Citation Nr: 21030799 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 19-37 863 DATE: May 19, 2021 ORDER Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance and/or housebound status is denied. FINDING OF FACT The Veteran has not been housebound and/or in need of regular aid and attendance of another person due to his service-connected disabilities. CONCLUSION OF LAW The criteria for SMC based on the need for regular aid and attendance or housebound status 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 served on active duty from June 1951 to April 1955. This matter came to the Board of Veterans' Appeals on appeal from a November a 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which, inter alia, denied entitlement to SMC based on the need for regular aid and attendance or housebound status. The Veteran disagreed with the RO's determination, and a Statement of the Case (SOC) was issued in October 2019 addressing the matter. The Veteran timely appealed. The Board notes that in connection with his appeal, the Veteran requested and was scheduled for a virtual Board hearing before a Veterans Law Judge, to be held in April 2021. Prior to the hearing, however, the Veteran cancelled his hearing request. 1. SMC Aid and Attendance/ Housebound The Veteran seeks entitlement to special monthly compensation (SMC) based on the need for the regular aid and attendance of another person or by reason of being housebound. Generally, with respect to claims of entitlement to SMC based on the need for the regular aid and attendance of another person, such claims will be granted when a veteran, due to a service-connected disability, has 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). Determinations as to the need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to the following: inability of a veteran to dress or undress himself/herself or to keep himself/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; inability of a veteran to feed himself/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 a veteran from the hazards or dangers inherent in his/her daily environment. Bedridden will be a proper basis for the determination, and is defined as that condition which, through its essential character, actually requires that the veteran remain in bed. It is not required that all of the disabling conditions listed above be found to exist before a favorable rating may be made. The particular personal functions that a veteran is unable to perform should be considered in connection with his/her condition as a whole. It is only necessary that the evidence establish that a veteran is so helpless as to need regular aid and attendance, not that there be a constant need. 38 C.F.R. § 3.352 (a). In addition, special monthly compensation is payable at a specified rate if the Veteran, as the result of service-connected disability, 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); 38 C.F.R. § 3.350 (b). Throughout the pendency of the appeal, the Veteran is in receipt of service connection for bilateral hearing loss, rated 20 percent, and bilateral tinnitus, rated at 10 percent For the following reasons, the Board finds that entitlement to SMC based on the need for aid and attendance or housebound status is not warranted. In this case, the evidence of record does not reflect that the Veteran has the anatomical loss or loss of both feet or one hand and one foot or is blind in both eyes. See 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). In addition, the Veteran does not have a service-connected disability rated as total, in addition to service-connected disability or disabilities independently rated at 60 percent or more. Indeed, he has not contended otherwise. Thus, the question is whether he is permanently bedridden or so helpless as to be in need of regular attendance due to his service-connected disability. The evidence of record does not indicate that the Veteran needs regular aid and attendance or is housebound due to service-connected disabilities. For example, on the March 2018 aid and attendance or housebound examination report, the examiner noted diagnoses of multiple falls, mild cognitive impairment with memory loss, severe (unknown), extreme weakness and fatigue, marked vision and hearing loss, chronic kidney disease, pulmonary embolism, total hip replacement, and adult onset diabetes mellitus. The examiner indicated that weakness, fatigue, arthritic pain, and sensory loss disabilities restrict activities and functions. The examiner indicated that the Veteran was not legally blind or confined to a bed. He required nursing home care and assistance in bathing and tending to other hygiene needs. The Veteran was able to feed himself and manage his own financial affairs. The Veteran was unable to prepare his own meals. The Veteran required medication management. The examiner indicated that the Veteran's alert and well groomed. He has general weakness in upper extremities, and arthritis throughout with age related impairment of large joints in the lower extremities. Weakness, degradation of senses, and being poorly nourished have resulted in multiple falls. The examiner concluded that the Veteran had no restrictions for typical activities of an 84-year-old if he could receive appropriate assistance with activities of daily living. The examiner noted that the Veteran uses a cane and can walk one block. Significantly, however, the symptoms emphasized by the examiner resulting in the need for assistance were not those related to hearing loss or tinnitus, but rather non-service connected disabilities. An October 2019 aid and attendance or housebound examination report, the examiner noted diagnoses coronary artery disease, rotator cuff syndrome, insomnia, and hypertension. The examiner indicated that the Veteran was not legally blind or confined to a bed. He did not require nursing home care. The examiner indicated the Veteran needed assistance in bathing and tending to other hygiene needs. The Veteran was able to feed himself and manage his own financial affairs. The Veteran was unable to prepare his own meals. The Veteran did not require medication management. The examiner indicated that the Veteran's was able to attend to most needs, except putting on socks and shoes. He uses a walker status post left total hip arthroplasty. The Veteran drives and leaves home alone, although the doctors have suggested that he stop driving. Neither the hearing loss nor tinnitus contributed to the Veteran's inability to prepare his own meals or put on socks and shoes. An October 2018 VA audiological examination report does not indicate that the Veteran's service-connected hearing loss and tinnitus results in physical incapacity requiring the care or assistance of another on a regular basis. The examiner indicated that the Veteran's hearing loss impact ordinary conditions of life, including ability to work. The Veteran reported a gradual decline in hearing and it finally got so bad in 2013 that his kids convinced him to be assessed and fit with hearing aids at the VA. He reports good benefit from his current devices. The examiner indicated that the Veteran's tinnitus does not impact ordinary conditions of life, including ability to work. An October 2019 VA audiological examination report does not indicate that the Veteran's service-connected hearing loss and tinnitus results in physical incapacity requiring the care or assistance of another on a regular basis. The examiner indicated that the Veteran's hearing loss impact ordinary conditions of life, including ability to work, with the Veteran reporting difficulty hearing and understanding in group conversations and while listening to the television. Those difficulties do not reflect physical incapacity requiring the care or assistance of another on a regular basis. The examiner indicated that the Veteran's tinnitus impact ordinary conditions of life, including ability to work. The Veteran reported his tinnitus was bothersome to his day-to-day life, which does not reflect physical incapacity requiring the care or assistance of another on a regular basis. In this case, the evidence of record reflects that the Veteran is not in need of aid and attendance due to service-connected bilateral hearing loss and tinnitus disabilities, including incapacity, physical or mental, which requires care or assistance of another on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. The October 2018 VA examiner indicated that the Veteran's bilateral hearing loss impacted ordinary life and work, as the Veteran reported the gradual a decline in hearing caused him to get fitted for hearing aids. The November 2019 VA examiner indicated that the Veteran's tinnitus impacts ordinary life and work, as the Veteran reports that his tinnitus was bothersome to his daily life. However, the Veteran's statements do not demonstrate that the symptomatology associated with his service-connected bilateral hearing loss and tinnitus are of the nature that results in the need of aid and assistance of another. As noted above, the Veteran reported that gradual hearing loss had gotten so bad that he got fitted for hearing aids, which he noted good benefits from his current hearing devices. Additionally, the Veteran reported that his tinnitus was bothersome to daily life, rather than resulting in the need of assistance from another person. Although the Veteran's service-connected bilateral hearing loss and tinnitus show some impact on his ordinary life and work, the above evidence reflects that the Veteran's need for aid and attendance was not based on impairment caused by his bilateral hearing loss and tinnitus, but, rather, was based on the impairment caused by non-service-connected disabilities. The hearing loss and tinnitus did not themselves cause the need for aid and attendance or housebound status. Therefore, the Veteran does not meet the criteria for the award of SMC based upon the need for aid and attendance or housebound status. For the foregoing reasons, the preponderance of the evidence is against the claim for SMC based on aid and attendance and/or housebound rate. The benefit of the doubt doctrine is therefore not for application and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Walker, Counsel 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.