Citation Nr: 21024207 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 17-44 632 DATE: April 22, 2021 ORDER Special monthly compensation (SMC) based on the need for aid and attendance (A&A), or by reason of being housebound, is denied. FINDING OF FACT The Veteran's service-connected disabilities do render him housebound and 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, or by reason of being housebound, 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 November 1966 to October 1968, and from July 1970 to August 1988. In July 2020, the Veteran and his friend, J.S., testified at a virtual hearing before the undersigned Veterans Law Judge 1. Entitlement to SMC based on the need for regular A&A. The Veteran contends he needs regular A&A of another person due to his service-connected peripheral neuropathy of the right and left lower and upper extremities, associated with service-connected diabetes mellitus, type II, which he contends is so severe that he must use a cane constantly in order to ambulate, and that he has fallen in the past and is still at risk of falling. 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 A&A of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). SMC benefits by reason of being housebound are payable if the Veteran has a single disability rated as 100 percent disabling, and has either an additional service-connected disability or disabilities independently ratable at 60 percent or more, or is "permanently housebound" by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). To establish a need for regular A&A, a 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 A&A. Id. The following will be accorded consideration in determining the need for regular A&A: 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 A&A, not that there be a constant need. 38 C.F.R. § 3.352(a). The Veteran’s service-connected disabilities include prostate cancer, rated 40 percent disabling; peripheral neuropathy of the right and left lower extremities, each rated 40 percent disabling; peripheral neuropathy of the right upper extremity, rated 30 percent disabling; peripheral neuropathy of the right upper extremity, rated 20 percent disabling; diabetes mellitus, type II, rated 20 percent disabling; lichen simplex chronicus and tinnitus, each rated 10 percent disabling; and bilateral hearing loss, deviated nasal septum, benign neoplasm of the lung, erectile dysfunction, and surgical scar radical prostatectomy, each rated 0 percent disabling. His combined evaluation is 100 percent. Review of the record includes a June 2014 statement, in which the Veteran reported dizzy spells and that he fell twice in the bathroom, once in the bathtub, and down the steps. He reported he had to use a cane to walk. Submitted by the Veteran in June 2014 was a VA Form 21-2660 (Examination for Housebound Status or Permanent Need for Regular Aid and Attendance) which he completed himself. Therein, he reported he was able to feed himself and prepare his own meals, did not need assistance with bathing or tending to other hygiene needs, and did not require nursing home care or medication management. He reported he had a tendency to lose his balance, got dizzy a lot, had to go to the bathroom every two hours, and could not always control his bowels. He reported he could dress himself, but his grip was not very strong. He had to use a cane to walk because he had fallen 3 times already, and reported he had a chip in his spine that caused pain and prevented him from standing too long. He reported his wife had to go with him when he traveled out of town for his appointments, and that he walked for exercise every day, and that he went on a walk for exercise every day and his wife held the door for him so he did not fall going out of the house. On a VA Form 21-2660 completed in July 2014 by a private examiner, Dr. G., the Veteran’s diagnoses were listed as prostate cancer, significant hearing loss, tinnitus, peripheral neuropathy, degenerative joint disease, history of prostate cancer, history of thyroid cancer, right knee pain, fatigue, low back pain, obesity, and type II diabetes mellitus. Dr. G. indicated the Veteran was able to feed himself, prepare meals, and perform tasks with his upper extremities, but his lower extremities were limited. He did not need assistance with bathing or tending to other hygiene needs. It was noted that he had lumbar pain with palpation, flexion, and extension, right knee pain on range of motion, and an unsteady gait and pain with walking. His activities of daily living could be performed with his upper extremities. He had difficulty with weight bearing and pressure to the lower extremities due to back and knee pain. He required the assistance of a cane or a person to ambulate, and had poor balance due to lumbar and right knee pain. It was noted that he only left home for “physician/medical necessity” due to ambulation issues. On a VA examination in April 2016, the diagnoses included peripheral neuropathy of the bilateral upper and lower extremities. The Veteran reported he had increased sharp pains in his arms and increased hand pain, and his knees kept giving out and he kept falling. It was noted that he constantly used a cane. On a VA examination in January 2019 the diagnosis was listed as upper and lower extremity diabetic peripheral neuropathy, and the Veteran reported difficulty standing up from a seated position, standing for prolonged times, kneeling, squatting, and walking. In July 2020, the Veteran testified he needed a cane for walking because he lacked strength in his arms and legs and his legs gave out. He testified that when his leg gives out, he falls, and his wife has to get neighbors to help pick him up. He also reported he needed help from his wife when getting out of bathtub so that his leg did not slip and give out on him. He testified he often had no feeling and no deep tendon reflexes in his arms and legs, and did not have a very strong grip, which affected how he used the cane to ambulate. He testified he had fallen twice getting out of tub. He indicated he could dress and eat by himself. He testified he took his cane with him when he went out, and that he usually picked his friend, J.S., up and let him drive, but that depending on what he had to do, he could go out by himself for short distances. The Veteran’s friend, J.S., testified he had known the Veteran for 15 years, and had seen the Veteran fall and tried to catch him. J.S. also testified he was picked up the Veteran to assist him, usually 1 to 2 times a week. In an August 2020 memorandum, the Veteran’s representative reiterated the Veteran’s testimony, and summarized some of the medical evidence, including the April 2016 VA examination in which the Veteran reported he fell a couple times per week and used a cane constantly to ambulate, and the January 2019 VA examination in which it was noted he had trouble with falling, less than normal strength in his ankle plantar flexion, decreased tendon reflexes in his knees and ankles, decreased light touch sensation in his right ankle, difficulty standing up from a seated position, and issues standing for a prolonged period of time. After careful review of the record, the Board finds that the evidence of record does not indicate that the Veteran is blind or a patient in a nursing home. In assessing whether a factual need for A&A has been shown, the Board notes that the preponderance of the competent evidence does not show that, due solely to service-connected disabilities, the Veteran is unable to dress himself, keep himself ordinarily clean and presentable, feed himself, or attend to the wants of nature, or that he has frequent need of adjustment of any special appliance. The Veteran’s service-connected conditions, to specifically included peripheral neuropathy of the upper and lower extremities, clearly cause some limitations, including impairing his mobility such that he needs to constantly use a cane, needs his wife to assist him in getting out of the tub, is at risk of falling, and needs his wife and friend to assist him in getting around when going out for certain activities. Review of the record, specifically the July 2014 findings from Dr. G., as well as subsequent VA examinations and the Veteran’s statements and testimony, however, shows that 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 or dangers of daily living without assistance from others. Moreover, the evidence, in general, 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 diabetic peripheral neuropathy of bilateral upper and lower extremities, noting that he needs a cane for ambulation and requires assistance from a person for some outings and is in danger of falling. While 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, his statements are general assertions as to the severity of his disability, and do not show that the functional impact of these disabilities requires the A&A of another person. Additionally, significant for the July 2014 private doctor’s report is that it lists both service-connected and non-service-connected disabilities as impacting the level of assistance needed by the Veteran, including his obesity and degenerative joint disease, and right knee pain. The Board also finds that SMC by reason of being housebound is not warranted as the Veteran does not meet the schedular criteria for this benefit, and as he is not shown to be permanently housebound due to service-connected disabilities. After review of the evidence, the Board concludes that his service-connected disabilities do not render him so helpless as to be in need of regular A&A of another person, and the preponderance of the evidence is against the claim for entitlement to SMC based on A&A or by reason of being housebound. 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.