Citation Nr: 21009597 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 19-02 913 DATE: February 22, 2021 ORDER A special monthly compensation (SMC) based on aid and attendance is denied. FINDING OF FACT The Veteran’s service-connected disabilities do not cause the need for regular aid and attendance of another person. CONCLUSION OF LAW The criteria for entitlement to special monthly compensation (SMC) based on aid and attendance have not been met. 38 U.S.C. §§ 1114(l), 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352(a).   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1968 to June 1970. He was awarded the Combat Infantry Badge for his service. These matters come before the Board of Veterans’ Appeals (Board) on appeal from June 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2020, the Veteran and B.C-M., a witness, testified before the undersigned Veterans Law Judge at a hearing. A copy of the transcript is associated with the Veteran’s claims file. Since the issuance of the statement of the case, additional VA records were associated with the record. A waiver for initial Agency of Original Jurisdiction (AOJ) consideration of these records was obtained at the hearing. Accordingly, the Board may review this evidence in the first instance. See 38 U.S.C. § 20.1305. The Veteran also submitted additional evidence after the most recent statement of the case. Section 501 of the Camp Lejeune Act of 2012 provides an automatic waiver of evidence submitted by a veteran or his or her representative with or after a Substantive Appeal received on or after February 2, 2013. The Veteran’s VA Form 9 was received in January 2019. Accordingly, the Board may review this evidence in the first instance. Id. In October 2020, the Veteran filed a Motion to advance the appeal on the docket due to age. The motion was granted in the same month and this appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.902; 38 U.S.C. § 7107(a)(2).   Entitlement to SMC based on aid and attendance. The Veteran seeks special monthly compensation based on the need of the regular aid and attendance of another person. SMC is payable at the aid and attendance rate when a Veteran’s service-connected disability or disabilities cause the anatomical loss or loss of use of both feet or one hand and one foot, cause the Veteran to be blind in both eyes, or renders the Veteran permanently bedridden or with such significant disabilities as to be in need of regular aid and attendance. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). The following factors will be considered in determining whether a Veteran is in need of regular aid and attendance of another person: inability of claimant 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 (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of claimant 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 the claimant from hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352(a). It is not required that all of the disabling conditions noted above be found to exist before a favorable rating may be made. Id. The particular personal functions that 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 is a constant need. Being bedridden will be a proper basis for this determination. “Bedridden” constitutes a condition which, through its essential character, actually requires that an individual remain in bed. The fact that a claimant has voluntarily taken to bed, or that a physician has prescribed bed rest for a lesser or greater portion of the day, will not suffice. 38 C.F.R. § 3.352(a). The Veteran is currently service-connected for right lower extremity, peripheral vascular disease; coronary artery disease; left lower extremity, peripheral vascular disease; diabetes mellitus, type II; right lower extremity, sciatic nerve, peripheral neuropathy; left lower extremity, sciatic nerve, peripheral neuropathy; and bilateral hearing loss. A June 2016 VA treatment record showed that the Veteran was admitted after falling off his porch in May and resulting in right rib fractures with associated hemopneumothorax. He also developed atrial fibrillation with rapid ventricular response (RVR) and was diagnosed with end-stage renal disease (ESRD) and put on dialysis. In October 2016, the Veteran underwent a VA examination for his service-connected bilateral lower extremity peripheral vascular disease (PVD). The examiner found he had thromboangiitis obliterans condition (Buerger’s disease). The examiner also provided diagnoses for non-service-connected conditions of varicose veins and/or post-phlebitic syndrome, and arteriovenous (AV) fistula. The Veteran had aching in his right leg after prolonged standing and walking. He reported required occasional use of a cane for short distances, a walker if walking further, and a wheelchair for doctor’s visits. The examiner opined that the Veteran’s pain with prolonged standing or walking would provide moderate to severe impact for physical employment and mild impediment for non-physical employment. Reasonable accommodations may be made, such as working in a seated position. The examiner also explained that he recently underwent surgical creation of an AV fistula in his left arm for long-term use for his hemodialysis, which is unrelated to his PVD condition. He was also afforded VA examinations for his service-connected coronary artery disease (CAD) and diabetes mellitus conditions. At the VA examination for CAD, the Veteran reported having permanent atrial fibrillation and congestive heart failure (CHF). The examiner was unable to locate a diagnosis for CHF in his records. The examiner found that the Veteran’s heart condition would provide moderate to severe impediment to physical activity or employment but would have no impact for non-physical-related employment. At his VA examination for his diabetes mellitus, the examiner noted that his diabetes mellitus and complications of diabetes mellitus did not impact his employability. There was no regulation of activities as part of medical management for this condition. The examiner also noted that review of the Veteran’s medical records did not indicate that his renal disease was caused by his diabetes mellitus. A January 2017 VA treatment record showed that the Veteran was admitted for sepsis infection post-treatment for right knee joint effusion. The clinician noted B.C-M. recently moved in to assist with care. He lived in a 2-story house with three steps up to a platform and then three more steps to go in. The nurse notes that he has grab bars, shower chair, elevated toilet seat, “RW,” wheelchair, and a rollator. In a January 2017 VA Forms 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, the physician noted that he was hospitalized on the date of examination. The conditions where the Veteran would need assistance for was ESRD and right knee pain and infection (sepsis). His right knee pain and infection restrict the listed activities. The Veteran was confined to bed from 9:00 p.m. to 9:00 a.m. and went to dialysis three times per week. He was able to feed himself and manage his own financial affairs. He was not able to grocery shop, drive, or prepare meals as he was using a walker. The Veteran’s right knee pain and infection required assistance in bathing and tending to hygiene needs, as well require medication management. The physician noted that his female friend assisted him in physical therapy, occupational therapy, intravenous (IV) situations, dressing changes, and bathing and hygiene needs. The physician also noted that he required nursing home care, as he needed skilled care needs as listed in the prior sentence but noted that the Veteran would return home and the female friend could provide those needs. The Veteran was able to sit up in bed, was slim in appearance, and alert and oriented times four. He had no restrictions as to grip, fine movements, ability to feed himself, to button clothing, shave, and attend to the needs of nature. He had restrictions related to this right knee infection (sepsis). There was no restriction to the spine, trunk, and neck. The Veteran left home only for doctor’s appointments. He walked using a walker. In September 2018, B.C-M. submitted a statement in support of this claim. She asserted that the Veteran fell down the front steps of his home as a result of diabetic ulcers on his feet and legs, which led to his hospitalization. During his two-month hospitalization at private and VA facilities, he suffered several infections, kidney failure, and weight loss, and could only be released only if he had help at home. B.C-M. agreed to be the caregiver. There have been times when both legs gave out and he fell; he required a wheelchair to get around. She took him to dialysis treatment three times a week and to his doctors’ appointments. She also took care of meals, laundry, and household duties. B.C-M. reported that he could usually dress and undress and fed himself. He required help at times, would not be able to keep clean and presentable if his clothes were not laid out for him, and did not have the ability to prepare meals. He also forgets what day it is or what types of medication has been taken or not. While the Veteran was not bedridden, he was helpless, and she asserted his medical conditions as whole showed the need for regular aid and attendance. In September 2019, B.C-M. submitted another statement. She reported that she has been the Veteran’s caregiver since 2016 and that he has needed varying amounts of care during this time, depending on the health concerns. He has had complications related to his coronary artery disease; he was diagnosed in 2016 with ESRD and put on dialysis; he received a pacemaker in July 2019 for an atrial fibrillation condition; and his peripheral neuropathy and diabetes mellitus condition have been complicated by his cardiovascular disease. She indicated that the Veteran now needed to be driven to the treatment and to other appointments. In a January 2020 VA Form 21-2680, the physician noted multiple diagnoses contributing to the Veteran’s limitations, which included both service-connected disabilities and non-service-connected disabilities. The contributing diagnoses were compression neuropathy, degeneration of lumbar intervertebral disc, pyogenic arthritis, renal osteodystrophy, chronic ESRD, diabetes mellitus, chronic obstructive pulmonary disease (COPD), coronary artery disease (CAD), atrial fibrillation, and cervical spinal stenosis. The physician noted that the Veteran had low potassium, low salt, and low phosphorus due to dialysis treatment for chronic ESRD, and he was in a wheelchair. The disabilities that restricted listed activities were neuropathy and previously broken pelvis and hip conditions. The Veteran was not confined to bed. He was able to feed himself, was not blind, and could manage his own financial affairs. He was not able to prepare his own meals, needed assistance in bathing and tending to hygiene needs, and required medication management. The Veteran could not dress himself as he could not bend over due to partial hip surgery. He did not require nursing home care. The physician described the Veteran was in a wheelchair status-post right hip fracture that occurred in December 2019. He had no problems with upper extremity movements. He had restrictions due to right hip and pelvic fractures, and he was only able to walk a few steps with his walker. The physician further noted that he had limited range of motion in his neck and lumbar spine due to cervical and lumbar degenerative disc disease. The Veteran was unable to ambulate due to fractures and was in poor physical health due to multiple medical problems. He could only leave home with the help of his wife and was unable to care for himself. In February 2020, a VA nurse practitioner submitted a statement in support of the Veteran’s claim. The nurse practitioner noted multiple diagnoses (service-connected and nonservice-connected conditions) contributing to the Veteran’s limitations, including ESRD that required dialysis three times per week; severe systolic heart failure and coronary artery disease; severe COPD requiring home oxygen; and peripheral artery disease, status-post stenting, but continued bilateral leg pain with ambulation. The Veteran had been hospitalized four times in the past six months, and post-discharge, he had been homebound, except for going to dialysis treatments. He was ambulatory only 10 to 20 feet with aid of a walker, required assistance to stand or transfer from his bed to a chair, required assistance with bathing and dressing, and totally dependent for all meal preparation, housekeeping, and laundry chores. His spouse is his sole caregiver. At the hearing before the undersigned, when asked by the Veteran’s representative whether the falls were because of his service-connected peripheral vascular disease in his lower extremities as well as the peripheral neuropathy condition, B.C-M. testified that yes, the falls were due to those conditions, and the Veteran’s legs just gave out on him and he went down. See Hearing Transcript, page 5. B.C-M. testified that the Veteran could walk probably about 10 feet with a walker and used a wheelchair for everywhere else. See Hearing Transcript, page 6. She testified to assisting him in activities of daily living, such as preparing meals, putting his pants and socks and shoes on, cleaning, and driving him to appointments. She noted that he was able to put on shirts, eat, and toilet on his own. See Hearing Transcript, pages 6-7. First, the Board finds that the Veteran’s service-connected disabilities have not caused the anatomical loss or loss of use of both feet or one hand and one foot, caused the Veteran to be blind in both eyes, or rendered the Veteran permanently bedridden. The foregoing has shown that the Veteran is still able to ambulate and move about, even though the Board recognizes that he has to use a walker or wheelchair to be mobile. Nonetheless, he does not have loss of use of both feet. His upper extremities have not been limited, as he is able to put on a shirt and feed himself. He is also not bedridden, as he is able to move about, and attend dialysis and doctor’s appointments. Thus, the question remains as to whether the Veteran’s service-connected disabilities significantly contribute to any impairment as to be in need of regular aid and attendance. Upon review of the evidence, the Board finds that the Veteran’s service-connected right lower extremity, peripheral vascular disease; coronary artery disease; left lower extremity, peripheral vascular disease; diabetes mellitus, type II; right lower extremity, sciatic nerve, peripheral neuropathy; left lower extremity, sciatic nerve, peripheral neuropathy; and bilateral hearing loss disabilities do not significantly contribute to any impairment that would result in the need for aid and attendance of another person. In reaching this conclusion, the Board finds the evidence reflects that the physical impairments resulting in the need for assistance of another person are due to nonservice-connected disabilities of chronic ESRD, right knee pain and infection (sepsis), degenerative disc disease of the cervical and lumbar spine, status-post pelvic and right hip fractures and its related neuropathy conditions; it is not evident that the assistance of another person is necessary solely as a result of the service-connected disabilities. Specifically, the physicians noted on the January 2017 and January 2020 VA Forms 21-2680 that dialysis was for ESRD, a non-service-connected condition. The 2016 VA examiner specifically noted that the Veteran’s records did not indicate the renal disease was caused by his diabetes mellitus. To the extent that he needs help bathing, feeding himself, dressing himself, and preparing meals, the evidence indicates that this deficit was based at least in part on his non-service-connected disabilities relating to the right knee pain and infection (sepsis) hospitalization in 2017, and in part due to his right hip and pelvic fractures incurred in 2019. He could not bend over due to partial hip surgery. His limited range of motion in his neck and lumbar spine was due to cervical and lumbar degenerative disc disease, which are also not service-connected conditions. The oxygen use noted by the February 2020 VA nurse practitioner was for COPD, another non-service-connected condition. In addition, there is no evidence that the Veteran required nursing home care. The Board acknowledges the 2017 physician marked ‘yes’ to nursing home care, but also noted that B.C-M. could provide those needs. The 2020 physician marked ‘no’ to nursing home care. As a result, the Board concludes that he does not need nursing home care. He could manage his own financial affairs. In sum, when reviewing the medical condition as a whole, the Board finds that he has multiple nonservice-connected disabilities that contribute to his overall problem with the performance of activities of daily living. The record does not contain any competent medical evidence that the Veteran’s service-connected disabilities, alone, render him physically helpless in the performance of the activities of daily living or in protecting himself from the everyday hazards and dangers incident to his environment. Although the Veteran and B.C-M.’s statements and testimonies asserted that he required assistance in medication management, hygiene, bathing, preparing meals, and housework, and the Board recognizes her role in providing assistance in daily living activities ─ those limitations are not based solely on service-connected disabilities as contemplated by 38 C.F.R. § 3.352(a). Rather, they include limitations caused by other disabilities. While the Board acknowledges B.C-M.’s sincere beliefs that the Veteran’s service-connected disabilities caused him to fall or contributed to impairments resulting in the need for aid and assistance, she is not competent to provide an etiology opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between multiple systems of the body and anatomical relationships. Therefore, it is outside the competence of B.C-M. in this case because the record does not show that she has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the 2016 VA examination report that the records have not shown the Veteran’s renal disease was caused by his service-connected diabetes mellitus and that there has been no medical opinion of record showing a relationship between the Veteran’s service-connected disabilities as the link to why he fell often. Accordingly, the preponderance of the evidence is against a finding that his service-connected disabilities alone result in his needing the regular aid and attendance of another person within the meaning of the cited legal authority. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Tang, 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.