Citation Nr: 21027478 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 16-25 897 DATE: May 5, 2021 ORDER Entitlement to special monthly compensation (SMC) based on a need for regular aid and attendance or on account of being housebound is denied. FINDINGS OF FACT 1. Service-connected disabilities do not render the Veteran in need of regular aid and attendance or permanently or substantially confine him to his immediate premises. 2. The AOJ assigned the Veteran a TDIU based on multiple service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to SMC based on a need for regular aid and attendance or on account of being housebound have not been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1966 to March 1968. His claim comes before the Board of Veterans' Appeals (Board) on appeal of an April 2013 Department of Veterans Affairs (VA) rating decision. The Board remanded this claim to the Agency of Original Jurisdiction (AOJ) in August 2020. SMC Entitlement to SMC based on a need for regular aid and attendance or on account of being housebound In March 2017, the Veteran's former representative submitted a written statement indicating that VA should have inferred from the record a claim for SMC based on a need for aid and attendance. The Veteran has not since explained why he believes he is entitled to this benefit. During the VA examination he underwent in support of this claim, however, he asserted that he had decreased stamina and difficulty standing for long periods, restrictions that interfered with his ability to cook. He further asserted that he managed most of the time but had his daughter nearby to help; she visits two to three times weekly, cleans and prepares meals to last a few days. In a March 2021 supplemental statement of the case, the AOJ denied this claim, considering not only whether the Veteran has a need for aid and attendance, but also whether he is housebound. The preponderance of the evidence is against this claim. SMC is payable when, due to service-connected disability, a veteran needs regular aid and attendance, or 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. 38 U.S.C. § 1114(l), (r), (s); 38 C.F.R. § 3.350(a), (b). 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 veteran to dress or undress himself or to keep himself 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 veteran 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, which requires care or assistance on a regular basis to protect the veteran from hazards or dangers incident to his 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) veteran has a single service-connected disability rated 100 percent disabling, and additional service-connected disability or disabilities 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) he has a single service-connected disability rated 100 percent disabling and is permanently and substantially confined to his immediate premises due to service-connected disability. 38 C.F.R. § 3.350(i). For the purpose of meeting the first criterion, a rating of 100 percent may be based on a grant of total disability on a schedular basis, or extraschedular basis, or temporary total rating pursuant to 38 C.F.R. § 4.28 (pre-stabilization rating), 38 C.F.R. § 4.29 (temporary total hospital rating) or 38 C.F.R. § 4.30 (temporary total convalescence rating), or total disability rating based on individual unemployability (TDIU) if the TDIU is assigned based on a single disability. See Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2011). For the purpose of determining housebound status, multiple disabilities of a common etiology may not count as a singular disability. Bradley v. Peake, 22 Vet. App. at 291. According to treatment records, although the Veteran uses a cane to ambulate and has reported needing assistance getting up from a chair, he has not been helpless, as described in the above factors, at any point during the course of this appeal. During early treatment visits and 2011, 2013 and 2016 VA examinations, the Veteran indicated he exercised, engaged in physical activity, was not limited in walking or sitting, and did not need help bathing, dressing, eating or using the toilet. Examiners noted minimal to no effect on the Veteran's activities of daily living secondary to service-connected disabilities. In 2017, the Veteran reported minimal difficulty managing his activities of daily living. Providers noted that the Veteran was using a cane but cooking his own meals, driving, self-administering his medications, managing his diabetes, completing household chores and transferring positions. Providers noted he would benefit from in-home supports such as a walker, grab bar in bathroom and/or a transfer bathtub bench. Since then, the Veteran continues to attend treatment visits and has reported that he stretches and exercises in the morning, including by using weights, tries to stay active, and still has no need for assistance with bathing, feeding or toileting. In February 2021, when the Veteran underwent a VA examination for the purpose of determining whether he needed regular aid and attendance or qualified for housebound status, the examiner noted that the Veteran had progressing, pain-producing diabetic peripheral neuropathy with mild numbness and paresthesias. The examiner nonetheless found the Veteran not confined to bed, able to ambulate with an aid (instability and balance problems secondary to peripheral neuropathy), feed himself and prepare his own meals, not in need of assistance with bathing and tending to hygiene, not legally blind, not requiring nursing home care, managing his own medication and financial affairs, and able to get in and out of a chair without the use of a cane, perform self-care, leave his home or immediate premises, and drive, albeit on a limited basis. (The Veteran reportedly leaves once weekly to run small errands but could do so more frequently.) The examiner did not indicate, and her findings do not show, that the Veteran needs regular aid and attendance or is housebound due to service-connected disabilities. The Veteran also does not qualify for SMC at the housebound rate based on a single service-connected disability rated 100 percent disabling, and additional service-connected disability rated 60 percent or more disabling. Although he has been in receipt of a TDIU (100 percent rating) since February 16, 2011, the AOJ based its grant of this benefit on multiple service-connected disabilities, including diabetic-related peripheral neuropathy affecting all extremities (each separately service connected) and diabetic-related hypertension. Bradley v. Peake, 22 Vet. App. at 291 (multiple disabilities of a common etiology may not count as a singular disability for housebound determinations). In any event, the Veteran does not have additional service-connected disability rated 60 percent or more, affecting separate and distinct anatomical segments or body systems or otherwise. As there is no evidence of record indicating that the Veteran's service-connected disabilities render him in need of regular aid and attendance or permanently and substantially confine him to his immediate premises, and the AOJ assigned the Veteran's TDIU based on multiple service-connected disabilities, the criteria for entitlement to SMC based on a need for regular aid and attendance or on account of being housebound are not met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352. 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.