Citation Nr: 21031782 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 17-19 544 DATE: May 24, 2021 ORDER Entitlement to special monthly compensation (SMC) based on the need of the Veteran's spouse for aid and attendance is denied. FINDING OF FACT The preponderance of the evidence of record is against a finding that the Veteran's spouse has a corrected visual acuity of 5/200 or less in both eyes, or concentric contraction of the visual field to 5 degrees or less; that she is a patient in a nursing home; that she is bedridden; or that she otherwise has a factual need for aid and attendance. CONCLUSION OF LAW The criteria for SMC based on the need for aid and attendance of the spouse of the Veteran are not met. 38 U.S.C. §§ 1114, 1115; 38 C.F.R. §§ 3.351, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Navy from March 1963 to March 1965 and from April 1971 to April 1985. D.W.L. is his spouse. This matter comes before the Board of Veterans' Appeals (Board) from a July 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office. The Veteran appealed that decision and the Board remanded this matter in July 2018, March 2020, and December 2020 for further evidentiary development. In the December 2020 remand, the Board directed the agency of original jurisdiction to seek authorization from D.W.L. for medical records relating to her functioning since the Veteran submitted his claim in 2016. D.W.L. ultimately did authorize those records and VA received substantial amount of medical records from each of the named physicians in the authorization form in January 2021. As such, the Board finds that there has been substantial compliance with its remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to SMC based on the need for aid and attendance by the Veteran's spouse Under 38 C.F.R. § 3.351(a)(2), SMC is payable to a veteran by reason of the veteran's spouse being in need of aid and attendance. 38 U.S.C. §§ 1114, 1115. The need for aid and attendance means helplessness as to require the regular aid and attendance of another person. 38 C.F.R. § 3.351(b). In this regard, the veteran's spouse 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 will be accorded consideration in determining the need for regular aid and attendance: inability of 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 adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of 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, 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). "Bedridden" will be a proper basis for the determination. For the purpose of this regulation, "bedridden" will be 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 bed rest for the greater or lesser part of the day to promote convalescence or cure will not suffice. Id. 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 claimant is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. Id. After reviewing all of the competent, probative, and credible evidence of record, for the reasons set forth below, the Board finds that the claim must be denied. The record contains no competent evidence that D.W.L. is blind or has the reduction in visual acuity or concentric contraction in her visual field to indicate that criteria at 38 C.F.R. § 3.351(c)(1) have been met. The is also no evidence showing that D.W.L. has been a patient at a nursing home at any point since the Veteran filed his claim. Rather, the Veteran appears to be contending that SMC is warranted due to D.W.L.'s need for aid and attendance on a factual basis in accordance with 38 C.F.R. § 3.352(a). The first suggestion that D.W.L. may have required regular aid and attendance is a March 2016 VA Form 21-2680 (Examination for Housebound Status or Permanent Need for Regular Aid and Attendance). In that form, an examining physician reported that D.W.L. had chronic congestive heart failure, COPD, osteoarthritis, and neuropathy. An additional Form 21-2680 was submitted in May 2016. There, an examining cardiologist indicated D.W.L.'s coronary artery disease and complete heart block were her diagnoses. While these forms were completed in connection with the Veteran's claim seeking SMC based on D.W.L.'s contended diminished functioning, when comparing the specific functional limitations reported by these physicians to the applicable criteria in 38 C.F.R. § 3.352(a), the Board finds that they simply do not suggest that D.W.L. disability picture is sufficiently severe as to meet the criteria to be considered in need of regular aid and attendance. For instance, the March 2016 examiner reported that D.W.L. did use a walker and was able to walk one block, but explained that she was able to do all activities of daily living, had no limitations to the frequency or circumstances to leave her home or immediate premises, was able to feed herself and prepare her own meals, and could manage her financial affairs. This examiner also indicated D.W.L. needed no assistance in bathing or tending to her hygiene needs and was not in need of nursing home care. This competent and credible evidence of D.W.L.'s functioning does not indicate that she had any of the type or severity of functional deficits such as those described in 38 C.F.R. § 3.352(a). Although her ability to walk appeared to be rather substantially limited in length and required the use of a walker, that alone does not indicate that she needed regular assistance of another for any of the daily activities identified in § 3.352(a) or needed care or assistance on a regular basis to protect her from hazards or dangers in her daily environment. The May 2016 examiner also reported that D.W.L. maintained substantial abilities to care for herself despite her cardiologic disabilities. While he stated that she was able to leave her home or immediate premises with assistance, he did not describe precisely what type of assistance to which he was referring and elsewhere in the form remarked that she was able to walk one block and had a slow walk with the use of a walker. Nonetheless, like the earlier examiner, he affirmatively stated that she was able to feed herself, prepare her own meals, and manage her own financial affairs. He also explained that D.W.L. required no assistance with bathing, tending to her hygiene needs, medication management, and did not need nursing home care. As was the case with the March 2016 report, this May 2016 report does not appear to indicate that D.W.L. was bedridden, as that term is defined in 38 C.F.R. § 3.352(a). Although it does state that she required "assistance" with leaving her home, potentially through the use of a walker, it does not report that she was so incapacitated either physically or mentally that she regularly needed the care or assistance of another to protect her from the hazards or dangers of her daily environment. Accordingly, the Board finds that both of these examination reports weigh against a finding that D.W.L. has been in need of regular aid and attendance pursuant to applicable regulations. The Board also observes that D.W.L.'s medical treatment records also fail to include any suggestion or recommendation that she regularly needed or should be provided aid and attendance with bathing or dressing herself, adjusting prosthetic devices, feeding herself, toileting, or navigating household dangers. In making this finding, the Board does not intend to minimize her medical difficulties. Indeed, her treatment records document frequent trips to the emergency room, occasional episodes of hospitalization, and extensive respiratory, orthopedic, neurologic, and cardiologic treatment. However, even despite that extensive treatment, there is simply no evidence in those records that she was so limited as to require the type of aid and assistance described in 38 C.F.R. § 3.352(a). For instance, at an August 2017 follow-up visit after several emergency room visits and a hospital admission for right-sided numbness, D.W.L. continued to have ongoing neuropathy symptoms but reportedly was overall doing "ok." Her treatment records from that time do not indicate she required any regular assistance with the basic activities of daily living that are described in § 3.352(a). Treatment records from May 2019 also confirm that her walking difficulties were not limited to the March and May 2016 housebound examination forms, described above. At that time, she reported to her pulmonology specialist difficulty walking due to her ongoing knee issues. She also at that time had a recent fall and arm fracture along with a post-discharge fall at home resulting in a closed head injury. However, upon examination, she was found to have a normal gait and station, with no report that she required an aid or assistant to navigate her daily environment. D.W.L. received extensive additional treatment in 2019 due to various cardiologic events, to include a July 2019 report of a stress test positive for ischemia after a sudden onset of ten out of ten chest pain. However, by the time of that treatment note less than two weeks after her discharge from a hospital, she reported no chest pain. The remainder of D.W.L.'s treatment records continued to show evidence of rather severe episodes of emergency care or brief periods of hospitalizations for evaluation. They also indicate that her symptoms largely improved within a short amount of time after each episode and include no indication that she needed the type of regular help from another to perform the types of activities noted in 38 C.F.R. § 3.352(a). In his notice of disagreement, the Veteran suggested that benefits were warranted due to the variety of diagnoses that D.W.L. had, including her status as a class four heart patient with a pacemaker, diminished breathing capacity, and balance problems causing her to use a walker to ambulate. However, the need for a walker alone is not sufficient to satisfy the criteria for this SMC. In his April 2017 substantive appeal and in a statement from July 2017, he also indicated that D.W.L. still suffered from weakness, shortness of breath, and was unable to walk long distances without resting. The Veteran also reiterated that she needed a walker and was a fall risk. However, in these statements he did not allege at that time that D.W.L. required regular aid and attendance from another due to these problems to do any of the type or variety of basic daily activities identified in § 3.352(a). The Board does not doubt the sincerity of the Veteran's statements when he describes the significant medical care and difficulties that D.W.L. has experienced. As noted above, her medical records confirm that she has received extensive and recurring treatment for her symptoms. The question before the Board is whether those symptoms and disabilities cause her to require aid and assistance of another or have rendered her bedridden in accordance with the criteria set forth at § 3.352(a). The Board finds it notable that despite his reports of D.W.L. as a fall risk and requiring a walker, he has not indicated that she requires regular aid and assistance of another to perform the types of daily feeding, hygiene, and other activities that are described in that regulation. This lay and medical evidence suggests that she retains the capacity to perform those activities unaided and does not require the regular aid and assistance of another to protect her from the hazards of her daily environment. As such, the Board finds that the criteria for SMC based on D.W.L.'s need for aid and attendance have not been met. The preponderance of the evidence being against the claim, the doctrine of the benefit of the doubt is not for application. (Continued on the next page) In making this determination, the Board recognizes that the recent private treatment records reference substantial amounts of other private medical care, to include brief periods of hospitalizations and emergency room visits. Applicable statutes regarding VA's duty to assist in the development of a claim require VA to make reasonable efforts to obtain potentially relevant private treatment records that have been identified by a claimant. 38 U.S.C. § 5103A. However, as described above, the Board has remanded this matter on multiple occasions to give the Veteran an opportunity to identify and provide authorization for all private treatment records pertinent to his claim. No such proper authorization was received until January 2021, at which time only four physicians were identified and for which authorization was provided. VA has since obtained the treatment records from each of those clinicians. The duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). The Board does not find that it is reasonable to remand the matter once again to make further attempts to obtain the treatment records referenced in the January 2021 records considering the numerous attempts VA has already undergone to obtain authorization for all of D.W.L.'s private treatment records. The Board also acknowledges that the Veteran's representative has asked that VA arrange for D.W.L. to attend a medical examination in connection with this claim. However, the Board observes that the claims file currently includes a substantial amount of treatment records from throughout the appeal period. They also include two separate examination reports that the Veteran has submitted that directly address the issue on appeal. Although they are several years old, the Board finds that there is sufficient competent medial evidence already of record to adjudicate the claim and no additional remand for an examination is required. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Whitelaw, 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.