Citation Nr: 21015716 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 16-32 124 DATE: March 18, 2021 ORDER Entitlement special monthly compensation (SMC) based on housebound status or the need for regular aid and attendance is denied. FINDING OF FACT The Veteran does not have a single service-connected disability rated as total, his only service-connected disability is posttraumatic stress disorder (PTSD), and he is not permanently bedridden or in need of regular aid and attendance as a result of his service-connected PTSD. CONCLUSION OF LAW The criteria for establishing entitlement to SMC based on housebound status or the need for regular aid and attendance have not been met. 38 U.S.C. §§ 1114, 5107 (2012); 38 C.F.R. §§ 3.350, 3.352 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1965 to December 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2016, the Veteran requested a videoconference hearing before a Veterans Law Judge. In a March 2016 letter, the Veteran was notified of the date and time of the scheduled hearing. However, the record shows that he did not appear for the hearing or provide an explanation for his failure to appear. Accordingly, his hearing request is considered withdrawn. See 38 C.F.R. § 20.704(d). In January 2021, the claim was remanded for issuance of a supplemental statement of the case (SSOC). An SSOC was issued later that month, and the case has been returned to the Board for further appellate action. 1. Entitlement to SMC based on housebound status or the need for regular aid and attendance SMC is payable at the housebound rate if a veteran has a single service-connected disability rated as total, and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) by reason of service-connected disability or disabilities, is permanently housebound. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). An award of a total disability rating based on individual unemployability (TDIU) predicated solely on one disability qualifies as a single service-connected disability rated as total for purposes of establishing entitlement to SMC. See Bradley v. Peake, 22 Vet. App. 280, 293 (2008). SMC is payable at the aid and attendance rate to a veteran who, as a result of service-connected disability, as suffered the anatomical loss or loss of use of both feet or one hand and one foot, blindness in both eyes with visual acuity of 5/200 or less, or is permanently bedridden or with 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). The following criteria are used to determine whether a claimant is in need of the regular aid and attendance of another person: the inability of the claimant to dress himself or herself or to keep himself or herself 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; the inability of the claimant to feed himself or herself through the loss of coordination of the upper extremities or through extreme weakness; the inability to attend to the wants of nature; or, a physical or mental incapacity that requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352(a). It is not required that all of the conditions enumerated above be found to exist before a favorable rating may be made. The particular personal functions the veteran is unable to perform must 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 need of 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 remain in bed. They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352 (a); see also Turco v. Brown, 9 Vet. App. 222, 224-25 (1996). Upon review of the record, the Board finds that the criteria for establishing entitlement to SMC based on housebound status or the need for regular aid and attendance have not been met. Service connection is currently in effect for an acquired psychiatric disorder, including PTSD, which is rated as 70 percent disabling. In a January 2017 rating decision, the Veteran’s claim for TDIU was denied. As the Veteran does not have a single service-connected disability rated as total, nor is he in receipt of TDIU due to his service-connected psychiatric disorder, the criteria for entitlement to SMC at the housebound rate have not been met. See 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). With respect to SMC at the aid and attendance rate, VA treatment records show that the Veteran lives with his sister. The Veteran’s sister also appears to have made most of the Veteran’s medical appointments, drove him to appointments, and frequently communicated with the Veteran’s treatment providers. A January 2016 VA treatment record shows that the Veteran’s sister was concerned about the Veteran’s decline in cognition and requested to have a VA Form 21-2680 (Examination for Housebound Status or Permanent Need for Regular Aid and Attendance) completed for the Veteran. The Veteran’s treatment provider indicated that the Veteran appeared somewhat fidgety, but he was able to respond to questions appropriately, had good eye contact, exhibited no signs of anger or aggression, and was able to recall two out of three objects. When asked to draw a clock, the Veteran wrote the numbers in counterclockwise order. When asked to write his name, the Veteran was able to write it, but his handwriting was illegible. The Veteran was referred to a social worker to evaluate his general cognitive function and complete the VA Form 21-2680. In January 2016, VA received a VA Form 21-2680 (Examination for Housebound Status or Permanent Need for Regular Aid and Attendance). It is not clear who completed the form, as it does not contain a name or signature. The form indicates that the Veteran had problems with his left shoulder, right knee and leg, and back, and he needed assistance with preparing meals, managing his medications and financial affairs, and prompting to bathe or else he may neglect his personal hygiene. The form also indicates that the Veteran was primarily housebound and only left the house once or twice a week with his sister’s supervision. It was noted that the Veteran was able to feed himself and did not require nursing home care. A February 2016 VA social work note indicates that the Veteran was referred by his primary care provider to have his mental health status evaluated. The Veteran reported having mixed feelings about being 70 percent service connected for PTSD, noting that he did not notice any problems until a counselor he met with brought up feelings from his military career. He also reported recently traveling to California to apologize to his son and make amends for the way he treated him growing up. The Veteran scored a 27 out of 30, on a mini mental status examination, and the social worker noted that a score below 23 is indicative of cognitive decline. The Veteran appeared friendly, well-groomed, and in good spirits. His speech was clear; his thought process and cognitive performance were within normal limits; and he was able to recall current and past events. The social worker indicated that the Veteran did not appear to be in any danger of hurting himself or others. A March 2016 VA treatment record shows that the Veteran’s sister reported that she believed the Veteran was unable to care for himself and has put himself in dangerous situations. She also requested to accompany the Veteran during his appointments; however, VA staff members and a social worker indicated that it was not necessary. A few days later, the Veteran underwent an psychiatric evaluation, during which he reported increased irritability and problems sleeping. He reported enjoying walking, which helped calm him down. The psychiatrist indicated that the Veteran’s memory impairment could be associated with his PTSD, but noted that the Veteran’s subjective thoughts on memory seemed more exaggerated, as he had a relatively benign neuropsychiatric evaluation in September 2015, and his February 2016 mini mental status examination was within normal limits. The treatment provider prescribed sertraline for depression. Later that month, the Veteran’s sister called the social worker to report that the Veteran was “in crisis.” When asked what happened, the Veteran’s sister stated that when she asked the Veteran for half of their mother’s ashes, the Veteran, who had cared for their mother for ten years before her death, got angry and told her she was not worthy. The Veteran’s sister stated, “you should have seen the look his face!” The social worker advised the Veteran’s sister that the Veteran seemed angry with her, but it did not seem like he was in “crisis.” In a March 2016 written statement, the Veteran’s sister indicated that the Veteran has memory problems and that she handles his finances. She also stated that she has to remind the Veteran to take his medications, go to the dentist, change his clothes, and take care of his daily hygiene. She indicated that the Veteran is very explosive at times, and she is afraid to leave him alone because she fears he may be injured or lost. The Veteran’s sister stated that the Veteran has left the house when he got angry or upset, and she described a recent incident in which the Veteran took a train to San Diego without telling her. The Veteran’s sister further indicated that she has been unable to work because caring for the Veteran has taken up a considerable amount of time and she has even sought counseling due to the stress of caring for her brother. A March 2016 VA social work note indicates that the Veteran discussed his recent trip to California and recalled the incident prompting his sister to call his social worker and report that he was “in crisis.” The Veteran stated that he got angry with his sister because he cared for their mother through Alzheimer’s disease and numerous physical conditions without the help of any family members. He assured the social worker that, for the most part, things were okay at home, and he thanked the social worker. The social worker indicated that the Veteran seemed somewhat forgetful in that he forgot the name of his neighborhood and had to look at note he had written to remember his birthday. However, the treatment provider indicated that the Veteran’s cognition seemed mostly intact, and it was difficult to ascertain whether he was having memory lapses, or he felt that certain issues were unimportant and therefore chose not to remember them, or a combination. The Veteran underwent a VA mental health examination in August 2016, during which he endorsed symptoms of depressed mood; chronic sleep impairment; mild anxiety; memory loss such as forgetting names, directions or recent events; impaired judgment; disturbances of mood or motivation; and difficulty establishing and maintaining effective work and social relationships. The Veteran denied any current psychiatric medication or therapy. It was noted that the Veteran’s sister accompanied him during the examination; however, the Veteran answered all of the examiner’s questions, and his sister provided supplemental information. The Veteran’s sister stated that the Veteran was irritable and has left the house without telling her where he was going. Specifically, she reported that in July, the Veteran took a train to California to visit her son without telling her. She also stated that she had to remind the Veteran to bathe and change his clothes. The Veteran acknowledged symptoms of irritability and verbal aggression, noting that he spoke in ways that were loud and nasty to family and strangers. However, he denied any physical altercations, property destruction, or domestic violence.   The Veteran stated that he did not have any friends or hobbies but reported walking about 20 hours a week for relaxation. He reported being independent in all activities of daily living, except driving because he did not have a driver’s license. The Veteran reported obtaining rides from other people, taking the bus, or walking. He appeared alert and oriented; he was cooperative, calm, and attentive; and he exhibited no psychomotor agitation or retardation. It was noted that the Veteran underwent a neurocognitive evaluation in September 2015, which showed no clinically significant cognitive impairment. A mental status examination indicated the Veteran was alert and oriented; memory and concentration were moderately impaired; speech was normal; thought process was linear and coherent with tight associations; mood was euthymic; affect was full range and congruent; and insight and judgment were fair. There was no evidence of suicidal or homicidal ideation, hallucinations, delusions, or paranoia. The examiner indicated that the Veteran was capable of managing his financial affairs and characterized the Veteran’s level of functioning as occupational and social impairment with reduced reliability and productivity. Subsequent VA treatment records show that in October 2016, both the Veteran and his sister reported that the Veteran’s mood was stable, and he was not taking any psychiatric medications. In May 2017, the Veteran’s sister requested a behavioral health appointment for the Veteran because he reportedly lashed out at her on occasions. A January 2018 VA mental health treatment record shows that the Veteran reported that his sister made the appointment for him, and he was not sure why he was there. When asked why he thought his sister made the appointment, the Veteran stated, “I don’t know, maybe to calm me down.” The Veteran reported having high energy and being a loner. The treatment provider noted that the Veteran exhibited problems with short-term memory during the evaluation and presented possibly manic and cognitively disorganized. The assessment was PTSD, and the treatment provider also had concerns related to the possibility of dementia or Alzheimer’s manifesting. An April 2018 VA treatment record shows that the Veteran’s sister requested a referral for behavioral health for the Veteran because she was unable to deal with his mental health problems. She noted that the Veteran started hitting himself in the head and has been abusive toward her. A March 2019 VA treatment record shows that the Veteran reported problems with anxiety and some concerns about memory; however, he reported taking a recent trip to Nevada and California and having no problems with directions and dates. He also reported relationship problems with his sister and poor sleep. He reported going to bed around 6:00 p.m. when he feels tired, waking up at 9 p.m., and getting up to drink coffee and iron clothing. The treatment provider indicated that the Veteran appeared relaxed, had good eye contact, and engaged in appropriate conversation. An April 2020 functional and instrumental assessment indicates that the Veteran was able to independently bathe, dress, use the toilet, transfer, feed himself, plan and cook meals, do housework, pay bills, and take medications in the right doses at the right times. It was also noted that the Veteran was able to look up telephone numbers, dial, and make and receive telephone calls without assistance. He could also travel alone on a bus or taxi and take care of his shopping and buying needs if transportation was provided. In October 2020, the Veteran reported recently returning from a trip to California and Oklahoma to see his children. He reported feeling well, being very active, and walking several miles a day. He indicated that his sister checked his blood glucose levels for him twice a week, and he was taking his medications as prescribed. In summary, the Veteran’s service-connected psychiatric disorder has not resulted in the anatomical loss or loss of use of both feet or one hand and one foot, or blindness in both eyes with visual acuity of 5/200 or less. Moreover, the evidence of record does not show that the Veteran is unable to feed himself, dress himself, keep himself ordinarily clean and presentable, attend to the wants of nature, or protect himself from the hazards or dangers incident to his daily environment. The Board acknowledges the Veteran’s sister’s concern for the Veteran; however, the record shows that the Veteran is independent in activities of daily living, and he is able to walk several miles a day and take public transportation. Accordingly, the criteria for establishing entitlement to SMC at the aid and attendance rate have not been met. See 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350(b). In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. As the preponderance of the evidence is against the claim, the doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Banister, 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.