Citation Nr: 21006507 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 19-18 096 DATE: February 4, 2021 ORDER Entitlement to special monthly compensation (SMC) based on the need for aid and attendance and/or housebound status is denied. FINDING OF FACT During the period on appeal, the preponderance of the evidence is against a finding that the Veteran is blind, or nearly blind, or institutionalized in a nursing home due solely to his service-connected disabilities; additionally, the Veteran’s service-connected disabilities did not render him unable to care for most of his daily personal needs without the regular aid and attendance of another person, and the evidence does not establish that the Veteran was housebound for any period on appeal due to his service-connected disabilities. CONCLUSION OF LAW The criteria for SMC based on the need for aid and attendance and/or housebound status have not been met for any period on appeal. 38 U.S.C. §§ 1114(l); 5107(b) (2012); 38 C.F.R. §§ 3.350(b); 3.352(a) (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1950 to September 1951 and from October 1951 to June 1955. The Veteran testified before the undersigned Veterans Law Judge (VLJ) during a December 2020 virtual hearing and a transcript of the hearing has been associated with the claims file. Entitlement to SMC based on the need for aid and attendance and/or housebound status. An increased rate of compensation in the form of SMC is provided under certain circumstances, including when a Veteran is permanently bedridden, blind or with visual acuity of 5/200 or less in both eyes, or in need of regular aid and attendance due to service-connected disability. The permanently housebound requirement is met when the Veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises, or if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. “Statutory” housebound may also be awarded when the claimant has a single permanent service-connected disability evaluated as 100 percent disabling and another disability, or disabilities, evaluated as 60 percent or more disabling; however, the Veteran does not meet these criteria for any period on appeal. The following factors will be accorded consideration in determining whether the Veteran is in need of regular aid and attendance of another person: (1) inability of the Veteran to dress or undress himself, or to keep himself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without such aid; (3) inability of the Veteran to feed himself because of the loss of coordination of upper extremities or because of extreme weakness; (4) inability to attend to the wants of nature; or (5) physical or mental incapacity which requires care or assistance on a regular basis to protect the Veteran from the hazards or dangers incident to his daily environment. It is not required that all of the disabling conditions be found to exist before a favorable rating may be made. The particular personal functions that the Veteran is unable to perform should be considered in connection with his 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 is a constant need for aid and attendance. “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 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. Following a review of the evidence of record, the Board finds that the preponderance of evidence weighs against the Veteran’s claim of entitlement to SMC based on the need for aid and attendance and/or housebound status. The Veteran is currently service-connected for degenerative disc disease, residuals of low back injury, rated as 20 percent disabling from September 22, 2008; degenerative joint disease, residuals of left knee sprain, rated as 10 percent disabling from September 22, 2008; and right knee arthritis with history of chondromalacia, rated as 10 percent disabling from September 22, 2008. Given the above, the Veteran’s combined disability rating is 40 percent from September 22, 2008. In conjunction with his April 2017 claim of entitlement to SMC, the Veteran also submitted an April 2017 VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance. Therein, a private nurse practitioner, Elizabeth A. Bulatao, documented the Veteran’s complete diagnoses as hypertension, diabetes mellitus, low kidney function, low HDL cholesterol, chronic back pain, atrial fibrillation, left knee pain, and decreased hearing. Regarding the which of the Veteran’s disabilities restrict his activities and functions, she identified decreased hearing, low back pain, and left knee pain. She stated that the Veteran was not confined to the bed, was able to feed himself (although she noted that he was messy at times), and was unable to prepare his own meals (he eats out or his son prepares the food). The Veteran reported that he needed assistance in bathing and tending to other hygiene needs when his back pain flared up. The nurse practitioner noted that the Veteran was not legally blind, did not require nursing home care or medication management, and retained the ability to manage his own financial affairs. The nurse practitioner documented that upon physical examination, the Veteran appeared alert and oriented, was not in distress, and was “very pleasant.” Regarding any restrictions of the upper extremities, with particular reference to grip, fine movements, and ability to feed himself, to button clothing, shave, and attend to the needs of nature, the nurse practitioner identified that the Veteran had full upper strength (5/5) bilaterally. Similarly, when asked to describe any restrictions of the lower extremities with particular reference to the extent of limitation of motion, atrophy, and contractures or other interference, the nurse practitioner wrote that the Veteran had full lower strength (5/5) bilaterally. Finally, when asked to describe restriction of the spine, trunk, and neck, the nurse practitioner wrote that the Veteran had back flexion/extension provocative from L4-S1 and palpable tenderness from L4-S1. The left knee had no swelling but was tender to palpation. When asked to set forth all other pathology, including the loss of bowel or bladder control or the effects of advancing age, such as dizziness, loss of memory or poor balance, that affects the ability to perform self-care, ambulate or travel beyond the premises of the home, or, if hospitalized, beyond the ward or clinical area, the nurse practitioner indicated that the Veteran had limited ability to walk distance, that he used a walker due to fear of falling, but that he was able to leave the home or immediate premises daily, with locomotion limited to one block. Private treatment records from August 2017 document that the Veteran underwent right foot amputation due to sepsis and gangrene from a nonservice-connected diabetic foot ulcer. A concurrent problem list also details various nonservice-connected conditions, such as atrial fibrillation, diabetes mellitus, hypertension, left foot, pain in the buttock, stroke x 2, and wound of the skin. Except for the pain in buttock, which could possibly be related to the lumbar spine, all the other diagnoses involve non-service-connected disabilities. Similarly, VA treatment records from February 2018 and April 2019 document the Veteran’s chronic and ongoing back and knee pain; however, they do not document objective findings which weigh in favor of a finding that the Veteran requires aid and attendance or that he is housebound due to his service-connected disabilities. Most recently, in May 2019, the Veteran was again afforded a VA Aid and Attendance or Housebound Examination. At that time, the VA examiner noted that the Veteran was not permanently bedridden or currently hospitalized, that he was able to travel beyond his current domicile, and that his mode of travel to the examination was with an accompanying friend. When asked to describe his typical daily activities, the Veteran reported that his girlfriend had moved in with him to help with cooking, cleaning, and laundry, after staying with him for the past six months. Prior to her moving in, the Veteran noted that his teenage grandsons lived with him. He stated that his typical day starts around 9:00AM, when he goes to bathroom and performs his own activities of daily living (ADLs), such as brushing his teeth and washing his face, after which he eats breakfast (prepared by his girlfriend) and then looks at the news and relaxes, spending his free time sitting on the porch. At night he stated that he takes a bath and his medication and gets dressed for bed. He stated that he will use a walker or cane for standing or walking for prolonged periods of time, but other than that he is able to walk around the house without assistance. The examiner noted that the Veteran has a driver’s license and that he will drive for short distances around town. The Veteran denied the use of an orthopedic or prosthetic appliance. He reported weekly dizziness, and mild, occasional memory loss, with occasional imbalance affecting the ability to ambulate; however, there were no other body parts or system impairments that affect the ability to protect himself from harm. The examiner noted that the Veteran could perform all self-care functions, that he could walk without the assistance of another person up to a few hundred yards, and that he required a cane or a walker as an aid for ambulation. The examiner documented the Veteran was unrestricted in the ability to leave the home, and there was no cervical or thoracolumbar spine limitation of motion of deformity, and the function of the upper and lower extremities were normal. The examiner noted that the Veteran was unable to stand or walk for prolonged periods of time, but that he was able to drive for short distances. The examiner concluded by commenting that the Veteran’s dizziness and memory loss were unrelated to his service-connected disabilities, but that he had other health issues (heart and diabetes mellitus) that caused these symptoms. The examiner wrote the Veteran had service-connected diagnoses of DDD of the lumbar spine with right and left knee conditions, but that he could perform his routine ADLs with the exception of laundry, cooking and strenuous cleaning. She added that if the Veteran was required to ambulate for long distances, he needed a walker or cane. She added he is able to drive and manages his own personal finances. In May 2019, the Veteran provided list of current medications; however, there is no indication which, if any, are required for his service-connected disabilities versus his nonservice-connected health conditions. Additionally, there is no indication as to the functional effects or ameliorative effects of any listed medications regarding the Veteran’s service-connected disabilities. At the December 2020 virtual hearing, the Veteran testified that he needed aid and attendance and/or was housebound as a result of his service-connected disabilities. Specifically, he stated that he required help with meal preparation and help to remember to take his medication. He stated that he also needed assistance with bathing, grooming, dressing, and undressing. He further indicated that he could leave the home without assistance and that he could drive to the grocery store, for a very short distance. When asked by the undersigned if his service-connected lumbar spine and bilateral knee disabilities required him to have assistance with taking medication or with activities of daily living, such as making meals, the Veteran stated that they did. Following a careful review of the evidence of record, including as discussed above, the Board finds that the preponderance of evidence weighs against the Veteran’s claim of entitlement to SMC based on the need for aid and attendance and/or housebound status. While the Board acknowledges the above evidence regarding the Veteran’s various documented needs for assistance, including with meal preparation, medication management, transportation longer than short distances, and aids for ambulation, the Board finds that the preponderance of the evidence is against a finding that the Veteran has required the regular care of another person or that he has been housebound due to his service-connected disabilities. Indeed, as noted by the private aid and attendance examination submitted by the Veteran in conjunction with his SMC claim, as well as the more recent VA examination, the Board finds that this objective evidence shows that the Veteran’s primary restrictions and limitations upon his various activities are due to nonservice-connected conditions, including concerning his heart and diabetes mellitus. The April 2017 private examination documented various nonservice-connected conditions resulting in impaired function, and the Veteran reported that he retained the ability to perform most ADLs, except for food preparation and tending to hygiene needs when his back pain flared up. However, there was no resulting limitation of function in his upper or lower extremities documented by a medical professional. Moreover, as noted by the May 2019 VA examiner, despite his service-connected disabilities, the Veteran retained the ability to perform routine ADLs, with the exception of laundry, cooking, and strenuous cleaning. The Board has also considered the Veteran’s December 2020 testimony that his service-connected conditions have resulted in the need for aid and attendance or his housebound status. While such statements are probative insofar as they report observable symptoms, the Board finds that the Veteran’s own testimony is inconsistent in this regard, as he plainly stated that he retained the ability to leave the home without assistance and to travel short distances. Additionally, his testimony that his service-connected disabilities have impaired his ADLs to the extent to weigh in favor of his claim, the Board finds that such statements are unsupported and inconsistent with the additional objective evidence of record, including the private and VA examinations, which both document that he was primarily impaired due to nonservice-connected conditions and experienced only exceptional impairment to various activities, but that he retained the ability to perform routine ADLs on his own accord. Given the above, the Board concludes that the preponderance of evidence weighs against the Veteran’s claim of entitlement to SMC based on the need for aid and attendance and/or housebound status. While the Board does not deny that the Veteran has required increasing levels of assistance to accomplish various activities of daily living, the preponderance of the evidence is against the Veteran being in need of regular aid and attendance or that he is permanently housebound solely as a result of his service-connected disabilities. Additionally, for the entire period on appeal, the Veteran does not have a single service-connected disability rated as 100 percent disabling, with separate service-connected disability or disabilities independently rated as 60 percent disabling or more. As such, SMC based on the need for the regular aid and attendance of another person or housebound status (including statutory housebound) is not warranted. There is no reasonable doubt to be resolved, and the claim for SMC is denied. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Chad Johnson, 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.