Citation Nr: 21005495 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 18-29 838 DATE: February 1, 2021 ORDER Entitlement to special monthly compensation (SMC) for housebound status prior to January 7, 2015, is denied. Entitlement to SMC for aid and attendance is denied. FINDINGS OF FACT 1. For the period on appeal, the Veteran did not have a single service-connected disability either rated at 100 percent or warranting a TDIU on its own. 2. For the entire period on review, the Veteran has not required the regular need for aid and attendance CONCLUSIONS OF LAW 1. The criteria for an earlier effective date for SMC for housebound status have not been met. 38 U.S.C. § 1114(s), 5107; 38 C.F.R. § 3.350(i) 2. The criteria for entitlement to SMC based on aid and attendance have not been met. 38 U.S.C. §§ 1114(k), 5107; 38 C.F.R. §§ 3.102, 3.350(a)(2), 4.63 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1968 to April 1970. This matter comes before the Board of Veterans’ Appeals (Board) from a January 2016 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO), which awarded service connection for avascular necrosis of the right and left hips, as well as SMC for housebound status from January 7, 2015, to March 1, 2016. The Veteran appealed the decision and indicated he believed that SMC for housebound status should be awarded for the entire period on appeal and was also entitled to an additional award of SMC based on the need for aid and attendance. In April 2018, a statement of the case was issued confirming the period during which SMC for housebound status was awarded and denied SMC for aid and attendance. The Veteran perfected an appeal to the Board in June 2018 in a VA Form 9. The Veteran declined an optional hearing before the Board. In July 2019, the Board denied entitlement to SMC for housebound status prior to January 7, 2015 and entitlement to SMC for aid and attendance. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In July 2020 and pursuant to the parties’ Joint Motion for Remand (JMR), the Court vacated the Board’s July 2019 decision and remanded the matter for adjudication consistent with the instructions outlined in the JMR. Specifically, the JMR indicated that the Board had failed to ensure that the Veteran’s representative was notified of the certification of his appeal and transfer of the appellate record. Upon remand, the parties agreed that the Board should provide the Veteran’s representative 90 days following the Court’s remand. Thereafter, the Board may issue a decision on the claims. As that period has passed, the Board may now proceed to adjudication. See also September 2020 BVA letter. The Board remanded the Veteran’s claim for an increased rating for posttraumatic stress disorder (PTSD) and individual unemployability in March 2020. At present, the RO is still developing the claims and they have not been certified to the Board. As such, the issues are not properly before the Board and will be addressed in a subsequent adjudication. 1. Earlier Effective Date for SMC Based on Housebound Status The Veteran seeks entitlement to SMC for housebound status for the entire period on appeal. See March 2016 notice of disagreement. Since the award of SMC based on housebound status was based on the schedular ratings assigned in the grant of service connection for avascular necrosis of the bilateral hips. As the period on appeal relates back to the effective date of service connection from January 14, 2002, the Board will consider the Veteran’s claim for SMC based on housebound status for the period beginning with January 14, 2002. In addition, the Board notes that the Veteran has already been awarded SMC for housebound status for from October 2006 to December 2006, and from September 2013 to November 2013. As SMC for housebound status has already been awarded for these periods, entitlement to SMC for housebound status for those periods is not before the Board. SMC is payable at the housebound rate where the Veteran has a single service-connected disability rated as 100 percent and, in addition: (1) has a service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability, and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). The requirement of “permanently housebound” status will be considered to have been met when the Veteran is substantially confined to his house (or ward or clinical areas, if institutionalized) or immediate premises due to disability or disabilities which it is reasonably certain will remain throughout his lifetime. See 38 U.S.C. § 1502 (c); 38 C.F.R. § 3.351 (d)(2). For the purpose of meeting the first criterion, a rating of 100 percent may be based on any of the following grants of total disability: on a schedular basis, on an extraschedular basis, or on the basis of a temporary total rating pursuant to 38 C.F.R. §§ 4.28 (pre-stabilization rating), 4.29 (temporary total hospital rating) or, 4.30 (temporary total convalescence rating). Additionally, a total disability rating based on individual unemployability (TDIU) may meet the criterion, but only if assigned for a single disability. See Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2011). While the separate disabilities rated as 60 percent disabling must involve separate and distinct anatomical segments or body systems, the fact that the total disability and the independent 60 percent disabilities result from a common etiological agent will not preclude entitlement. Here, the Veteran does not have a single disability rated at 100 percent. However, the Veteran has argued that his TDIU rating should count as the 100 percent rating. This argument has been made in two forms. First, the Veteran has argued that based on 4.16(a) his TDIU should be considered one disability as the disabilities on which it was based, PTSD, residuals of a left forearm wound, and a lumbar spine disability, all resulted from a common etiology. The second argument is that his PTSD has been severe enough to warrant a TDIU based on that disability alone. With regard to the first argument, the ruling in Bradley expressly rejected such a theory of entitlement. The ruling notes that the provision in 38 C.F.R. § 4.16(a) that allows for multiple disabilities of a common etiology to count as a singular disability applies only to TDIU ratings. Bradley at 291. This conclusion was based on the language of 38 C.F.R. § 4.25(b), which requires VA to rate all disabilities separately, unless otherwise excepted. The regulation regarding TDIU, 38 C.F.R. § 4.16, contains such an exception, but the regulation regarding SMC for housebound status does not. Therefore, for the purposes of establishing entitlement to SMC for housebound status, the Veteran’s disabilities resulting from a common etiology may not be considered as a single disability amounting to a 100 percent rating The Veteran’s second argument, that his PTSD has been severe enough to warrant a TDIU based on that disability alone, is consistent with the ruling in Bradley. In Bradley, the Court found that requirement for a single disability must be rated at 100 percent for the award of SMC for house bound status may be satisfied by a TDIU based on a single disability. Id. at 294. As the requirement for a single disability rated at 100 percent may be satisfied by a TDIU based on a single disability, the Board will consider if the a TDIU is warranted based solely on the Veteran’s PTSD. A TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is a sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16 (a). In determining whether the Veteran is entitled to TDIU, neither his non-service-connected disabilities nor his age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993); 38 C.F.R. § 3.341 (a). The United States Court of Appeals for Veterans Claims (Court), in Ray v. Wilkie, 31 Vet. App. 58 (2019), interpreted the phrase “unable to secure and follow a substantially gainful occupation” under38 C.F.R. § 4.16 (b). The Court defined the term to have two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component, which is pertinent in this case, includes consideration of: The Veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. As the Veteran’s PTSD is rated at 70 percent for the whole period, the dispositive question is whether the Veteran’s PTSD, alone, rendered him unable to secure or follow a substantially gainful occupation. The Board finds the evidence does not support TDIU based solely on the Veteran’s PTSD during this period. The Veteran’s DD Form 214 shows his military occupational specialty was light weapons infantryman. On an April 2001 VA Form 21-8940, the Veteran indicated that he worked at a railroad company as a carpenter from 1973 until 1996. The Veteran also reported that the highest level of education he completed was the 8th grade, with no other education or training. The Veteran does not possess any specialized education. His employment history consisted of construction and carpentry work for nearly 30 years following his separation of service. In an October 2003 DRO hearing, the Veteran indicated that he had left that job due to the combination of his back and hip disabilities. In an April 2013 VA orthopedic consultation, the Veteran reported working as a diver for the local fire department. Thus, looking at economic considerations, the Veteran had the education, training, skills, and work history to perform substantially gainful work as a carpenter and diving. With regard to the non-economic competent, the medical evidence did show the Veteran had some difficulties due to his PTSD. The Veteran was noted to have nightmares, intrusive memories, flashbacks, constant irritability, nervousness, and depression. See December 2003 VA examination. The Veteran reported occasional verbal anger outbursts, social isolation, impulsivity, and aggression with road rage incidents. The Veteran also experienced difficulty with focus, concentration, and memory. See December 2003 VA examination. However, there were periods on appeal when the Veteran was noted to being doing fairly well with only occasional symptoms and reasonable amelioration of symptomatology due to medication. See e.g. February 2006 and May 2006 VA treatment records. Even consider his condition at its most severe, the Veteran’s PTSD did not preclude the Veteran from obtaining substantially gainful employment consistent with his work history, training, education, and skills. Throughout the record the Veteran has consistently indicated that his unemployment was due to the combination of his physical and mental disabilities. This was stated in the Veteran’s original VA Form 21-8940 claiming unemployability in August 2002. It was stated by the Veteran to psychiatric providers, including in May 2007. The Veteran’s March 2016 notice of disagreement which initiated the appeal of the matter before the Board also stated that the Veteran’s unemployability was due to the combination of his back disability and PTSD. Also, the Veteran reported that his physical disabilities primarily rendered him unemployable in the October 2002 PTSD VA examination. He also indicated that he had left his multi-decade long employment as a carpenter due to the combination of his back and hip disabilities. See October 2003 DRO hearing. In the August 2002 VA Form 21-8940, the Veteran reported that he is unable to work due to PTSD, as well as avascular neurosis of the bilateral hips, lumbar spine degenerative disc disease, tinea pedis/onychomycosis of the bilateral feet and carpal tunnel syndrome. See also VA Form VA 21-8940 (indicating that PTSD and GSW cause individual unemployability). The May 2013 VA examination as to hip conditions noted that the Veteran would likely have difficulty with repetitive climbing, prolonged walking, and carrying heavy objects. Ultimately, the Board finds that the Veteran could have performed employment consistent with his training, work experience and education despite his service-connected PTSD alone. Rather, the Veteran’s combined difficulties due to his hip, back, and PTSD rendered him unemployable. The Board has considered the contention that he was unemployable due to alcoholism, as part of his PTSD. It was not until April 2019, that the Veteran argued that his unemployability was due solely to his PTSD. That argument indicates that with the additional consideration of the Veteran’s alcoholism, which was granted service-connection as part of his PTSD in a March 2018 rating decision, the Veteran’s PTSD rendered him unemployable. However, the record does not indicate that the Veteran’s alcoholism had the claimed impact on his employability. The Veteran himself testified that he had been drinking during the time he was employed and that his drinking helped him to self-medicate his psychiatric symptoms. See October 2003 DRO hearing. The Veteran and his spouse further testified that his PTSD symptoms became more prevalent when he stopped drinking and that his alcoholism ameliorated his PTSD symptoms to a degree. In addition, the Veteran and his medical records indicate the Veteran’s alcoholism has been in remission during the period on appeal. No functional impairment from the condition in remission have been noted or claimed in the record. Given the foregoing, alcoholism as part of PTSD did not result in functional impairment. The record does indicate that the Veteran’s PTSD did become more severe over the period on review and then became less severe with treatment. In October 2002, the Veteran attended a VA examination where he was noted to have intrusive thoughts, sleep difficulties, nightmares, and flashbacks. He reported a good marital relationship, but was otherwise socially withdrawn having difficulty in forming intimate relationships and prone to angry verbal outbursts. He also reported that he was planning on building a garage. At the October 2003 DRO hearing, the Veteran reported his symptoms were worse than they were at the 2002 examination. A November 2002 treatment records noted that the Veteran had been having flashbacks every other day triggered by loud noises, and nightmares every night. He reported a good relationship with his daughters but difficulty getting close with others. A new examination was scheduled in December 2003. At this examination the Veteran reported having no social relationships, that he was having difficulty in marriage due to irritability and anger outbursts and that he had frequent flashbacks and nightmares. He indicated that he liked to sit in his barn alone. He was noted having feelings of depression and anxiety that included panic attacks. His concentration and memory were noted as poor and reported periods of road rage, but without physical altercations. The examiner noted the Veteran had difficulty handling mild frustrations and stress and would occasionally become disoriented during flashbacks. Subsequent treatment notes indicate the Veteran’s condition became less severe and stabilized with treatment. In several treatment notes in 2007, the Veteran was noted as stable and being pleasant, calm, and possessing good judgment. In March 2008, it was noted that the Veteran’s combined physical pain and PTSD were making his anger worse. The Veteran continued to have symptoms of PTSD that including occasional flashbacks and a low frustration tolerance. It was noted that his sleep suffered from pain and use of a CPAP machine that was eventually discontinued. The Veteran continued to have martial difficulties due to his low frustration tolerance and was noted as having difficulty dealing with his grandson, including reports that he would snap at his grandson in frustration. In March 2009 it was noted he had taken up the hobbies of gardening and auto restoration. In 2013, it was noted that his PTSD symptoms were at a baseline. He was noted as having a more constructive relationship with his wife and grandson. His flashbacks were noted as occasional and less severe than they previously were. In 2014, he was noted as sleeping much better and denied flashbacks and said his nightmares were less frequent. A November 2016 treatment notes indicated the Veteran still had “some” PTSD symptoms and felt a “little down.” The Board finds that the weight of the evidence does not demonstrate that the Veteran is unable to obtain or retain substantially gainful employment due to PTSD symptoms alone. The evidence shows that his concentration and memory were noted as impaired by his PTSD when it was at its most severe state. Further, he had difficulty establishing relationships and low frustration tolerance with others. The Board finds that these impairments may restrict the type of the occupation the Veteran could work, they do not render him unemployable. As the Veteran’s symptoms due to PTSD alone, would not render the Veteran unable to obtain and follow a substantially gainful employment, a TDIU based solely on PTSD, to include alcoholism in remission, is not warranted. The Veteran has not contended that any other disability, alone, would warrant a TDIU, nor does the record suggest it. Therefore, as the Veteran does not have a single disability rated at 100 percent and since no single disability warrants a TDIU, SMC based on housebound status is not warranted. Finally, as to whether there is SMC based on housebound status in fact, the evidence does not show that the Veteran was substantially confined to his dwelling or home or its immediate premises due to his service-connected disabilities. 38 C.F.R. § 3.350 (i)(2). For these reasons, SMC based on housebound status, prior to January 7, 2015, is not warranted. 2. Entitlement to SMC for aid and attendance is denied. The Veteran seeks an additional award of SMC based on the need for aid and attendance. In particular, the Veteran asserts that he requires assistance and use of a hip abduction brace after he dislocated his hip in April 2015, and again in June 2015. Compensation at the aid and attendance rate is payable when a Veteran’s service-connected disability or disabilities cause the anatomical loss or loss of use of both feet or one hand and one foot, cause the Veteran to be blind in both eyes, or render him 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). Here the Veteran has not suffered the anatomical loss or loss of use of both feet, or of one hand and one foot; is not blind in both eyes, with visual acuity of 5/200 or less; nor is he permanently bedridden. Instead he has claimed that he is need of regular aid and attendance. As noted, the Veteran specifically claims SMC for the period between April 1, 2015 and July 23, 2015, due to dislocations of his hip after it was replaced. The criteria for determining that a veteran is so helpless as to be in need of “regular aid and attendance” are contained in 38 C.F.R. § 3.352(a). Determinations as to the need for regular aid and attendance are factual and must be based upon the actual requirements for personal assistance from others. In making such determinations, consideration is given to such conditions as: the inability of the claimant to dress or undress himself, or to keep himself 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; the inability of the claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; the inability to attend to the wants of nature; or incapacity, either physical or mental, which requires care or assistance on a regular basis to protect a claimant from hazards or dangers incident to one’s daily environment. It is not required that all of the disabling conditions enumerated be present before a favorable rating is made. The particular personal functions that the claimant is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the claimant be so helpless as to be in need of regular aid and attendance, not that there is a constant need. “Bedridden” constitutes a condition which, through its essential character, actually requires that an individual remain in bed. The fact that a claimant has voluntarily taken to bed, or that a physician has prescribed bed rest for a lesser or greater portion of the day, will not suffice. 38 C.F.R. § 3.352 (a). In Turco v. Brown, 9 Vet. App. 222, 224 (1996), the Court held that eligibility for SMC by reason of regular need for aid and attendance requires that at least one of the factors set forth in VA regulation is met. In addition, determinations that the claimant 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. See Turco, 9 Vet. App. at 224. The evidence must show that the claimant is so helpless as to need regular and attendance; constant need for aid and attendance is not required. 38 C.F.R. § 3.352 (a). With regard to the period specifically claimed by the Veteran, April 1, 2015, to July 23, 2015, the Veteran has argued that he needed a hip abduction brace after he dislocated his hip the first time in April 2015, and then after the second dislocation he had a revision and was instructed to have assistance with uneven terrain and standby assistance for safe ambulation. He was also recommended to have assistance with instrumental activities of daily living. For the period between the first and second dislocations, the record does not show the Veteran was in need of aid and attendance. Although the Veteran was provided a brace to use, there is no indication the brace required frequent adjustments. The Veteran’s medical records from the second dislocation actually indicate that he was independent in all activities of daily living, which would include feeding himself, dressing himself, and using the bathroom. He was also noted as independent in all instrumental activities of daily living, which would include activities like cooking, shopping, doing housework. In the Veteran’s statement to support the claim for SMC based on aid and attendance for this period, it was noted he was working on the ground at his farm when the second dislocation occurred, which would further indicate a level of independence beyond that where aid and attendance is required. The treatment records from June 2015 indicate that at baseline, he was independent in all activities of daily living, instrumental activities of daily living and mobility. Therefore, the evidence indicate the Veteran was not in need of aid and attendance for the period between the first and second dislocation. Following his second hip dislocation and the surgery to repair the dislocation, the Veteran has indicated the need to use a brace, supervision, and assistance on uneven terrain and with instrumental activities of daily living. Nonetheless, this type of assistance does not rise to the level described in 38 C.F.R. § 3.352 (a). The need for assistance on irregular terrain does not constitute a need for assistance to avoid hazards of his daily environment. There is no evidence that the Veteran’s daily environment included irregular terrain given the Veteran’ recuperation was primarily done in the house. Furthermore, the Veteran’s June 2015 discharge records indicate that he was independent with regard to his activities of daily living. He reported no difficulty with using the bathroom independently, and he was noted to be able to groom himself, and dress his upper body. He did require assistive equipment to dress his lower body and with transfers. The records indicate that the Veteran was independent save for the need of assistive equipment with regard to his activities of daily living when he was discharged after the second dislocation. He has not reported any actual need for aid and attendance following the discharge. Indeed, the Veteran reported improved condition and mobility in November 2015. By March 2016, the Veteran indicated that he had no complaints and his hip was fixed. In November 2019, the Veteran was noted to be able to bathe himself completely, dress himself with help tying his shoe laces, toilet independently, transfer unassisted, has complete control over his urination and defecation, and feeds himself. The Board finds the objective evaluations by the treating clinicians probative as to the assessment of his physical capabilities and limitations. Thus, the weight of evidence indicates that he was not in need of regular aid and attendance for the period between April 1, 2015 and July 23, 2015. For the remainder of the period on appeal, the record does not reflect that the Veteran has been in need of regular aid and attendance. The record is silent for any instances where the Veteran was unable to dress or undress himself, or unable to perform his activities of daily living. The Veteran does not have a special prothetic and does not have any orthopedic appliance that needs frequent adjustment. There is no indication the Veteran has been incapacitated by any service-connected disability on a regular basis. Even after the Veteran’s surgeries on his back and hip, warranting temporary total ratings, the record does not indicate the Veteran met the criteria to show the need for aid and attendance. (Continued on the next page)   In conclusion, the most probative evidence shows that the Veteran’s service-connected disabilities do not result in the need of aid and attendance. Therefore, the entitlement to SMC based on need for aid and attendance is not warranted. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Vuong, 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.