Citation Nr: 21027482 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 17-52 836 DATE: May 5, 2021 ORDER Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance/housebound status is denied. FINDING OF FACT The Veteran's service-connected disabilities alone do not render him bedridden or in need of the regular aid and attendance of another, nor does he have a single disability rated 100 percent. CONCLUSION OF LAW The criteria for SMC based on the need for regular aid and attendance/housebound status have not been met. 38 U.S.C. §§ 1114(l), 5107(b); 38 C.F.R. §§ 3.102, 3.350(b), 3.352(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1961 to June 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision. In December 2018 and August 2020, the Board remanded this matter for further development. The Board finds that there has been substantial compliance with the Board's former remands and the matter is ready for adjudication. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Entitlement to SMC based on the need for regular aid and attendance/housebound status is denied. SMC based on the need for aid and attendance of another is payable when the veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to be in need of regular aid and attendance. See 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). The Veteran has not lost use of both feet or one hand and one foot and he is not blind in both eyes due to service-connected disability. As such, whether SMC is warranted is determined by whether he is permanently bedridden or so helpless as to be in need of regular aid and attendance due to service-connected disability. As directed by 38 C.F.R. § 3.352(a), the following criteria are to be considered for determining whether a claimant is in need of the regular aid and attendance of another person: (1) the inability of the claimant to dress himself or herself or to keep himself or herself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliance which, by reason of the particular disability, cannot be done without aid (not to 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 claimant to feed himself or herself through the loss of coordination of the upper extremities or through extreme weakness; (4) the inability to attend to the wants of nature; or, (5) a physical or mental incapacity that requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his or her daily environment. "Bedridden," which is a proper basis for the determination, is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that claimant 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. 38 C.F.R. §§ 3.350(b)(4), 3.352(a). 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 or her condition as a whole. 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 the veteran is so helpless, as to be in need of 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. 38 C.F.R. § 3.352(a); Turco v. Brown, 9 Vet. App. 222, 224 (1996) (it is logical to infer there is a threshold requirement that "at least one of the enumerated factors be present"). Furthermore, the performance of the necessary aid and attendance service by a relative of the beneficiary or other member of his or her household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352(c). If the Veteran does not qualify for increased benefits for aid and attendance, increased compensation benefits may still be payable if the Veteran is able to establish entitlement to SMC based on housebound status under 38 U.S.C. § 1114(s). Under 38 U.S.C. § 1114(s), SMC is payable at the housebound rate if the Veteran has a single service-connected disability rated as 100 percent and either of the following are met: (1) there is 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) he or she is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). The requirement of "permanently housebound" will be considered to have been met when the veteran is substantially confined to his or her house (ward or clinical areas, if institutionalized) or immediate premises due to a service-connected disability or disabilities which it is reasonably certain will remain throughout his or her lifetime. Id. The Veteran filed a claim for SMC in May 2016, asserting that he is in regular need of the aid and attendance of another person. The Veteran is service-connected for anxiety disorder rated 50 percent, right and left varicose veins each rated 20 percent, hiatal hernia with gastroesophageal reflex disease rated 10 percent, right temporomandibular dysfunction with reducing displaced disc rated 10 percent, tinnitus rated 10 percent, noncompensable left ear hearing loss, noncompensable right ear eustachian tube dysfunction, and noncompensable hemorrhoids. Turning to the evidence of record, a May 2004 VA examiner noted service-connected gastroesophageal reflex disease with burning episodes after meals and service-connected hemorrhoids that the Veteran reported did not bother him. The Veteran submitted an August 2011 VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance from his private treater. The examiner noted that the Veteran's stroke and arthritis restricted his activities. The examiner noted that while the Veteran was able to feed himself, he needed help cutting food given the loss of use of his left hand. The examiner noted that the Veteran was not able to prepare his own meals as he was unable to use a knife and that he needs assistance with bathing as he cannot wash his back and feet. The examiner noted limited grip in his right hand due to carpal tunnel and arthritis and no use of his left hand due to stroke. The examiner also noted the Veteran's left side drop foot syndrome caused falls. In a September 2011 letter, the Veteran's treating physician explained that the Veteran sustained a stroke in the past and has residual left-sided hemiparesis. The physician noted that the Veteran uses a cane or wheelchair at times. The physician explained that the Veteran needs assistance with cutting food, bathing, laundry, housework, lifting, and preparing meals. The physician noted that the Veteran drives sometimes but usually his wife drives him. A December 2014 vascular VA examiner noted that the Veteran's service-connected varicose veins cause aching and fatigue in the legs after prolonged walking or standing and persistent edema. A December 2014 audiology VA examiner noted the Veteran's service-connected hearing loss and tinnitus cause difficulty understanding speech and hearing the television. A December 2014 psychiatric VA examiner noted the Veteran's service-connected psychiatric disorder causes anxiety, fatigue, difficulty concentrating, and irritability, with reduced productivity and reliability. In April 2016, the Veteran submitted a VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance from his private treater. The examiner indicated that the Veteran's left-sided weakness status post stroke restricted his activities. The examiner noted the Veteran's gait was unsteady, that he was not able to prepare his own meals, and that he needed assistance in bathing and tending to other hygiene needs. The examiner noted weakness to the Veteran's left side without any function of the left hand, difficulty with ambulation, and no peripheral vision in the left eye. The examiner noted that the Veteran could not dress himself because he was not able to use his left hand, had difficulty bathing and shaving, and was unable to prepare meals. The examiner explained that the Veteran's left foot was without movement making his gait unstable. The examiner noted that the loss of peripheral vision in the left eye resulted in poor balance. The examiner noted that the Veteran left home 2-3 times per week with his wife driving. In August 2016, the Veteran reported that his wife has to cook his meals, assist with bathing, assist with getting dressed, and drive him around. In January 2019 VA treatment, the Veteran reported that his wife helps him dress and bathe, cooks for him, shops and does laundry, and sometimes helps him with toileting. He reported that he had a stroke and cannot use his arm at all. In October 2019, the Veteran underwent a VA aid and attendance examination. The VA examiner noted the Veteran's stroke with left-side hemiparesis and his chronic venous insufficiency in his legs. The VA examiner noted that the Veteran is not permanently bedridden. The VA examiner explained that the Veteran's wife cares for him, makes his meals, helps him dress, and helps him care for himself. The VA examiner noted that the Veteran uses a cane for stability, has constant imbalance, and has moderate short-term memory loss. The VA examiner explained that due to the Veteran's stroke, he has difficulty swallowing food and is at risk of choking. The VA examiner also noted that the Veteran has weakness and lack of endurance due to chronic venous insufficiency. The VA examiner noted that the Veteran is unable to dress and undress and bathe. The VA examiner noted the Veteran's gait is hemiplegic. The Veteran leaves home for medical care only. The VA examiner explained that the Veteran's left upper extremity has a severe impairment which prohibits the Veteran from feeding, bathing, and toileting independently. The VA examiner noted the Veteran's left lower extremity has muscle weakness. As to gait, the VA examiner noted that the Veteran has a hemiplegic gait on the left due to stroke and also has weakness on both sides due to chronic venous insufficiency. In June 2020, the Veteran reported that he is unable to bath completely, shampoo his hair, cook, or use his left hand. He reported that he needs help with medications. He reported that he cannot drive and has some vision problems. He reported that he walks with a limp and uses a cane and a motorized scooter. He falls and needs help getting up or down stairs. A February 2021 VA treatment record notes that the Veteran needs assistance with dressing, grooming, bathing, and eating. In February 2021, a VA medical opinion provider reviewed the Veteran's file and opined that it is less likely than not that the Veteran's service-connected disabilities alone render him so helpless as to require the regular aid and attendance of another person. The examiner explained that the Veteran's service-connected psychiatric disability interferes with his mood, and causes hypervigilance and avoidance of certain activities, but does not interfere with the Veteran performing his activities of daily living even though he might avoid certain activities. The examiner explained that the Veteran's service-connected varicose veins make physical exertion such as walking, running, and prolonged standing harder and painful during flare-ups. The examiner noted the Veteran's service-connected hemorrhoids interfere with sitting during flare-ups. The examiner noted that the remainder of the Veteran's service-connected disabilities could cause decreased concentration, efficiency, and overall performance during flare-ups but would not interfere significantly with the ability to perform activities of daily living, either physically or mentally. In this case, the Board may decide the Veteran's claim on the evidence of record as VA's duty to assist has been met. VA treatment records for the claims period have been obtained and associated with the claims file. In accordance with the Board remands, additional VA medical opinion was obtained in February 2021 as detailed above regarding the functional limitations solely from the Veteran's service-connected disabilities as they would impact his need for aid and attendance. Although VA treatment records indicate that the Veteran was receiving private medical treatment, VA provided the Veteran with opportunities to submit the private treatment records or submit an authorization for VA to obtain the records. Most recently in August 2020, VA sent a letter to the Veteran requesting that the Veteran complete and return an authorization for any private treaters but received no response. The duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board finds that there has been substantial compliance with the Board's former remands and adjudication of the matter is proper. See Stegall v. West, 11 Vet. App. 268 (1998). Viewing the lay and medical evidence as a whole, and in the light most favorable to the Veteran, the Board finds that entitlement to SMC is not warranted. As noted above, to receive SMC based on the need for aid and attendance, the Veteran's service-connected disabilities alone must render him permanently bedridden or so helpless as to be in need of regular aid and attendance. The evidence does not show that the Veteran is permanently bedridden. The October 2019 VA examiner specifically noted that the Veteran is not permanently bedridden. The evidence shows that the Veteran is able to engage in activities and is not required to remain in bed. As to the need for regular aid and attendance, the evidence shows that the Veteran needs assistance with activities, such as with cooking, bathing, dressing, and sometimes toileting, and that he is at risk of falling. However, the evidence also shows that the general need for aid and attendance is due to the Veteran's non service-connected stroke residuals rather than from his service-connected disabilities. Although the Veteran experiences some limitations from his service-connected disabilities, such as weakness and lack of endurance in his legs from his varicose veins and problems with concentration and mood, the limitations from his service-connected disabilities alone do not rise to the level of impairment necessitating regular aid and attendance. Rather, the Veteran's need for assistance with cooking, bathing, dressing, and toileting, and his fall risk, have been attributed to his non service-connected stroke residuals and arthritis. See August 2011 and April 2016 VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance Reports. The Veteran's private treaters noted that the Veteran needed help preparing meals, bathing, and dressing as he lost the use of his left hand due to stroke and had limited grip in his right hand due to carpal tunnel and arthritis. The private treaters noted that the Veteran's non service-connected left-side drop foot syndrome caused falls. The October 2019 VA examiner also noted that the Veteran's non service-connected left upper extremity impairments prohibited the Veteran from eating, bathing, and toileting independently, and that his non service-connected stroke residuals caused problems swallowing food. Considering the limitations solely from the Veteran's service-connected disabilities, the preponderance of the evidence is against a finding of the regular need for aid and attendance. The Board notes that the Veteran's representative asserts that limitations from the Veteran's non service-connected status post left hemisphere stroke should be considered in evaluating the Veteran's need for aid and attendance. See April 2021 Appellate Brief. However, as noted above, entitlement to SMC based on aid and attendance requires that the Veteran be so helpless as to be in need of regular aid and attendance due to service-connected disability. The preponderance of the evidence is against a finding that the Veteran's service-connected disabilities alone result in the need for regular aid and attendance. Further, as the Veteran does not have a single service-connected disability at 100 percent, the requirements for entitlement to SMC based on housebound status have not been met. Accordingly, entitlement to SMC is not warranted. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Purcell 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.