Citation Nr: 21031104 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 17-48 254 DATE: May 20, 2021 ORDER Entitlement to special monthly compensation (SMC) based on aid and attendance and/or housebound status is denied. REMANDED Entitlement to special monthly pension (SMP) based on the need for the aid and attendance of another person and/or housebound status is remanded. FINDING OF FACT The Veteran has not been permanently housebound or in need of regular aid and attendance of another person due to his service-connected disabilities; nor has he been shown to have a total (100 percent) disability rating for a single service-connected disability with additional service-connected disabilities rated as a combined 60 percent or more. CONCLUSION OF LAW The criteria for SMC based on the regular need for the aid and attendance of another person and/or housebound status due to service-connected disabilities are not met. 38 U.S.C. §§ 1114 (l), 1114 (s), 5107; 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 in the United States Air Force from December 1954 to August 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2018 and May 2020, the Board remanded these matters for further development. The Board has recharacterized the Veteran's claims, as reflected on the title page, to include consideration of all the related disorders reasonably raised by the record. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). In this regard, the Board notes that the Veteran was in receipt of nonservice-connected pension granted in a July 2012 administrative rating decision issued by a VA RO. In February 2013, the Veteran submitted a VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance. As the Veteran was not service-connected for a single disability at that time but was receiving pension, the RO accepted the VA Form 21-2680 as a claim for improved pension based on the need for aid and attendance pursuant to 38 C.F.R. § 3.351. Indeed, this was the benefit that was denied in February 2014 and addressed in the August 2017 Statement of the Case (SOC). However, the April 2018 Board decision expanded and recharacterized the Veteran's claim to include special monthly compensation based on the need for aid and attendance or being housebound pursuant to 38 C.F.R. § 3.350, noting that the possible grant of service connection for a bilateral knee disability and a psychiatric disorder may affect the Veteran's eligibility for this additional benefit. These matters have been advanced on the docket pursuant to 38 C.F.R. § 20.902. 1. Entitlement to SMC based on aid and attendance and/or housebound status is denied. As noted above, the Veteran asserts that his service-connected disabilities cause him to be in need of the regular aid and attendance of another person or, alternatively, have rendered him housebound. See February 2013 VA Form 21-2680. SMC provides for additional levels of compensation above the basic levels of compensation afforded by the schedular rating criteria in 38 C.F.R. Part 4. These additional levels of compensation are awarded for various types of losses or levels of impairment, due solely to service-connected disabilities, and for specific combinations of such impairments. The different types of SMC available are commonly referred to by their alphabetic designations, such as SMC(k), SMC(l), etc., which correspond to the paragraphs of 38 U.S.C. § 1114 which provides the statutory authority for SMC. These same paragraphs are codified in VA regulations, predominantly at 38 C.F.R. § 3.350 (a) - (i). SMC at the aid and attendance rate is payable when a 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 need regular aid and attendance. See 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). In this matter, the 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). 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 disabilities. 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). Pursuant to 38 C.F.R. § 3.350 (b)(3) and (4), the criteria for determining that a veteran is so helpless as to need regular aid and attendance, including a determination that he is permanently bedridden, are contained in 38 C.F.R. § 3.352 (a). That regulation provides that the following 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; inability to feed himself through the 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 him from hazards or dangers incident to his daily environment. "Bedridden" is defined as that condition, which, through its essential character, requires that a claimant remain in bed, and is a proper basis for this determination. The fact that a 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. It is not required that all the above disabling conditions 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 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 is a constant need. Determinations that a veteran is so helpless as to need regular aid and attendance will not be based solely upon an opinion that his condition is such as would require him to be in bed. They must be based on the actual requirement of personal assistance from others. See 38 C.F.R. § 3.352(a). The Veteran is service-connected for major depressive disorder (MDD) rated as 30 percent disabling from January 30, 2013, and bilateral knee disabilities rated as 10 percent disabling each from November 9, 2011. Thus, he is not eligible for SMC pursuant to 38 U.S.C. § 1114(s)(1), known as statutory housebound as he does not have a single disability rated as 100 percent disabling and his combined rating for all service-connected disabilities is 50 percent. 38 C.F.R. § 4.25. Accordingly, the only questions that remain are whether the Veteran is factually constrained to his residence or is in need of the aid and attendance of another person by reason of his service-connected disabilities. In this regard, an October 2012 VA examiner noted bilateral degenerative joint disease of the knees, range of motion testing was normal, and no objective evidence of pain was identified. 38 C.F.R. § 4.71, Plate II; see also October 2012 VA examination report. The Veteran reported that he regularly used a cane while ambulating and that his knees swelled and ached with prolonged walking. Id. An August 2017 VA examiner noted the Veteran demonstrated normal range of motion in his knees bilaterally and the Veteran reported his knees would become painful only after walking long distances. See August 2017 VA examination report. At a September 2019 VA examination, the Veteran was diagnosed with bilateral knee osteoarthritis with right knee instability and reported a dull ache and sharp pain in his knees impacting his ability to walk and stand for long periods of time. See September 2019 VA examination report. In December 2020, the Veteran reported to a VA examiner that his bilateral knee disabilities had improved and the examiner noted his bilateral knees would have no functional impact on the Veteran's ability to perform tasks such as standing, walking, lifting, or sitting. A September 2019 VA psychiatric examiner concluded that the Veteran's symptoms of depressed mood, anxiety, weekly panic attacks, and chronic sleep impairment were mild or transient and resulted in a decrease in work efficiency and ability to perform occupational tasks only during times of significant stress and that his symptoms may be controlled by medication. See September 2019 VA examination report. Notably, the September 2019 VA examiner reviewed the available VA treatment records and found the Veteran does not actively seek or receive regular treatment for his MDD. The Veteran was noted to be well-dressed and groomed with fair insight and judgement. The September 2019 VA examiner concluded the Veteran was oriented in all spheres and of no risk of harm to himself or others. VA treatment records demonstrate the Veteran is consistently found to be independent in all of the queried activities of daily living including but not limited to bathing himself, dressing himself without assistance, toileting independently, transferring in and out of bed, and feeding himself. See June 2014, May 2015, November 2017, August 2018, April 2020 VA treatment records. The Veteran reported that he was able to independently operate his telephone; take care of all of his shopping independently; plan, prepare, and serve all of his own meals independently; and that he was responsible for taking his own medications on time and in the correct dosage; and could handle his own finances. Id. The Veteran has reported that he uses a taxicab or had a friend to drive him to medical appointments on one occasion. See June 2014, May 2015, April 2020 VA treatment records. However, he has also reported operating his own automobile. See November 2017, August 2018 VA treatment records. Critically, the February 2013 VA Form 21-2680 that the Veteran submitted on his own behalf does not indicate any need for assistance. The examiner, VA Dr. A.B, concluded that the Veteran was able to feed himself, prepare his own meals, and had the ability to manage his own finances. The VA examiner concluded the Veteran did not need any assistance in bathing or attending to any other hygiene needs, that he did not need medication management or nursing home care and that the Veteran was not blind. The examiner noted the Veteran's posture and general appearance were acceptable, that there was not weakness in any of the Veteran's extremities, though the Veteran did endorse left heel and bilateral knee pain. The examiner noted the Veteran had no restriction of the spine, trunk, or neck and that he was ambulating well and managing his activities of daily living well. The Veteran reported that he was able to leave his home and immediate premises except when experiencing depression and that during those times he did not feel like doing anything and stayed in bed. Thus, the preponderance of the evidence reflects that the Veteran does not require the care or assistance of another on a regular basis other than to occasionally drive him to medical appointments, or that the Veteran required care or assistance on a regular basis to protect him from the hazards or dangers incident to his daily environment. Therefore, the above evidence reflects that the Veteran does not meet the criteria for aid and attendance. Nor does the evidence reflect that the Veteran is housebound as he drives himself to medical appointments, can ambulate without pain except for long distances, independently conducts all of his own shopping, and only periodically and voluntarily remains at home during flare-ups of his depression for which the Veteran has not sought treatment since 2014. See, generally, VA treatment records. Therefore, the Veteran does not meet the criteria for the award of SMC based upon housebound status. For the foregoing reasons, the preponderance of the evidence is against the claim for SMC based on aid and attendance or housebound status. 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. REASONS FOR REMAND 2. Entitlement to SMP based on the need for the aid and attendance of another person and/or housebound status is remanded. As noted above, the Board remanded this matter for additional development in April 2018 and May 2020. In December 2020, the RO issued a Supplemental SOC only addressing SMC and failed to address the SMP claims. Additionally, evidence submitted by the Veteran, to include private treatment records demonstrating a diagnosis of chronic kidney disease, were not reviewed regarding the Veteran's SMP for aid and attendance purposes. See November 2018 private treatment records. Thus, the Board has no jurisdiction to consider this evidence and it must be remanded for the issuance of an SSOC. 38 C.F.R. §§ 19.31, 19.37. This matter is REMANDED for the following action: Issue an SSOC regarding entitlement to SMP based on the need for the aid and attendance of another person and/or housebound status. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Rouse, Associate 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.