Citation Nr: 21009825 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 17-17 119 DATE: February 23, 2021 ORDER Entitlement to special monthly compensation (SMC) based on aid and attendance or housebound status is denied. REMANDED Service connection for sleep apnea, to include as secondary to service-connected PTSD, is denied. FINDING OF FACT The Veteran’s service-connected disabilities of PTSD, tinnitus, and erectile dysfunction do not render him in need of aid and attendance; and although he has been awarded TDIU, solely due to PTSD, he does not have additional service-connected disabilities, independently totaling a combined 60 percent disability rating or more, and he is not permanently housebound by reason of a service-connected disability. CONCLUSION OF LAW The criteria for SMC, based on the aid and attendance or housebound status, have not been met. 38 U.S.C. §§ 1114, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.350, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1968 to August 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from December 2015 and February 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In September 2020, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. Special Monthly Compensation Based on Aid & Attendance/Housebound Generally, claims for special monthly compensation (SMC) are governed by the provisions set forth at 38 U.S.C. § 1114(k) through (s), and 38 C.F.R. §§ 3.350 and 3.352. Under VA laws and regulations, SMC 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. § 3.3500. “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 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. SMC is also payable if a veteran is permanently housebound. See 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). The law provides for two avenues through which to receive this benefit: “statutorily housebound,” see 38 C.F.R. § 3.350(i)(1), and “housebound-in-fact,” see 38 C.F.R. § 3.350(i)(2). Under both avenues, the veteran must first have a single service-connected disability rated as 100 percent disabling. 38 C.F.R. § 3.350(i). To be found statutorily housebound, the veteran must have 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. 38 C.F.R. § 3.350(i)(1). To be found housebound-in-fact, the Veteran must be permanently housebound by reason of service-connected disability or disabilities. 38 C.F.R. § 3.350(i)(2). This requirement is met when the veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. Id. Several separately rated disabilities cannot be combined to achieve a single 100 percent rating in order to qualify for SMC. VAOGCPREC 66-91 (Aug. 15, 1991). A total disability rating for individual unemployability (TDIU) based on a single disability does, however, qualify as a single 100 percent rating for the purposes of section 3.350. Bradley v. Peake, 22 Vet. App. 280, 293 (1998). Relevant to this matter, SMC is payable at a specified rate under 38 U.S.C. § 1114(s) when 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 or more, 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 service-connected disability or disabilities. 38 C.F.R. § 3.350(i). For the purpose of meeting the first criterion, a rating of 100 percent may be based on any of the following grants of total disability: on a schedular basis, on an extraschedular basis, or on the basis of a temporary total rating, pursuant to 38 C.F.R. §§ 4.28 (pre-stabilization rating), 4.29 (temporary total hospital rating) or, 4.30 (temporary total convalescence rating). Additionally, a TDIU may meet the criterion, but only if assigned for a single disability. See Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2011). While the separate disabilities rated as 60 percent disabling must involve separate and distinct anatomical segments or body systems, the fact that the total disability and the independent 60 percent disabilities result from a common etiological agent will not preclude entitlement. The Veteran asserts that his need for aid and attendance, which is due to his service-connected PTSD, as PTSD results in short-term memory, disorganization, and impaired judgement. See September 2020 Virtual Hearing. At his virtual hearing, however, he clarified that he was able to dress himself. The Veteran was afforded an examination for housebound status or permanent need for aid and attendance in October 2014. The VA examination report reflects that the Veteran has been diagnosed with PTSD, erectile dysfunction, bilateral hearing loss, tinnitus, depression, anxiety, and sleep apnea. The VA examination report additionally notes that the Veteran is able to feed himself, although he needs assistance with cooking. The VA examination report also notes that the Veteran does not need assistance with bathing and tending to other hygiene needs; he is not legally blind; and that he does not require nursing home care, although, however, he requires medication management. The VA examination report also notes that he has the ability to manage his own financial affairs. On assessment of the Veteran’s circumstances, the VA examiner remarked that the Veteran’s posture and general appearance were normal. The VA examiner also noted that there were no restrictions of each upper extremity, with respect to grip, fine movements, the ability to feed himself, button clothing, shaving, attending to the needs of nature; no restrictions of either lower extremity, with respect to the extent of limitation of motion, atrophy, and contracture or other interference, and specifically on weight bearing, balance, and propulsion of each lower extremity; and no restrictions of the spine, trunk, and neck. With respect to impairments that affect the Veteran’s ability to perform self-care, ambulate or travel beyond the premises of the home, the VA examiner noted that the Veteran has poor memory, cognition, processing, and attention due to PTSD, and that he takes medications, which have side effects. Further, the VA examination report notes that often, per day or week, the Veteran is able to leave the home or immediate premises to attend medical appointments. The Veteran was afforded another examination for housebound status or permanent need for aid and attendance in September 2015. The VA examination report reflects that the Veteran has been diagnosed with PTSD, military sexual trauma, and major depressive disorder. The VA examination report additionally notes that the Veteran is able to feed himself, although he is unable to prepare his own meal, and needs assistance with planning, organization, and shopping. The VA examination report also notes that the Veteran does not need assistance in bathing and tending to other hygiene needs; he is not legally blind; and that he does not require nursing home care, although, however, he requires medication management, and specifically, needs assistance with setting up his medications. The VA examination report also notes that he has the ability to manage his own financial affairs. On assessment of the Veteran, the VA examiner remarked that the Veteran’s posture and general appearance were within normal limits. The VA examiner also noted that there were no restrictions of each upper extremity, with respect to grip, fine movements, the ability to feed himself, button clothing, shaving, attending to the needs of nature; no restrictions of either lower extremity, with respect to the extent of limitation of motion, atrophy, and contracture or other interference, and specifically on weight bearing, balance, and propulsion of each lower extremity; and no restrictions of the spine, trunk, and neck. However, the VA examination report notes that the Veteran has severe PTSD, which interferes with communication, focus, organization; and with respect to frequency and circumstances under which the Veteran is able to leave the home or immediate premises, the VA examiner remarked that the Veteran leaves for medical or legal appointment, drives, but rarely leaves the home or immediate premises due to PTSD. Overall, the Board finds that SMC is not warranted for aid and attendance. At his virtual hearing, the Veteran clarified that he is able to dress and undress himself. He did not assert, nor did the evidence show, that he has a frequent need for adjustment of any special prosthetic or orthopedic appliances which by reason of his PTSD disability, cannot be done without aid or the inability to feed himself through loss of coordination of upper extremities or through weakness; an inability to attend to the wants of nature, and/or incapacity, physical or mental, which requires care or assistance on a regular basis to protect him from hazards. As a matter of fact, at his hearing, and on examinations, for example, he made no indication that he had any special prosthetics, needed assistance with getting to the bathroom, and/or feeding him his meals. Rather, the evidence reflects that he has been able to feed himself and does not need assistance with the maintenance of his hygiene. Further, SMC is also not warranted for “housebound” status. On assessment of the Veteran’s eligibility to be statutorily house-bound, the evidence reflects that while the Veteran has been awarded TDIU, due to his PTSD disability alone, his independently rated, service-connected disabilities of tinnitus and erectile dysfunction do not total a combined 60 percent disability rating or more. Therefore, he does not meet the criteria for being statutorily housebound. Additionally, under the alternative avenue, and on assessment of whether the Veteran is housebound-in-fact, the evidence does not show that the Veteran is permanently housebound by reason of service-connected disability or disabilities. As a matter of fact, despite his disability, the evidence reflects that he has been able to leave his house for appointments, as noted above. Thus, as the criteria for aid and attendance or housebound status is not met, entitlement to SMC must be denied. REASONS FOR REMAND The Board regrets further delay, but finds that additional development is necessary before a decision may be rendered on the remaining issue on appeal. At his September 2020 videoconference hearing, the Veteran asserted that his sleep apnea was primarily due to his post-traumatic stress disorder, but also asserted . Medical treatment records reflect a current diagnosis of sleep apnea. See e.g. February 2015 Private Treatment Note. However, the Veteran has not yet been afforded a VA examination to determine whether his sleep apnea is secondary to his PTSD. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with a physician (VA examiner) to provide an opinion addressing the etiology of his sleep apnea. The VA examiner must review the claims file and must note that review in the report. A copy of this REMAND must be made available to the VA examiner. The VA examiner must undertake the following: a. Opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s sleep apnea is due to disease or injury incurred during active duty military service. b. Opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s sleep apnea is caused by his service-connected PTSD. c. opine whether it is at least as likely as not (more than 50 percent probability) that the Veteran’s sleep apnea is aggravated by his service-connected PTSD. “Aggravation” means an increase in severity of the disorder beyond any medically established baseline. d. A detailed explanation is requested for all opinions provided. If an opinion cannot be provided without resort to speculation, provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be rendered. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V-N. Pratt 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.