Citation Nr: 21005758 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 13-29 524 DATE: February 2, 2021 ORDER As of March 21, 2013, special monthly compensation (SMC) at the statutory housebound rate is granted. As of April 15, 2015, SMC based on the Veteran’s need of the aid and attendance of another person is granted. FINDINGS OF FACT 1. As of March 21, 2013, the Veteran was in receipt of a 100 percent rating based on a single disability and had additional service-connected disabilities independently rated at a combined 60 percent. 2. As of April 15, 2015, and no earlier, the Veteran required the regular aid and attendance of another person. CONCLUSIONS OF LAW 1. As of March 21, 2013, the criteria to establish entitlement to SMC for the Veteran at the housebound rate are met. 38 U.S.C. §§ 1114, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.350(i), 3.352. 2. As of April 15, 2015, the criteria to establish the Veteran’s entitlement to SMC due to the need of the regular aid and attendance of another person are met. 38 U.S.C. §§ 1114, 1155, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1955 to October 1956. He died in May 2015. The appellant is the Veteran’s surviving spouse, who has been substituted as claimant for claims pending at the time of the Veteran’s death. See 38 U.S.C. § 5121A. For the purposes of clarity, the Board notes that the appellant has already been granted entitlement to SMC, initially at the housebound rate and then at the aid and attendance rate, based on her own medical needs. This decision, however, relates instead to the Veteran’s entitlement during his lifetime. The Veteran initially sought SMC based only on the housebound rate. See, e.g., Statements in Support of Claim, March 2013 & October 2010. However, the claim has been adjudicated as entitlement to SMC based on either the aid and attendance or housebound rate. Both issues are in appellate status and adjudicated here. 1. Special monthly compensation at the statutory housebound rate from March 21, 2013 to the date of the Veteran’s death is granted. A veteran may receive housebound rate special monthly compensation if he or she has a service-connected disability rated as permanent and total (but not including a total rating based upon unemployability under 38 C.F.R. § 4.17) and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) by reason of disability or disabilities, is permanently housebound but does not qualify for special monthly pension at the aid and attendance rate. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). A veteran will be determined to be permanently housebound when he or she is substantially confined to the 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 or her lifetime. 38 U.S.C. § 1502(c); 38 C.F.R. § 3.351(d)(2). In this case, the Board finds that the Veteran was entitled to SMC at the housebound rate as of March 21, 2013. Based on a recent November 2020 rating decision that granted service connection for anemia with an evaluation of 10 percent effective March 21, 2013, the Veteran’s service-connected disabilities at the time of his death included: major depressive disorder evaluated as 100 percent disabling, residuals of partial gastrectomy for ulcer disease evaluated as 40 percent disabling, a scar associated with the partial gastrectomy rated as 10 percent disabling, a right eye disability evaluated as 10 percent disabling, anemia evaluated as 10 percent disabling, and an incisional hernia evaluated as zero percent disabling. Thus, the Veteran had a single service-connected disability, depression, that was rated at 100 percent. The question therefore remains as to whether he had additional 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. The Board finds these criteria to be met. The Veteran’s remaining service-connected disabilities involve the right eye and multiple residuals of partial gastrectomy for ulcer disease including a scar, hernia, and anemia. These are physical rather than psychiatric conditions, and thus separate and distinct from the 100 percent rating for depression. Furthermore, when using the Combined Ratings Table found at 38 C.F.R. § 4.25, the Board determines that when calculated separate from the 100 percent rating, the Veteran’s remaining disabilities (40+10+10+10) combine to a value of 56. It is important to note that for VA purposes, individual percentages of each condition are not merely added together to determine the combined rating. Instead, the applicable regulation requires that VA use a Combined Rating Table that considers the effect from the most serious to the least serious condition. 38 C.F.R. § 4.25. This regulation also requires that the combined value using the table is converted to the nearest number divisible by 10, and combined values ending in 5 will be adjusted upward. Id. In other words, the combined rating is rounded up for values ending in 5 or greater. As the combined rating value here is 56, it is adjusted to the next higher number divisible by 10, this would equate to a combined rating of 60 percent, independent and in addition to the Veteran’s 100 percent rating for depression, and thus meet the criteria for SMC payable at the statutory housebound rate effective as of March 21, 2013, the effective date of service connection for the Veteran’s anemia. The appeal seeking SMC from March 21, 2013 until the Veteran’s death is granted. 2. SMC based on the Veteran’s need of the aid and attendance of another person is granted. Entitlement to SMC based on the need for regular aid and attendance is governed by 38 U.S.C. § 1114(l) and 38 C.F.R. § 3.350(b). SMC is payable under § 1114(l) for the anatomical loss or loss of use of both feet, one hand and one foot, blindness in both eyes with visual acuity of 5/200 or less, or being permanently bedridden or so helpless as to be in need of regular aid and attendance. The Veteran’s service-connected disabilities did not involve loss or loss of use of his hands or feet, nor a visual impairment in both eyes. Therefore, any entitlement to SMC for aid and attendance must be based on whether he was permanently bedridden or so helpless as to be in need of regular aid and attendance. The evidence shows that this level of required assistance occurred after a hospital admission on April 15, 2015, and no earlier. Being permanently bedridden is defined as a “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). The criteria for determining whether the Veteran was so helpless as to be in need of the regular aid and attendance of another person is defined as: inability 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 such aid; inability to feed himself because of the loss of coordination of upper extremities or because of extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the Veteran from the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). VA examinations between June 2010 and May 2014, and the Veteran’s treatment records for the relevant period have been reviewed. They do not reflect that the Veteran was bedridden or in need of regular aid and assistance prior to the April 2015 hospital admission. An August 2014 VA treatment note by the Veteran’s primary care clinic explicitly states that the Veteran required no assistance with bathing, dressing, toileting, transferring, continence or feeding. (Continued on the next page)   Then, a social work discharge planning assessment conducted on April 15, 2015 states that the Veteran was self-dependent in his activities of daily living (ADLs) prior to the hospitalization with admittance on the same date in April 2015. Partial assistance was noted to be required on April 15, while assistance with feeding was required on April 22 and the Veteran was noted to be bedridden requiring complete assistance by April 23. The Board will resolve any reasonable doubt in this regard and find the Veteran to be in need of the regular aid and assistance of another person from the date of the April 15, 2015 hospital admission until his death in May 2015, but no earlier. The appeal is granted. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. McDonald, 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.