Citation Nr: 21012477 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 15-06 405A DATE: March 4, 2021 ORDER Special monthly compensation (SMC) based on the need for regular aid and attendance (A&A) is denied. FINDING OF FACT The Veteran's service-connected disabilities have not rendered him unable to independently perform daily functions of self-care or to protect himself from the hazards and dangers incident to his daily environment. CONCLUSION OF LAW The criteria for an award of SMC based on the need for regular A&A have not been met. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1988 to April 1992. In January 2018, the Veteran and his spouse, P.G., testified at a videoconference hearing before the undersigned Veterans Law Judge. In June 2018, the Board remanded this matter for further development. 1. Entitlement to SMC based on the need for regular aid and attendance The Veteran contends he needs regular aid and attendance of another person due to his service-connected chronic venous stasis, vascular disease, right and left lower extremities, and the related ulcerations. SMC is payable at the (l) rate if a Veteran, as the result of service-connected disability, 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. § 3.350(b). To establish a need for regular aid and attendance, the veteran must, as a result of service-connected disability, (1) be 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; (2) be a patient in a nursing home because of mental or physical incapacity; or (3) show a factual need for aid and attendance. Id. 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 appliance 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 able to adjust without aid, such as supports, belts, lacing at the back, and 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, requiring care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. 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 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 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 to be in bed. They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352(a). The Veteran’s service-connected disabilities include posttraumatic stress disorder (PTSD), rated 70 percent disabling; chronic venous stasis vascular disease, right lower extremity, rated 60 percent disabling; chronic venous stasis vascular disease, left lower extremity, rated 60 percent disabling; ankle sores due to undiagnosed illness, rated 0 percent; tinnitus, rated 10 percent; and bilateral hearing loss, rated 0 percent disabling. His combined evaluation is 100 percent. As he does not have a single service-connected disability evaluated as 100 percent disabling, entitlement to SMC at the housebound rate is not warranted. 38 U.S.C. § 1114. In November 2012, a private doctor, Dr. W., completed a Statement of Attending Physician that was prepared by the Veteran’s representative and checked a box indicating that the Veteran needed the A&A of someone else in ordinary activities of daily living, but that he was not housebound. Dr. W. further indicated the Veteran was not bedridden, could walk and get around unassisted, and could attend to the needs of nature unassisted, but could not undress or dress himself, could not wash and keep himself ordinarily clean and presentable, and was not able to physically protect himself from the everyday hazards of life. Dr. W.’s statement listed the Veteran’s diagnoses as severe chronic venous insufficiency with ulcers, severe morbid obesity, and diabetes mellitus, II, assessed as good. It was also noted that the Veteran had chronic ulceration in the lower extremities. VA treatment records show that in April 2013, the Veteran had a plan to walk with his dog on a daily basis. In June 2013, during a screening assessment, he reported using a wheelchair or cane when walking long distances. In September 2013, he reported using a wheelchair, cane, and walker, although none of them had been brought with him to medical center. He was also seen for a leg ulcer in the left leg. He reported severe pain in the area, but noted he was able to walk. In March 2014, the Veteran reported using a pedal exercise and light weights in an effort to lose weight. He explained he was going on a cruise in February 2015 and was using this as motivator as he wanted to be able to walk around and enjoy himself. In April 2014, the Veteran reported severe pain in his knees and legs that rendered him unable to stand or walk at times. In October 2014, the Veteran presented for a physical medicine and rehabilitation power mobility evaluation. It was determined that there was no documentation to support the Veteran’s inability to use a manual wheelchair or other assistive device to mobilize the 50 feet distances outlined in VA’s powered mobility guidelines. However, it was acknowledged that he had significant medical issues, including severe bilateral degenerative joint disease of the knees, cardiomegaly, significant chronic lower extremity venous ulceration, and diabetes, all of which were combined with significant obesity. Therefore, the provider suggested powered mobility along with incorporation of healthy lifestyle choices. The provider further noted that walking exercises would be difficult for the Veteran due to his left extremity degenerative joint disease and pool exercise would be contra-indicated with his venous stasis ulceration. In November 2014, the Veteran reported he could not walk everywhere he needed to go. He was noted to have cardiomegaly, diabetes mellitus, and chronic venous hypertension with ulcers. On examination it was reported he could ambulate several steps; he was assessed as having decreased functional mobility due to multi medical issues and excessive weight gain. In May 2015, during a medication management visit, the Veteran complained of knee problems and noted that he had been using his motor scooter as he found it helpful. He was, however, encouraged to use it less especially at home. In December 2015, during a risk assessment, the Veteran was noted to walk occasionally. That same month he was assessed by occupational therapy for modifications to his home. He was noted to be obese with limited mobility and had a provisional diagnosis of diabetes mellitus with other skin ulcer. In August 2016, the Veteran complained that his power chair was creaking and grinding when he tried to use it. He reported he was active and went all over the country to churches. He also went to school and stated he could not do anything without the chair. On examination it was noted the Veteran had gained 38 pounds since he was issued a power chair in November 2014. It was also indicated that the Veteran could not walk with or without assistive devices and was limited from walking or self-propelling a manual wheelchair from progressive, severe neurologic or myopathic disease. In January 2018, the Veteran testified at a hearing before the Board that he was not able to properly care for himself, and needed A&A with cleaning and changing the dressings for his leg ulcers. He testified his wife cooked his meals because he was not able to get up to the stove and it was painful to stand. In some cases, he was able to put on his own clothing, but he needed assistance putting on his socks and shoes. He testified he had to stay in his wheelchair and was not able to stand. He was not able to take a shower, did not have shower rails, and had to be bathed by his wife using the sink. He reported he previously had a VA home health nurse for his leg ulcers, but she was not doing it correctly and his ulcers were getting worse, so his wife started changing the dressings. VA treatment records show that in January 2018 and in February 2019, the Veteran was seen for primary care follow-up regarding his chronic medical conditions. He reported unacceptable levels of right knee pain in February 2019. Following examinations in 2018 and 2019, an assessment and plan was detailed for the Veteran’s other medical conditions, but none were made for the chronic venous stasis vascular disease. On a VA DBQ (disability benefits questionnaire) examination in July 2019, the Veteran’s diagnoses included chronic venous stasis vascular disease, left lower extremity, and chronic venous stasis ulcer, right lower extremity. The Veteran reported he could not leave his residence without being assisted and that it impacted his life tremendously. Examination revealed a right leg ulcer, covered with a dressing, that was approximately 5 centimeters in diameter, and no active ulcers on the left leg, but he had healed scars. It was noted that his skin condition impacted his ability to work in that he had to avoid standing for long periods of time and needed to follow up in the wound clinic. On a VA DBQ examination in August 2019, the Veteran’s diagnoses, pertinent to the level of assistance described in the report, included morbid obesity, status post gastric bypass surgery, chronic stasis bilateral lower extremities with ulcer right lower leg (but no active ulcer on left lower extremity), and bilateral knee pain. It was noted that the Veteran needed help with wound dressing changes for the right leg ulcer, that he did at home, per the wound clinic recommendation, every other day, and had follow up with the wound clinic once a month. The examination report noted the Veteran was able to feed himself and prepare his own meals, did not need assistance in bathing or tending to other hygiene needs, was not legally blind, did not require nursing home care, and was able to manage his own financial affairs. He used a wheelchair, and had no restrictions from the upper extremities, but in the lower extremities he had knee pain. He was able to leave his home anytime, but needed help putting his wheelchair in the back of the van or truck. After careful review of the evidentiary record, the Board finds that the evidence does not indicate that the Veteran is unable to keep himself ordinarily clean and presentable, feed himself, or attend to the wants of nature, due solely to service-connected disabilities. The Veteran’s service-connected conditions clearly cause some limitations, including limiting his ability to stand, needing his wife to assist him in changing the dressing when his leg ulcers occur, and needing help with putting his wheelchair in his vehicle; however, his service-connected conditions do not render him bedridden, or unable to care for his daily personal needs, or to protect himself from the hazards of daily living without assistance from others. While the findings regarding the Veteran’s need for aid and assistance in the private doctor’s May 2012 report differ from the findings in the more recent VA examiner’s 2019 report, it is noted that the 2019 findings are based on a more complete description of the Veteran’s service-connected disabilities and the functional impairment that they present, and are also supported by the Veteran’s treatment records. The May 2012 private doctor’s report, on the other hand, makes conclusory findings and does not detail the actual functional impairment presented by the Veteran’s service-connected bilateral chronic venous stasis vascular disease other than to note he has ulcers, assess the disability as severe, and indicate that the Veteran is need of A&A. Although the private doctor also indicated the Veteran could not undress or dress himself unassisted, could not wash and keep himself ordinarily clean and presentable, and could not physically protect himself from the everyday hazards of life, he did not explain either how the Veteran’s bilateral chronic venous stasis vascular disease contributed specifically to those inabilities. Notably, in the years following that report, the Veteran’s VA treatment records show he had plans to start walking his dog daily, was able to walk long distances with the assistance of a wheelchair or cane, and engaged in physical exercises with the intent to travel on a cruise in February 2015. It was not until April 2014 that the Veteran reported severe pain in his knees and legs, which rendered him unable to stand or walk at times, and October/November 2014 when he was issued a power motor scooter for his multiple chronic medical conditions. Additionally, significant for both the May 2012 private doctor’s report and the VA examiner’s 2019 report is that they list both service-connected and non-service connected disabilities as impacting the level of assistance needed by the Veteran, including his morbid obesity, status post gastric bypass surgery, chronic stasis bilateral lower extremities with ulcer right lower leg, and bilateral knee pain. Therefore, it is not shown that the Veteran qualifies for SMC based on the need for regular A&A of another person based on his service-connected disabilities alone. The evidence, in general, also does not show that the Veteran requires the regular A&A of another person. The Board acknowledges that the Veteran has stated he requires the A&A of another due to his service-connected bilateral lower extremities. As noted above, in 2018 he testified that he was not able to stand due to pain and needed help with cleaning and changing the dressings for his leg ulcers, preparing meals, getting dressed, and bathing. His testimony in 2018, however, was somewhat inconsistent with the 2019 VA examination report findings, which acknowledged his knee pain (a nonservice-connected disability) and need for a wheelchair as well as needing help with wound dressing for his leg ulcers, but found that he could feed himself and prepare his own meals, and did not need assistance in bathing and tending to other hygiene needs. The Board acknowledges the Veteran is competent to describe his experiences and difficulties caused by his service-connected disabilities upon his ability to perform the functions listed in 38 C.F.R. § 3.352. However, his statements are general assertions as to the severity of his disability, as opposed to the medical opinions which specifically considered whether the functional impact of these disabilities required the aid and attendance of another person. In that regard, the 2019 VA examiner’s findings and opinions are based on an examination of the Veteran in accordance with DBQs addressing the severity of his service-connected chronic stasis of the lower extremities as well as the need for A&A. Moreover, they are supported by the Veteran’s VA treatment records which show that in January 2018 and February 2019, he was seen for follow-up visits with his VA primary care provider, but no symptoms, complaints, or assessments were made with respect to the service-connected bilateral lower extremities, although his other chronic medical conditions were discussed. Accordingly, the Board assigns greater probative weight to the VA examiner’s medical findings and opinions as opposed to the lay statements of the Veteran. As for more contemporaneous treatment records potentially shedding additional light on the Veteran’s need for A&A due to his lower extremities, the Board notes that there are no records subsequent to February 2019 in the claims file. The Veteran did not respond to a March 2019 letter requesting that he complete a VA Form 21-4142 (Authorization to Disclose Information to VA) and VA Form 21-4142a (General Release for Medical Provider Information to VA), so that VA could obtain treatment records from his wound care specialist doctor. The Board notes that in the February 2021 Post-Remand Brief, the Veteran’s representative asserted that the Veteran’s service-connected leg issues impaired his ability to stand, and indicated that a medical opinion had not been obtained addressing whether the Veteran has loss of use of the lower extremities attributable to the service-connected disabilities. In that regard, loss of use of the foot is held to exist when no effective function (including balance, propulsion, etc.) remains other than that which would be equally well served by an amputation stump at the site of election below the knee with the use of a prosthesis.  38 C.F.R. §§ 3.350(a)(2), 4.63. If loss of use of the foot is found to exist, a veteran is entitled to SMC in addition to the basic rate of compensation otherwise payable on the basis of degree of disability.  38 C.F.R. § 3.350(a); 38 C.F.R. § 4.71a, Diagnostic Code 5167. The relevant inquiry concerning loss of use is not whether amputation is warranted, but whether the claimant has had effective function remaining other than that which would be equally well served by an amputation with use of a suitable prosthetic appliance. 38 C.F.R. §§ 3.350(a)(2), 4.63. The Board is required to consider the impact of pain in making its decision and to articulate how pain on use was factored into its decision.  38 C.F.R. § 4.40. For purposes of SMC, loss of use must be caused by service-connected disabilities. The Veteran’s service-connected disabilities include, in pertinent part, chronic venous stasis vascular disease, right lower extremity and chronic venous stasis vascular disease, left lower extremity. Having considered the VA examination reports, including in 2012 that the Veteran had a slow and steady gait and could walk and get around unassisted, and in 2019 that the Veteran needed to avoid long standing and that his lower extremities restrictions were described as bilateral knee pain, the Board concludes that the degree of severity of his service-connected right and left leg disabilities do not limit function of his feet such that amputations would serve him equally well. Importantly, the Veteran is also noted to have degenerative joint disease of the knees which is not a service-connected disability. Moreover, the VA examiner in 2012 indicated that the loss of function of the left lower extremity was not equal to amputation. The Board has considered that the Veteran’s daily function, including ability to work, are significantly limited by physical disability. In particular, he has limitations with standing and walking and uses a wheelchair. However, there simply is no determination of record that no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the knee with the use of a prosthesis. See 38 C.F.R. §§ 3.350(a)(2), 4.63.  The Board also notes that in the February 2021 Post-Remand Brief, the Veteran’s representative argued that a medical opinion should be obtained to determine whether the Veteran’s obesity was part of an already service-connected disability. The representative contended that since obesity was not a disability for VA purpose, it fell into a lesser category of a manifestation, consistent with other documented manifestations of the Veteran’s PTSD, and that it was more likely than not that his obesity was attributable to service-connected PTSD and associated sleep impairment. In support of this contention, the representative cited to various medical sources, asserting that currently accepted medical principles indicated a causal, or aggravation, link between mental disorders, sleep impairment, and a multitude of medical maladies to include obesity. It appears that the representative is trying to establish that to the extent the Veteran needs A&A because of obesity, that obesity can be considered in this matter because it is related to a service-connected disability. In that regard, however, the Board notes that on the most recent VA examination in 2019, the examiner cited both service-connected and non-service-connected diagnoses (including obesity) as related to the level of assistance needed by the Veteran, but even considering his obesity, the findings made on the DBQ report did not show that he needed the A&A of another; thus, further inquiry or opinion regarding this contention is not warranted. (Continued on the next page)   As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Casula 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.