Citation Nr: 21041709 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 17-00 112 DATE: July 10, 2021 ORDER Entitlement to special monthly compensation (SMC) based on the eed for the regular aid and attendance of another person or housebound status is denied. FINDING OF FACT The Veteran was not bedridden and was not unable to care for himself with respect to dressing, hygiene, feeding, toileting, and protection from hazards or dangers in his daily environment due to service-connected disabilities. He was also not substantially confined to his dwelling and the immediate premises due to his service-connected disabilities. CONCLUSION OF LAW The criteria for an award of special monthly compensation by reason of the need for regular aid and attendance of another person or by reason of being housebound are not met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1941 to November 1945. This matter comes before the Board of Veterans Appeals (Board) on appeal from a June 2014 and January 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran passed away in June 2015. The appellant claims as surviving niece who was substituted as the claimant on the Veteran's pending appeal as the person who bore the expense of last sickness and burial. 38U.S.C.§5121(a); 38C.F.R.§3.1000(a). In November 2018, the Board remanded this case for further development. The November 2018 remand required that the Veteran be provided a new examination and medical opinion for the Veteran's bilateral hearing loss claim. The remand provided that once these instructions were complete the claim for entitlement to SMC would be adjudicated. Accordingly, the Board's remand instructions have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). We note that the for pension purposes, A and A was established (not at government expense). 1. Special monthly compensation based on aid and attendance/housebound Initially, we note that hee Veteran served his nation during a time of war. He received the Philippine Liberation Ribbon, the Victory Medal, the American Theater Campaign Medal and the Asiatic Theater Campaign Medal. He was involved the Southern Philippine Campaign/Battle. As a result of such service, compensation was granted for service-connected disability. SMC may be granted to a Veteran on the basis of the need for regular aid and attendance from another person or of being housebound. In other words, a Veteran may receive SMC for either needing the regular aid and attendance of another person or for being housebound. SMC by reason of the need for regular aid and attendance of another person is a greater monthly benefit than SMC by reason of being housebound. 38 U.S.C. §§ 1114(l), (s). SMC by reason of the need for regular aid and attendance of another person is payable if a Veteran, as a result of the service-connected disability, either: (1) has suffered the anatomical loss or loss of use of both feet, (2) has suffered the anatomical loss or loss of use of one hand and one foot, (3) is blind in both eyes, (4) is permanently bedridden, or (5) is with such significant disabilities/so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). Granting SMC by reason of the need for regular need for aid and attendance of another person requires that at least one of the above disabling factors be met. Turco v. Brown, 9 Vet. App. 222 (1996). Regarding being bedridden, however, a favorable determination will not be based solely upon an opinion that the Veteran's condition is such as would require him to be in bed. 38 C.F.R. § 3.352(a). Such a determination instead must be based on the actual requirement of personal assistance from others. Id. As implied from above, it is not required that all of the disabling factors be found to exist before a favorable determination is made. Id. The particular personal functions that the Veteran is unable to perform should be considered in connection with his condition as a whole. Id. It is only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance, not that there is a constant need. Id. SMC by reason of being housebound is payable if a Veteran has a service-connected disability rated as total and either: (1) has an additional service-connected disability or disabilities independently ratable at 60 percent or more or (2) is permanently housebound by reason of his service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). The disabilities independently ratable at 60 percent or more must be separate and distinct from the total 100 percent service-connected disability and involve different anatomical segments or bodily systems. 38 C.F.R. § 3.350(i)(1). The Veteran is permanently housebound when he is substantially confined to his dwelling and the immediate premises (or, if institutionalized, to his ward or clinical areas) due to service-connected disability or disabilities and it is reasonably certain that the disability or disabilities as well as the resultant confinement will continue or remain throughout his lifetime. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i)(2). Substantially confined does not mean that the Veteran is unable to leave his dwelling and the immediate premises at all. Hartness v. Nicholson, 20 Vet. App. 216 (2006); Howell v. Nicholson, 19 Vet. App. 535 (2006). A medical note was provided for the Veteran on December 13, 2013. The note stated that the Veteran suffered a stroke and was admitted to the hospital. The note stated that the Veteran was previously living alone and now after having a stroke it was uncertain if the Veteran could return to live independently. On January 6, 2014, a long term care note was made for the Veteran. The Veteran reportedly was admitted to the local hospital for chronic obstructive pulmonary disease (COPD) exacerbations and was transferred to a VA medical center. The Veteran stated at that point that his goal was to get out of the hospital and back to rehabilitation so he could get to his niece's home. A nursing restorative note was provided to the Veteran on January 7, 2014. The note stated that the resident had total care in terms of his ADLs (activities of daily living). The Veteran was noted as non-ambulatory, independent with bed mobility, required a total lift for transfers, independent with all eating tasks, with no joint limitation and no prosthesis use. The Veteran was evaluated as not appropriate for restorative care programs. On January 23, 2014, the Veteran was provided an examination for housebound status. See, e.g., VA 21-2680 dated June 2014. The Veteran was noted to be able to feed himself and prepare his own meals. The Veteran was noted to need assistance in bathing and tending to other hygiene needs, not legally blind, required nursing home care, no need for medication management and no ability to manage his own financial affairs. The examination noted that the Veteran required assistance for the other ADLs and required assistance for transfer due to Veteran being nonambulatory. The examination noted that the Veteran used a wheelchair as well. In April 2014, a medical statement was provided to the Veteran. See, e.g., Third Party Correspondence dated April 2014. The medical assistant stated that prior to being admitted into Salisbury VA hospital (12/2013) the Veteran was self-sufficient, able to maintain his home, drove a motor vehicle, cooked meals, dressed without assistance, performed personal care needs and lived an independent lifestyle. The medical assistant stated that the Veteran no longer was physically able to move his own body weight from the stretcher to the wheelchair. The medical assistant further stated that the Veteran no longer could provide for himself. The Veteran was provided a May 2014 VA C & P examination. The examination noted that the Veteran was permanently bedridden and hospitalized at Randolph Health Rehabilitation center since April 2014. The examiner stated that the Veteran was functionally impaired due to advanced age of 91 and a long list of medical problems as listed under diagnoses. The only service-connected disease or injury that was listed under the Veteran's list of diagnosis was hearing loss. The examiner stated that the Veteran had declined sharply since December 2013 when he experienced a stroke and lab data showed acute on chronic kidney disease. The kidney disease was noted as due to multiple underlying illnesses that were diabetes mellitus, prostate disease, urinary obstruction, bladder dysfunction, congestive heart failure and hypertension. None of these diseases are service connected. On July 2014 the Veteran was temporary approved for a homemaker health aide program. The program was not connected to any service-connected diseases or injuries. Correspondence from a nurse practitioner from the hospice of Randolph county was received on December 3, 2014. See, e.g., Correspondence dated December 2014. The letter stated that the Veteran was under care of the hospice with a terminal diagnosis of congestive heart failure and cardiomyopathy. The note further stated that the Veteran had comorbidities of CVA (cerebrovascular accident or stroke), diabetes mellitus, and COPD. The Veteran was noted as using a wheelchair for mobility and did not ambulate in the home. The nurse practitioner further stated that the Veteran needed assistance around the clock from family or paid caregivers. On December 19, 2014 a PTSD (post-traumatic stress disorder) disability benefits questionnaire was provided to the Veteran. The questionnaire noted that Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care and conversation. Symptoms associated with the Veteran's PTSD were anxiety, chronic sleep impairment, disturbances of motivation and mood and difficulty in adapting to stressful circumstances. In January 2015 the Veteran was provided an elbow and forearm disability questionnaire. The Veteran was diagnosed with a radial head fracture with residual angulation. It was noted that the Veteran did not report any functional loss or functional impairment of the joint or extremity being evaluated regardless of repetitive use. A muscle injuries disability benefits questionnaire was provided to the Veteran as well in January 2015. The Veteran was diagnosed with a gunshot wound to the left thigh. The Veteran's muscle injury was noted as not affecting muscle substance or function. On June 5, 2015, the Veteran's niece reported that the Veteran had a significant change in his condition. Unfortunately, later the same day the Veteran passed away. The Board notes that the Veteran has been in desperate need of care since December 2013. However, the Veteran's records indicate that the Veteran's condition and needs have been due to non-service-connected diseases. The Veteran's May 2014 examination stated that the Veteran's condition began to sharply decline once the Veteran had a stroke. The examiner listed a large list of illnesses that were present and that had been contributing to the Veteran's condition. None of the illnesses contributing to the Veteran's condition were service connected. The Veteran's records reflect constant treatment that references his stroke and congestive heart failure as being causes. All of the correspondence that noted the Veteran requiring around the clock care never cited any disease that was service-connected as a contributor. The Veteran is service-connected for PTSD, rated at 50 percent, residuals of a right elbow fracture (supination), rated at 20 percent, bilateral hearing loss, rated at 10 percent, appendectomy, rated at 0 percent, residuals of a right elbow fracture (extension), rated at 0 percent, and residuals bullet wound leg with scar, rated at 0 percent. The examinations involving these service-connected diseases showed little functional impairment as a result of them. Further none of the treatment that was provided to the Veteran since his stroke in December 2013 referenced them as contributing to the Veteran's need for aid and attendance. Therefore, there is no indication that the service-connected disabilities rendered the Veteran so helpless as to be in need of regular aid and attendance or substantially confined to his dwelling and immediate premises. Rather, the record shows that the stroke and other non-service-connected disabilities were the contributors to the Veteran's need for aid and attendance and housebound status. We again note the Veteran's declining health and the need for constant care. (In fact, for pension purposes A and A was granted.) However, service-connected disability did not result in loss or loss of use of an extremity or blindness. Nothing in the record establishes that service-connected disability interfered with the wants of nature or the ability to care for himself generally. Although he was confined to a medical facility and may have been bedbound, it is clear that service-connected disability did not cause such status. It is clear that his extreme debility was due to residuals of a stroke, cardiac status and age. Although TDIU was granted, such grant was not based upon a single disability and he did not otherwise meet the criteria for a single 100 percent evaluation with other disability rated as 60 percent. We again note that he was confined to a medical facility, however, the need for such care was not due to service-connected disability. Accordingly, the preponderance of the evidence is against the claim. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Konieczny, Adam 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.