Citation Nr: 21077541 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 18-02 274 DATE: December 30, 2021 ORDER Special monthly compensation (SMC) based on the need for aid and attendance is denied. FINDING OF FACT The Veteran is not substantially confined to his house and is not in need of the regular aid and attendance of another person as a result of his service-connected disability. CONCLUSION OF LAW The criteria for entitlement to SMC based on the need for aid and attendance have not met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.310(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1974 to October 1987. In June 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. Entitlement to SMC based on the need for aid and attendance. SMC is payable at the (l) rate if a Veteran, as the result of service-connected disability, is permanently bedridden or 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). Increased compensation at the aid and attendance rate is payable when a veteran is helpless or so nearly helpless as the result of service-connected disability that he or she requires the regular aid and attendance of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). To establish a need for regular aid and attendance, the veteran must, as a result of service-connected disability, (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. Id. A factual need for aid and attendance includes the inability to dress, undress, keep ordinarily clean and presentable, feed oneself through loss of coordination of the upper extremities or through extreme weakness, or attend to the wants of nature. It includes the frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid. A need for aid and attendance also includes either physical or mental incapacity that requires care or assistance on a regular basis to protect against the hazards or dangers incident to the daily environment. Additionally, an individual who is bedridden meets the criteria for aid and attendance. 38 C.F.R. § 3.352(a). Bedridden is defined as a condition that, through its essential character, actually requires that the veteran remain in bed. The fact that a veteran 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. SMC may be awarded at the housebound rate if a veteran has a single service-connected disability rated as total and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) by reason of service-connected disability or disabilities, is permanently housebound. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). A veteran will be determined to be permanently housebound when he is substantially confined to his house (or ward or clinical areas, if institutionalized) or immediate premises due to disability or disabilities when it is reasonably certain that such a condition will remain throughout his lifetime. Id. Here, the Veteran has been awarded service connection for cold injury of the left lower extremity (rated at 30 percent), cold injury of the right lower extremity (rated at 30 percent), residuals of nasal fracture (rated at 10 percent), loss of sense of smell (rated at 0 percent), and nose scar (rated at 0 percent). The Veteran has also been awarded a total disability based on individual unemployability (TDIU). Nevertheless, although the Veteran may be considered to have a single service-connected disability evaluated as 100 percent disabling (based on his TDIU rating) he does not meet the requirements of SMC at the housebound rate under 38 U.S.C. § 1114(s) because he does not have additional service-connected disability or disabilities independently ratable at 60 percent or more. Therefore, entitlement to SMC at the housebound rate is not warranted. The Veteran contends he requires aid and attendance because he is totally disabled, is housebound, cannot drive, and needs home health aide services. See June 2021 Board Hearing Transcript. The Board acknowledges that the Veteran, indeed, has significant impairments and the Board is sympathetic to the Veteran's claim. However, after careful review of the evidentiary record, the Board finds that the preponderance of the evidence weighs against a finding that the Veteran is bedridden or is unable to keep himself ordinarily clean and presentable, feed himself, or attend to the wants of nature, due to his service-connected disabilities. In December 2015 and June 2016, the Veteran underwent VA housebound status examinations. The examiners diagnosed the Veteran with hypertension, chronic arthritis of the hands and back, and chronic foot pain. The examiners both indicated that the Veteran was limited in his ability to feed himself, could not prepare his own meals, and was restricted in his ability to put on clothing, and attend to the needs of nature because of the arthritis of his hands. The Veteran was also restricted in his ability to walk due to his bilateral foot pain. The examiners indicated that the Veteran needed assistance with bathing and attending to hygiene needs but did not require nursing home care or medication management and he was able to leave his home for doctor's appointments. In March 2016, the Veteran submitted statements from his wife and daughter-in-law that indicated the Veteran was in need of aid and attendance because he had lost the use of his right hand and could barely walk and had trouble with stairs due to his feet. At the June 2021 Board hearing, the Veteran testified that he could not do anything for himself and was declared housebound by his primary care physician because he could not walk and might injure himself if he falls. He testified that his service-connected cold injuries of the feet prevented him from walking long distances and driving and he used a crutch and walker and the service-connected nasal problems made it difficult to breathe. He indicated that he required home health care assistance with daily activities of life, to include feeding, bathing, brushing his teeth, cleaning the house, and going to the grocery store. He also indicated that he had prosthesis across his shoulders and was unable to hold anything with his hands. The Veteran's home health care provider testified that she helped clean laundry and she went to the grocery store. The Veteran's VA treatment records reflect that he was able to leave home to attend church and doctor's appointments and he was enrolled in community college on-line courses. Based on the foregoing, the Board finds that the evidence of record does not indicate that the Veteran is unable to keep himself ordinarily clean and presentable, feed himself, or attend to the wants of nature, due to service-connected disabilities. The Board recognizes that the record reflects the Veteran has difficulty with feeding himself, putting on clothing, and attending to the wants of nature. The Board also acknowledges the Veteran's testimony that he has needed aid and attendance for feeding, bathing, brushing his teeth, and going to the grocery. However, as indicated by the VA examiners, such impairments are due to his nonservice-connected hand disorders. Notably, the Veteran has not otherwise contended, and the evidence does not otherwise show, that the Veteran's service-connected lower extremity and nasal disabilities affect his ability to feed himself, put on clothes, or attend to the wants of nature. The Board does not deny that the Veteran's service-connected disabilities cause some limitations. However, there is no evidence that they render him bedridden, or unable to care for his daily personal needs, or to protect himself from the hazards of daily living without assistance from others. As explained above, although the Veteran may require assistance, such assistance appears to be warranted due to the effects of his nonservice-connected hand disabilities. Moreover, despite the Veteran's contention that he was declared housebound due to his limitations with walking and despite his breathing problems, the record does not reflect that his service-connected lower extremity disabilities prevent him from leaving his house. In fact, the Veteran was able to leave his home to attend doctor's appointments and to attend church. Accordingly, the Veteran does not qualify for SMC based on the need for regular aid and attendance of another person or due to housebound status. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule is not helpful to the claimant, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 49. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Metzner, Paul 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.