Citation Nr: 21008338 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 18-28 039 DATE: February 16, 2021 ORDER Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance or by reason of being housebound is denied. FINDINGS OF FACT 1. The Veteran does not have a service-connected disability rated as 100 percent disabling. 2. The Veteran does not have an anatomical loss or loss of use of both feet, or of one hand and one foot; does not have blindness in both eyes with visual acuity of 5/200 or less; and is not permanently bedridden due to service-connected disabilities. Although his nonservice-connected conditions may require the care or assistance of another person on a regular basis, his service-connected disabilities do not require the regular aid and attendance of another person. CONCLUSIONS OF LAW 1. The criteria for entitlement to special monthly compensation benefits by reason of being permanently housebound have not been met. 38 U.S.C. §§ 1114(s), 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.350, 3.352. 2. The criteria for entitlement to special monthly compensation benefits based on the need for aid and attendance of another person have not been met. 38 U.S.C. §§ 1114(l), 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from November 1961 to October 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the case in February 2019 for further development. The case has since been returned to the Board for appellate review. Law and Analysis Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist with regard to the issues decided herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). In this decision, the Board considered the representative’s contentions regarding the VA opinions of record. As detailed below, the Board does not find a basis to grant the benefit sought based on these opinions. A veteran may receive SMC either by reason of being housebound or based on the need for regular aid and attendance, but may not receive both simultaneously; regular aid and attendance is the greater monetary award. Compare 38 U.S.C. § 1114 (l) with 38 U.S.C. § 1114 (s). Housebound Benefits With regard to housebound status, SMC benefits may be payable if the veteran has a single service-connected disability rated 100 percent disabling, and in addition (1) has either additional disability or disabilities independently ratable at 60 percent or more or (2) is permanently housebound by reason of a service-connected disability or disabilities. 38 C.F.R. § 3.350(i). The disabilities independently ratable at 60 percent or more must be separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. 38 C.F.R. § 3.350 (i)(1). A veteran is “permanently housebound” when he is substantially confined to his house (ward or clinical areas, if institutionalized) or immediate premises due to permanent disability or disabilities, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i)(2). The threshold statutory requirement is that a veteran must have a single permanent disability rated at 100 percent. In the present case, the Veteran does not have a single service-connected disability rated as 100 percent disabling. The Veteran is in receipt of TDIU; this benefit was granted and reflected in the record as being due to multiple service connected disabilities. As such, this does not satisfy the total rating requirement. Absent a single disability rated as 100 percent disabling, the Veteran does not meet the threshold legal criteria for entitlement to SMC under 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i). Therefore, an award of SMC by reason of being housebound is not warranted. Aid and Attendance Benefits SMC based on aid and attendance is payable if, as the result of service-connected disability, the veteran has an anatomical loss or loss of use of both feet, or of one hand and one foot; has blindness in both eyes with visual acuity of 5/200 or less; is permanently bedridden; or is so helpless as to be in need of regular aid and attendance of another person. 38 U.S.C. §§ 1114(l); 38 C.F.R. § 3.350. Aid and attendance means helplessness or being so nearly helpless as to require the regular aid and attendance of another person. See 38 C.F.R. § 3.350(b)(3). Determinations as to the need for aid and attendance must be based on actual requirement of personal assistance from others. In making such determinations, consideration is given to such conditions as: inability to dress or undress himself or keep himself ordinarily clean and presentable, frequent need for adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid, inability to feed himself through loss of coordination of upper extremities or through 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 individual from hazards or dangers incident to his daily environment. See 38 C.F.R. § 3.352(a). All of the disabling conditions enumerated in 38 C.F.R. § 3.352(a) do not have 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 condition as a whole. The evidence should establish that the veteran is so helpless as to need regular aid and attendance, not that there is a constant need. 38 C.F.R. § 3.352 (a); see also Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in section 3.352(a) must be present for a grant of special monthly compensation based on need for aid and attendance). For the purposes of 38 C.F.R. § 3.352 (a), “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 a 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). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to SMC based on the need for regular aid and attendance. At the outset, the Board notes that the Veteran is service connected for: PTSD at 30 percent from September 29, 2006, and 50 percent from June 6, 2018; diabetic neuropathy of the right upper extremity at 10 percent from September 30, 2005, and 30 percent from September 15, 2006; diabetes mellitus at 20 percent, from September 30, 2004; diabetic peripheral neuropathy of the left upper extremity at 10 percent from September 30, 2005, and 20 percent from January 27, 2006; left lower extremity peripheral neuropathy at 10 percent from September 30, 2005, and at 20 percent from September 25, 2006; and right lower extremity diabetic neuropathy at 10 percent from September 30, 2005 and 20 percent from January 27, 2006. The Board acknowledges that the Veteran’s medical records indicate that he has difficulties with his activities of daily living and does require the help of another person to assist with meals, take medication, and leave his house. However, the evidence shows that the Veteran needs such care as a result of his non-service connected disorders, to include lumbar stenosis, compressive cervical myelopathy, and dementia. During a VA medical appointment in July 2005, the Veteran was having trouble elevating his arm to put on a shirt and tie due to cervical stenosis. During an appointment in September 2006, his VA medical provider indicated that the Veteran had undergone a decompressive lumbar laminectomy in November 2005 and a cervical laminectomy for cervical myelopathy in 1980. He then stated that the Veteran was no longer able to work due to weakness and numbness in his arms and legs due to his service-connected diabetic neuropathy. The Veteran was afforded VA examinations for diabetes mellitus and peripheral neuropathy in March 2007. At that time, the Veteran reported gradual loss of sensation in his calves from the toes to the knees and numbness and tingling in the fingers and thumbs. He reported that he walked with a cane for balance because his feet were numb due to diabetes. The examiner opined that the Veteran’s lower extremity diabetic neuropathy caused neuralgia, prevented participation in sports and had a severe impact on chores, shopping, exercise, and travel, but had no impact on feeding, bathing, dressing, toileting or grooming. The examiner then opined that the upper extremity peripheral neuropathy related to diabetes mellitus prevented participation in sports and had a severe impact on exercise, moderate impact on chores, shopping, recreation, and travel; a mild impact on feeding, bathing, dressing, and grooming, and no impact on toileting. In November 2015, the Veteran submitted a DBQ from his VA medical provider, Dr. D.H. She indicated that the Veteran could feed himself, but not prepare his own meals, required assistance bathing as he could not reach his back, and required assistance managing his finances. She indicated that the Veteran walked with a cane, had had back surgery and had severe peripheral neuropathy. She also noted that the Veteran would leave home only for medical appointments. In August 2016, the Veteran submitted a letter from a caregiver, who reported that the Veteran’s right arm was no longer functional due to his neck impingement, and stated that the Veteran was losing ability in the left arm as well. The letter also stated that the Veteran required assistance with medication management, blood sugar testing, and had difficulty eating. It was noted he was unable to self-propel in his wheelchair and he could not leave the house without assistance. During a VA medical appointment in February 2016, it was noted that the Veteran had multiple medical problems, including compressive cervical myelopathy, which caused weakness of the right arm. During a January 2018 VA neurology appointment, the Veteran was seen for progressive cognitive decline. The treater indicated that the decline was mild and multifactorial and listed metabolic, infection, sleep apnea, O2 dependence, and medication as factors. The impression at that time was mild, early onset dementia. It was also noted during that appointment that the Veteran had an unsteady gait, due to right peroneal neuropathy. The Veteran underwent a VA neuropsychiatric evaluation in February 2018. The provider ultimately found that the Veteran’s psychiatric symptoms were associated with dementia. In this evaluation, the Veteran reported utilization of a wheelchair due to unsteadiness due to peripheral neuropathy and a shower chair due to difficulties bathing due to limitations in his upper extremities. However, the Veteran was reportedly independent in feeding, grooming and dressing himself. He noted that his wife had always prepared their meals. He also reported that he had stopped driving 3 years prior on his own accord, as he was tired of driving. VA medical records show that the Veteran underwent a neurology consult in April 2018. That provider discussed the Veteran’s medical history, including severe chronic cervical myelopathy, a posterior cervical laminectomy, and a posterior cervical spine fusion. He found that the Veteran had paresis of the upper and lower extremities and a neurogenic bladder. The provider noted that the Veteran had no numbness or pain in the upper extremities, no back pain and no pain involving the lower extremities. He had been walking for a few short steps with a rolling point walker since 2014. The examiner found that the bilateral lower extremities were weak throughout and the Veteran had chronic dropped right foot. The Veteran was wearing a right ankle foot orthosis. He noted the Veteran’s balance had been very poor for many years and his gait was very slow and unsteady. After the evaluation, the medical provider diagnosed severe chronic cervical myelopathy since 1979, which caused paresis of the upper and lower extremities and a neurogenic bladder. He then diagnosed mild chronic sensorimotor polyneuropathy involving the distal lower extremities, since at least 2014. The April 2018 neurologist also diagnosed mild chronic dementia, most likely with an etiology of Alzheimer’s disease. The Veteran then submitted the first page of a DBQ form dated January 2018 and submitted in May 2018. While the Board acknowledges that only the first page seems to be attached to the file, the individual completing the form clearly indicated the Veteran’s diagnoses as: history of lumbar surgeries with resultant bilateral lower extremity weakness and neurogenic bladder, bilateral upper extremity weakness secondary to cervical spine disease, and MCI v. dementia. None of these conditions are service connected and thus, this form would not assist the Veteran with his claim. The Veteran was afforded VA examinations in June 2018 for his peripheral neuropathy and PTSD. The VA peripheral nerve examination found no evidence of upper extremity neuropathy, noting that that diagnoses was changed and citing the cervical decompression in 2017. That examiner then opined that the Veteran had moderate, bilateral neuropathy of the lower extremities. The June 2018 VA psychiatric examination opined that the Veteran’s PTSD caused occupational and social impairment with occasional decrease in work efficiency. The examiner acknowledged that Veteran’s recent dementia diagnosis, but also noted that the Veteran’s PTSD was causing impairment of short and long term memory, and his depression was causing poor concentration and focus. In February 2019 the Board remanded the Veteran’s claim and requested a VA medical opinion specifically addressing the Veteran’s activities of daily living and whether his service connected neuropathy and/or PTSD were causing such disorders, given the evidence of record showing severe disability of the lumbar and cervical spine, which were not service connected. The Veteran was afforded a VA examination for aid and attendance in October 2019 per the Board’s remand directives. That examiner listed the Veteran’s complete diagnoses as lumbar radiculopathy, history of a-fib, hypertension, hyper lipids, asthma, arthritis, failed back surgery syndrome, lumbar fusion, stroke, and right ulnar nerve transposition. He then indicated that the disabilities that caused the Veteran’s limitations were his cervical/lumbar degenerative disc disease status post cervical fusion and lumbar decompression. The examiner indicated that the Veteran was able to feed himself, but was unable to prepare his own meals due to weakness of the dominant right hand, due to the cervical fusion. He noted that Veteran required help bathing and managing his medication. He then found that the Veteran had weakness in the right arm and leg due to “CVA and right leg foot drop from lumbar condition.” The examiner noted that the Veteran was using a right AFO/wrist brace and a scooter and was leaving his home once per week for religious meetings or medical appointments, with assistance to do so. In an addendum report, that same VA examiner noted that the Veteran needed care for nearly all of his activities of daily living. He noted that the Veteran was unable to dress himself, due to “neuropathies/spine conditions.” He opined that the Veteran was unable to manage his medication due to mild memory impairment, not PTSD. It was then noted that the Veteran could feed himself, although with moderate difficulty, due to his right hand weakness and incoordination. The examiner opined that the Veteran was not bedridden, but was only able to leave the house with help from his caregivers or family. The examiner then noted that the Veteran’s PTSD did not cause a need for assistance on a regular basis to protect the Veteran from hazards or dangers incident to his daily environment. Finally, he opined that the Veteran could not put on his right arm/right leg splint by himself. The AOJ then sought an addendum opinion from that VA examiner to ensure clarity as to which medical conditions were causing his limitations. The examiner then opined that the Veteran’s right arm weakness and brace was due to his stroke and his right leg AFO was likely the result of both his lumbar spine condition and stroke. He then opined that the Veteran’s stroke and/or spine condition were the reason that the Veteran needed help managing his braces, not his diabetes or PTSD. The Board finds that, after weighing the evidence, October 2019 VA opinion and subsequent addendum opinions are probative, as they were based on a review of the claims file, a consideration of the specific facts of this case and specifically identified which disorders were causing the Veteran’s limitations. While clarification was sought by the AOJ, the Board notes that the October 2019 report clearly stated that the disabilities that caused the Veteran’s limitations were his cervical/lumbar degenerative disc disease status post cervical fusion and lumbar decompression. The VA examiner’s opinions are also supported by the medical evidence of record. See VA medical records dated Feb. 2018 and Apr. 2018. In contrast, the November 2015 DBQ opinion failed to distinguish between the Veteran’s service-connected disorders and non-service-connected disorders, and therefore, is not probative evidence The Board also acknowledges that in September 2006, a VA medical provider stated that the Veteran was no longer able to work due to weakness and numbness in his arms and legs caused by his service-connected neuropathy. However, the majority of the medical evidence of record opined that the Veteran’s cervical and lumbar disorders caused his upper extremity limitations and also impacted his lower extremities, to include numerous VA neurology consults, the August 2016 statement submitted by the Veteran’s own caregiver, and the June 2018 VA nerve examination, which found no peripheral neuropathy of the upper extremities after relevant testing. Thus, the Board finds that the medical opinions of the 2019 VA examiner was more adequately supported and stated. Additionally, the Board finds that the medical evidence of record indicates that the Veteran’s cognitive decline and subsequent difficulty managing medications was due to his diagnosis of dementia, and not his service connected PTSD. The October 2019 VA examiner confirmed this in his October 2019 opinion and subsequent addendum opinion. The Board has also considered the Veteran’s statements that his service connected disorders have caused his need for aid and assistance. Although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the specific medical disorder(s) causing the Veteran’s functional limitations and requiring the need for the aid and assistance of another person, falls outside the realm of common knowledge of a lay person, particularly in light of the complex medical history of the Veteran. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Nevertheless, even assuming that the Veteran is competent to opine on this medical matter, the Board finds that the opinion of the October 2019 examiner, which is supported by the medical evidence of record, is of greater probative weight than the Veteran’s lay assertions. The examiner reviewed and considered the evidence of record, relied on his medical training, knowledge, and expertise, and provided a medical opinion with a supporting rationale. The Board finds that the evidence of record also does not demonstrate that, as a result of his service connected disabilities, the Veteran has anatomical loss or loss of use of both feet, or of one hand and one foot, or that he has blindness in both eyes with visual acuity of 5/200 or less. Nor does the evidence reflect that the Veteran has a service-connected condition which, through its essential character, requires that the Veteran remain in bed. The most probative evidence shows that the requirements for SMC on the account of regular aid and attendance have not been met. Accordingly, the Board finds that the preponderance of the evidence is against SMC based on the need for regular aid and attendance. 38 U.S.C. § 5107. Nathaniel Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Rideout-Davidson, 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.