Citation Nr: 21006936 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 20-24 434 DATE: February 8, 2021 ORDER Entitlement to special monthly compensation (SMC) based on aid and attendance and/or housebound status is denied. REMANDED Entitlement to an effective date earlier than February 17, 2017, for the award of a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran had not been permanently housebound or in need of regular aid and attendance of another person due to his service-connected disabilities; nor had been shown to have a total (100 percent) disability rating for a single service-connected disability, with additional service-connected disabilities rated as a combined 60 percent or more. CONCLUSION OF LAW The criteria for an award of SMC based on aid and attendance and/or housebound status, have not been met. 38 U.S.C. § 1114 (s); 38 C.F.R. §§ 3.102, 3.350(b), 3.352(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1951 to August 1955. This case comes to the Board of Veterans’ Appeals (Board) on appeal from May 2017 and July 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In the May 2017 rating decision, the RO, inter alia, granted entitlement to a TDIU due to service-connected PTSD, eye, and peripheral vestibular disorder, effective February 17, 2017, the date the Veteran submitted VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. In the July 2017 rating decision, the RO, inter alia, denied entitlement to SMC based on aid and attendance and/or housebound status. The Veteran died in August 2017. The appellant filed a request for substitution of claimant based on her husband’s death pursuant to 38 U.S.C. § 5121A, and this request was granted. See June 2019 Appeal Notification letter indicating that the AOJ had substituted the Veteran’s surviving spouse as the appellant for this appeal. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2019). 38 U.S.C. § 7107(a)(2) (2012). 1. SMC Aid and Attendance/Housebound The appellant seeks entitlement to SMC based on the need for the regular aid and attendance of another person or by reason of being housebound. Generally, with respect to claims of entitlement to SMC based on the need for the regular aid and attendance of another person, such claims will be granted when a veteran, due to a service-connected disability, has the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to be in need of regular aid and attendance. See 38 U.S.C.§ 1114 (l); 38 C.F.R. § 3.350 (b). Determinations as to the need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to the following: inability of a veteran to dress or undress himself/herself or to keep himself/herself 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 aid; inability of a veteran to feed himself/herself through loss of coordination of upper extremities or through 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 a veteran from the hazards or dangers inherent in his/her daily environment. Bedridden will be a proper basis for the determination, and is defined as that condition which, through its essential character, actually requires that the veteran remain in bed. It is not required that all of the disabling conditions listed above be found to exist before a favorable rating may be made. The particular personal functions that a veteran is unable to perform should be considered in connection with his/her condition as a whole. It is only necessary that the evidence establish that a veteran is so helpless as to need regular aid and attendance, not that there be a constant need. 38 C.F.R. § 3.352 (a). In addition, special monthly compensation is payable at a specified rate if the Veteran, as the result of service-connected disability, has a 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 such veteran’s service-connected disability or disabilities, is permanently housebound. For the purpose of this subsection, the requirement of permanently housebound will be considered to have been met when the veteran is substantially confined to such veteran’s house (ward or clinical areas, if institutionalized) or immediate premises due to a service-connected disability or disabilities which it is reasonably certain will remain throughout such veteran’s lifetime. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (b). The Veteran was in receipt of service connection for the following disabilities: 1) Posttraumatic stress disorder (PTSD), rated 70 percent; 2) left eye macular scar, status post chorioretinitis, rated 30 percent; 3) tinnitus, rated 10 percent; 4) bilateral hearing loss, rated 0 percent; and 5) peripheral vestibular disorder, rated 0 percent. The Veteran was also receiving SMC under 38 38 U.S.C. § 1114 (k); 38 C.F.R. § 3.350 (b) on account of loss of use of one eye having only light perception from May 11, 2016. For the following reasons, the Board finds that entitlement to SMC based on the need for aid and attendance or housebound status is not warranted. In this case, the evidence of record does not reflect that the Veteran had the anatomical loss or loss of both feet or one hand and one foot or is blind in both eyes. See 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). In addition, the Veteran did not have a service-connected disability rated as 100 percent, in addition to service-connected disability or disabilities independently rated at 60 percent or more. In Bradley v. Peake, 22 Vet. App. 280, 293 (2008), the Court held that a total disability rating based on individual unemployability (TDIU) satisfies the total (100 percent) rating requirement if the TDIU evaluation was, or can be, predicated upon a single disability and there exists additional disability or disabilities independently ratable at 60 percent or more, for purposes of entitlement to special monthly compensation for a housebound rating. In other words, 38 U.S.C. § 1114 (s) for housebound benefits does not limit “a service-connected disability rated as total” to only a schedular rating of 100 percent. Id. A TDIU rating based on a single disability is permitted to satisfy the statutory requirement of a total rating. Id. In addition, the decision to treat multiple disabilities as one under 38 C.F.R. § 4.16 (a) is specifically limited to TDIU ratings. Youngblood v. Wilkie, 31 Vet. App. 412, 416 (2019) (“the discrete legal question raised by this case and the only one that the Court will address is whether “one disability” in § 4.16(a) created from multiple service-connected disorders is sufficient to serve as “a service-connected disability rated as total” for the purposes of establishing eligibility for section 1114(s) benefits. We conclude that it is not”). That is, a TDIU rating based on multiple service-connected disabilities does not satisfy the criteria for one total disability in considering entitlement to housebound benefits under 38 U.S.C. § 1114 (s). Here, as previously noted, the Veteran’s TDIU was based on the aggregate impact of both her service-connected PTSD, eye, and peripheral vestibular disabilities. To the extent the Board must revisit this issue, the appellant has not contended and the evidence does not suggest otherwise. Youngblood, 31 Vet. App. at 418, n. 4 (declining to address whether VA is required, pursuant to its duty to maximize benefits, to look back at the prior rating decision granting TDIU based on multiple disabilities and determine whether one of the multiple disabilities based on which the Veteran had been granted TDIU could serve as a basis for TDIU by itself”). There is also no evidence that the Veteran was permanently bedridden. The remaining question is whether the Veteran was so helpless as to be in need of regular attendance due to his service-connected disabilities. The evidence of record does not indicate that the Veteran needed regular aid and attendance or was housebound due to service-connected disabilities. For example, in February 2017 and May 2017, VA received the aid and attendance or housebound examination report, dated in May 2015. The examiner noted diagnoses of congestive heart failure, hypertension, peripheral vestibular disorder, atrial fibrillation, status post permanent pacemaker, status post left below knee amputation, and right transmetatarsal amputation. The examiner indicated that non-service connected exertional dyspnea and left below knee amputation disabilities restricted the listed activities/functions. The Veteran was not legally blind and did not require nursing home care. He needed assistance in bathing and tending to other hygiene needs. The Veteran was unable to prepare his own meals and manage his own financial affairs. He was able to feed himself. The Veteran required medication management. There was no restriction of the spine, trunk and neck. He needed assistance to get in and out of the car once every two months for his doctor’s appointment. An August 2016 VA audiological examination report does not indicate that the Veteran’s bilateral hearing loss and tinnitus results in physical incapacity requiring the care or assistance of another on a regular basis. The examiner indicated that the functional impact of the Veteran’s bilateral hearing loss was difficulty with speech clarity in conversation and on the phone. The functional impact of his tinnitus was annoyance and could be bothersome while he was trying to sleep. An August 2016 VA eye examination report does not indicate that the Veteran’s left eye macular scar, status post chorioretinitis results in physical incapacity requiring the care or assistance of another on a regular basis. The examiner indicated that the Veteran’s left eye disability impacted his ability to work, as tasks requiring depth perception or fine detail could be impaired. A March 2017 VA examination report does not indicate that the Veteran’s left eye macular scar, status post chorioretinitis results in physical incapacity requiring the care or assistance of another on a regular basis. The examiner indicated that the Veteran’s left eye disability impacted his ability to work, as tasks requiring stereopsis or detailed vision may be affected. An April 2017 VA PTSD examination report does not indicate that the Veteran’s psychiatric disorder results in mental incapacity requiring the care or assistance of another on a regular basis. The Veteran did not exhibit an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), and he had the capacity to manage his financial affairs. An April 2017 VA ear examination report does not indicate that the Veteran’s peripheral vestibular disorder results in physical incapacity requiring the care or assistance of another on a regular basis. The examiner indicated that the Veteran’s peripheral vestibular disorder impacted his ability to work. In this case, the attendance housebound examination report demonstrate that the Veteran required aid and assistance due to physical incapacity to protect himself from the hazards or dangers incident to his daily environment. Significantly, however, the required aid an assistance was due to non-service connected exertional dyspnea and left below knee amputation disabilities. The Board has considered whether the evidence supports that the Veteran had the mental or physical incapacity, which required care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment due to service-connected disabilities. As set forth above, August 2016, March 2017, and April 2017 VA examination reports do not demonstrate that the Veteran was in need of aid and attendance due to his service-connected PTSD, left eye macular scar, status post chorioretinitis, tinnitus, bilateral hearing loss, and peripheral vestibular disorder disabilities. The weight of the medical and lay evidence reflects that he did not have physical or mental incapacity from his service connected disabilities that resulted in incapacity requiring the care or assistance of another on a regular basis. Thus, he does not meet the criteria for SMC based on aid and attendance. Moreover, the above medical and lay evidence reflects that he was not permanently housebound by reason of his service-connected disabilities. Therefore, the Veteran does not meet the criteria for the award of SMC based upon housebound status. For the foregoing reasons, the preponderance of the evidence is against the claim for SMC based on aid and attendance and/or housebound rate. The benefit of the doubt doctrine is therefore not for application and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102. REMAND 1. Earlier Effective Date for TDIU On February 17, 2017 the Veteran submitted a VA Form 21-8940 for a TDIU. As noted above, the RO granted entitlement to a TDIU effective February 17, 2017, the date of submission of the form. The RO noted that the Veteran’s service-connected PTSD, left eye, and peripheral vestibular disorder affects employment. The appellant, however, contends that an effective date earlier than February 17, 2017 is warranted, as the Veteran had not worked due to service-connected disabilities, since May 31, 1996. The issue of entitlement to a TDIU was on appeal as part and parcel of the increased ratings claim that was filed on January 23, 2017 for left eye macular scar, status post chorioretinitis. This is a separate matter from the formal TDIU claim. Harper v. Wilkie, 30 Vet. App. 356, 361-62 (2018) (confirming that when the issue of entitlement to a TDIU is raised as part and parcel of a rating claim, it should be treated separately from a formal claim for TDIU in all aspects of the appeal). The Board notes that the appeal period for any increased rating claim, including TDIU, potentially begins one year prior to the date of claim. See 38 U.S.C. § 5110 (b)(3). However, service connection is not in effect for any disability prior to May 11, 2016, and the appeal period therefore begins on this date. Delrio v. Wilkie, 32 Vet. App. 232, 248 (2019) (“the effective date of TDIU cannot be earlier than the effective date of the award of service connection for the disability or disabilities upon which the award of TDIU is based”). Thus, the appeal period begins May 11, 2016. The Veteran’s combined disability rating is 40 percent from May 11, 2016 to February 16, 2017. The Veteran does not meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16 (a) prior to February 17, 2017. Even where a veteran does not meet the schedular criteria of 38 C.F.R. § 4.16(a), VA must consider whether TDIU is warranted on an extraschedular basis under 38 C.F.R. § 4.16(b). However, the Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16(b) in the first instance but must first remand the claim for referral to VA’s Director of Compensation Service if such consideration is warranted.” Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Although the holding of Bowling has been questioned, see Wages v. McDonald, 27 Vet. App. 233, 239-240 (2015) (Kasold, C.J., concurring) (“The Bowling holding was rendered with little analysis of 38 C.F.R. § 4.16(b) or its interplay with the statutory scheme for adjudicating claims, which requires decisions of an agency of original jurisdiction to be appealed to the Board and final decisions to be rendered by the Board, see 38 U.S.C. §§ 7104 and 7105. Frankly, Bowling appears to be wrongly decided”), the Court recently declined to address whether it should be overruled. See Stafford v. Wilkie, No. 18-4520 (Vet. App. Apr. 15, 2020) (nonprecedential panel Order) (dismissing the appeal as moot) and id., slip op at 2 (Greenberg, J., dissenting) (“What evil lurks behind the Court deciding whether Bowling v. Principi, 15 Vet. App. 1 (2001) remains good law?”). Thus, the Board cannot address in the first instance whether the Veteran is entitled to TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). Given the above findings, a remand for such a referral is warranted. The matter is REMANDED for the following action: Refer the issue of entitlement to a TDIU from May 11, 2016 to February 17, 2017, to the Director of Compensation for consideration of TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Walker, 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.