Citation Nr: 21009787 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 14-20 047 DATE: February 23, 2021 ORDER Entitlement to special monthly compensation (SMC) based on the need for aid and attendance or at the housebound rate is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran has been in need of the regular aid and attendance of another or permanently housebound by reason of his service-connected major depression. CONCLUSION OF LAW The criteria for SMC based on the need for regular aid and attendance or housebound status have not been met. 38 U.S.C. §§ 1114(l), (s), 5107 (2012); 38 C.F.R. §§ 3.350(b), 3.352 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Army from January 1981 to December 1983 and from May 1984 to March 1990. The Veteran initially requested a hearing in this matter before a Board of Veterans’ Appeals (Board) Veterans Law Judge. A hearing was scheduled for February 2019, and the Veteran was appropriately notified. However, the Veteran failed to appear at the hearing with no good cause provided. In February 2020, the Board remanded the appeal for further evidentiary development. SMC The Veteran contends that his service-connected major depression is so debilitating as to render him in need of the regular aid and attendance of another or permanently housebound, thus warranting additional compensation in the form of SMC. Under 38 U.S.C. § 1114(l), SMC is payable if, as the result of service-connected disability, a veteran (in pertinent part) is permanently bedridden; or is so helpless as to be in need of the regular aid and attendance of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). Under 38 C.F.R. § 3.352(a), the criteria for establishing such need include the following factors: (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 the disabling conditions enumerated in 38 C.F.R. § 3.352 (a) 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 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. 38 C.F.R. § 3.352(a); 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 SMC 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 a 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 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. 38 C.F.R. § 3.352(a). In this case, the Veteran is service connected for major depression, which is rated as 100 percent disabling. In March 2011, the Veteran’s wife submitted a statement in which she described the Veteran’s “frequent and debilitating episodes of depression,” as well as other symptoms such as short- and long-term memory loss and difficulty concentrating. She stated that she was unable to leave the Veteran alone at home due to his lapses in judgment; that she had to remind him to bathe and clean himself; and that the Veteran was unable to manage his medications. In addition, she described many physical limitations that contributed to the Veteran’s overall disability, to include neck, shoulder, back, and hip disabilities. In a June 2011 statement, the Veteran’s wife reiterated that the Veteran could not be left alone; that he was unable to drive himself in part due to forgetfulness; and that he was unable to cook for himself, as he had a history of leaving the stove on. She explained that she had been home with the Veteran on a continuous basis since 2004, and that she took him to all of his appointments and handled all of the household business. An August 2011 VA mental disorders examination report reflects the examiner’s conclusion that the Veteran “likely had a personality disorder,” but that “the varying accounts of his history and current functioning make an accurate diagnosis impossible.” A November 2012 VA mental disorders examination report noted a history of bipolar disorder. The examiner noted that the Veteran was able to drive to the store to buy a few items, he was not capable of managing his financial affairs. The examiner explained that the Veteran took narcotics, including morphine, for his physical disabilities, which “severely impact[ed] his ability to function.” These medications left the Veteran less alert, with blurred vision, slowed reflexes, slurred speech, and a propensity to doze. In a May 2014 VA Form 9, the Veteran reiterated that he was unable to be left alone or travel short distances by himself due to memory loss, and that he was “unable to do the basic daily care of myself without being told.” A January 2015 VA mental disorders examination report reflects that while the Veteran’s major depression resulted in total occupational and social impairment, he was capable of engaging in many tasks, including running errands with his wife, playing with his grandchildren for short periods of time, and completing small projects. In September 2018, the Veteran underwent a neuropsychological evaluation, which demonstrated at least normal executive functioning as well as scores consistent with clinical depression and bipolar disorder. In addition, the Veteran was noted to have delayed verbal recall in the middle of the average range, and intellectual functioning in the upper half of the average range. In addition to his major depression and associated mental health problems, the Veteran has dealt with myriad other health issues during the pendency of his appeal. His VA active problem list includes (among other conditions) diabetes mellitus, cervical disc disorder with myelopathy, chronic bronchitis and chronic obstructive lung disease, and generalized arthritis. A July 2011 Disability Benefits Questionnaire (DBQ) and an August 2011 VA aid and attendance examination report both indicate that the Veteran required assistance with his activities of daily living due to both service-connected and non-service-connected disabilities. Notably, in a January 2020 Informal Hearing Presentation (IHP), the Veteran’s representative asserted that his overall disability picture had worsened; the representative noted that the Veteran was unable to bathe, prepare his own meals, manage his medications or financial affairs, or ambulate without assistance. However, the representative acknowledged that these impairments resulted not only from the Veteran’s depression and bipolar disorder but also from “numerous chronic health conditions.” In March 2020, the Veteran underwent a VA aid and attendance examination. The report indicates that the Veteran was not bedridden and was able to travel beyond his current domicile. He reported that his typical daily activities including dressing himself, performing his own toiletries (although he required assistance getting into the tub), taking care of his pets, performing light housework, and driving short distances alone (trips of beyond five miles required his wife’s accompaniment). The examiner noted that the Veteran experienced mild (occasional) memory loss and occasional dizziness, and that he had a limited ability to protect himself from the hazards of daily life due to his non-service-connected COPD and cervical spine and shoulder disabilities. The examiner noted that the Veteran was unable to bathe on his own. He was able to walk without aid and could leave the home with the assistance of his wife. He was able to feed, dress and undress, groom, and attend to toileting needs normally. In terms of metal competency, the examiner indicated that the Veteran was able to manage his own checking and savings accounts, and that he personally handled money and paid bills. In a subsequent September 2020 opinion, the VA examiner stated that it was less likely than not that the Veteran required the regular aid and attendance of another or was housebound as a result of functional impairment associated with his service-connected major depression. The examiner reasoned that the Veteran was able to leave his house and drive himself short distances and was able to perform all of his own activities of daily living (except bathing) without assistance. The examiner opined that the evidence of record indicated the Veteran’s depression was not debilitating to any significant degree. Rather, by his own admission, his non-service-connected medical conditions were most responsible for his functional impairment and any resulting need for assistance. After careful review, the Board finds that SMC based on the need for regular aid and attendance is not warranted in this case. While the record demonstrates that the Veteran’s major depression has at times significantly hampered his ability to function, these symptoms alone have not been shown to render him so helpless as to require the regular aid and attendance of another to help with activities of daily living. See 38 C.F.R. § 3.350(b). In particular, there is no probative evidence suggesting that the Veteran’s mental health symptoms alone resulted in the Veteran’s inability to dress and undress himself or to keep himself ordinarily clean and presentable; the inability to feed himself; the inability to tend to the wants of nature; or the incapacity, physical or mental, which requires care and assistance on a regular basis to protect the Veteran from the hazards or dangers incident to his daily environment. See 38 C.F.R. § 3.352(a). On the contrary, the weight of the evidence (including the Veteran’s own statements) demonstrates that he is able to dress and undress himself, feed himself, tend to the wants of nature, and generally protect himself from the hazards incident to daily life, notwithstanding his psychiatric and medical problems. The Board has considered the lay assertions from both the Veteran and his wife in support of his claim for SMC. The Board acknowledges that they are competent to relate symptoms within the realm of their personal knowledge, just as they are competent to relate what they have been told by an examiner. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, with respect to the question of whether the specific requirements for SMC based on aid and attendance are met, the Board finds that the medical evidence of record—primarily the November 2012 VA examination report, September 2018 neuropsychological evaluation, March 2020 VA examination report, and September 2020 VA medical opinion discussed above—outweigh these lay contentions. The Board notes in this regard that both the Veteran and his wife have acknowledged that the Veteran’s non-service-connected disabilities have played a large role in his functional impairment. None of their lay statements have alleged that the Veteran’s mental health symptomatology, considered apart from his other medical conditions, results in the type of impairment contemplated by the statute and regulations discussed above with respect to SMC. To the extent the Veteran and his wife have described impacts on the Veteran’s activities of daily living similar to the factors listed in 38 C.F.R. § 3.352(a)—such as the inability to prepare meals due to memory loss (and the danger of leaving the stove on) and the inability to bathe—it appears many of these symptoms were due at least in part to side effects from medication prescribed for the Veteran’s non-service-connected disabilities. In contrast, none of the pertinent medical evidence of record suggests that the Veteran was ever in need of regular aid and attendance as a result of his mental health symptomatology alone. Given the examiners’ status as experts and their application of specific facts to the appropriate medical standards, the Board finds that the medical evidence discussed above is more probative in this case. In addition, the Veteran has not asserted, and the evidence does not reflect, that he has ever been bedridden as a result of his service-connected major depression. Accordingly, the Board finds that the weight of the evidence preponderates against a finding that the Veteran’s service-connected major depression, considered alone, caused him to be so helpless as to require the regular aid and attendance of another person. None of the factors listed in 38 C.F.R. § 3.352(a) have been conclusively demonstrated. See Turco, 9 Vet. App. at 224. As alluded to above, the Veteran and his representative also seek entitlement to SMC at the housebound rate under 38 U.S.C. § 1114(s). SMC is payable under 38 U.S.C. § 1114(s) if a veteran has a single service-connected disability rated as 100 percent and, (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of a service-connected disability or disabilities. The second requirement is met when the veteran is substantially confined, as a direct result of service-connected disabilities, to his dwelling and the immediate premises, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his lifetime. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). Here, the Veteran is in receipt of a single 100 percent rating for his major depression. However, because he is not currently service-connected for any other disease or injury, he cannot satisfy the criteria for “separate and distinct” disabilities independently ratable at 60 percent. Furthermore, as detailed above, the lay and medical evidence of record does not show that the Veteran has been housebound due to his service-connected major depression symptoms. Indeed, even considering the functional impact of all of his medical conditions, the most probative evidence of record demonstrates that the Veteran has been able to leave his house on a regular basis. As such, the criteria for SMC under 38 U.S.C. § 1114(s) are not met. The Board is grateful for the Veteran’s honorable service, and this decision in no way is meant to detract from that service. The Board is constrained by law, however, and unfortunately there is no basis on which to award the benefits sought. As the preponderance of the evidence is against the claim, the “benefit-of-the-doubt” rule is not for application, and the Board must deny the claim. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Minot, 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.