Citation Nr: 21016112 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 16-12 590 DATE: March 19, 2021 ORDER Entitlement to special monthly compensation (SMC) based upon the need for aid and attendance or housebound status is denied. FINDING OF FACT Prior to his death, the Veteran did not have a single permanent disability rated at 100 percent, and his service-connected disabilities did not require regular aid and attendance. CONCLUSION OF LAW The criteria for special monthly compensation for aid and attendance and housebound status have not been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.350, 3.352(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the U.S. Army from August 1965 to May 1967, including service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran passed away during the pendency of his appeal. In December 2014, the Veteran’s surviving spouse filed an Application for Dependency and Indemnity Compensation, Death Pension, and Accrued Benefits (DIC), and she was subsequently substituted as the Appellant for the Veteran’s claim. The hearing request initially made by the Appellant in her March 2016 Form 9 was later withdrawn in a March 2019 letter to the VA. See 38 C.F.R. § 20.704(e). The issue was previously before the Board in June 2019 when it was remanded for further development. 1. Entitlement to SMC based upon the need for aid and attendance or housebound status The Appellant contends that the Veteran was entitled to SMC based on the need for aid and attendance or housebound status. Prior to his death, the Veteran submitted a lay statement contending that he relied on the Appellant to assist him in his “everyday living.” The Veteran further reported that he was no longer able to drive a car. See September 2013 Notice of Disagreement. In March 2016, the Appellant submitted a statement confirming that, prior to his death, the Veteran was unable to attend to his activities of daily living, and that he relied upon the Appellant to help him dress and to perform his “every day activities.” SMC may be granted to a Veteran on the basis of the need for regular aid and attendance from another person or of being housebound. In other words, a Veteran may receive SMC for either needing the regular aid and attendance of another person or for being housebound but not for both simultaneously. SMC by reason of the need for regular aid and attendance of another person is a greater monthly benefit than SMC by reason of being housebound. 38 U.S.C. §§ 1114(l), (s). SMC by reason of the need for regular aid and attendance of another person is payable if a Veteran, as the result of service-connected disability, either: (1) has suffered the anatomical loss or loss of use of both feet, (2) has suffered the anatomical loss or loss of use of one hand and one foot, (3) is blind in both eyes, (4) is permanently bedridden, or (5) is with such significant disabilities/so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). Determinations should be based on a Veteran being permanently bedridden rather than needing regular aid and attendance to avoid reduction during hospitalization where aid and attendance is provided in kind. 38 C.F.R. § 3.350(b)(4). Bedridden means that the Veteran is actually required to remain in bed. 38 C.F.R. § 3.352(a). 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. In determining the need for regular aid and attendance of another person, several factors are for consideration. Id. These include: (1) the inability of the Veteran to dress or undress himself or to keep himself ordinarily clean and presentable, (2) the frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the Veteran’s 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.), (3) the inability of the Veteran to feed himself through loss of coordination of his upper extremities or through extreme weakness, (4) the inability of the Veteran to attend to the wants of nature, (5) incapacity, physical or mental, which requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment, and (6) the Veteran being bedridden. Id. Granting SMC by reason of the need for regular aid and attendance of another person requires that at least one of the above disabling factors be met. Turco v. Brown, 9 Vet. App. 222 (1996). Regarding being bedridden, however, a favorable determination will not be based solely upon an opinion that the Veteran’s condition is such as would require him to be in bed. 38 C.F.R. § 3.352(a). Such a determination instead must be based on the actual requirement of personal assistance from others. Id. The United States Court of Appeals for Veterans Claims (Court) has held that VA has a “well-established” duty to maximize a claimant’s benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). This duty to maximize benefits requires VA to assess all of a claimant’s disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C. § 1114. See Bradley, 22 Vet. App. at 294 (2008) (finding that SMC “benefits are to be accorded when a Veteran becomes eligible without need for a separate claim”). SMC at the housebound rate is payable where the 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. 38 U.S.C. § 1114(s). This requirement is met when the Veteran 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 total disability rating based on individual unemployability (TDIU) can satisfy the need for a rating of 100 percent for SMC at the housebound rate if it can be sustained by a single disability. Buie, 24 Vet. App. at 250-51 (2011). However, an award of a TDIU based on multiple service-connected disabilities considered “one disability” under 38 C.F.R. § 4.16(a) is not sufficient to serve as “a service-connected disability rated as total” for the purposes of establishing eligibility for SMC at the housebound rate. Youngblood v. Wilkie, 31 Vet. App. 412 (2019). The Veteran was provided with a VA examination for housebound status or permanent need for regular aid and attendance in August 2012. The Veteran was noted to be able to feed himself, prepare his own meals, did not need assistance in bathing or tending to other hygiene needs. The examiner noted that the Veteran was not legally blind, did not require nursing home care, required insulin management, and was able to manage his financial affairs. The Veteran was noted to have intermittent lapses of memory, use a cane for balance and ambulation and was able to leave his home at will. VA examinations conducted in February 2014 revealed that the Veteran’s type II diabetes and associated complications would prevent him from working long hours because of the need for frequent breaks or rest periods during an eight-hour day. A central nervous system examination reported that the Veteran could not stand or walk for extended periods; he could not work in stressful environments. A posttraumatic stress disorder (PTSD) examination indicated that this disability resulted in a depressed mood, anxiety, suspiciousness, and chronic sleep impairment. It was reported that he needs outpatient psychotherapy and medication management for his PTSD but does not pose a threat to himself or others. Following the VA examinations, the RO requested an addendum opinion based on the elevated creatinine level reported in the diabetes mellitus examination report. Specifically, the RO asked whether the Veteran had diabetic nephropathy. In response, the examiner indicated that the Veteran had stage II chronic kidney disease as a result of his service-connected diabetes. A private treatment record from February 2014 reports that the Veteran would exercise occasionally by walking. A March 2020 VA medical opinion noted that “it is less likely than not that the Veteran’s service connected disabilities resulted in any functional impairment, whether mental or physical, requiring the aid and attendance of another person to assist with any of the following on a regular basis to include dressing and undressing himself, keeping himself ordinarily clean and presentable, feeding himself, attending to the wants of nature, the frequent need of adjustment of any special prosthetic or orthopedic appliances, protecting himself from hazards or dangers incident to his daily environment due to a physical or mental incapacity.” The examiner provided the rationale that a visit with rad/onc in September 2014 “noted ECOG Performance Status: 2.” The examiner noted that this meant “ambulatory and capable of all selfcare but unable to carry out any work activities.” She added that he was noted to be “up and about more than 50% of waking hours.” The examiner that provided the March 2020 VA medical opinion noted that “recent physical finding prior to his death were not consistent with him not being able to” dress and undress himself, keep himself clean and presentable, feed himself, attend to the wants of nature because there was no record of him being incontinent, adjust any special prosthetic or orthopedic appliance, or protect himself from hazards or dangers incident to his daily environment. Regarding the Veteran’s and Appellant’s lay statements in the record noting that the Veteran required the assistance of his wife to perform activities of daily living, the examiner noted that the Veteran was examined about a week prior to his passing and these contentions were “inconsistent with physical exam findings that note muscle strength equal 4/5 bilat, rom reduced due to pain, rt knee pain (not service connected condition).” The examiner added that there was “documentation of ‘no atrophy,’ which would be expected if muscle were not being used.” The examiner noted that the Veteran was “noted to be awake, alert, and oriented x 3 (person, place, date) with appropriate mood and affect.” She added that “no swelling is documented in extremities,” noting that “this can also be seen in someone who is sedentary as dependent edema can develop.” The Board finds that the Appellant is not entitled to SMC based on the need for regular aid and attendance. Based on the medical evidence of record noted above, the Veteran was able to perform all self-care functions, was able to leave his home unrestricted, and was found capable of managing his financial affairs. The Board acknowledges the August 2012 VA examination showing that the Veteran required insulin management, and the lay statements of record from the Veteran and the Appellant stating that the Veteran was reliant on her for assistance with his daily activities, to include driving. However, the March 2020 VA examiner found that the Veteran was not in need of regular aid and attendance because the medical evidence prior to his death contained recent physical findings that the Veteran was in fact independent on daily activities and there were no signs that he was sedentary or not using his muscles. As the medical evidence of record does not indicate that the Veteran needed the aid and attendance of another, the claim for SMC based on the need for the regular aid and attendance by another person must be denied. 38 U.S.C. § 1114(l); 38 C.F.R. §§ 3.350, 3.352(a). As to the Appellant’s housebound claim, prior to the Veteran’s death, he was awarded service connection for posttraumatic stress disorder (PTSD) at 70 percent disabling; diabetic nephropathy associated with diabetes mellitus at 60 percent disabling; diabetes mellitus, type II with erectile dysfunction and tinea versicolor at 20 percent disabling; right upper extremity dysfunction due to thrombosis, TIA or cerebral infarction associated with diabetes mellitus, type II at 20 percent disabling; and right lower extremity dysfunction due to thrombosis, TIA or cerebral infarction associated with diabetes mellitus, type II at 10 percent disabling. The Veteran was also awarded a TDIU from September 27, 2013, as a result of his service-connected PTSD; diabetic nephropathy; diabetes mellitus with erectile dysfunction and tinea versicolor; right upper extremity dysfunction; and right lower extremity dysfunction. Based on the evidence in this case, the Board finds that the Veteran did not have a “single” service-connected disability rated as 100 percent disabling. The RO awarded a TDIU, effective September 27, 2013, and the Board recognizes that, in certain instances, a TDIU can satisfy the requirement for a single service-connected disability if the grant of the TDIU was premised on a single service-connected disability. In such instances, if a Veteran also has additional service-connected disability or disabilities independently ratable at 60 percent or more or is permanently housebound by reason of his service-connected disabilities, the criteria for SMC at the housebound rate would be met. See Guerra v. Shinseki, 642 F.3d 1046 (Fed. Cir. 2011); Bradley v. Peake, 22 Vet. App. 280, 290-93 (2008); 38 C.F.R. § 3.350(i)(2). In the instant appeal however, this is not the situation. The TDIU award was based on the impact that all of the Veteran’s service-connected disabilities had on his inability to work. Therefore, as the TDIU is not premised on a single service-connected disability, it does not meet the requirement for a single service-connected disability rated 100 percent disabling for purposes of SMC at the housebound rate. Moreover, the question of whether the Veteran was functionally “housebound” is a component of SMC at the “s” rate and does not arise because the Veteran does not have a qualifying single 100 percent service-connected disability. As a matter of law, the criteria to establish SMC on account of being housebound are not met. 38 U.S.C. §§ 1114(s); 5107(b); 38 C.F.R. § 3.350. Accordingly, entitlement to SMC for aid and attendance and housebound status is denied. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morrad, 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.