Citation Nr: 21011242 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 16-29 947 DATE: March 1, 2021 ORDER Entitlement to special monthly compensation (SMC) based on the need for the regular aid and attendance (A&A) of another person or by reason of being housebound is granted throughout the evaluation period, subject to the regulations governing payment of monetary awards. FINDING OF FACT For the period of the appeal, it is as likely as not that the Veteran’s service-connected disabilities (left total knee replacement, rated 60 percent; right total knee replacement, rated 30 percent; trochanteric bursitis of the right hip, status post right hip replacement, rated 30 percent; scars, status post bilateral knee and right hip replacements, rated 30 percent; surgical scars of the left and right lower extremities, rated 30 percent; duodenal ulcer, rated 20 percent; left foot drop, rated 20 percent; bilateral hearing loss, rated 20 percent; tinnitus, rated 10 percent; and surgical scars, painful but not stable, of the bilateral lower extremities, rated 0 percent) have rendered him unable to care for some daily personal needs and protect himself from the hazards and dangers incident to his daily environment without the assistance of others. CONCLUSION OF LAW SMC based on the need for the regular A&A of another person, throughout the evaluation period, is warranted. 38 U.S.C. § 1114(l), 5107; 38 C.F.R. § 3.102, 3.350(b), 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from September 1967 to September 1970. This case is before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 Department of Veterans Affairs (VA) rating decision. In March 2019, a Travel Board hearing was held before the undersigned. In August 2019 and August 2020, the Board remanded the case to the agency of original jurisdiction (AOJ) for additional development of the claim. Entitlement to SMC based on the need for A&A of another person or by reason of being housebound SMC is an additional level of compensation paid to Veterans above the basic levels of compensation for various types of losses or levels of impairment solely due to service-connected disabilities. It reflects recognition by the VA that certain disabilities, either alone or in combination, have an impact on a Veteran beyond the impairment of earning capacity which is central to the Rating Schedule. 38 C.F.R. § 4.1. SMC under 38 U.S.C. § 1114(l) is payable where a veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both feet, or of one hand and one foot, or is blind in both eyes, with 5/200 visual acuity or less, or is permanently bedridden or so helpless that he is in need of the regular A&A of another person. 38 C.F.R. § 3.350 (b). Determinations as to the need for A&A must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to such conditions as: 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 aid; 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, physical or mental, which requires care or assistance on a regular basis to protect the claimant from the hazards or dangers inherent in his daily environment. 38 C.F.R. § 3.352(a). Bedridden is that condition that requires the veteran to remain in bed, and the fact that the veteran 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. Id. It is not required that all of the enumerated factors in 38 C.F.R. § 3.352(a) be found to exist to establish eligibility for aid and attendance; such eligibility requires at least one of the enumerated factors be present. The particular personal function that a veteran is unable to perform should be considered in connection with his condition as a whole, and 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. Id.; see also Turco v. Brown, 9 Vet. App. 222 (1996). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue, including degree of disability, shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran seeks SMC based on the need for the regular A&A of another person or at the housebound rate as a result of his service-connected disabilities, which consist of the following: left total knee replacement, rated 60 percent; right total knee replacement, rated 30 percent; trochanteric bursitis of the right hip, status post right hip replacement, rated 30 percent; scars, status post bilateral knee and right hip replacements, rated 30 percent; surgical scars of the left and right lower extremities, rated 30 percent; duodenal ulcer, rated 20 percent; left foot drop, rated 20 percent; bilateral hearing loss, rated 20 percent; tinnitus, rated 10 percent; and surgical scars, painful but not stable, of the bilateral lower extremities, rated noncompensable. In various statements and testimony, the Veteran and his “caretaker” wife described his daily need for assistance. In November 2012 statements, he stated he relied on his wife to assist with daily care (he noted too his dependence on crutches, a scooter, knee braces, and an electric chair), and his wife asserted he needed her help with daily hygiene. An August 2014 statement of the Veteran described his falls caused by his knees buckling and giving way, the assistance he required when getting out of bed to stand and balance himself, and his inability to don support hose. In a June 2016 statement, he stated he was not bedridden but required “a lot” of assistance with his activities of daily living. In a February 2017 statement, he asserted that over the past eight years he had experienced periods of loss of balance and falling to the ground, which increased over the past few months. At a March 2019 Board hearing, the Veteran testified that his wife was needed daily to perform certain personal functions for him, to include bathing, dressing (to help him don compression hose), and protecting him from the hazards of his daily environment (e.g., he has fallen three times in the last six months due to a collapsing knee). He noted he used a walker and cane in his house and also had a scooter. His wife testified about the daily activities in which she assisted, and involved lower body care, hygiene, cooking, and getting up from the bed each morning. In a December 2019 statement, the Veteran asserted his reliance on his wife for assistance daily, particularly in bathing (and staying close by when he is in his walk-in shower), helping to dress with his compression stockings, getting out of bed in the mornings because he is unsteady on his legs, and having her accompany him to places such as the gym in case his knee collapses. Statements from the Veteran and his wife received in June 2020 are to the effect that he required assistance in dressing (donning compression hosiery and his knee brace), getting in/out of car, accompanying him to physical therapy, and balancing him when he arises from the bed or from a sitting position. It was described that, due to pain and swelling in his leg and his balance problems and loss of coordination, he was always at a risk for falls (reportedly, he fell multiple times a year when his left leg gave way, regardless if he had an aid such as a walker or cane). For that reason, he used many different devices to assist in his ambulation, including braces, crutches, a cane, a walker, and an electric scooter. After considering the Veteran’s contentions and facts in this case and applying the relevant legal criteria, the Board concludes that it is at least as likely as not that throughout the period of the appeal the Veteran’s service-connected disabilities have rendered him unable to care for some daily personal needs and protect himself from the hazards and dangers incident to his daily environment without the assistance of others. The Veteran underwent multiple VA compensation examinations - in August 2012, November 2012, August 2016, February 2019, and January 2020 (with addendum opinions in September 2020 and October 2020) - in conjunction with his claim. The August 2012 A&A examination indicated the Veteran needed a power wheelchair, braces, walker, and crutches due to service-connected disability and morbid obesity. It was difficult, even with assistance, to get in/out of the bathtub. He was able to feed himself but not able to prepare meals. There were no upper extremity limitations, but he required assistive devices for locomotion. Similar findings were made by an unnamed VA physician in a VA A&A examination report received in November 2012. It was noted the Veteran needed help bathing (getting into the bathtub) and putting on support hosiery. He no longer walked without some assistive device and sometimes needed another person when ambulating (the distance depended on his level of daily pain and swelling). VA compensation examinations of his service-connected disability in August 2016 disclosed, in functional impact statements, that he needed a cane or crutch to walk and could not squat or climb stairs without a railing due to pain and weakness. A February 2019 A&A examination noted a need of assistance for bathing and attending to hygiene matters and that he was able to leave the house daily with assistive devices of a cane, walker, or scooter. A January 2020 VA A&A examination and opinion indicated the Veteran was not housebound but needed assistance in putting on compression stockings, bathing, and ambulating. When asked to furnish more specific findings regarding the Veteran’s needs, the same examiner opined in September 2020 and October 2020 that it was at least as likely as not that due to service-connected disability the Veteran required the A&A of another person on a regular basis to help him with activities of daily living and to protect him from hazards or dangers in the daily environment. He described the ways in which his wife (or other family members and friends) regularly assisted him, including bathing, putting on compression hose and knee braces, attending to wants of nature, getting out of bed and up from a sitting position, transferring to a wheelchair when his knees are painful and swollen, getting in/out of a vehicle, taking him to medical appointments, cooking, massaging his knees/feet, assisting in balancing, helping with yard work, and making repairs for broken household items. Most of this assistance was needed as far back as 2012. Other evidence consists of numerous VA treatment records, which confirm for the period of the appeal the Veteran’s need for multiple assistive devices for ambulation and his reports of falls on many occasions due to his knee and leg giving way. It is noted that various records imply the Veteran’s service-connected disabilities do not impair him to the extent as found by the VA examiner in 2020. For example, in March 2013 it was noted the Veteran liked to exercise, go to the gym, and maintain an extensive garden. In May 2014, he was seen for right arm pain as a result of doing yard work. In August 2016, he admitted that he possibly did too much in his garden because he had increased low back soreness. In March 2019, he reported that he frequently went to the gym and was able to walk over his yard while using a rollator without loss of balance or falls. In June 2019, he reported engaging in various activities such as doing yardwork, working in his garage, and volunteering at church. Also, the Veteran’s morbidly obesity was noted by at least one VA A&A examiner as contributing factor in his functional limitations. However, the fact of the Veteran’s obesity and each of the aforementioned clinical notes were known to or brought to the attention of the VA examiner in 2020, but he nevertheless concluded that the Veteran required the regular A&A of another person. Thus, there is clear evidence, as described above, to support a finding that the Veteran is unable to protect himself from the hazards of daily life and that aid and attendance of another was required to care for at least some of his daily personal needs. He has numerous nonservice-connected disabilities that also impact on his daily functioning, but the VA examinations cited above focused on the limitations imposed by his service-connected impairments. While he was able to accomplish many activities of daily living without assistance, his service-connected disabilities most notably affected his ability to protect himself from the hazards or dangers incident to his daily environment, as evidenced by his falls despite constant use of an assistive device. Additionally, lay and medical evidence shows he requires daily assistance putting on needed knee braces and compression hose, bathing to some extent, getting out of bed and up from a sitting position, transferring to a wheelchair when his knees are painful and swollen, and getting in/out of a vehicle, among other activities. There is no lay or medical evidence to suggest he is housebound. Upon longitudinal review of the record, the Board finds the evidence is at least in equipoise as to whether the Veteran requires the regular aid and assistance of another person on account of his service-connected disabilities. Accordingly, SMC based on the need for A&A is warranted. The award of SMC at the A&A rate renders moot the claim for SMC at the housebound rate, as SMC under 38 U.S.C. § 1114(l) is a greater benefit than SMC under 38 U.S.C. § 1114(s). George R. Senyk Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Debbie Breitbeil, 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.