Citation Nr: 21075131 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 18-23 478 DATE: December 17, 2021 ORDER Entitlement to special monthly pension (SMP) benefits at the housebound rate is granted. Entitlement to SMP benefits based on the need for the regular aid and attendance of another person is denied. FINDINGS OF FACT 1. The Veteran has a single permanent disability rated 100 percent disabling and has additional disability 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. 2. The Veteran is not shown to need the regular aid and attendance of another individual, or to be confined to his residence, as a result of his disabilities. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for an award of SMP benefits at the housebound rate have been met. 38 U.S.C. §§ 1521, 5107; 38 C.F.R. §§ 3.351, 4.3. 2. The criteria for an award of SMP benefits based on the need for the regular aid and attendance of another person have not been met. 38 U.S.C. §§ 1521, 5107; 38 C.F.R. §§ 3.351, 3.352, 4.3. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 2003 to May 2003. He also had service in the United States Army Reserve, to include a period of active duty for training from June 1974 to October 1974. His decorations include the National Defense Service Medal, the Army Reserve Components Achievement Medal, and the Armed Forces Reserve Medal with Silver Hourglass and "M" device. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In April 2020, the Board remanded the issue currently on appeal to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. See August 2020 supplemental statement of the case. The Board has bifurcated the SMP issue as reflected on the title page, given the favorable disposition with respect to entitlement to SMP at the housebound rate. 1. Entitlement to SMP benefits at the housebound rate is granted. The Veteran seeks to establish entitlement to SMP benefits. He asserts, in part, that his non-service-connected medical conditions are of sufficient severity as to allow an award of SMP at the housebound rate. SMP at the housebound rate may be awarded if a veteran has a single permanent disability rated 100 percent disabling, and in addition has either additional disability or disabilities independently ratable at 60 percent or more or is permanently housebound by reason of a disability or disabilities. 38 U.S.C. § 1521(e); 38 C.F.R. § 3.351(d). A veteran is "permanently housebound" when he is substantially confined to his house (ward or clinical areas, if institutionalized) or immediate premises due to permanent disability or disabilities. 38 U.S.C. § 1502(c); 38 C.F.R. § 3.351(d)(2). In this case, a June 2019 rating codesheet identifies the current ratings for the Veteran's service-connected and non-service-connected disabilities. Specifically, he is service connected for tinnitus, rated as 10 percent disabling. His non-service-connected disabilities are prostate cancer, rated 100 percent disabling; Hodgkin's lymphoma, rated 100 percent disabling; a left shoulder condition, rated 0 (zero) percent (noncompensably) disabling; bilateral hearing loss, rated noncompensably disabling; and calcium deficiency, rated noncompensably disabling. Because he has a single disability rated at 100 percent with additional disability or disabilities ratable at 60 percent or more, he satisfies the requirements for an award of SMP at the housebound rate. 38 U.S.C. § 1521(e); 38 C.F.R. § 3.351(d). In this regard, the Board notes that the Veteran's Hodgkin's lymphoma is separate and distinct from his prostate cancer and that those disabilities involve different segments or bodily systems. The record also demonstrates that his prostate cancer and Hodgkin's lymphoma are permanent disabilities. Based on the foregoing, and with resolution of reasonable doubt in favor of the Veteran, the Board finds that SMP at the housebound rate is warranted. To that extent, the appeal is granted. 2. Entitlement to SMP benefits based upon the need for regular aid and attendance of another person is denied. The Veteran also seeks to establish entitlement to SMP benefits at the aid and attendance rate. He asserts that his non-service-connected medical conditions have rendered him in need of the regular aid and attendance of another person. Special monthly pension is payable at the aid and attendance rate if a VA claimant is helpless or so nearly helpless that he requires the regular aid and attendance of another person. To establish a need for regular aid and attendance, the claimant must (1) be blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; (2) be a patient in a nursing home because of mental or physical incapacity; or (3) show a factual need for aid and attendance. 38 C.F.R. §§ 3.351(b)-(c), 3.352(a). The criteria to be considered in establishing a factual need for aid and attendance include: inability of the claimant to dress or undress him or herself or to keep him or 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 assistance; inability of the claimant to feed him or herself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; and incapacity, either physical or mental, that 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). The particular personal functions which the claimant is unable to perform are to be considered in connection with the claimant's condition as a whole. The evidence need only 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 need regular aid and attendance will not be based solely upon an opinion that the veteran's condition requires the veteran to be in bed. Rather, they must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352(a). The veteran must be unable to perform one of the enumerated functions, but the veteran's condition does not have to preclude all of the enumerated functions. Turco v. Brown, 9 Vet. App. 222, 224 (1996). Being "bedridden" will also be a proper basis for finding that a VA claimant is in need of regular aid and attendance. The term "bedridden" means a condition which, through its essential character, actually requires that the claimant remain in bed. However, the fact that someone 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 is not sufficient. 38 C.F.R. § 3.352(a). For the reasons set forth below, the Board finds that the preponderance of the evidence is against the Veteran's claim. The weight of the evidence is against a finding that he is in need of the regular aid and attendance of another individual. The Veteran provided a November 2017 VA Form 21-2680 (Examination for Housebound Status or Permanent Need for Regular Aid and Attendance), which was completed by Dr. N.R. The private examiner indicated that the Veteran had been diagnosed with classical Hodgkin nodular sclerosis. It was assessed that the Veteran was not blind or bedridden, was not a patient in a nursing home, and did not require assistance with bathing, dressing, tending to personal hygiene needs, preparing his meals, or feeding himself. The Veteran had full use of his upper and lower extremities, with no restrictions noted. He was also noted to be competent to manage his affairs, and aids, such as canes, braces, crutches, or assistance of another person were not required for locomotion. A November 2018 private treatment record noted that the Veteran was restricted with respect to physically strenuous activity but was able to carry out work of a light sedentary nature, such as light housework and office work. A January 2019 VA examiner noted that the Veteran's Hodgkin's lymphoma had no effect on his bathing, feeding, dressing, toileting, and grooming abilities. In light of the above, the Board finds that the evidence weighs against a finding that SMP is warranted based on the need for regular aid and attendance under 38 C.F.R. § 3.351 or 3.352. First, the Veteran is not shown to have corrected visual acuity of 5/200 or less in both eyes, or concentric contraction of the visual field to 5 degrees or less. Further, the evidence does not indicate that he has been a patient in a nursing home because of mental and physical incapacity. The evidence also does not otherwise indicate that a factual need for aid and attendance has been established under 38 C.F.R. § 3.352(a). Specifically, while the record shows that the Veteran has disabilities, to include Hodgkin's lymphoma, there is no indication that he relies upon another in order to sustain himself and, overall, the evidence does not reflect an inability by the Veteran to feed or dress himself. Nor is there any demonstrated inability to maintain his own hygiene or a demonstrated need for assistance to protect him from the hazards and dangers of his daily environment. In sum, a factual need for aid and attendance under 38 C.F.R. § 3.352(a) has not been established. The Board acknowledges the Veteran's belief that his symptoms are of such severity as to warrant SMP based on aid and attendance. However, as discussed above, the Board finds that the medical evidence, to include the November 2017 private examination provided by the Veteran, which directly addresses the criteria under which SMP is evaluated, is more probative than the Veteran's own self-assessment. In reaching this conclusion, the Board also finds that the November 2017 private examination report is highly probative with respect the issue of entitlement to SMP and is adequately based on objective findings as shown by the record. See Stegall v. West, 11 Vet. App. 268 (1998); Barr v. Nicholson, 21 Vet. App. 303 (2007), 21 Vet. App. 303; Jones v. Shinseki, 23 Vet. App. 382 (2010); Swann v. Brown, 5 Vet. App. 229, 233 (1993); Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Based on the foregoing, the evidence does not support the Veteran's claim for SMP by reason of the need for the regular aid and attendance of another person. Equipoise is not shown, and the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As the preponderance of the evidence is against the Veteran's claim of entitlement to SMP based on the need for regular aid and attendance, the appeal of that issue is denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Ragheb, 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.