Citation Nr: 21007878 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 16-28 769 DATE: February 11, 2021 ORDER Entitlement to special monthly compensation based upon the need for aid and attendance and/or housebound status is denied. FINDING OF FACT The preponderance of the evidence is against finding that, due to service-connected disabilities, the Veteran is in need of the regular aid and attendance of another person, is permanently bedridden, is substantially confined to her home or immediate premises, or that she has a single service-connected disability rated 100 percent and a separate service-connected disability or disabilities independently rated 60 percent or more. CONCLUSION OF LAW The criteria for special monthly compensation based on the need for aid and attendance or housebound status are not met. 38 U.S.C. §§ 1114, 1134, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 2001 to February 2005. This matter comes before the Board on appeal from an April 2014 Regional Office (RO) rating decision. In July 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. The Veteran also provided testimony on this issue at her November 2015 RO hearing before a Decision Review Officer (DRO). The Veteran stated at that hearing that she is claiming entitlement to a temporary total rating based on convalescence for multiple foot surgeries (pursuant to 38 C.F.R. § 4.30). (See DRO hearing testimony, pages 43-44.) The DRO noted that the issue that is actually on appeal “means that she needs somebody to help her on a permanent basis, I mean this is Aid & Attendance for you know somebody who is permanently bedridden.” (See DRO hearing testimony, page 43.) The Veteran responded that “Oh, yeah, I’m not permanently….” (See DRO hearing testimony, page 44.) The DRO also noted the alternate housebound requirement that “you have to be 100% plus 60 Schedular.” (See DRO hearing testimony, page 44.) The Veteran responded “Mm-hmm” in response to her representative’s assertion that “You know, I think what she … that it … the way it’s stated I think is … is essentially claimed as that but really what you are seeking is the temporary….” (See DRO hearing testimony, page 44.) Subsequently, a December 2017 rating decision denied “Entitlement to a temporary total evaluation because of treatment for a service-connected or other condition subject to compensation.” The Veteran did not appeal that issue, and so it is not before the Board. The Veteran has, however, perfected an appeal of the claim of “Entitlement to special monthly compensation based upon the need for aid and attendance and/or housebound status.” That issue is thus before the Board at this time. 1. Entitlement to special monthly compensation based upon the need for aid and attendance and/or housebound status is denied. Special monthly compensation is payable to a veteran whose service-connected disabilities leave him/her so helpless as to be in need of the regular aid and attendance. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). The schedular criteria for entitlement to special monthly compensation based on the need for regular aid and attendance include consideration of (1) whether the veteran 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; (2) is a patient in a nursing home because of mental or physical incapacity; or (3) the evidence establishes a factual need for regular aid and attendance. 38 U.S.C. § 1502(b); 38 C.F.R. § 3.351(c). Determinations as to factual need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to such conditions as: inability of the veteran to dress or undress himself/herself or to keep himself/herself ordinarily clean and presentable; frequent need to adjust prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; inability 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 and assistance on a regular basis to protect the veteran from hazards or dangers incident to his/her daily environment. 38 C.F.R. § 3.352(a). In determining the need for aid and attendance, it is not required that all of the disabling conditions enumerated above 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/her condition as a whole, and the need for aid and attendance must only be regular, not constant. Id. The Board must specifically consider whether the enumerated factors are present, and the factors must be considered in connection with the veteran’s condition as a whole; for a favorable rating, at least one of the enumerated factors must be present. Turco v. Brown, 9 Vet. App. 222, 224-5 (1996). Bedridden will also be a proper basis for the determination of aid and attendance. Bedridden means 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. Determinations that the person 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/her to be in bed. They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.351(a). Entitlement to additional compensation by reason of being housebound are awarded where the veteran has a service-connected disability evaluated as 100 percent disabling under VA’s Schedule for Rating Disabilities, and (1) has additional disability or disabilities independently ratable at 60 percent or more; or (2) is permanently housebound by reason of service-connected disability or disabilities (i.e., the veteran is substantially confined to his/her dwelling and the immediate premises or, if institutionalized, to the ward or clinical area, and it is reasonably certain that the service-connected disability or disabilities and resultant confinement will continue throughout his/her lifetime). 38 U.S.C. § 1114. Subsection 1114(s) requires that a disabled Veteran whose disability level is determined by the ratings schedule must have at least one disability that is rated at 100 percent in order to qualify for the special monthly compensation provided by the statute. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) may satisfy the requirement for a single disability rated total, if awarded on the basis of a single disability. See Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). In the case at hand, service connection is in effect for (1) posttraumatic stress disorder (PTSD) (rated as 50 percent disabling prior to March 1, 2016; 30 percent disabling from March 1, 2016, through December 20, 2017; and 70 percent disabling on and after December 21, 2017); (2) hallux valgus, left great toe (at 10 percent disabling throughout the appeals period); (3) plantar condylectomy flair fifth toe (at 10 percent disabling throughout the appeals period; (4) scar associated with flail fifth toe, left, with resection of metatarsal head (at 0 percent disabling throughout the appeals period; (5) pseudofolliculitis barbae (at 0 percent disabling from September 9, 2015; and (6) flail fifth toe, left, with resection of metatarsal head (at 0 percent disabling throughout the appeals period). She was granted entitlement to a TDIU effective December 21, 2017. In April 2013, the Veteran submitted a VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance. This record notes that the Veteran was hospitalized for two days in January 2013 for left foot surgery. The physician who filled out this form noted a complete diagnosis of symptomatic left foot post fifth metatarsal head excision. In response to a question concerning what disabilities restrict the listed activities functions, the physician noted “No weight [left] foot.” The physician did not indicate that the Veteran was confined to bed. It was noted that she was able to feed herself. She was unable to prepare her own meals. She did not need assistance in bathing and tending to other hygiene needs. She was not legally blind. She did not require nursing home care. She did not require medication management. She had the ability to manage her own financial affairs. With respect to posture and general appearance, she noted that the Veteran is “capable of ambulation with crutches non-weight bearing left foot.” The physician responded “NA” when asked to “Describe restrictions of each upper extremity with particular reference to grip, fine movements, and ability to feed him/herself.” She responded “As Above” when asked to “Describe restrictions of each lower extremity with particular reference to the extent of limitation of motion, atrophy, and contractures or other interference. If indicated, comment specifically on weight bearing, balance and propulsion of each lower extremity.” She responded “N/A” when asked to “Describe restriction of the spine, trunk, and neck.” She responded “N/A” 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 claimant’s ability to perform self-care, ambulate or travel beyond the premises of the home or, if hospitalized, beyond the ward or clinical area.” When asked to “Describe how often per day or week and under what circumstances the claimant is able to leave the home or immediate premises,” the examiner noted that the Veteran “may leave for doctor visits/monitoring.” The Veteran underwent a VA aid and attendance or housebound examination in March 2014. The examiner noted that the Veteran is not permanently bedridden. She is not currently hospitalized. She can travel beyond her current domicile. She stated that she administered her own medications. She reported that her mother prepares her meals and “assists the Veteran with bathing and other personal care. Her mother drives her children to school and to after school activities.” The Veteran recently had a foot surgery for her service-connected left foot fifth metatarsal and “currently she is non weight bearing and elevates her [left lower extremity] to prevent swelling.” She testified that she was taking her children to school and after school activities and that “she would assist her mom with taking care of her grandmother.” It was noted that “She was cooking, cleaning and performing light duty tasks within her home.” It was noted that she does not use an orthopedic or prosthetic appliance. With respect to her ability to protect herself from daily hazards and dangers, it was noted that she experiences dizziness weekly but less than daily. She has mild, occasional memory loss. There were no other body parts or system impairments that affect her ability to protect herself from the daily environment. She was unable to perform bathing and grooming. It was noted that the Veteran cannot walk without the assistance of another person. She does not require a wheelchair, but she does need a walker for ambulation. There are no restrictions with her ability to leave the house. It was noted that the Veteran is currently non weight bearing related to her left lower extremity and that she uses a knee scooter for mobility. It was noted that, apart from amputations, the functional impairments are not permanent. Her best corrected vision is not 5/200 or worse in both eyes. Neither her cervical spine nor her thoracolumbar spine has limitation of motion or deformity. The function of her upper extremities is normal. There was impairment in the function of her lower extremity in that she had limitation of joint motion and lack of coordination in the left lower extremity. Weightbearing was not normal, in that she was currently non weight bearing, had a walking boot on the left foot, and was using a knee scooter for mobility. Propulsion was not normal. In terms of mental competency, the Veteran knew the amount of her benefit payment, prudently handled payments, knew the amount of her monthly bills, and personally handled money and paid bills. The examiner viewed the Veteran as being capable of managing her financial affairs. A social work assessment was not necessary to render this opinion. It was noted that the Veteran’s service-connected disabilities were PTSD and left foot hallux valgus status post bunionectomy. Non-service-connected conditions were gastroesophageal reflux disease (GERD), sinusitis, carpal tunnel syndrome, and status post recent left foot metatarsal surgery. (The Board notes that, since the time of this examination, service connection has been granted for status post left foot metatarsal surgery.) The examiner provided the following opinion: The Veteran reports prior to her most recent surgery (approx. 6 weeks ago), she was performing (most if not all) activities on a daily basis without assistance. The Veteran’s current disability of the left foot is specifically related to a non service connected condition. It is also likely that this current disability is temporary and will resolve post operatively. Solely based on her service connected conditions, it is less [likely] as not that the Veteran meets criteria for aid and attendance benefits. Therefore, it is less likely as not that the Veteran would require aid and attendance. As noted above, the Veteran testified at her November 2015 DRO hearing that she is not permanently in need of aid and attendance and is not permanently bedridden. (See DRO hearing testimony, page 43.) The DRO noted at that time that the issue that is actually on appeal “means that she needs somebody to help her on a permanent basis, I mean this is Aid & Attendance for you know somebody who is permanently bedridden.” (See DRO hearing testimony, page 43.) The Veteran responded that “Oh, yeah, I’m not permanently….” (See DRO hearing testimony, page 44.) The DRO also noted the alternative housebound requirement that “you have to be 100% plus 60 Schedular.” (See DRO hearing testimony, page 44.) The Veteran responded “Mm-hmm” in response to her representative’s assertion that “You know, I think what she … that it … the way it’s stated I think is … is essentially claimed as that but really what you are seeking is the temporary….” (See DRO hearing testimony, page 44.) A February 2020 VA foot conditions examination report notes that the Veteran reported functional impairment due to her left foot disabilities in that she has “difficulty with prolonged walking/standing.” The Veteran also underwent a VA PTSD examination in September 2020. Based on review of the record and interview and examination of the Veteran, the VA examiner determined that the Veteran’s PTSD did not manifest in (1) “Near-continuous panic or depression affecting the ability to function independently, appropriately and effectively,” (2) “Neglect of personal appearance and hygiene,” and (3) “Intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene.” Aid and Attendance With respect to aid and attendance, the Board notes that the Veteran is not 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 5 degrees or less. Nor is she a patient in a nursing home because of mental or physical incapacity. The Board will next determine whether the evidence establishes a factual need for regular aid and attendance. As noted above, at least one of the factors that are enumerated in 38 C.F.R. § 3.352(a) must be present. Turco v. Brown, 9 Vet. App. 222, 224-5 (1996). The first enumerated factor is inability of the Veteran to dress or undress herself or to keep herself ordinarily clean and presentable. This factor is not demonstrated in this case. As noted above, the disabilities at issue are PTSD and multiple disabilities of the left foot. These disabilities do not produce the types of impairment that would render the Veteran unable to dress or undress herself. The physician who completed the April 2013 VA Form 21-2680 expressly found that the Veteran’s foot disabilities did not result in impairment of upper extremities, such as the ability to button clothing. That physician also found that the Veteran does not need assistance in bathing and tending to other hygiene needs. Likewise, the September 2020 VA PTSD examination report found that the Veteran’s PTSD did not manifest in (1) “Near-continuous panic or depression affecting the ability to function independently, appropriately and effectively,” (2) “Neglect of personal appearance and hygiene,” and (3) “Intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene.” The March 2014 VA examiner did find that the Veteran was unable to perform bathing and grooming. However, this assessment was made in the context of the Veteran having described the activities that she could engage in prior to her most foot surgery in contrast to the activities she could engage in following the foot surgery. The examiner expressly stated that, apart from any amputations, the functional impairments are not permanent. The Board notes that the Veteran was in the stage of post-surgery recovery in which she was still unable to bear weight on her left foot and that she required a scooter for ambulation. Even though, at the time of this examination, service connection had not yet been granted for flail fifth toe, left, with resection of metatarsal head, the VA examiner expressly stated that “It is also likely that this condition is temporary and will resolve post operatively.” As noted above, subsequent evidence does reflect that the Veteran is able to dress or undress herself or to keep herself ordinarily clean and presentable. The Board thus finds that this enumerated condition is not satisfied. The second enumerated factor is frequent need to adjust prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid. The Veteran does not have a prosthetic or orthopedic appliance, as noted in the March 2014 VA examination report, and thus this factor is not satisfied. The third enumerated factor is an inability to feed himself/herself through loss of coordination of upper extremities or through extreme weakness. The Veteran is not service connected for a disability of the upper extremities. In any event, the evidence has expressly found that the Veteran is able to feed herself, and there is no point at which the Veteran’s service-connected disabilities render her unable to feed herself. Thus, this factor is not satisfied. The fourth enumerated factor is an inability to attend to the wants of nature. The September 2020 VA PTSD examination report expressly found that the Veteran’s PTSD does not result in such impairment. The March 2014 VA examination report notes that the Veteran required her mother’s assistance in “bathing and other personal care.” Again, however, this examination report contains the only indication that the Veteran has been unable to tend to the wants of nature. As noted above, this examination was conducted shortly following a left foot surgery, and she was still in the non-weight bearing phase of recovery. And, as noted above, the March 2014 VA examiner expressly found that, apart from any amputations, the functional impairments that were described in this examination are not permanent. In addition to the March 2014 VA examination, the February 2020 VA foot conditions examination report found that the functional impairment caused by her left foot disability was limited to “difficulty with prolonged standing/walking.” The VA and private medical records contain no indication that the Veteran has been unable to attend to the wants of nature when she was not immediately recovering from a foot disability. The Board thus finds that this factor is not satisfied. The final factor is incapacity, physical or mental, which requires care and assistance on a regular basis to protect the veteran from hazards or dangers incident to her daily environment. The above evidence does not suggest such extreme impairment from her service-connected disabilities. The April 2013 VA Form 21-2680 expressly found that the Veteran was able to feed herself, did not need assistance in bathing and tending to other hygiene needs, did not require medication management, and was able to manage her own financial affairs. The only impairments that were noted were an inability to prepare her own meals and difficulty ambulating. The Board finds that this does not amount to incapacity, physical or mental, which requires care and assistance on a regular basis to protect the veteran from hazards or dangers incident to her daily environment. The findings from the March 2014 VA examination report likewise do not suggest incapacity, physical or mental, which requires care and assistance on a regular basis to protect the veteran from hazards or dangers incident to her daily environment. The examiner found dizziness (weekly but less than daily) and occasional, mild memory loss. There were no other findings of body parts or system impairments that affect the Veteran’s ability to protect herself from the daily environment. While the examiner did find that the Veteran was unable to walk without the assistance of another person, the examiner specified that the Veteran requires a walker or a knee scooter for mobility. Again, the Board notes that this examination occurred shortly after a left foot surgery from which the Veteran was still in the non-weight bearing phase of recovery, and the examiner also noted that, apart from amputations, the functional impairments are not permanent. The impairments that were found in the February 2020 and September 2020 VA examination reports, discussed above, likewise do not show such severe impairment due to the Veteran’s PTSD and left foot disabilities that suggest incapacity, physical or mental, which requires care and assistance on a regular basis to protect the Veteran from hazards or dangers incident to her daily environment. Thus, the Board finds that this final factor is not demonstrated. As noted above, the Veteran herself testified at her DRO hearing that her impairments are temporary during her convalescence from left foot surgery. The types of assistance that the Veteran’s mother was providing following her left foot surgery that were described in the March 2014 VA examination report were of a type that would be expected to be required shortly following a foot surgery. In any event, while it does reflect that the Veteran did suffer impairment following her foot surgery, the March 2014 VA examination report itself does not reflect such severe impairment that the Veteran was unable to protect herself from hazards or dangers incident to her daily environment. Furthermore, the Board finds that the Veteran is not bedridden, and she does not contend otherwise. In short, the Board finds that entitlement to special monthly compensation based on the need for aid and attendance is not warranted. Housebound Benefits The Board will next consider whether the Veteran is entitled to housebound benefits. The Board has a well-established duty to maximize a claimant’s benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). This duty to maximize benefits requires VA to assess all of a claimant’s disabilities to determine whether any combination of disabilities establishes entitlement to special monthly compensation under 38 U.S.C. § 1114. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008) The Board notes that the Veteran does not have a service-connected disability evaluated as 100 percent disabling for any portion of the appeals period. TDIU is only in effect from December 21, 2017. Thus, entitlement to housebound benefits is not warranted prior to December 21, 2017. For the period beginning on December 21, 2017, an October 2020 rating decision granted entitlement to a TDIU based on the combined impairment caused by the Veteran’s service-connected PTSD and left foot disabilities. Thus, this evidence does not establish that the Veteran has a 100 percent rating based on a single disability. Even if the Board were to find that the Veteran is entitled to a TDIU based solely on her PTSD, the Board notes that the remaining disabilities are not independently ratable at 60 percent or more. Alternatively, the Veteran does not contend, and the evidence does not suggest, that she is unemployable due solely to (1) hallux valgus, left great toe; (2) plantar condylectomy flair fifth toe; (3) scar associated with flail fifth toe, left, with resection of metatarsal head; (4) pseudofolliculitis barbae; or (5) flail fifth toe, left, with resection of metatarsal head. Therefore, the Board does not find that a TDIU is warranted based solely on one of these disabilities. Even if it were to find TDIU is warranted based solely on the Veteran’s PTSD, the Board must find that the Veteran is not permanently housebound by reason of service-connected disability or disabilities. Specifically, the Board finds that the above evidence reflects that the Veteran is not substantially confined to her dwelling or immediate premises due to her service-connected disabilities. Her left foot disability does not render her housebound, nor does her PTSD. The above evidence contains an express finding that she is not housebound, and even the March 2014 VA examination report, which was conducted when the Veteran was at her most impaired, does not suggest housebound status. The Board therefore finds that entitlement to special monthly compensation based on housebound status is not warranted. In short, the Board finds that the criteria for entitlement to special monthly compensation based upon the need for aid and attendance and/or housebound status are not met. The Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the claim is not in equipoise. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the claim must be denied. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Elizabeth Jalley, 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.