Citation Nr: 21021297 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 16-20 495 DATE: April 12, 2021 ORDER Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is granted. Entitlement to SMC based on being housebound is dismissed. FINDINGS OF FACT 1. Due to his service-connected disabilities, the Veteran needs regular aid and attendance of another person. 2. The grant of entitlement to SMC based on aid and attendance renders moot the housebound claim. CONCLUSIONS OF LAW 1. The criteria for entitlement to special monthly compensation based on the need for aid and attendance have been met. 38 U.S.C. § 1114(l); 38 C.F.R. §§ 3.350, 3.351, 3.352. 2. The claim for SMC based on being housebound is dismissed. 38 U.S.C. § 1114(s); 38 C.F.R. §§ 3.350, 3.351. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1982 to July 1985 and from July 1986 to March 1993. This matter again comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. 1. Entitlement to SMC based on the need for aid and attendance is granted. Special monthly compensation is payable to individuals who are permanently bedridden or are so helpless as a result of service-connected disabilities as to be in need of the regular aid and attendance of another person under the criteria set for in 38 C.F.R. § 3.352(a), 38 U.S.C. § 1114(l), and 38 C.F.R. § 3.350(b)(3). A veteran will be considered in need of regular aid and attendance if he or she: (1) is 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; or (2) is a patient in a nursing home because of a mental or physical incapacity; or (3) establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a), 38 C.F.R. § 3.351(c). The following factors will be accorded consideration in determining the need for regular aid and attendance: inability of a claimant to dress or undress himself/herself, or to keep himself/herself 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 (this will not include the adjustments of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of a claimant to feed himself/herself though loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants or nature; or 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/her daily environment. 38 C.F.R. § 3.352(a). The personal functions that the Veteran is unable to perform are considered in connection with the Veteran’s overall condition. 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 a Veteran is so helpless as to need 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 be in bed. They must be based on the actual requirement of personal assistance from others. Id. In Turco v. Brown, 9 Vet. App. 222, 224 (1996), the United States Court of Appeals for Veterans Claims (Court) held that eligibility for special monthly compensation by reason of regular need for aid and attendance requires that at least one of the factors set forth in the VA regulation is met. The Veteran has been awarded service connection for the following disabilities: posttraumatic stress disorder (PTSD) evaluated as 30 percent disabling effective December 22, 2010, 50 percent disabling effective March 3, 2016, and 70 percent disabling effective April 30, 2020; cervical spine intervertebral disc syndrome (IVDS) and degenerative arthritis of the cervical spine evaluated as 20 percent disabling effective December 22, 2010, and 60 percent disabling effective July 30, 2020; IVDS to include degenerative arthritis of the thoracolumbar spine evaluated as 10 percent disabling effective December 22, 2010, 40 percent disabling effective September 30, 2013, and 60 percent disabling effective July 30, 3030; bilateral pes planus to include degenerative arthritis evaluated as 10 percent disabling effective March 19, 1993, 30 percent disabling effective August 23, 2012, and 50 percent disabling effective July 30, 2020; posttraumatic residual discogenic radular pain of the right upper extremity evaluated as 10 percent disabling effective December 22, 2010 and 40 percent disabling effective July 30, 2020; migraines evaluated as 30 percent disabling effective December 22, 2010; left upper extremity radiculopathy evaluated as 30 percent disabling effective December 22, 2010; left lower extremity radiculopathy evaluated as 20 percent disabling effective December 22, 2010; bilateral tinnitus evaluated as 10 percent disabling effective December 22, 2010; left ankle tenosynovitis evaluated as 10 percent disabling effective December 22, 2010; right lower extremity radiculopathy evaluated as 10 percent disabling effective July 30, 2020; and bilateral hearing loss evaluated as 0 percent disabling effective December 22, 2010. The Veteran’s claims folder contains numerous examinations which reflect that his service-connected disabilities cause him to need the regular aid and attendance of another person. When the Veteran was examined for Social Security Administration benefits in December 2013, his wife reported that he needed help putting braces on his legs and ankles and washing his back. According to the Veteran’s wife, he could not stand long without losing his balance, stand or sit for long periods of time, kneel, bend, turn, lift, and reach. See December 2013 SSA Adult Third Party Function Report (received in January 2014 under the label “SSA/SSI Letter”). During the Veteran’s March 2014 examination, it was noted that although he was not confined to bed and he was able to feed himself, the Veteran needed assistance bathing and tending to hygiene. Additionally, the examiner found that he needed assistance donning and doffing clothing. A September 2014 letter from the Veteran’s primary care physician reflects that he needed assistance with his activities of daily living not only due to his non-service connected stroke, but also due to his service-connected chronic low back pain, left side radiculopathy, and PTSD. See September 2014 Letter from C.L. Jimmerson, M.D. (labeled as “Medical Treatment Record – Government Facility”). Later that year, when the Veteran was again examined in August 2014, the examiner found that his service-connected psychiatric condition caused him to be unable to manage his own financial affairs. Even though the examiner found that the Veteran’s nonservice-connected stroke caused him to need aid and attendance, the examiner did not provide an evaluation as to the Veteran’s other physical service-connected disabilities’ effects on his need for regular aid and attendance. Consequently, the Board finds this evaluation to be inadequate. During an October 2017 evaluation, the examiner again found that the Veteran’s stroke caused his overall functional limitations in daily activities. The examiner also noted that the Veteran exhibited left side weakness as a residual of his stroke; however, he did not consider the Veteran’s service-connected right upper extremity radiculopathy and its effects on his ability to perform activities of daily living. Furthermore, the examiner noted that the Veteran exhibited restrictions of the spine, trunk, and neck as some decreased in range of motion, but again did not opine as to the effects, if any, on the Veteran’s need for aid and attendance. Therefore, the Board finds that this examination is also inadequate. The Veteran was evaluated again in March 2020, at which time the examiner noted that the disabilities which restricted his activities included: IVDS of the cervical, thoracic, and lumbar spine; bilateral pes planus; migraines; left upper extremity and lower extremity radiculopathy; left ankle tenosynovitis; posttraumatic residual discogenic pain of the right upper extremity; and residuals of a stroke including to the left upper extremity and left lower extremity. The examiner found that the Veteran needed significant assistance for dressing/undressing and grooming and mild to moderate assistance for bathing, keeping himself ordinarily clean and presentable, and toileting. The examination report reflects that the Veteran’s financials were managed by his wife due to pain from his IVDS throughout the spine, bilateral pes planus, migraines, right upper extremity radicular pain, and tenosynovitis of the left ankle. Moreover, the Veteran was found to be unable to shave himself due to his service-connected diagnoses and lack of strength to keep his bilateral upper extremities elevated and steady near his face with a sharp object. He was also found to exhibit mild restrictions intermittently when attending to the needs of nature on the right side. In July 2020, the Veteran underwent a new examination to determine the severity of his various service-connected conditions. The examiner concluded that the Veteran’s nonservice-connected stroke with residual left sided weakness caused his need for aid and attendance in various areas. However, the Veteran was also noted to be unable to organize and write checks or pay bills due to pain from his service connected IVDS, bilateral upper extremity and lower extremity radiculopathy, and migraines. The examiner concluded that the Veteran also had a decreased ability to lift the right foot and that he was unable to bend over and exhibited decreased strength and range of motion in the spine. He was further observed to not be able to turn his neck side to side and decreased neck strength. Ultimately, the examiner found that in addition to the Veteran’s stroke, his IVDS of the entire spine led him to not be able to care for himself. Most recently, the Board received an October 2020 addendum opinion addressing conflicting evidence and determining which conditions contributed to the Veteran’s need for regular aid and attendance. The examiner found that the Veteran’s bilateral upper extremity and bilateral lower extremity radiculopathy, IVDS of the entire spine, and left ankle condition all prevent him from standing for any long amount due to pain and that his bilateral pes planus prevents him from standing. Also, the examiner concluded that the Veteran’s IVDS and radiculopathies prevented him from toileting, grooming, and cooking for himself. His migraines would not allow him out of bed when they occur and the chronic pain from his numerous service-connected conditions confined him to bed because the pain was unbearable. The examiner found that the Veteran’s service-connected conditions caused his need for regular aid and attendance even prior to his reported 2013 stroke. Specifically, the Veteran’s service-connected disabilities require him to have an aid to assist him with grooming, hygiene, changing clothes, and preparing and administering meals because his physical disabilities cause him to remain bed ridden more frequently. The examiner also noted that the Veteran could not ambulate on his own but that he could briefly stand with the assistance of an aid. Upon review of the evidence, the Board finds the Veteran has a factual need for regular aid and attendance due to his inability to prepare meals, need for assistance with bathing, grooming, and dressing, inability to manage financial affairs, and inability to attend to the wants of nature because of his service-connected disabilities. The medical evidence clearly indicates that the Veteran’s bilateral upper and lower extremity neuropathies in addition to his IVDS cause him to need aid and attendance in various areas. As such, the Board finds that due to his service-connected disabilities, the Veteran needs regular aid and attendance to dress/undress himself, keep himself ordinarily clean and presentable, and attend to the wants of nature. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7, 3.352(a). As the Veteran has met more than one factor set forth in VA regulations in determining the need of regular aid and attendance, the Board finds the criteria of an award of special monthly compensation have been met. See Prejean v. West, 13 Vet. App. 444, 448 (2000). Turco v. Brown, 9 Vet. App. 222 (1996). 2. Entitlement to SMC based on being housebound is dismissed. SMC may be granted to a Veteran based on 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 an attendance of another person or for being housebound, but not for both simultaneously. As special monthly compensation by reason of the need for aid and attendance of another person is a greater monthly benefit than special monthly compensation by reason of being housebound, the Board need not address housebound status as it is moot. 38 U.S.C. §§ 1114(l), (s). DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Seserman 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.