Citation Nr: 21024740 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 16-26 785 DATE: April 26, 2021 ORDER Entitlement to special monthly compensation (SMC) based on a need for regular aid and attendance or by reason of being housebound is denied. Entitlement to SMC based on loss of use is denied. FINDINGS OF FACT 1. Service-connected disabilities, each rated less than 100 percent disabling, do not render the Veteran in need of regular aid and attendance or permanently and substantially confine her to her immediate premises. 2. The Veteran does not have loss of use of a service-connected foot, hand, creative organ or buttocks. CONCLUSIONS OF LAW 1. The criteria for entitlement to SMC based on a need for regular aid and attendance or by reason of being housebound have not been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352. 2. The criteria for entitlement to SMC based on loss of use have not been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1985 to November 1985. Her claims come before the Board of Veterans' Appeals (Board) on appeal of August 2010 and May 2013 Department of Veterans Affairs (VA) rating decisions. The Veteran initially requested to testify at a hearing before the Board in support of these claims, but in April 2018, she withdrew this request. In June 2019, the Board remanded these claims to the Agency of Original Jurisdiction (AOJ). At the time, the appeal included a claim of entitlement to service connection for a left elbow disability. However, in a February 2020 written statement, the Veteran withdrew this claim from appellate review. SMC The Veteran seeks entitlement to SMC based on a need for aid and attendance and/or the loss of use of a creative organ and left foot. The AOJ considered the Veteran’s claim for SMC based on these and other theories. SMC is payable when a veteran is in need of regular aid and attendance due to service-connected disability, has a service-connected disability rated 100 percent disabling and either additional service-connected disability independently rated 60 percent or more disabling or housebound status, and/or has the loss of use of a hand, foot, creative organ or both buttocks secondary to service-connected disability. 38 U.S.C. § 1114 (k), (l), (r), (s); 38 C.F.R. § 3.350(a), (b). The preponderance of the evidence is against each of these claims. Entitlement to SMC based on a need for regular aid and attendance or by reason of being housebound The Veteran is service connected for a psychiatric disability, rated 70 percent disabling, and hallux valgus of the left foot with degenerative changes, rated 10 percent disabling. She has not explained why these disabilities render her in need of regular aid and attendance and has not alleged that she is housebound. In determining whether a veteran is helpless or nearly so helpless as to require the regular aid and attendance of another person, the following circumstances will be considered: inability of a veteran to dress or undress herself or to keep 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 adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of a veteran to feed herself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the veteran from hazards or dangers incident to her daily environment. 38 C.F.R. § 3.352(a). VA must consider the enumerated factors and ensure at least one of the factors is present. Turco v. Brown, 9 Vet. App. 222 (1996). To prevail in the claim, the evidence must show that a service-connected disability triggered the need for regular aid and attendance. Prejean v. West, 13 Vet. App. 444 (2000). To establish entitlement to SMC based on housebound status under 38 U.S.C. § 1114(s), the evidence must show the following: (1) the Veteran has a single service-connected disability rated 100 percent disabling, and additional service-connected disability rated 60 percent or more disabling, separate and distinct from and involving different anatomical segments or bodily systems than the 100 percent disabling disability; or (2) she has a single service-connected disability rated 100 percent disabling and is permanently and substantially confined to her immediate premises due to service-connected disability. 38 C.F.R. § 3.350(i). According to treatment records and VA examination reports, although the Veteran uses a cane to ambulate and has difficulty or needs assistance with walking, she has not been helpless, as described in the above factors, at any point during the course of this appeal. She has attended many medical visits, VA examinations and a hearing, has driven herself at least once to the emergency department, and prior to April 2018, when her spouse passed away, she was serving as his caregiver. In a medical history reported in November 2012, she indicated that although she needs assistance with walking, she exercises regularly. This is so despite the fact that she has other nonservice-connected disabilities, including affecting her right foot and spine, that interfere with her ability to function. She has never alleged, whether due to service-connected or nonservice-connected disabilities, that she can’t accomplish the tasks noted above. In addition, even if her walking difficulties and need to use an ambulatory aid could be viewed as rendering her helpless and in need of regular aid and attendance, these difficulties and needs are based, in part, on nonservice-connected residuals of a stroke. A claim for service connection for such residuals has already been denied and is not now pending. In January 2011, when the Veteran underwent a VA examination for the purpose of determining whether she needed regular aid and attendance or qualified for housebound status, the examiner found her not confined to bed, able to feed herself and prepare her own meals, not in need of assistance with bathing and tending to hygiene, not legally blind, not requiring nursing home care, managing her own financial affairs, and able to leave the home or immediate premises once daily to do errands, albeit with difficulty. The examiner acknowledged restrictions in the Veteran’s upper and lower extremities and spine, trunk and neck that affected her ability to function. The examiner also noted that the Veteran required medication management (on three medications) and aids such as canes, braces, crutches or the assistance of another person for locomotion of one block. The examiner did not indicate, however, that the Veteran was unable to manage her own medication and attributed the needs and restrictions, in part, to the nonservice-connected stroke with left-sided weakness. As there is no evidence of record indicating that the Veteran’s service-connected disabilities, each rated less than 100 percent disabling, render her in need of regular aid and attendance or permanently and substantially confine her to her immediate premises, the criteria for entitlement to SMC based on a need for regular aid and attendance or by reason of being housebound are not met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352. Entitlement to SMC based on loss of use The Veteran seeks SMC based on the loss of use of a creative organ and the left foot. According to February 2010 written statements, the training in which she participated in service aggravated her menstruation cycle, causing heavy, painful periods, anemia and a mass missed by a military doctor. She was found unfit for such service due to pelvic inflammatory disease (PID), a condition that eventually necessitated surgery, resulting in the loss of her uterus. According to October 2010 and February 2011 written statements, as a result of in-service aggravation of her PID and associated anemia, she had a stroke, which caused her to develop left foot drop syndrome with painful, inward-facing toes, left foot weakness, flat feet and bunions; she now limps and uses a cane. SMC is payable at a specified rate if a veteran, as the result of service-connected disability, experiences the anatomical loss or loss of use of the following: a foot, hand, both buttocks, one or more creative organs, sight (blindness of one eye), hearing (deafness of both ears), voice (complete organic aphonia) and/or breast tissue (loss of 25 percent or more of tissue from single breast or both breasts in combination, including loss by mastectomy or partial mastectomy, or when tissue has been subjected to radiation treatment). 38 U.S.C. § 1114(k); 38 C.F.R. §§ 3.350(a)(2), 4.63. Loss of use of a foot will be held to exist when 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 use of a suitable prosthetic appliance. Id.; see also Tucker v. West, 11 Vet. App. 369, 373 (1998) The determination will be made on the basis of the actual remaining function, whether the acts of balance, propulsion, etc., in the case of the foot, could be accomplished equally well by an amputation stump with prosthesis. Extremely unfavorable complete ankylosis of the knee, or complete ankylosis of two major joints of an extremity or shortening of the lower extremity of 3.5 inches (8.9 centimeters) or more, will be taken as loss of use of the foot involved. Complete paralysis of the external popliteal nerve (common peroneal) and consequent foot drop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve, will be taken as loss of use of the foot. 38 C.F.R. §§ 3.350(a)(2), 4.63. The Veteran does not allege that she has a loss of use of a hand or both buttocks. Regarding her assertion that she has lost the use of a creative organ, she indeed experienced the anatomical loss of her uterus when she underwent a total abdominal hysterectomy and bilateral salpingectomy in 2001, after service. However, this loss did not result from service-connected disability. Rather, according to treatment records and a December 2010 independent medical evaluation report, the Veteran underwent such surgery due to a markedly enlarged fibroid uterus, menometrorrhagia and pelvic inflammatory disease. The AOJ denied the Veteran’s claims for service connection for the surgeries and the pelvic inflammatory disease in August 2010, a decision the Board affirmed in June 2019. With regard to the Veteran’s contention that she has lost the use of her left foot, evidence confirms that the Veteran has left foot difficulties, including secondary to her service-connected hallux valgus and degenerative joint disease, other nonservice-connected left foot anatomical abnormalities (claim for service connection for these abnormalities pending), stroke (in February and May 2011, Veteran attributed left foot drop and weakness to stroke), and back disability. However, even considering the collective effect of all of these disabilities, the evidence fails to establish that no effective function remains in the Veteran’s left foot other than that which would be equally well served by an amputation stump at her ankle with use of a suitable prosthetic appliance. The Veteran needs to use an ambulatory aid, in part, due to left foot symptoms, and occasionally limps and struggles with balance, but these symptoms are not so severe as to cause or equate to ankylosis, unfavorable or otherwise, or compete paralysis of the external popliteal nerve with trophic or circulatory disturbances. Two months prior to filing her claim for loss of use of the left foot, the Veteran sought treatment for bilateral foot pain, primarily on the left. The provider conducted a neurologic examination, which showed weakness, but he noted that he was unsure whether the Veteran was even trying to move her feet or whether she actually had severe foot and muscle weakness. He indicated that he was unable to ascertain a true and accurate assessment but recommended physical therapy to strengthen her feet musculature and custom orthotics for a proper, less painful gait. In December 2010, the Veteran underwent an independent medical evaluation, during which she reported foot numbness for which she was trying to get service connected, but the examiner did not objectively confirm such numbness or note functional loss secondary to any other left foot symptoms. Later, a medical professional confirmed the Veteran’s left foot weakness. In January 2011, during a VA housebound status and aid and attendance examination, an examiner noted that the Veteran ambulated, albeit with a cane, despite stroke-related weakness in her left lower extremity. In May 2011, RS submitted a statement indicating that the Veteran, who RS had known for 30 years, had come home from service with a major foot problem, walking unsteadily with a limp and using an orthopedic shoe and cane. He further indicated that the Veteran had had a major stroke after service, which resulted in complete left-sided weakness. That month, the Veteran too submitted a statement indicating that walking produced multiple foot symptoms, and during a June 2013 independent medical evaluation, an examiner indicated that it hurt the Veteran’s feet to walk and stand. In November 2015, during a VA feet examination, the Veteran indicated that her left foot symptoms limited standing and walking. The examiner confirmed disturbance of locomotion (but occasional locomotion by other methods possible), interference of standing and climbing limitation. He indicated that the Veteran had a slow, antalgic gait and used a cane constantly for assistance, in part, due to a back condition. The examiner specifically concluded that the Veteran’s left foot functioning was not so diminished that she would be equally well served by an amputation with a prosthesis. Since then, during treatment visits, providers have continued to treat the Veteran for left foot symptoms, but none has noted ankylosis, unfavorable or otherwise, or compete paralysis of the external popliteal nerve with trophic or circulatory disturbances, findings indicative of a loss of use of a foot. The Board acknowledges the Veteran’s contention that she has left foot drop which interferes with her ability to use her left foot, entitling her to SMC. During a VA back examination conducted in November 2015, neurologic testing revealed numbness, parasthesia, and diminished strength in the left lower extremity, including the ankle and great toe, absent reflexes in the left ankle, and decreased sensation in the left foot and toes. However, the examiner attributed these findings to the Veteran’s low back disability and, like the VA foot examiner, found that any functioning was not so diminished that the Veteran would be equally well served by an amputation with a prosthesis. As such, the criteria for entitlement to SMC based on loss of use are not met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. N. 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.