Citation Nr: 21074135 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 18-30 022 DATE: December 14, 2021 ORDER Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance is denied. Entitlement to compensation under 38 U.S.C. § 1151 for a back disability is dismissed. Entitlement to compensation under 38 U.S.C. § 1151 for a bilateral foot disability is dismissed. Entitlement to compensation under 38 U.S.C. § 1151 for a leg disability is dismissed. FINDINGS OF FACT 1. The preponderance of the evidence weighs against a finding that the Veteran's service-connected disabilities render him permanently bedridden or so incapable of performing the activities of daily living that he requires regular aid or attendance. 2. On the record at the April 2021 Board hearing and prior to the promulgation of a decision in the appeal, the Veteran and his representative indicated that the Veteran wished to withdraw his appeals as to the claims of compensation under 38 U.S.C. § 1151 for a back disability, a bilateral foot disability, and a leg disability. CONCLUSIONS OF LAW 1. The criteria for an award of SMC based on the need for regular aid and attendance have not been met. 38 U.S.C. § 1114, 5107; 38 C.F.R. §§ 3.350, 3.352. 2. The criteria for withdrawal of a substantive appeal have been met with respect to the issue of entitlement to compensation under 38 U.S.C. § 1151 for a back disability. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of a substantive appeal have been met with respect to the issue of entitlement to compensation under 38 U.S.C. § 1151 for a bilateral foot disability. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for withdrawal of a substantive appeal have been met with respect to the issue of entitlement to compensation under 38 U.S.C. § 1151 for a back disability. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from July 1978 to October 1978 and from May 1980 to May 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO) in January 2018 and May 2018. The Veteran testified before the undersigned Veterans Law Judge (VLJ) during an April 2021 hearing. A copy of the hearing transcript has been reviewed and associated with the claims file. 1. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance Special monthly compensation (SMC) may be granted based on the need for aid and attendance if a Veteran, as a result of service-connected disabilities, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden, or is 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). Under 38 C.F.R. § 3.352(a), the following criteria are to be considered for determining whether a claimant is in need of regular aid and attendance: (1) an inability to dress himself or herself or to keep himself or herself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliance which, by reason of the particular disability, cannot be done without aid (not to include the adjustment of appliances which normal persons would be unable to adjust without aid such as supports, belts, or lacing at the back); (3) the inability of the claimant to feed himself or herself through the loss of coordination of the upper extremes or through extreme weakness; (4) the inability to attend to the wants of nature; or (5) a physical or mental incapacity that requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his or her daily environment. "Bedridden," which is a proper basis for the determination, is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that a 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. 38 C.F.R. §§ 3.350(b)(4), 3.352(a). Under 38 U.S.C. § 1114(s), SMC at the housebound rate is payable if, in addition to having a single permanent service-connected disability rated 100 percent disabling under the VA's Schedule for Rating Disabilities, the Veteran: has additional service-connected disability or disabilities independently ratable at 60 percent or more, separate and distinct from the permanent disability rated as 100 percent disabling and involving different anatomical segments or bodily systems, or, is "permanently housebound" by reason of service-connected disability. Throughout the rating period on appeal, or from October 2017, the Veteran is service-connected for the following disabilities: degenerative spondylosis of the lumbar spine with intervertebral disc syndrome (IVDS) of the lower extremities, rated as 40 percent disabling; osteoarthritis of the cervical spine, rated as 20 percent disabling; radiculopathy of the right upper extremity, rated as 20 percent disabling; radiculopathy of the left lower extremity, rated as 20 percent disabling; IVDS with radiculopathy of the right lower extremity, rated as 20 percent disabling; left knee chondromalacia, rated as 20 percent disabling; and right knee strain, rated as 10 percent disabling. His combined disability evaluation is 80 percent, and he is in receipt of a total disability rating based on individual unemployability (TDIU) for the entire rating period on appeal. He asserts that he is entitled to SMC under 38 U.S.C. § 1114(l) due to the need for regular aid and attendance for his service-connected disabilities. The Veteran submitted a VA examination for housebound status or permanent need for regular aid and attendance, conducted by Dr. W.P., in October 2017. Dr. P. indicated that the Veteran was able to prepare meals and feed himself and did not need assistance with bathing or other personal hygiene needs. He also stated that the Veteran is not legally blind and does not require nursing home care or medication management. Although he was noted as able to feed himself, Dr. P. stated that the Veteran is unable to keep his home and laundry clean due to his back problems and radiculopathy. During his April 2021 Board hearing, the Veteran testified that he is able to cook microwaved meals and canned soup but otherwise has difficulty cooking and cleaning. He stated that family members come by his house once or twice per week to help with cooking, cleaning, and yard work. He also indicated that that there are often hazards in his home, such as clutter or spills, that create a risk of falling because of his inability to clean his home. However, despite the additional hazards, he testified that he is generally able to get around with his walker without tripping or falling over any hazards in the home. He testified that he is able to dress himself, feed himself, and use the restroom independently. He did state that standing in the shower is sometimes painful but denied an inability to maintain personal hygiene. The Board finds that the Veteran's service-connected disabilities do not meet the criteria for an award of SMC based on the need for regular aid and attendance or permanent housebound status. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350(b)(4), 3.352(a). As a preliminary matter, the Veteran does not have a single service-connected disability rated as 100 percent disabling, so an award of SMC under 38 U.S.C. § 1114(s) is not appropriate. Although the Veteran testified that his family regularly helps him with cooking and cleaning, the evidence does not establish that he is so helpless as to require regular aid and attendance or that he is permanently bedridden. He testified that he is able to dress himself and maintain personal hygiene. He does not have a prosthetic or orthopedic device requiring frequent adjustment. He testified that he is able to feed himself and attend to the wants of nature. The evidence does not show that he has a mental or physical incapacity that requires regular care or assistance to protect him from hazards or dangers incident to his daily environment. Although he testified to having additional hazards around the home due to an inability to clean, he has not indicated that he requires care or assistance to protect himself from such hazards. Finally, the Veteran has not claimed, nor does the evidence show, that he is permanently bedridden as a result of his service-connected disabilities. Accordingly, his disability picture does not meet the basic criteria for regular aid and attendance. 38 C.F.R. § 3.352(a). In denying the claim, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990); 38 C.F.R. § 3.102. Accordingly, the Board finds that an award of SMC under 38 U.S.C. § 1114(l) is not warranted. 2. Entitlement to compensation under 38 U.S.C. § 1151 for a back disability 3. Entitlement to compensation under 38 U.S.C. § 1151 for a bilateral foot disability 4. Entitlement to compensation under 38 U.S.C. § 1151 for a leg disability The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105(d); 38 C.F.R. § 19.55. At any time before the Board promulgates a decision, an appellant or his or her authorized representative may withdraw a substantive appeal as to any or all issues either on the record at a hearing or in writing. 38 C.F.R. § 19.55. A verbal withdrawal of an appeal at a hearing is effective "only where it is (1) 'explicit;' (2) 'unambiguous;' and (3) 'done with a full understanding of the consequences of such action on the part of the [veteran].'" See Acree v. O'Rourke, 891 F.3d 1009, 1012-1013 (Fed. Cir. 2018) (quoting DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011)) (explaining that the Board must consider all three prongs of the DeLisio standard when determining whether a verbal withdrawal of a claim is effective). In the present case, the Veteran indicated during his April 2021 hearing that he wished to withdraw his appeals as to the issues of entitlement to compensation under 38 U.S.C. § 1151 for a back disability, bilateral foot disability, and leg disability. He was fully informed of the consequences of withdrawing his appeals at the hearing, and he explicitly and unambiguously agreed to withdraw his claims of entitlement to compensation under 38 U.S.C. § 1151 for disabilities of the back, leg, and bilateral feet. As such, there remain no allegations of error of fact or law for appellate consideration as to this issue. Accordingly, this issue is no longer within the Board's jurisdiction and is dismissed. See Hamilton v. Brown, 4 Vet. App. 528 (1993) (en banc), aff'd, 39 F.3d 1574 (Fed. Cir. 1994) (holding that the Board is without authority to proceed on an issue if the claimant indicates that consideration of that issue should cease). Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Pratt 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.