Citation Nr: 21039812 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 15-10 960 DATE: July 1, 2021 ORDER Entitlement to special monthly compensation (SMC) due to the need for aid and attendance and/or due to being housebound is denied. FINDINGS OF FACT 1. The weight of the evidence is against a finding that the Veteran 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. 2. The weight of the evidence is against a finding that the Veteran is in a nursing home because of mental or physical incapacity. 3. The weight of the evidence is against a finding that the Veteran's service-connected disabilities render him so nearly helpless as to require the regular aid and attendance of another person. CONCLUSION OF LAW The criteria for entitlement to special monthly compensation (SMC) due to the need for aid and attendance and/or due to being housebound have not been met. 38 U.S.C. §§1114, 1115, 5107; 38C.F.R. §§3.350(i), 3.351(a)(2). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the Army from October 1996 to February 1997, and from June 1999 to September 2000. This matter originates from a December 2013 claim of entitlement to special monthly compensation (SMC) due to a need for aid and attendance, that was denied by a Department of Veterans Affairs (VA) Regional Office (RO) in February 2014. This matter returns to the Board of Veterans' Appeals (Board) by direction of March 2021 order from the Court of Appeals for Veterans Claims (CAVC) implementing the terms of a Joint Motion for Remand (JMR). The March 2021 JMR vacates a July 2020 Board denial of the Veteran's SMC claim and directs the Board to readjudicate the Veteran's claim and to provide an adequate statement of reasons and bases in support of its decision, specifically with regards to a January 2020 lay statement by the Veteran. Entitlement to special monthly compensation (SMC) due to the need for aid and attendance and/or due to being housebound is denied. A Veteran may demonstrate entitlement to SMC at the housebound rate by showing that they have a service-connected disability rated as total and either (a) additional service-connected disability or disabilities independently rated at 60 percent or more or (b) that they are permanently housebound by reason of the service-connected disability rated as total. 38 U.S.C. § 1114(s). A Veteran may demonstrate entitlement to SMC for aid and attendance by showing that, as the result of a service-connected disability, they have suffered the anatomical loss or loss of use of both feet, or of one hand and one foot, or are blind in both eyes, with 5/200 visual acuity or less, or are permanently bedridden or with such significant disabilities as to be in need of regular aid and attendance. 38 U.S.C. § 1114(l). In this case, service connection is in effect for depression (70 percent); migraine headaches without aura (20 percent); subacute bursitis of the left shoulder (10 percent); right ankle lateral ligamentous sprain (10 percent); patellofemoral pain disorder with synovitis, bilateral knees (10 percent each); onychomycosis and tinea pedis, bilateral feet and tinea cruris in the groin (10 percent); chronic cervical spine strain with degenerative changes (10 percent); chronic ankle sprain, left ankle (10 percent); gastroesophageal reflux disease with hiatal hernia (0 percent); and, facial herpes near right side of mouth (0 percent). The Veteran has been granted entitlement to a total disability rating based on individual unemployability (TDIU), effective throughout the period on appeal. The record does not reflect that the Veteran has a single service-connected disability rated as total. A TDIU rating may satisfy the total disability evaluation requirement of 38 U.S.C. § 1114(s) where that rating is based on a single disability. Bradley v. Peake, 22 Vet. App. 280, 293 (U.S. 2008). However, the June 2013 rating decision granting entitlement to TDIU reflects that this grant was made on the basis of the combined effects of the Veteran's musculoskeletal and mental disabilities. The Veteran is not service connected for any disabilities of the eye or eyes. The record does not reflect that the Veteran has lost the use of both feet, or of one hand and one foot, as a result of service-connected disabilities. Loss of use of a hand or a foot will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic appliance. 38 C.F.R. § 3.350(a)(2). A March 2019 VA examiner documented that there have been no amputations of the upper or lower extremities. There is no evidence of record reflecting limitation of function of the hand or foot to the point where the Veteran would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic appliance. The Veteran does not have a service-connected disability rated as total within the meaning of 38 U.S.C. § 1114(s); entitlement to SMC at the housebound rate is therefore precluded as a matter of law. The record does not reflect any service-connected eye disability, or the loss of use of any hands or feet. Accordingly, the Board's analysis of the Veteran's entitlement to SMC under 38 U.S.C. § 1114 will focus on whether the Veteran is permanently bedridden or in need of regular aid and attendance due to his service-connected disabilities as provided for by 38 U.S.C. § 1114(l). Need for aid and attendance means helplessness or being so nearly helpless as to require the regular aid and attendance of another person. 38 C.F.R. § 3.351(b). A veteran will be considered in need of regular aid and attendance if he or she 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; is a patient in a nursing home because of mental or physical incapacity; or 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 Veteran is not service connected for any disability of the eyes. Further, the record does not reflect that he is a patient in a nursing home because of mental or physical incapacity. Accordingly, the Board's analysis of the Veteran's entitlement to SMC for aid and attendance under 38 U.S.C. § 1114 will be further limited to whether the evidence reflects a factual need for aid and attendance. 38 C.F.R. § 3.352 provides that the following will be accorded consideration in determining the need for regular aid and attendance: inability of claimant 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 (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 (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 the claimant from hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352(a). It is not required that all of the disabling conditions enumerated here be found to exist before a favorable rating may be made. Id. However, eligibility requires at least one of the enumerated factors be present. Turco v. Brown, 9 Vet. App. 222, 224 (U.S. 1996). Further, while the presence of one of the enumerated factors is a necessary condition for a grant of SMC for aid and attendance, the mere presence of one such factor is not a sufficient condition for such a grant. The particular personal functions which the veteran is unable to perform should be considered in connection with his or her condition as a whole. 38 C.F.R. § 3.352(a). "Bedridden" will also be a proper basis for the determination. For the purpose of 38 C.F.R. § 3.352(a) "bedridden" means a condition which, through its essential character, actually requires that the claimant remain in bed. 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. 38 C.F.R. § 3.352(a). In June 2013 the Veteran reported to VA treating providers that he owned a 22-acre property that he worked on, but that his arthritis limited his ability to exercise. In August 2013 the Veteran completed a VA Preliminary Independent Living Assessment. The Veteran did not report usually performing any activities of daily living with no difficulty. He reported walking indoors and driving a car as something he usually did with some difficulty. He reported taking care of self, including eating, dressing, or bathing; moving in and out of a bed or chair; and walking one block or climbing one flight of stairs as activities he usually did with help or assistive device. He reported that due to disability he usually did not walk several blocks; do work around the house such as cleaning, light yard work, or laundry; run errands; visit with relatives or friends; participate in community activities; or take care of other people. The Veteran rated his overall level of independence as "moderate." He reported that his wife helped him with bathing due to pain in his shoulders and back; that his wife would do errands, and that he would either drive or sit in the truck; and that he was unable to prepare his own meals as he could not concentrate. In October 2013 the Veteran reported to treating providers that he could go up and down steps, but that it was painful. The Veteran also reported that he had broken his cane trying to hit a coyote on his property. A December 2013 VA life skills coaching report reflects the Veteran's report that his wife helped him dress, and that while he could make a sandwich, he had trouble standing and making food as he would forget and leave burners on. The Veteran reported that he would only drive for short distances, such as a few miles into town. However, the Veteran also reported having maintained his property himself for the previous twelve months, and that he loved doing so. The life skills coaching report reflects that the Veteran anticipated being able to use a tractor, including backhoe, front end loader, and box scraper attachments, to make improvements to his property. A July 2014 memorandum by a VA case manager reflects the Veteran's report that while he relied on his wife to complete everyday activities, he enjoyed working on and managing his property, and that he believed a tractor or all-terrain vehicle (ATV) would allow him to manage his 23 acre property without experiencing pain or physical exertion. In August 2014 the Veteran complained to VA treating providers of itching all over his body due to exposure to poison oak. A February 2015 VA social work note reflects the Veteran's statements that he wanted an electric gate installed at the entrance to his property, as he found it very taxing to get in and out of his truck to manually open or close the gate. In April 2015 the Veteran reported to VA treating providers that he had become fully covered in poison oak while working in his yard. In April 2016 the Veteran reported to VA treating providers that he was experiencing right forearm pain he attributed to using a hammer "a lot" two months prior. In June 2016 the Veteran reported having difficulty putting on his shoes and socks, requiring help from his wife, due to thick toenails. In July 2016 the Veteran complained to VA treating providers of an itchy rash he attributed to exposure to poison oak the previous February. In August 2016 the Veteran reported to VA treating providers that he had frequent exposure to poison oak due to working on his farm. At his February 2018 Board hearing, the Veteran testified that he could feed himself, but not prepare meals due to memory difficulties. The Veteran testified that his wife would help him wash his legs, feet, and back, as he could not perform the necessary bending and stooping himself. He testified that his wife would also assist him with getting on his socks, shoes, and belt. In May 2018 and April 2019, the Veteran presented to VA treating providers complaining of poison oak flares. In June 2019 the Veteran reported having twisted his knee approximately 4 weeks prior while walking down a hill. Later in June 2019 the Veteran reported another possible exposure to poison oak. The Veteran was afforded a VA examination in October 2019 in relation to his aid and attendance claim. The examiner documented that the Veteran drove, and that while he would have been able to attend unaccompanied, his wife had come along "for company." The Veteran reported that he spent most of his days in the recliner, and that his wife would bring him his meals in his recliner so that he could avoid the pain of walking to the table. The Veteran stated that he was able to walk around his home, and that he kept a ham radio in another room for recreation. The examiner documented that the Veteran reported being able to drive a riding lawn mower. The examiner documented a report by the Veteran that his shower had a "grab bar" he could use to help him stand up after toileting, and that he could "in general" shower without assistance. The examiner concluded that, while the Veteran demonstrated significant pain avoidance behaviors in conjunction with mental health symptoms that resulted in him leaving the home "only on rare occasions," he was functionally able to leave the home. In January 2020 the Veteran submitted a lay statement challenging the accuracy of the October 2019 examiner's report. The Veteran denied mowing the lawn. The Veteran denied having driven to the October 2019 examination, instead stating that his wife drove him. He also clarified that he could walk inside his home with a cane or walker with his wife's help. The Veteran denied having a grab bar for his shower and/or toilet and noted that his wife would get him dressed. In May 2021 VA received a written statement from the Veteran's wife. She reported helping her husband get dressed; bathe; manage his medications; and get on and off the toilet. She also reported mowing the lawn on the riding mower. VA must consider all medical and lay evidence of record and make appropriate determinations of competence, credibility, and weight. 38 U.S.C. § 5107; Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board acknowledges the statements by the Veteran and his wife, throughout the period on appeal, that she helps him with bathing, dressing, preparing meals, and medication management, as well as more recent statements that she helps him get on and off the toilet. At a minimum, these statements reflect that the Veteran's ability to, in the language of 38 C.F.R. § 3.352, dress himself; keep himself ordinarily clean and presentable; and attend to the wants of nature, is impaired. However, statutory language should be interpreted consonant with "the provisions of the whole law. See e.g. John Hancock Mut. Life Ins. Co. v. Harris Tr. & Sav. Bank, 510 U.S. 86, 94, 114 S. Ct. 517, 523 (1993). Therefore, the elements of 38 C.F.R. § 3.352 must be read in conjunction with the direction in 38 C.F.R. § 3.352(a) that "the particular personal functions which the veteran is unable to perform should be considered in connection with his or her condition as a whole" and the definition of need for aid and attendance in 38 C.F.R. § 3.351 as meaning "helplessness or being so nearly helpless as to require the regular aid and attendance of another person." Notwithstanding that the Veteran has required assistance from his wife with certain activities throughout the period on appeal, he has also consistently reported being actively engaged in the management of a 22 or 23 acre property including throwing his cane at a coyote, coming into frequent contact with poison oak or poison ivy, using a hammer, and anticipating being able to operate a tractor with assorted construction attachments. While the Veteran relies on his wife to drive long distances, he remains able to drive for short distances. The Board finds these activities inconsistent with the definition of need for aid and attendance in 38 C.F.R. § 3.351 as entailing being "helpless or nearly so." Further, based on the evidence described above, the Board similarly finds that the Veteran's condition is not one which, through its essential character, actually requires that he remain in bed; accordingly, the Board concludes that the Veteran is not "bedridden" within the meaning of 38 U.S.C. § 1114(l) and 38 C.F.R. § 3.352. Accordingly, the Board concludes that the criteria for entitlement to special monthly compensation (SMC) due to the need for aid and attendance and/or due to being housebound have not been met, and the same are hereby denied. 38 U.S.C. §§1114, 1115, 5107; 38C.F.R. §§3.350(i), 3.351(a)(2). Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sametshaw, Eric C. 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.