Citation Nr: 21076622 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 16-51 831 DATE: December 27, 2021 ORDER Special monthly compensation (SMC) based on the need for regular aid and attendance, or at the housebound rate, is denied. FINDINGS OF FACT 1. The Veteran is service connected for adjustment disorder, rated 30 percent disabling, and tinnitus, rated 10 percent disabling. 2. The Veteran's service-connected disabilities are not manifested by anatomical loss or loss of use of both feet, or one hand and one foot; nor did they result in his being 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. 3. The Veteran is not shown to be permanently bedridden or so helpless as to be in need of the regular aid and attendance of another person as a result of his service-connected disabilities. 4. The Veteran does not have a single service-connected disability rated 100 percent disabling, with additional service-connected disability or disabilities independently ratable at 60 percent or more; nor is he shown to be permanently housebound by reason of his service-connected disabilities. CONCLUSION OF LAW The criteria for an award of SMC based upon the need for regular aid and attendance of another person, and/or at the housebound rate, have not been met. 38 U.S.C. §§ 1114, 5107, 5121, 5121A; 38 C.F.R. §§ 3.350, 3.351, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Navy from August 1961 to August 1963. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Columbia, South Carolina. In April 2019, the Veteran testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. The Veteran's case was most recently before the Board in June 2021. The Board, in pertinent part, remanded his psychiatric and SMC claims to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ granted service connection for an acquired psychiatric disorder, effective September 18, 2012 (the date of receipt of the Veteran's claim). As such, that issue is no longer on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). The prior denial of his claim for SMC was confirmed and continued and the case was returned to the Board. The Board finds there has been at least substantial compliance with the Board's remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to SMC based on the need for regular aid and attendance, or at the housebound rate, is denied. The Veteran contends that SMC is warranted based on his need for regular aid and attendance, or at the housebound rate. SMC based on the need for aid and attendance or at the housebound rate is predicated on service-connected disabilities only, meaning disabilities shown to be the result of or related to the Veteran's active military service. Under 38 U.S.C. § 1114(l), SMC is payable if, as the result of service-connected disability, the Veteran has anatomical loss or loss of use of both feet, or of one hand and one foot; has blindness in both eyes with visual acuity of 5/200 or less; is permanently bedridden; or is so helpless as to be in need of regular aid and attendance of another person. 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350(b). Under 38 C.F.R. § 3.352(a), the following factors will considered in determining whether the Veteran is in need of regular aid and attendance of another person: inability of the claimant to dress and undress himself or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliance; inability of the claimant to feed himself through loss of coordination of the upper extremities or through extreme weakness; inability to tend to the wants of nature; or incapacity, physical or mental, which requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his daily environment. All of the disabling conditions enumerated in 38 C.F.R. § 3.352(a) do not have to exist before a favorable determination may be made. The particular personal functions which the Veteran is unable to perform should be considered in connection with his 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 is a constant need. 38 C.F.R. § 3.352(a); see also Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in section 3.352(a) must be present for a grant of SMC based on need for aid and attendance). Determinations that the veteran is so helpless as to need regular aid and attendance must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352(a). For the purposes of 38 C.F.R. § 3.352(a), "bedridden" will be a proper basis for the determination of whether the Veteran is in need of regular aid and attendance of another person. "Bedridden" will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that the 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. § 3.352(a). In addition, 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. In this case, the Veteran is service connected for adjustment disorder, rated 30 percent disabling, and tinnitus, rated 10 percent disabling. Regarding entitlement to SMC at the housebound rate, the Board notes that the Veteran does not have a single disability rated at 100 percent, nor has he been granted a TDIU based on a single disability. See 38 U.S.C. § 1114(s); 38 C.F.R. § 3.351(d); see also Bradley v. Peake, 22 Vet. App. 280, 293 (2008) (a TDIU rating could qualify for compensation at the 38 U.S.C. § 1114 (s) rate, but only if the TDIU was based on a single disability). As such, the Veteran does not meet the criteria for SMC at a housebound rate under these provisions. The evidence of record also does not show that the Veteran's service-connected disabilities have caused the anatomical loss or loss of use of both feet or one hand and one foot. Furthermore, his service-connected disabilities have not resulted in him being 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. Indeed, he is not service connected for any eye disability. Consequently, he can only establish entitlement to SMC under 38 U.S.C. § 1114(l) by showing that his service-connected disabilities cause him to be permanently bedridden or so helpless as to be in need of regular aid and attendance under the criteria of 38 C.F.R. § 3.352(a), set forth above. In a May 2013 VA SMC Aid and Attendance examination report, an examiner certified that the Veteran required the aid and attendance of another person due to non-service-connected blindness and dizziness. However, service connection for an eye disability or dizziness has not been awarded, and a claim for these disabilities is not on appeal or otherwise pending. The May 2013 examiner noted that the Veteran was not hospitalized. The examiner noted there were no restrictions in the upper extremities with reference to grip, fine movements, ability to self-feed, button clothing, and attend to the needs of nature. The examiner further noted no restrictions in the lower extremities with reference to limitation of motion, atrophy, contractures, or other interferences. In June 2013, the Veteran submitted a VA Form 21-2680 (Examination for Housebound Status or Permanent Need for Regular Aid and Attendance) dated May 2013. Specifically, the document noted diagnoses of blindness, diabetes, hypertension, hyperlipidemia, hypothyroidism, benign prostatic hyperplasia (BPH), and benign paroxysmal positional vertigo (BPPV). The document also noted complaints of blindness and multiple medical problems, including diabetes, requiring supervision of medication. It noted that the Veteran's problem was blindness, and that he required constant help and supervision. It was further noted that his medical regimen was complex, and someone needed to supervise the medications. The examining physician indicated that the Veteran was able to leave the house any time he wanted, with another person. During a February 2021 VA mental disorders examination, an examiner noted that the Veteran's adjustment disorder was manifested by occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. On examination, the examiner noted that the Veteran was on-time for the appointment and fairly groomed. He was attended by his wife and daughter, and ambulated with a white cane due to blindness. The Veteran's cognition was linear with no evidence of psychosis, his mood was stable and appropriate, and affect congruent. The examiner found that the only symptoms attributable to the Veteran's adjustment disorder included depressed mood and anxiety. The examiner further found that the Veteran was mentally competent to manage his affairs. In a September 2021 VA Aid and Attendance examination report, an examiner again opined that the Veteran required aid and attendance due to non-service-connected blindness. As noted, however, service connection for an eye disability has not been awarded, and a claim for such disability is not on appeal or otherwise pending. The September 2021 examination report reflects that the Veteran had not been hospitalized, nor was he bedridden. As to the capacity to protect himself from hazards/dangers of daily environment, the examiner noted that he had trouble walking and poor balance due to vision. He typically stayed around his house and yard. He ambulated with a white cane due to blindness. There were no functional restrictions in either the upper or lower extremities, or the spine, trunk, or neck. Based on the foregoing, the Board must find that the evidence in support of the Veteran's claim is not in approximate balance. To the contrary, the evidence is clearly against the claim. The competent medical and other evidence of record reflects that he has experiences significant impairment due to non-service-connected disabilities. As noted, the May 2013 and September 2021 VA SMC Aid and Attendance examination reports reflect that he requires the aid and assistance of another person due to blindness and dizziness. The May 2013 VA Form 21-2680 further reflects the need for aid and attendance due to blindness, diabetes, hypertension, hyperlipidemia, hypothyroidism, BPH, and BPPV. However, the Veteran is not service-connected for any of those conditions. The record does not reflect that the Veteran's service-connected disabilities render him so helpless as to be in need of regular aid and attendance of another person. As noted above, the February 2021 examiner remarked that the Veteran was mentally able to manage his affairs, cognition was linear with no evidence of psychosis, his mood was stable and appropriate, and affect congruent. The remainder of the evidence, include VA treatment records, does not indicate that the Veteran suffers from a service-connected physical or mental incapacity which requires care or assistance on a regular basis to protect him from the hazards or dangers incident to his daily environment. In addition, he is not shown to be permanently bedridden as a result of service-connected disability. The Board is sympathetic to the Veteran's health situation; however, the evidence does not support a finding that SMC is warranted. For all the foregoing reasons, the Board finds that the criteria for an award of SMC based on need for regular aid and attendance, or at the housebound rate, have not been met. As the evidence is clearly against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The appeal must be denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Kettler, 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.