Citation Nr: 21029962 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 16-38 122 DATE: May 17, 2021 ORDER Entitlement to special monthly compensation (SMC) based on aid and attendance or housebound status prior to May 25, 2016, is denied. From May 25, 2016, SMC based on the need for aid and attendance is granted, subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. Prior to May 25, 2016, the preponderance of the evidence consistently shows that the Veteran was able to care for and protect himself and perform activities of daily living without assistance; nor was he granted a TDIU based solely on his bilateral macular degeneration with diabetic retinopathy, or any other service-connected disability, with additional disabilities which when combined were rated at 60 percent or more disabling; nor was he permanently housebound. 2. From May 25, 2016, the evidence is at least in equipoise that the Veteran was in need of the regular aid and attendance of another person to perform the routine activities of daily living due to his service-connected bilateral eye disabilities. CONCLUSION OF LAW 1. The criteria for entitlement to SMC based on aid and attendance or housebound status prior to May 25, 2016, have not been met. 38 U.S.C. § 1114; 38 C.F.R. § 3.350. 2. From May 25, 2016, the criteria for entitlement to SMC based on the need for regular aid and attendance have been met. 38 U.S.C. § 1114(l); 38 C.F.R. §§ 3.102, 3.350, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1957 to August 1960 and from November 1960 to May 1976. This matter is on appeal of a September 2014 rating decision. The Board remanded the appeal for further development in March 2018 and October 2019. That development having been complete the appeal is now back before the Board. Entitlement to service connection for macular degeneration was initially part of this appeal, however, a July 2020 rating decision granted entitlement to service connection for the Veteran's bilateral macular degeneration, and assigned a 40 percent rating for the Veteran's bilateral macular degeneration and diabetic retinopathy combined, effective May 9, 2014. A later, December 2020 rating decision increased the Veteran's rating for his bilateral eye disability to 70 percent effective November 16, 2020. As the award of service connection constitutes a full grant of the benefits sought on appeal in regard to the Veteran's claim for service connection for bilateral macular degeneration, and he has not appealed the initial assigned disability ratings, there remains no issue of controversy for adjudication by the Board on this claim. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). Entitlement to SMC based on Need for Aid and Attendance or Housebound Status As noted above, the December 2020 rating decision awarded a 70 percent disability rating for the Veteran's service-connected bilateral eye disabilities, effective November 16, 2020. The same rating decision awarded the Veteran SMC based on housebound status from November 16, 2020. The decision determined that TDIU would be warranted on his single service-connected macular degeneration and diabetic retinopathy from that date, and he had additional service-connected disabilities that were independently ratable at 60 percent or more. Although the Veteran has not appealed the initial disability ratings assigned for his service-connected macular degeneration and diabetic retinopathy, his claim of entitlement to SMC based on aid and attendance or based on housebound status prior to November 16, 2020 remains on appeal. As of May 9, 2014, the date service connection was granted for the Veteran's macular degeneration, service connection was established for a panic disorder (50 percent), diabetic retinopathy and macular degeneration (40 percent), hypertension (20 percent), diabetes mellitus, type II (20 percent), traumatic amputation of the left ring finger (10 percent), peripheral neuropathy of the bilateral upper and lower extremities (10 percent for each) and arthralgia (0 percent). A total disability rating based upon individual unemployability as a result of service-connected disabilities (TDIU) was established effective from March 14, 2002. Effective November 16, 2020, the disability rating for the Veteran's service-connected diabetic retinopathy and macular degeneration was increased to 70 percent and the TDIU was based solely on this disability. SMC is payable to individuals who are permanently bedridden or are so helpless as a result of service-connected disability as to be in need of the regular aid and attendance of another person under the criteria set forth in 38 C.F.R. § 3.352 (a), 38 U.S.C. § 1114 (l); 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 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, 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 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 through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of 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 daily environment. 38 C.F.R. § 3.352 (a). The particular personal functions that the veteran is unable to perform are considered in connection with the veteran's 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. In Turco v. Brown, 9 Vet. App. 222, 224 (1996), the United States Court of Appeals for Veterans Claims (Court) held that eligibility for SMC by reason of regular need for aid and attendance requires that at least one of the factors set forth in VA regulation is met. In addition, determinations that the claimant 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). SMC is also provided if a veteran has a service-connected disability rated as total, and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or, (2) by reason of such veteran's service-connected disability or disabilities, is permanently housebound. For the purpose of this subsection, the requirement of "permanently housebound" will be considered to have been met when the veteran is substantially confined to such veteran's 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 such veteran's lifetime. 38 U.S.C. § 1114 (s); see also Bradley v. Peake, 22 Vet. App. 280 (2008) (finding that Congress did not intend that a 100% combined rating suffice for a service-connected disability rated as total, but that an award of TDIU, if it based upon a single service-connected disability, is sufficient). A TDIU rating that is based on multiple underlying disabilities cannot satisfy the section 1114(s) requirement of 'a service-connected disability' because that requirement must be met by a single disability. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2010). Initially, the Board notes that at no time during the pendency of the appeal has the Veteran suffered the anatomical loss or loss of use of both feet, or of one hand and one foot, or been permanently bedridden. While the vision in both the Veteran's eyes has been significantly diminished during the pendency of the appeal, he is not blind with 5/200 corrected visual acuity or less in both eyes. A May 2014 VA examination for housebound status or permanent need for regular aid and attendance indicates the Veteran was legally blind due to his severe macular degeneration. The examiner noted that he was able to feed himself and prepare his own meals and required no assistance in bathing or tending to other hygiene needs. The examiner further noted that he did not require nursing home care or medication management. He had no restrictions, although his poor vision made him unable to trim his nails. A later May 2014 VA eye condition disability benefits questionnaire (DBQ) show that the Veteran's uncorrected near vision was 5/200 in both eyes, his corrected near vision remained 5/200 in the right eye and 20/100 in the left eye. Uncorrected distant vision was 5/200 in the right eye and 20/10 in the left. Corrected distant vision remained 5/200 in the right eye and 20/100 in the left. There was no visual field defect. The examiner found that vision with macular degeneration and loss of central vision would make it very difficult for him to work. The Veteran underwent a VA eye examination in July 2014. Corrected distance vision was 15/200 in the right eye and 20/70 in the left eye. Corrected near vision was 20/200 in the right eye and 20/50 in the left eye. There was no contraction of the visual field or loss of visual field. The examiner noted that he was not legally blind but that he was unable to drive and that he had difficulty watching television and reading. He had to use magnifiers when reading. A March 2015 VA treatment record notes the Veteran had macular degeneration and retinopathy in both eyes. He reported he was unable to take care of himself and that his ex-wife helped him with transportation. The examiner noted that the Veteran could see well enough to get around outdoors, but had trouble getting around indoors and tripped over or bumped into curbs or steps. He used a walker and no longer could drive. He was able to do housework, could see to cook and food on a plate. He could see the number pad on his phone and could shave, cut his fingernails, and pay his bills and read mail. He was noted to have severe category of low vision. In another VA examination for housebound status or permanent need for regular aid and attendance, conducted on May 25, 2016, the examiner noted that, while not legally blind, because of low vision in both eyes, the Veteran was unable to feed himself, prepare his own meals. He required medication management and did not have the ability to manage his own financial affairs. He did not need assistance in bathing and other hygiene needs and did not require nursing home care. The examiner indicated that he required aids such as canes, braces, crutches, or assistance of another person for locomotion. An October 2018 VA treatment record indicates that the Veteran was completely unable to shop, needed to have his meals prepared and served, as well as help with all home maintenance tasks and laundry done by others. His travel was limited to taxi or automobile with assistance of another. He was not capable of dispensing his own medication and incapable of handling money. The treatment note indicated that he had macular degeneration in his left eye and could only see minimally in his right eye. The examiner indicated that he needed total care due to not being able to see. He used a walker with transfers but had a hard time getting around due to weakness. A January 2020 VA eye clinic note indicates that both the Veteran's near and far vision had decreased since his last eye exam. He reported he was able to see better without glasses and that most low vision equipment did not help. Uncorrected acuity check was 10/400 in the right eye, the Snellen equivalent of 20/800 and the left eye was 10/80, the Snellen equivalent of 20/160. A February 2020 VA treatment record indicates the Veteran needed no supervision, direction or assistance with bathing, dressing, toileting, transferring, or feeding. However, he did need supervision, direction, or personal assistance with continence, was able to answer the phone but unable to dial out, needed to be accompanied on any shopping trip. He also needed his meals prepared and served for him and all his laundry done by others. His travel was limited to taxi or automobile with the assistance of another. He was not capable of dispensing his own medication and incapable of handling money. Another VA eye condition DBQ, conducted November 16, 2020, shows that the Veteran's uncorrected and corrected distance vision was 5/200 or worse in his right eye, but 20/200 in his left eye. Uncorrected and corrected near vision was 5/200 or worse in the right eye, and 20/200 in his left eye. There was no documented visual field defect. The examiner noted that the Veteran was no longer able to read print without the aid of large magnifying devices and his distance vision had decreased to the degree that he was no longer able to drive. Prior to May 25, 2016 The Board finds that the preponderance of the evidence of record is against finding that the Veteran required the aid and attendance of another person due to service-connected disabilities prior to May 25, 2016. Treatment records during this period do indicate the Veteran was precluded from driving, as well as most occupations due to his service-connected disabilities, most significantly his macular degeneration of both eyes. However, the evidence prior to May 25, 2016, does not support that symptoms due to his service-connected disabilities required the regular aid and attendance of another person. On the contrary, the May 2014 VA examination reports, as well as the March 2015 VA treatment record specifically noted that the Veteran did not require assistance in his activities of daily living such as meal preparation and feeding himself, bathing and personal hygiene, management of his medications and management of money. The March 2015 VA treatment record indicated that he could see well enough to get around outside. Likewise, as noted above, the Veteran was not granted a TDIU based solely on his bilateral macular degeneration with diabetic retinopathy, or any other service-connected disability, until November 16, 2020. The Veteran does not contend, nor does the objective evidence of record show that he was permanently housebound due to his service-connected disabilities prior to May 25, 2016. Thus, to the extent that the Veteran believes that he required aid and attendance of another or was permanently housebound as a result of his service-connected disabilities prior to May 25, 2016, the Board gives more probative weight to the competent medical evidence of record which indicates that he was able to perform most activities of daily living independently and was not permanently housebound. Likewise, he did not have a TDIU solely based on one service-connected disability during this period. Accordingly, entitlement to special monthly compensation based on a need for aid and attendance or housebound status is not established prior to May 25, 2016. Since May 25, 2016 Resolving all reasonable doubt in his favor, the Board finds the Veteran has need for regular aid and attendance due to his service-connected disabilities, most significantly his macular degeneration of both eyes, since May 25, 2016. The May 25, 2016, VA examination is the earliest date that it is shown that because of the Veteran's low vision associated with his macular degeneration, he was unable to prepare his own meals, feed himself, do his own laundry, manage his own medications and money and needed the assistance of another. Based on the foregoing, and resolving any reasonable doubt in the Veteran's favor, the Board finds that due to his service-connected disability, the Veteran needs regular aid and attendance since May 25, 2016. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 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 for an award of special monthly compensation have been met. See Prejean v. West, 13 Vet. App. 444, 448 (2000); Turco, 9 Vet. App. 222 (1996). As SMC based on aid and attendance is a greater benefit than SMC based on housebound status, the Board need not address housebound status for this period. 38 U.S.C. §§ 1114 (l), (s). DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. J. Wells-Green 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.