. During flareups, he had to stop all activity. He required continuous medication for his left ventricular hypertrophy. The report documented that an October 2020 EKG and chest Xray was normal. In November 2020, the Veteran had a LVEF of 61 percent. An interview-based stress test noted associated cardiac symptoms of fatigue, dizziness, and shortness of breath. His METs level was 5 to 7 METs. The METs level was attributed solely to his heart condition. His left ventricular hypertrophy disability had no functional impact on his ability to work. In December 2020, the Veteran echocardiogram showed a LVEF of 61 percent. His left ventricular size was normal. He had borderline concentric left ventricular hypertrophy. In a September 2021 medical opinion, a VA examiner explained that if the Veteran had an LVEF between 30 to 50 percent for any interval of time during the appeal period, there would be an episode of heart failure that may cause the Veteran to go to emergency department with signs of a heart attack. Further, left ventricular hypertrophy is not necessarily fluctuated. A person with worsening left ventricular hypertrophy can be reflected with worsening LVEF which is not seen in the Veteran's results. Further, flareups of left ventricular hypertrophy would be reflected in congestive heart failure with history of emergency department and diagnosis of congestive heart failure. In the Veteran's case, none of the records show congestive heart failure. The examiner opined that the frequency and duration of flareups of left ventricular hypertrophy was rare to none. Based upon the preceding evidence, the Board finds no basis to assign a rating greater than 30 percent for the Veteran's left ventricular hypertrophy disability. The evidence of record shows that the Veteran has consistently been ascribed a METs of greater than 5 but less than 7 when considering the effects of the Veteran's cardiac disability solely. While the January 2018 VA examination noted a METs level of 1-3 METs, the examiner noted that this level of activity was not solely due to the Veteran's cardiac disability. The examiner further explained that the Veteran's activity level could not be estimated because he lived a sedentary lifestyle. In March 2018, the examiner stated that the best estimate of the Veteran's METs activity level is his LVEF level of 56 percent. Furthermore, the evidence during the period on appeal does not demonstrate that the Veteran had a LVEF of 30 to 50 percent. Rather, the Veteran's lowest LVEF within the period on appeal was 53 percent and rose as high as 61 percent. The September 2020 VA examiner opined that a LVEF of 30 to 50 percent had not been shown in the record, as the Veteran had no evidence of congestive heart failure which would be associated with a LVEF of 30 to 50 percent. The Board takes notice that the Veteran's representative has argued that a March 2010 finding of a LVEF of 50 percent warrants a higher rating. Notably, this finding was outside the period on appeal. However, as addressed above, the record has not demonstrated that the Veteran has a LVEF of 30 to 50 percent. The July 2021 Board decision remanded this matter for an opinion to address this specific contention. In response, the AOJ obtained the opinion of the September 2021 VA examiner who opined that there was no evidence supporting that the Veteran had an LVEF of 30 to 50 as addressed above. Additionally, the representative has argued that the Veteran's flareups warrant a higher rating. However, the September 2021 VA examiner opined that the Veteran's left ventricular hypertrophy disability is not prone to fluctuate. Any worsening would be reflected in worsening LVEF readings or by congestive heart failure, which has simply not been shown on the period of appeal. Accordingly, the Board finds that the Veteran's impairment due to left ventricular hypertrophy disability more nearly approximates the criteria for a 30 percent disability rating and that the level of disability necessary to support the assignment of the next higher evaluation of 60 percent has not been shown. A preponderance of the evidence is against the claim, and there is no reasonable doubt to be resolved. 2. Entitlement to special monthly compensation based on the need for regular aid and attendance of another person or housebound status is denied. The Veteran seeks entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance due to his service-connected disabilities and based on being housebound. SMC by reason of the need for regular aid and attendance of another person is payable if a Veteran, as a result of the service-connected disability, either: (1) has suffered the anatomical loss or loss of use of both feet, (2) has suffered the anatomical loss or loss of use of one hand and one foot, (3) is blind in both eyes, (4) is permanently bedridden, or (5) is with such significant disabilities/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). In determining the need for regular aid and attendance, consideration will be given to the "inability of claimant 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 (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of claimant 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 the claimant from hazards or dangers incident to his or her daily environment." 38 C.F.R. § 3.352 (a). Although the Veteran need not show all of the above disabling conditions in order to establish entitlement to aid and attendance, there is a threshold requirement that at least one of the enumerated factors be present. See Turco v. Brown, 9 Vet. App. 222, 224 (1996). "Bedridden" will be a proper basis for the determination. For the purpose of section 3.352 (a), "bedridden" will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. Id. The particular personal functions which the Veteran is unable to perform should be considered in connection with his or 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. Determinations that the veteran is so helpless, as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant's condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352 (a). SMC by reason of being housebound is payable if a Veteran has a service-connected disability rated as total and either: (1) has an additional service-connected disability or disabilities independently ratable at 60 percent or more or (2) is permanently housebound by reason of his service-connected disability or disabilities. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). The disabilities independently ratable at 60 percent or more must be separate and distinct from the total 100 percent service-connected disability and involve different anatomical segments or bodily systems. 38 C.F.R. § 3.350 (i)(1). The Veteran is permanently housebound when he is substantially confined to his dwelling and the immediate premises (or, if institutionalized, to his ward or clinical areas) due to service-connected disability or disabilities and it is reasonably certain that the disability or disabilities as well as the resultant confinement will continue or remain throughout his lifetime. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i)(2). 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). Initially, the Veteran is service connected for posttraumatic stress disorder (PTSD) rated at 100 percent, left ventricular hypertrophy rated at 30 percent, residuals of facial scar rated at 10 percent, supraventricular arrhythmia rated at 10 percent, residuals of a corneal laceration, right eye without any impairment in vision rated at noncompensable, hypertension rated at noncompensable, scars of right chest, right shoulder, and lower abdomen rated at noncompensable; and hepatitis C rated at noncompensable. A September 2012 VA examination confirmed that the Veteran's heart and hypertension disabilities have no functional impact on his disability. In an April 2016 treatment note, the Veteran had independent activities of daily living. He had no problems with obtaining or preparing food. He attended to his hygiene independently. In September 2016, treatment notes document that the Veteran did not have any change in his ability to walk, dress, and feed himself. He had no problem performing desired activities, such as bathing, stair climbing, toileting, grooming, and transferring. In December 2016, the Veteran was noted to independently care for his hygiene and had no difficulty with ambulation. The Veteran submitted to a VA examination for SMC in January 2021. The report documented that the Veteran was able to feed himself and prepare his own meals. He did not need assistance in bathing and tending to his hygiene needs. He was not blind and had 20/20 vision in both eyes. He did not require nursing home care or medication management. He was able to manage his own benefits. He did not have restrictions affecting his extremities, spine, truck, or neck. He fixed and cleaned up after all meals. He was able to go grocery shopping and attend medical appointments as needed. He did not use ambulation aids for locomotion. Review of the existing record is largely consistent with the Veteran's functional ability noted above. Based on the aforementioned, the Veteran does not meet the criteria for entitlement to SMC by reason of being housebound. He does not have a total disability rating and additional disability ratable at 60 percent or more. Additionally, the evidence is against finding that his service-connected disabilities cause him to be substantially confined to his dwelling and the immediate premises. Rather, the Veteran is capable of performing activities of daily living independently, can ambulate independently, and is able to go out and grocery shop or attend medical appointments as needed. Further, the Veteran does not have a service-connected disability that results in loss or loss of use of a foot or in blindness in both eyes. He also does not have loss of use of his feet. Therefore, the only potentially applicable criterion for entitlement to SMC based on the need for regular aid and attendance is helplessness, i.e., that the Veteran is with such significant disabilities or is so helpless as to be in need of regular aid and attendance. The record does show that the Veteran's service-connected disabilities do cause some functional impairment. However, the preponderance of the evidence is against finding the Veteran's service-connected disabilities cause him to need regular aid and attendance. There is no evidence that the Veteran's service-connected disabilities cause inability to keep himself ordinarily clean and presentable. He does not have a frequent need to adjust any prosthetic or orthopedic appliance. He has been found able to feed himself and prepare his own meals. Service-connected disabilities do not cause loss of coordination of upper extremities or extreme weakness affecting his ability to feed himself. There is no indication that service-connected disabilities prevents the Veteran from attending to the wants of nature. He is not so physically or mentally incapacitated as to require care or assistance on a regular basis to protect him from hazards or dangers incident to his or her daily environment. Although the Veteran is rating at 100 percent for a mental disability, the overall evidence does not demonstrate that this disability causes total mental incapacitation and/or an inability to protect himself as to require the assistance of another. Rather, in the September 2021 VA examination, it was documented that the Veteran had the mental capacity to manage his own benefits or direct someone to do so. The record also show the Veteran is capable of ambulating by himself and leaving his immediate premises daily without the care or assistance of others. His service-connected disabilities cause significant impairment, as indicated by his current 100 percent overall disability rating. However, his service-connected disabilities did not result in loss or loss of use of an extremity or blindness. He does not meet the criteria for SMC by reason of being housebound. The preponderance of the evidence is against finding that his service-connected disabilities cause a need for regular aid and attendance. In sum, the weight of evidence preponderates against finding that the Veteran's service-connected disabilities meet the criteria for entitlement to special monthly compensation based on the need for regular aid and attendance or by reason of being housebound. The claim is denied. C. Casey Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.B. Mmeje, 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.