Citation Nr: 21005926 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 15-19 819 DATE: February 2, 2021 ORDER Entitlement to special monthly compensation (SMC) because of the need for aid and attendance is denied. FINDING OF FACT The evidence does not demonstrate that the Veteran is in need of regular aid and attendance as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to SMC because of the need for aid and attendance have not been met. 38 U.S.C. § 1114; 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from June 1974 to June 1976. This matter comes before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (hereinafter “the Court”) in March 2020, which granted a joint motion for remand (JMR) vacating an April 2019 Board decision and remanding the issue on appeal for additional development. The matter initially arose from a July 2013 rating decision by the Atlanta, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA). The case was remanded for additional development in August 2020. In November 2018, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. The transcript is of record. 1. Entitlement to SMC because of the need for aid and attendance. SMC is awarded to a Veteran who, as a result of service-connected disabilities, has the anatomical loss or loss of use of both feet, or of one hand and one foot, or is blind in both eyes, with 5/200 visual acuity or less, or is permanently bedridden or with such significant disabilities as to be in need of regular aid and attendance. 38 U.S.C. § 1114(l). The loss of use of a hand or a foot will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc., in the case of the hand, or of balance, propulsion, etc., in the case of the foot, could be accomplished equally well by an amputation stump with prosthesis; for example: (a) Extremely unfavorable complete ankylosis of the knee, or complete ankylosis of two major joints of an extremity, or shortening of the lower extremity of 3½ inches or more, will constitute loss of use of the hand or foot involved; (b) Complete paralysis of the external popliteal nerve (common peroneal) and consequent footdrop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve, will be taken as loss of use of the foot. 38 C.F.R. § 3.350(a)(2). A person shall be considered to be in need of regular aid and assistance if such person (1) is 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 five degrees or less; (2) is a patient in a nursing home on account of mental or physical incapacity; or (3) establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). 38 C.F.R. § 3.350(b). The following criteria will be considered in determining whether a Veteran is in need of the regular aid and attendance of another person: the inability of the Veteran 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; the inability of the Veteran to feed himself through the loss of coordination of upper extremities or through extreme weakness; the inability to attend to the wants of nature; or an 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. “Bedridden” will be a proper basis for the determination. For the purpose of this paragraph “bedridden” will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that 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. It is not required that all of the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made. The particular personal functions which the veteran is unable to perform should be considered in connection with his or her condition as a whole. It is only necessary that the evidence 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 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. 38 C.F.R. § 3.352(a). It is not required that all the disabling conditions enumerated in the provisions of 38 C.F.R. § 3.352(a) be found to exist to establish eligibility for aid and attendance and that such eligibility required at least one of the enumerated factors be present. Turco v. Brown, 9 Vet. App. 222 (1996). The particular personal function which the Veteran is unable to perform should be considered in connection with his or her condition as a whole and it is only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance, not that there be a constant need. The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). VA may favor one medical opinion over another, provided an adequate basis is provided. Owens v. Brown, 7 Vet. App. 429 (1995). The Veteran contends that SMC is warranted based upon the need for aid and attendance. At his November 2018 Board hearing, he testified that he is unable to cook because his dementia causes him to forget that he is cooking. He stated that he was able to use his shower but that he could not get into a tub because of disabilities including to the hips, knees, and back. He reported he used a cane and that he had a walker at home. He stated that sometimes he had to have help getting out of bed but not every day. He reported that a VA doctor had stated he needed aid and attendance. In a subsequent statement provided in support of his claim the Veteran, in essence, challenged the findings of a November 2020 VA examination as to whether he could feed himself and prepare his own meals and as to whether he was able to bathe and dress without assistance. Service connection is established for posttraumatic stress disorder with depression associated with degenerative disc disease with radiculitis, left L4-5 distribution (70 percent), degenerative disc disease with radiculitis, left L4-5 distribution (60 percent), hypertrophic gastritis (10 percent), degenerative changes, left hip associated with degenerative disc disease with radiculitis, left L4-5 distribution (10 percent), degenerative changes, right hip associated with degenerative disc disease with radiculitis, left L4-5 distribution (10 percent), strain left knee associated with degenerative disc disease with radiculitis, left L4-5 distribution (10 percent), strain right knee associated with degenerative disc disease with radiculitis, left L4-5 distribution (10 percent), degenerative disc disease, cervical spine (10 percent), and erectile dysfunction associated with degenerative disc disease with radiculitis, left L4-5 distribution (0 percent). The Veteran also receives compensation for total disability based on individual unemployability since August 1997. SMC is established for loss of use of a creative organ (k rating) and for a total rating plus additional disabilities at 60 percent or more (s rating). The pertinent evidence of record includes an April 2012 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance noting diagnoses of type II diabetes mellitus, diabetic neuropathy, lumbar spine disability, right lumbar radiculopathy, and early dementia. It was noted that back and leg pain limited the ability to drive more than one and a half hours and to stand more than five to ten minutes. The examiner noted the Veteran was able to feed himself, but that he was not able to prepare his own meals because of recent memory impairment and inability to stand long enough to cook. He needed assistance bathing and attending to other hygiene needs because he was unable to use a tub. It was noted he could leave home at any time, but that he was increasingly worried about lapses of attention while driving. The examiner noted that the Veteran did not require aids such as canes, braces, crutches, or the assistance of another person for locomotion. A June 2012 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance noted diagnoses of type II diabetes mellitus, diabetic neuropathy, lumbar radiculopathy, transient ischemic attacks, erectile dysfunction, and depression. It was noted that back and leg pain limited the ability to drive more than half an hour and that cognitive dysfunction made driving dangerous. The examiner noted the Veteran was able to feed himself, but that he was not able to prepare his own meals. He needed assistance bathing and attending to other hygiene needs because he was unable to use a tub. He needed help organizing his medications and managing financial affairs due to memory problems. It was noted he had pain lifting a gallon of milk or reaching overhead. The examiner noted that the Veteran did not require aids such as canes, braces, crutches, or the assistance of another person for locomotion, but that he had back pain and leg weakness after walking half a block. A May 2013 VA Examination for Housebound Status or Permanent Need for Regular Aid and Attendance noted diagnoses of chronic low back pain, restless leg, diabetic neuropathy, depression, and generalized anxiety disorder. The disabilities that restricted the Veteran’s activities and functions were identified as leg pain, anxiety, and depression. The examiner noted the Veteran was able to feed himself, but that he was not able to prepare his own meals and needed assistance bathing and attending other hygiene needs. It was noted he was able to walk on his own but needed a cane for balance. He had no restrictions to the upper extremities. He was occasionally off balance due to diabetic neuropathy in legs, restless legs, and poor concentration due to depression and anxiety. The examiner noted that due to anxiety the Veteran felt uncomfortable driving to appointment and needed assistance with that activity. A February 2017 VA Examination for Housebound Status or Permanent Need for Regular Aid and Attendance noted diagnoses of coronary artery disease (CAD) status post myocardial infarction, diabetes, major depression, lumbar degenerative joint disease, and mild cognitive impairment. It was noted that the Veteran was able to feed himself but was not able to prepare his own meals. He needed assistance bathing and attending to other hygiene needs. He needed the help of his spouse to manage medications and managing finances due to mild cognitive impairment and depression. The examiner noted that the Veteran’s back condition limited his physical abilities including bending and prolonged walking. The examiner stated that the Veteran was able to perform activities of daily living (ADLS) but required assistance due to chronic fatigue and pain. He was unable to drive due to chronic anxiety and lack of concentration. He required a cane to walk less than one half block. A September 2018 VA Examination for Housebound Status or Permanent Need for Regular Aid and Attendance included diagnoses of uncontrolled diabetes, diabetic neuropathy, depression, cognitive disorder, coronary atherosclerosis, lumbar and cervical degenerative joint disease, and chronic obstructive pulmonary disease (COPD). The disabilities that restricted the Veteran’s activities and functions were chronic leg pain, depression, and dementia. The examiner indicated the Veteran was able to feed himself but was not able prepare his own meals. He needed assistance bathing and attending to other hygiene needs. He required medication management and needed the help of his spouse managing finances. It was noted that the Veteran had a mild gait abnormality and poor balance. He walked with a cane and intermittently required the use of a walker. He required assistance performing ADLS due to chronic fatigue, dyspnea on exertion due to COPD, CAD, uncontrolled diabetes, and cervical degenerative joint disease. He had difficulty bending, lifting, and with prolonged standing and walking due to severe peripheral neuropathy and chronic pain associated with lumbar spondylosis. He required the assistance of family member to drive to medical appointments. VA treatment records include a September 2019 report noting the Veteran sustained a left ankle injury and complained of pain with prolonged walking and standing. An October 2019 psychiatric specialty examination noted he walked without any gait impairment and that his memory was stable, though he continued to report difficulty remembering names. A May 2020 report noted he had chronic low back pain exacerbated by a recent herpes zoster (shingles) infection causing neuropathic pain. He stated that he had excruciating pain upon waking and had difficulty performing ADLS. The diagnoses included acute on chronic pain due to postherpetic neuralgia plus chronic lumbar spondylosis. A July 2020 assessment noted the Veteran was advised to exercise 30 minutes per day, five days per week, as tolerated. A November 2020 mental health note reported that the Veteran complained of neuropathy pain from shingles and stated that he spent his days at home with not much activity. He stated he spent time with his grandchildren. A mental status examination revealed he was alert and in no acute distress. His recent and remote memory were normal. A November 2020 VA Examination for Housebound Status or Permanent Need for Regular Aid and Attendance noted the disabilities that restricted the Veteran’s activities and functions were PTSD, degenerative disc disease (DDD) with radiculitis in left L4-5 distribution, left knee strain, right knee strain, degenerative changes in the right hip, degenerative changes in the left hip, type II diabetes mellitus, diabetic peripheral neuropathy, CAD, and COPD. The Veteran was able to feed himself and was able prepare his own meals. He did not need assistance bathing and attending to other hygiene needs. He required medication management but was found to be able to manage his benefit payments. It was noted that the Veteran had no upper extremity restrictions. He had difficulty with prolonged standing and walking and with balance issues due to knee, hip, and diabetic peripheral neuropathy disabilities. He had difficulty bending due to his DDD with radiculitis and his CAD and COPD was noted to affect exertional activities. It was noted his PTSD can affect sedentary and physical activities. The Veteran reported that he got up and spent his day by himself after his spouse left for work. He had a relative who may come and check on him during the day and his spouse fix his dinners. He was able to leave his home when he wanted and stated he used a golf cart to visit his daughter’s home, five houses away. He stated he drove his truck independently for short distances sometimes. The examiner noted he required aids such as canes, braces, crutches, or the assistance of another person for locomotion of one block. In an associated medical opinion, the examiner noted the evidence of record was reviewed and found that the Veteran was able to dress or undress himself or keep himself ordinarily clean and presentable, to adjust orthopedic appliances (noting he used a cane), to feed himself, to attend to the wants of nature, and to protect himself from hazards or dangers incident to his daily environment. Based upon the evidence of record, the Board finds that the Veteran is not shown to be in need of regular aid and attendance as a result of his service-connected disabilities. The evidence does not show, nor does the Veteran contend, that he is blind or is 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. Nor is he shown to be actually confined to his bed or to be a patient in a nursing home because of mental or physical incapacity. Although the Veteran has challenged the adequacy of the November 2020 VA examination, the Board finds no merit to his claims as to the matter. The examiner’s report is shown to be consistent with the overall evidence of record, including recent VA treatment reports, as to the restrictions of his activities and functions as a result of the service-connected disabilities alone. The Board finds the overall evidence is persuasive that as a result of his service-connected disability the Veteran is not so helpless as to require the regular, though not constant, aid and attendance of others to dress or undress himself, to keep himself ordinarily clean and presentable, to adjust any special prosthetic or orthopedic appliances, to feed himself due to the loss of coordination of the upper extremities or extreme weakness, to attend to the wants of nature, or to protect himself from the hazards or dangers incident to his daily environment. The matter at issue is medically complex and the Veteran is shown to have multiple nonservice-connected injuries and illnesses that are severely disabling. His total service-connected disability and SMC evaluations are, themselves, indicative of severe impairment in functioning. The persuasive evidence, however, does not demonstrate that as a result of his service-connected disabilities he is so helpless as to need regular aid and attendance. He is shown to use a cane and a walker for mobility, but otherwise does not use prostetic or orthopedic appliances. The Board notes that the medical evidence of record includes opinions noting the requirement of assistance from others in certain tasks without clearly identifying the specific rationale for such opinions or addressing whether regular assistance was required. It is specifically noted that the April 2012 and June 2012 examinations found the Veteran’s back and leg pain limited his ability to drive and to stand without distinguishing any service-connected disability leg pain from nonservice-connected disability impairments, such as diabetic neuropathy. Nor are the inabilities to stand long enough to cook or to use a tub shown to be impairments that could not be addressed by reasonable accommodations that would not require the actual assistance of others. In fact, the Veteran has reported making modifications to his home to allow him to shower. Further, to the extent the May 2013, February 2017, and September 2018 examination reports indicate impairments in functioning requiring the assistance of others, the Board finds the degree of impairment due to service-connected disability cannot be clearly distinguished from that due to nonservice-connected disabilities, such as diabetic neuropathy, CAD, COPD, and cognitive disorder. The Board notes that the September 2018 examiner reported the Veteran required assistance performing ADLS due, in part, to the effects of his nonservice-connected dyspnea on exertion due to COPD, CAD, and uncontrolled diabetes. Upon a comprehensive review of the entire record, the Board finds that, while the Veteran may require assistance performing some daily tasks, any difficulty he has dressing, bathing, attending to the wants of nature, and protecting himself from the dangers of his daily environment are not inabilities that are a result of his service-connected disabilities alone. The November 2020 VA examiner’s opinion as to these specific matters is persuasive and is shown to have been based upon a physical examination of the Veteran and upon a review of the evidence of record. The Board further finds that the November 2020 examiner’s opinion is more consistent with the overall VA treatment reports that indicate greater walking, standing, and memory abilities than the examination reports indicating required assistance due to such impairments. The Board acknowledges that the Veteran is competent to report observable symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). He is not, however, competent to identify a specific level of disability. Competent evidence concerning the nature and extent of the Veteran’s service-connected disabilities has been provided by the medical professionals who have examined him. The Board accords these objective records greater weight than the Veteran’s subjective complaints as to any greater impairment. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The preponderance of the evidence in this case is against the Veteran’s claim. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Douglas 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.