Citation Nr: 21010609 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 14-24 216 DATE: February 25, 2021 ORDER Entitlement to a rating of 60 percent for right below the knee amputation throughout the entire appeal period is granted. Entitlement to special monthly compensation (SMC) based on aid and attendance is denied. Entitlement to SMC based on housebound is denied. FINDINGS OF FACT 1. For the entire appeal period, and resolving all doubt in favor of the Veteran, his right leg below knee amputation more nearly approximated amputation not improvable by prosthesis controlled by natural knee action. 2. The Veteran’s service-connected disabilities alone did not result in the Veteran being 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; or being a patient in a nursing home because of mental or physical incapacity; or requiring the regular aid and attendance of another person; or rendering the Veteran permanently housebound and he did not have a service-connected disability rated as totally disabling and an additional service-connected disability or disabilities evaluated as 60 percent of more disabling that was separate and distinct from the 100 percent service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating of 60 percent for right below the knee amputation throughout the entire appeal period have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.68, 4.71a, Diagnostic Code (DC) 5164, 5165. 2. The criteria for entitlement to SMC based on aid and attendance have not been met. 38 U.S.C. §§ 1114(s), 5107; 38 C.F.R. §§ 3.102, 3.350, 3.351, 3.352. 3. The criteria for entitlement to SMC based housebound status have not been met. 38 U.S.C. §§ 1114(s), 5107; 38 C.F.R. §§ 3.102, 3.350, 3.351, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from July 23, 1974, to September 5, 1974. The Veteran passed away in January 2020. The Veteran’s surviving spouse submitting a request for substitution in April 2020. An April 2020 notification letter granted the request for substitution. These matters were most recently remanded by the Board in April 2018 for further development, including providing the Veteran with relevant VA examinations. The Veteran was afforded a VA examination of the right knee and for aid and attendance in May 2018. The Board therefore finds there has been substantial compliance with the remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating 1. Entitlement to a rating of 60 percent for right below the knee amputation throughout the entire appeal period Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the United States Court of Appeals for Veterans Claims (Court) held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.” Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). The Veteran’s right leg below knee amputation was rated as 40 percent disabling under DC 5165 for amputation at a lower level of the leg permitting prosthesis. 38 C.F.R. § 4.71a, DC 5165. Under Diagnostic Code 5164, amputation of the leg not improvable by prosthesis controlled by natural knee action will be rated as 60 percent disabling. 38 C.F.R. § 4.71a, DC 5164. For the entire appeal period, the Board resolves all doubt in the favor of the Veteran and finds that his right leg below knee amputation more nearly approximated amputation not improvable by prosthesis controlled by natural knee action. In this regard, VA medical records, including VA examinations, document that the Veteran underwent a right knee below the knee amputation, but was never provided a prosthesis. The Veteran’s right below the knee amputation and cardiological ailments precluded him from using a prosthesis throughout the appeal period. It was noted the Veteran constantly used a wheelchair. Based on the foregoing, the Board finds that the Veteran’s right left below the knee amputation more nearly approximates amputation not improvable by prothesis controlled by natural knee action as he is unable to use it. Therefore, the Board finds that the criteria for an increased rating of 60 percent for right leg below the knee amputation pursuant to DC 5164 is met. However, at no point during the pendency of the appeal did the Veteran’s right leg below the knee amputation resulted in amputation of the thigh. Therefore, a rating in excess of 60 percent is not warranted under any applicable DC. A rating of 60 percent, but no higher, for the Veteran’s right leg below the knee amputation is warranted. 2. Entitlement to SMC based on aid and attendance 3. Entitlement to SMC based on housebound The Board finds that entitlement to special monthly compensation (SMC) based on the need for aid and attendance of another person or by reason of being housebound are not warranted. Housebound To establish entitlement to SMC based on housebound status under 38 U.S.C. § 1114(s), the evidence must show that a veteran has a single service-connected disability evaluated as 100 percent disabling and an additional service-connected disability or disabilities evaluated as 60 percent or more disabling that is (are) separate and distinct from the 100 percent service-connected disability and involve different anatomical segments or bodily systems; or the veteran has a single service-connected disability evaluated as 100 percent disabling and due solely to service-connected disability or disabilities, the veteran is permanently and substantially confined to his or her immediate premises. 38 C.F.R. § 3.350(i). In Bradley v. Peake, the Court held that if the evidence supports a finding of TDIU based solely upon a single service-connected disability, then such a TDIU rating may serve as the factual predicate for an award of SMC pursuant to 38 U.S.C. § 1114 (s). 22 Vet. App. 280, 293 (2008). Here, the Veteran did not have a single service-connected disability rated 100 percent disabling at any point during the period of appeal. In a September 2020 rating decision, entitlement to a TDIU for accrued benefits was granted effective March 22, 2013, due to the combined effects of the Veteran’s service-connected disabilities. His disabilities consisted of the right below the knee amputation, rated as 40 percent disabling from November 1, 2012; and adjustment disorder, rated as 50 percent disabling from March 22, 2013. As such, because the Veteran’s entitlement to a TDIU was not based solely on a single service-connected disability, it may not service as the factual predicate for award of SMC. Bradley v. Peake, 22 Vet. App. 280, 293 (2008). A single disability rated 100 percent disabling is a threshold requirement, and without establishment of this requirement, the analysis need proceed no further. Accordingly, as a matter of law, special monthly compensation at the housebound rate is not in order. Aid and Attendance SMC is payable at a specified rate if the veteran, as the result of service-connected disability, is in need of regular aid and attendance. Need for aid and attendance means helplessness or is so nearly helpless as to require the regular aid and attendance of another person. A veteran will be considered to be in need of regular aid and attendance if he or she 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; if the veteran is a patient in a nursing home because of mental or physical incapacity; or if the evidence establishes a factual need for aid and attendance or “permanently bedridden” status under the criteria set forth in 38 C.F.R. § 3.352(a). 38 U.S.C. § 1114(l); 38 C.F.R. § 3.351(b). The following will be accorded consideration in determining the need for regular aid and attendance: inability of claimant to dress or undress himself, or to keep himself 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 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. “Bedridden” will be a proper basis for the determination. 38 C.F.R. § 3.352(a). A veteran will be found to be bedridden if the condition actually requires that he remain in bed, but not if he voluntarily stays in bed or if a physician merely recommends bed rest. It is not required that all of the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made. 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 be a constant need. Determinations that the veteran 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 or her to be in bed. They must be based on the actual requirement of personal assistance from others. Id. Although a veteran need not show all of the disabling conditions identified in 38 C.F.R. § 3.352(a) to establish entitlement to aid and attendance, the Court has held that it is logical to infer there is a threshold requirement that “at least one of the enumerated factors be present.” Turco v. Brown, 9 Vet. App. 222, 224 (1996). Determinations as to the need for aid and attendance are factual in nature and must be based upon the actual requirements for personal assistance from others. In making such determinations, consideration is given to such conditions as: the inability of the claimant to dress or undress himself or to keep himself 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 assistance; inability of the claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, either physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. Here, the Veteran asserted he was entitled to SMC because he relied on his family to take care of him. Initially, the Board notes that the Veteran’s service-connected disabilities did not result in the Veteran being 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. Service connection was not in effect for any eye disability. Additionally, the Veteran did not meet the criteria for SMC at the housebound rate as discussed above. The Board finds that the Veteran did not show need for aid and attendance of another person due to his service-connected disabilities. The results of the February 2013 and May 2018 VA Aid and Attendance or Housebound Exams found that the Veteran was not permanently bedridden, he was not hospitalized, and he could travel beyond his domicile. In the 2018 examination, the Veteran indicated that he had a handicap equipped vehicle that he drove around the corner of the house to the store. The Veteran was able to feed himself, bathe and tend to other hygiene needs, drive himself, and go outside. The Veteran uses a wheelchair for mobility. The self-care skills that the Veteran was unable to perform included preparing his own meals. There was no indication in the VA examinations, medical records, or claims file indicating that the symptoms or functional impairment of his service-connected disabilities require care and assistance on a regular basis to protect him from the hazards or dangers incident to his daily environment. The Board acknowledges the Veteran was found not competent to handle disbursement of funds in a November 2018 rating decision. While the Board has considered the Veteran’s inability to manage his own finances, this finding does not indicate the Veteran was bedridden or unable to perform tasks of daily living. In view of the foregoing, the Board finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to SMC based on the need for regular aid and attendance. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. N. NELSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Rekowski 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.