Citation Nr: 21031865 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 19-34 601 DATE: May 24, 2021 ORDER The claim for special monthly compensation based on aid and attendance is granted. The claim for special monthly compensation based on housebound status is denied. FINDINGS OF FACT 1. The Veteran's service-connected disabilities have been shown to render him unable to care for his daily needs, thus requiring the regular aid and attendance of another person. 2. The Veteran does not have a service-connected disability rated at 100 percent disabling. CONCLUSIONS OF LAW 1. The criteria for special monthly compensation based on aid and attendance are met. 38 U.S.C. §§ 1114, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.350, 3.352. 2. The criteria for special monthly compensation based on permanent housebound status have not been met. 38 U.S.C. §§ 1114, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1966 until his honorable discharge in October 1969. This appeal has been advanced on the Board of Veterans' Appeals' (Board) docket pursuant to 38 U.S.C. § 7107(b) and 38 C.F.R. § 20.902(c). This case comes before the Board on appeal from an August 2017 decision by the Chicago, Illinois, Regional Office of the United States Department of Veterans Affairs (VA). The Veteran timely filed an appeal to the Board and did not request a Board hearing. In March 2021, the Board remanded the case to the VA Regional Office for further development. Specifically, the Board directed the VA Regional Office to obtain updated medical records and associate the with the Veteran's claims file, which it accomplished. The case now returns to the Board. Evidentiary Standards In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 12829 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claim. Special Monthly Compensation Special monthly compensation is available when, as the result of a service-connected disability (or disabilities), "a veteran suffers additional hardships above and beyond those contemplated by VA's schedule for rating disabilities." Breniser v. Shinseki, 25 Vet. App. 64, 68 (2011). Generally, claims for special monthly compensation are governed by the provisions set forth in 38 U.S.C. § 1114(k) through (s). VA has promulgated regulations implementing section 1114. 38 C.F.R. §§ 3.350, 3.352. Aid and Attendance Under VA laws and regulations, special monthly compensation is payable if, as the result of a service-connected disability (or disabilities), the Veteran has: (1) anatomical loss or loss of use of both feet, or of one hand and one foot; (2) has blindness in both eyes with visual acuity of 5/200 or less; (3) is so helpless as to be in need of regular aid and attendance of another person; or (4) is permanently bedridden. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). Generally, "[w]here possible, determinations should be on the basis of permanently bedridden rather than for need of aid and attendance." 38 C.F.R. § 3.350(b)(4). "Aid and attendance" means that a veteran is so helpless as to be in need of regular aid and attendance based on the criteria in 38 C.F.R. § 3.352(a). Section 3.352(a) provides that the following "will be accorded consideration" in determining the need for regular aid and attendance: (1) the inability to dress or undress oneself, or to keep oneself ordinarily clean and presentable; (2) the frequent need of adjustment of any special prosthetic or orthopedic appliances, which by reason of the particular disability cannot be done without aid (not including 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 oneself through loss of coordination of upper extremities or through extreme weakness; (4) the inability to attend to the wants of nature; (5) 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 or her daily environment. Bedridden status will be a proper basis for the determination of the need for regular aid and attendance. 38 C.F.R. § 3.352(a). "Bedridden" means a condition which, through its essential character, actually requires that the Veteran remain in bed. Id. The fact that a veteran 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 does not suffice. Id. Importantly, "[i]t is not required that all of the disabling conditions enumerated . . . be found to exist before a favorable rating may be made." 38 C.F.R. § 3.350(b)(2). (Emphasis added). "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." Id. It is mandatory for VA to consider the enumerated factors within the regulation. Turco v. Brown, 9 Vet. App. 222, 22425 (1996). Eligibility requires at least one of the enumerated factors to be present. Id. The "particular personal function" refers to the enumerated factors. Id. If at least one of the factors is present, special monthly compensation should be awarded. Prejean v. West, 13 Vet. App. 444, 448 (2000); Turco, 9 Vet. App. at 225. Permanently Housebound Special monthly compensation is payable if a veteran is permanently housebound. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). The law provides for two avenues through which to receive this benefit: "statutorily housebound," see 38 C.F.R. § 3.350(i)(1), and "housebound-in-fact," see 38 C.F.R. § 3.350(i)(2). Under both avenues, the veteran must first have a single service-connected disability rated as 100 percent disabling. 38 C.F.R. § 3.350(i). Several separately rated disabilities cannot be combined to achieve a single 100 percent rating in order to qualify for special monthly compensation. VAOGCPREC 66-91. VA General Counsel precedential opinions are binding on the Board. 38 U.S.C. § 7104(c); 38 C.F.R. § 14.507. A total disability rating for individual unemployability (TDIU) based on a single disability does, however, qualify as a single 100 percent rating for the purposes of section 3.350. Bradley v. Peake, 22 Vet. App. 280, 293 (1998). In addition the 100 percent disability rating may be based on a schedular basis, an extraschedular basis, or on the basis of a temporary total rating pursuant to 38 C.F.R. §§ 4.28 (pre-stabilization rating), 4.29 (temporary total hospital rating) or, 4.30 (temporary total convalescence rating). To be found statutorily housebound, the veteran must have an additional service-connected disability (or disabilities) independently ratable (not necessarily currently rated) at 60 percent, which must be separate and distinct from the 100 percent service-connected disability and involve different anatomical segments or bodily systems. 38 C.F.R. § 3.350(i)(1). The fact that the 100 precent rated disability and the independent 60 percent ratable disability (or disabilities) result from a common etiological agent will not preclude entitlement. To be found housebound-in-fact, the Veteran must be permanently housebound by reason of a service-connected disability (or disabilities). 38 C.F.R. § 3.350(i)(2). This requirement is met when the veteran is "substantially confined" as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. Id. "Substantially confined" means that the claimant is restricted to his or her house except for medical treatment purposes. Howell v. Nicholson, 19 Vet. App. 535, 540 (2006). Analysis According to the most recent March 29, 2021, Codesheet, service connection is in effect for the following disabilities: prostatectomy with residual bladder voiding dysfunction (60%), coronary artery disease (60%), diabetes mellitus type II (20%), left arm peripheral neuropathy (20%), right arm peripheral neuropathy (20%), right sciatic nerve (20%), left sciatic nerve (20%), left femoral nerve (20%), right femoral nerve (20%), erectile dysfunction (0%), and residuals of thrombosis/TIA cerebral infarction (0%). The Veteran has a total combined disability rating of 100% as of September 9, 2016. The Board notes the VA Regional Office's previous denials centered upon the fact that the Veteran did not have a single disability rated at 100 percent. Yet, there is no statutory or regulatory requirement that the service-connected disability or disabilities resulting in the need for aid and attendance be rated as 100 percent disabling. Compare 38 U.S.C. § 1114(l) and 38 C.F.R. § 3.352 with 38 U.S.C. § 1114(s). Aid and Attendance The Veteran submitted an Aid and Attendance examination report dated November 17, 2017, which is the most recent report evaluating him for special monthly compensation. The medical professional documented that the Veteran was able to feed himself but did not know how to cook, was unable to stand to cook, and that his hands became numb. The medical professional documented that the Veteran was unable to tie his shoes, had trouble getting in and out of the bathtub, needed assistance to button his shirts and pants, and sometimes needed assistance using the bathroom. The Veteran reported that he needed his nephew to help set up his medications. He also reported difficulty when writing checks due to his hands and fingers becoming numb. The Veteran used a cane and was only ablet to walk 100 feet. The medical professional documented that the Veteran had decreased straight-leg raise in both lower extremities, ambulated slowly, had poor balance, hunched over slightly, and dropped objects due to loss of fine motor skills. The medical professional documented that the Veteran experienced incontinence with urination and was unable to drive due to numbness in his feet. His nephew took the Veteran to the store and the Veteran needed accompaniment to all appointments. Although the Aid and Attendance report is nearly four years old, the Board has reviewed the Veteran's VA medical records associated with his file and has not located sufficient evidence to conclude that the Veteran's symptoms and functional limitations have significantly worsened or improved over the last four years. At most, the Board has located evidence that the Veteran no longer suffers from incontinence and may be able to walk more than 100 feet now. See February 2019 VA Physical Medicine Rehab Note (documenting no incontinence and walking distance); December 2020 VA Primary Care Note (denying increased urination). It is also true that his urinary incontinence is now listed as part of his past medical history. Nevertheless, the Veteran's daughter now lives with him and does what she can to assist in his daily activities, including bathing and cooking. See December 2020 VA Primary Care Note. In light of VA's pro-claimant system and providing the Veteran the benefit of the doubt, the Board finds that the Veteran is entitled to special monthly compensation based on his need for regular aid and attendance due to his service-connected disabilities. Specifically, the medical evidence of record indicates his neuropathy of the upper and lower extremities markedly restricted his ability for self-care, to include cooking, bathing, and dressing. In addition, his bladder disability did affect his urinary incontinency for a portion of the appeal period. Accordingly, the criteria for special monthly compensation based on the need for aid and attendance are met. Permanently Housebound (Continued on the next page) In the interest of completeness, the Board observes that the Veteran has not been service connected for a disability rated at 100 percent disability during the appeal period. As 38 C.F.R. § 1114(s) requires a 100 percent rated disability as a prerequisite for special monthly compensation for housebound status, such compensation is not warranted. Furthermore, receipt of special monthly compensation based on the need for aid and attendance precludes receipt of special monthly compensation for housebound status. See 38 C.F.R. § 4.14 (prohibiting compensation twice for the same disability). M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, 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.