Citation Nr: 21012465 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 20-00 244A DATE: March 4, 2021 ORDER Entitlement to special monthly compensation based on aid and attendance is denied. Entitlement to an effective date prior to October 25, 2019 for special monthly compensation based on housebound criteria is denied. FINDINGS OF FACT 1. The Veteran is not in regular need of aid and attendance as a result of service-connected disabilities. 2. Prior to October 25, 2019, the Veteran did not have a single service-connected disability rated at 100 percent and additional service-connected disabilities independently ratable at 60 percent or more. 3. The Veteran was not factually housebound as a result of service-connected disabilities at any point during the appeal. CONCLUSIONS OF LAW 1. The criteria for the award of 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, 3.351, 3.352. 2. The criteria for an effective date prior to October 25, 2019, for the award of SMC based on housebound criteria have not been met. 38 U.S.C. § 1114 (s), 5103, 5110; 38 C.F.R. §§ 3.400, 3.350(i). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1964 to March 1969. 1. Entitlement to special monthly compensation based on aid and attendance Special monthly compensation (SMC) is available when, as the result of service-connected disability, “a veteran suffers additional hardships above and beyond those contemplated by VA’s schedule for rating disabilities.” Breniser v. Shinseki, 25 Vet. App. 64, 68 (2011) (citing 38 U.S.C. § 1114 (k)-(s)). The rate of special monthly compensation “varies according to the nature of the veteran’s service-connected disabilities.” Id. The basic levels of special monthly compensation are set out in section 1114(k). A veteran shall be considered to be in need of regular aid and attendance if he has 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 has 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), 3.352(a). Pursuant to 38 C.F.R. § 3.352 (a), the following factors will be accorded consideration in determining whether the Veteran is in need of regular aid and attendance: (1) Inability of the claimant to dress or undress him or herself or to keep him or herself 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 assistance; (3) Inability of the claimant to feed him or herself through loss of coordination of upper extremities or through extreme weakness; (4) Inability to attend to the wants of nature; or (5) 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 or her daily environment. It is not required that all of the disabling conditions enumerated above (in 38 C.F.R. § 3.352 (a)) be found to exist before a favorable rating may be made. 38 C.F.R. § 3.352 (a) provides that “[i]t 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.” The Veteran submitted an Examination for Housebound Status or Permanent Need for Regular Aid and Attendance dated January 2018. The examiner indicated that the Veteran required assistance due to his severe essential tremor. Severe essential tremor is not one of the Veteran’s service-connected disabilities. No other disabilities were noted to contribute to the Veteran’s need for assistance, nor is there evidence of such in the Veteran’s medical records. The preponderance of the evidence weighs against a finding that the Veteran is in need of aid and attendance due to a service-connected disability. Therefore, the claim is denied. In reaching this determination, we note that service connection is in effect for diabetes mellitus with diabetic neuropathy. However, nothing in this file suggests a relationship between his tremor and any service-connected disease or injury. Rather, the evidence establishes the presence of an essential tremor. 2. Entitlement to special monthly compensation based on housebound criteria prior to October 25, 2019 SMC is provided 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 service-connected disability or disabilities. A veteran is permanently housebound when he or she 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. 38 C.F.R. § 3.350 (i). A TDIU rating predicated on one disability, although perhaps not ratable at the schedular 100 percent level, when considered together with another disability separately rated at 60 percent or more warrants SMC under 38 U.S.C. § 1114 (s). Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008). TDIU was granted effective May 19, 2015 based on his service-connected diabetes mellitus type II, bilateral upper extremity peripheral neuropathy, bilateral lower extremity peripheral neuropathy, coronary artery disease, left ear hearing loss, right testicle atrophy, and epididymitis. This does not satisfy the 100 percent rating requirement as contemplated in Bradley as the TDIU is based on multiple service-connected disabilities rather than a single disability. In an April 2020 rating decision, the Veteran’s coronary artery disease (CAD) was increased to 100 percent effective October 25, 2019. SMC was granted effective the same date based on the Veteran’s 100 percent rating for CAD and other service-connected disabilities independently ratable at 60 percent or more. Prior to October 25, 2019, the Veteran did not have a single disability rated at 100 percent. Accordingly, beginning October 25, 2019, and not before, the Veteran had a single service-connected disability rated as 100 percent disabling and separate and distinct service-connected disabilities rated as 60 percent disabling. In addition, the record does not show that the Veteran was permanently housebound at any point during the appeal period by reason of service-connected disability. As noted above, the January 2018 examination submitted by the Veteran in support of his claim for SMC based on housebound status indicated only severe essential tremor as causing his need for assistance. Severe essential tremor is not a service-connected disability. Further, the examination did not indicate, and medical records do not show, that the Veteran was housebound. The Board concludes that the preponderance of the evidence is against the Veteran’s claim for an effective date prior to October 25, 2019, for the award of SMC based on housebound criteria. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Creegan 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.