Citation Nr: 21042597 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-01 614 DATE: July 13, 2021 ORDER Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is granted. The appeal regarding entitlement to SMC based on based on housebound (HB) status is dismissed. Entitlement to specially adapted housing is granted. The appeal regarding entitlement to a special home adaptation grant is dismissed. FINDINGS OF FACT 1. The Veteran is in need of aid and attendance as a result of functional impairment from her service-connected disabilities. 2. The grant of entitlement to SMC based on aid and attendance renders moot the housebound claim. 3. The Veteran's permanent and total service-connected disability results in the effective loss of use of both lower extremities, such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair. 4. The issue of eligibility for a special home adaptation grant is moot, due to the award of eligibility for assistance in acquiring specially adapted housing in the present Board decision. CONCLUSIONS OF LAW 1. The criteria for SMC based on the need for aid and attendance have been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352. 2. The appeal regarding entitlement to SMC based on being housebound is dismissed. 38 U.S.C. § 1114(s); 38 C.F.R. §§ 3.350, 3.351. 3. The criteria for eligibility for assistance in acquiring specially adapted housing are met. 38 U.S.C. §§ 2101, 5107; 38 C.F.R. §§ 3.102, 3.809. 4. The claim for entitlement to a special home adaptation grant is dismissed as moot. 38 U.S.C. §§ 2101 (b), 7105; 38 C.F.R. § 3.809a. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1979 to September 1979 and October 2004 to October 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). A Board hearing was held in January 2019. A transcript is of record. In June 2019, the Board remanded the case for further development. 1. Entitlement to SMC based on the need for aid and attendance. The Veteran is claiming SMC based on the need for aid and attendance. Relevant to this case, SMC based on the need for aid and attendance is available where the Veteran is so helpless as to be in need of regular aid and attendance due to service-connected disabilities. 38 C.F.R. § 3.350 (b). In making this determination, the Board is to consider the Veteran's ability to dress or undress herself, keep herself ordinarily clean and presentable, inability of claimant to feed herself through loss of coordination of upper extremities or through extreme weakness, inability to attend to the wants of nature (use the bathroom); 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). The Veteran claims that she is in need of aid and attendance due to her service-connected disabilities. The Veteran is service connected for several disabilities, to include right lower extremity radiculopathy, rated as 40 percent disabling; left lower extremity radiculopathy, rated as 40 percent disabling; major depressive disorder, rated as 40 percent disabling; left carpal tunnel syndrome, rated as 30 percent disabling; non-insulin dependent diabetes, rated as 20 percent disabling; right carpal tunnel syndrome, rated as 20 percent disabling; and a lumbar spine disability, rated as 10 percent disabling. The Veteran is in receipt of a combined 100 percent disability rating for her service-connected disabilities. At the January 2019 Board hearing, the Veteran asserted that she was unable to do anything by herself and needed regular help with several activities of daily living. In particular, she described weakness in her left arm and pain and functional limitation in her back and legs necessitating assistance with lifting things, washing clothes, getting dressed, and getting in and out of the bathtub to bathe. She reported that some mornings she is completely unable to dress herself at all, and further described needing help with putting on her prosthetic related to breast cancer due to loss of use of her left arm. Inasmuch as entitlement to SMC depends upon the extent of functional impairment resulting from service-connected disability only, the Board remanded the case in June 2019 in order to afford the Veteran with an additional examination. In this regard, in a December 2020 VA examination, the examiner noted the Veteran's diagnoses of bilateral lower extremity radiculopathy, bilateral carpal tunnel syndrome, and lumbar intervertebral disc disease. The examiner explained that the Veteran had mild-moderate assistance needing for dressing/undressing, bathing, and grooming due to back pain and radiculopathy aggravated by excessive standing, walking, bending, stooping, lifting, pushing, pulling, twisting, and turning. It was further noted that the Veteran had problems putting on clothing and bending to put on shoes due to back pain. Additionally, due to carpal tunnel syndrome, there was a decreased grip strength and pain with excessive hand maneuvers required for combing hair, bathing, and putting on clothing that requires buttoning, zipping, tightening, or use of fine motor skills. The examiner stated that the Veteran was able to prepare light meals such as sandwiches and microwavable meals, but otherwise major cooking was completed by the Veteran's children. Therefore, the examiner concluded that it was at least as likely as not that the Veteran's intervertebral disc disease, bilateral lower extremity radiculopathy, and bilateral carpal tunnel syndrome resulted in functional impairment requiring the aid and attendance of another person to assist with activities of daily living, including but not limited to bathing, grooming, dressing, undressing, driving, grocery shopping, and preparing meals. In contrast, in a February 2021 opinion, a different VA examiner concluded that the Veteran was able to ambulate with a cane or walker, though a wheelchair was required for longer distances. The examiner further explained that the Veteran did not require assistance in getting dressed and certain hygiene tasks. The examiner stated that a review of the rating decisions did not identify any conditions that were service-connected and required aid and attendance. In this regard, the examiner noted that the Veteran had a lumbar spine disability with associated radiculopathies and bilateral carpal tunnel syndrome. However, the examiner explained that a review of the appropriate disability benefit questionnaires did not reflect the requirement for aid and attendance based on those findings. Additionally, other conditions such as sleep apnea, tinnitus, depression, diabetes, and breast cancer have not contributed to any cause requiring aid and attendance. Therefore, the examiner concluded that it was less likely than not that the Veteran required aid and attendance due to any service-connected conditions. The Veteran also submitted a March 2021 Private Examination for Housebound Status or Permanent Need for Regular Aid and Attendance. At such time, Dr. M.L. noted that the Veteran was unable to prepare her own meals due to numbness in the left arm and she could not hold objects in the left hand. It was also noted that the Veteran needed assistance in bathing and tending to other hygiene needs, and she needed assistance with dressing such as putting on pants, shoes, socks, and bras. Dr. M.L. further noted that the Veteran did not drive due to her health. After a careful review of the record, the Board finds that the evidence of record is at least in equipoise as to whether the Veteran needed aid and attendance due to the functional effects of her service-connected disabilities. In this regard, the December 2020 and February 2021 VA examiners and Dr. M.L. are competent medical professionals and considered the totality of the evidence as well as medical principles in rendering their opinions. Therefore, the Board resolves all doubt in the Veteran's favor and finds the Veteran in need of aid and attendance due to her service-connected disabilities. 2. Entitlement to SMC based on based on housebound status. SMC may be granted to a Veteran based on 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 an attendance of another person or for being housebound, but not for both simultaneously. As SMC by reason of the need for aid and attendance of another person is a greater monthly benefit than SMC by reason of being housebound, the Board need not address housebound status as it is moot. 38 U.S.C. § 1114 (l), (s). 3. Entitlement to specially adapted housing. The Veteran contends that she is entitled to a special home adaptation grant or specially adapted housing due to her service-connected disabilities. In this regard, the Veteran is currently service connected for several disabilities, to include a lumbar spine disability, bilateral lower extremity radiculopathy, and bilateral carpal tunnel syndrome. Additionally, as stated above, the Veteran is in receipt of a combined 100 percent disability rating for her service-connected disabilities. Specially adapted housing is available to a veteran who has a permanent and total service-connected disability due to: (1) blindness in both eyes, having only light perception, plus the anatomical loss or loss of use of one lower extremity; (2) full thickness or subdermal burns that have resulted in contractures with limitation of motion of two or more extremities or of at least one extremity and the trunk; or (3) the loss or loss of use of both upper extremities such as to preclude use of the arms at or above the elbows. Specially adapted housing is also available to a veteran with a permanent and total disability that precludes locomotion without the aids of braces, crutches, canes, or a wheelchair due to: (4) the loss, or loss of use, of both lower extremities; (5) the loss or loss of use of one lower extremity, together with residuals of organic disease or injury which so affect the functions of balance and propulsion; or, (6) the loss or loss of use of one lower extremity together with the loss or loss of use of one upper extremity which so affect the functions of balance or propulsion. VA considers § 3.809(b) satisfied if the Veteran has amyotrophic lateral sclerosis rated as 100 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8017. 38 U.S.C. § 2101 (a); 38 C.F.R. § 3.809 (a), (b), (d). The phrase 'preclude locomotion' is defined as the necessity for regular and constant use of a wheelchair, braces, crutches, or canes as a normal mode of locomotion although occasional locomotion by other methods may be possible. 38 C.F.R. § 3.809 (c). In this case, at the Veteran's January 2019 Board hearing, she reported that without the use of a cane, walker, or wheelchair, she would not be able to get around. As noted above, the Board remanded the case in June 2019 because it was not clear what extent of the Veteran's functional impairment was related to service-connected, rather than nonservice-connected disability. Additionally, while the September 2018 VA aid and attendance/housebound examination noted that the Veteran uses a cane, walker, and wheelchair, VA treatment records appeared to document a seemingly greater retained functional ability than that described by the Veteran. As such, the June 2019 remanded instructed the AOJ to afford the Veteran another VA examination and obtain a medical opinion concerning the conflicting evidence of record, and to determine whether and to what extent the Veteran's service-connected disabilities alone resulted in limitation or loss of use of her upper and/or lower extremities. In this regard, in a December 2020 VA examination, the examiner noted that the Veteran's diagnosed intervertebral disc disease and radiculopathy were chronic conditions that began during military service and had progressively worsened through the years. The examiner explained that the Veteran was experiencing a poor quality of life due to constant pain and morbidity. The Veteran reported a frequent need for support from her children for daily activities including assistance dressing/undressing, bathing, and grooming. She further reported that her back pain and radiculopathy were aggravated by excessive standing, walking, bending, stooping, lifting, pushing, pulling, twisting, and turning. Therefore, the examiner concluded that it was at least as likely as not that the Veteran's service-connected disabilities, alone, were of such severity as to preclude her from ambulating without the use of an ambulatory device. The examiner explained that the Veteran must use a cane or rollator walker constantly when ambulating within and outside of the home. A wheelchair is needed for long distant locomotion outside the home, such as if visiting a shopping mall. When outside of the home, the Veteran can walk with a cane or rollator walker for 50 to 100 feet. In contrast, in a February 2021 opinion, a different VA examiner concluded that the Veteran was able to ambulate with a cane or walker, though a wheelchair was required for longer distances. As stated above, the Veteran also submitted a March 2021 Private Examination for Housebound Status or Permanent Need for Regular Aid and Attendance. At such time, Dr. M.L. noted that the Veteran used a cane and walker, and used a wheelchair for long distances. Dr. M.L. also stated that the Veteran had difficulty with ambulation, and she ambulated with an assistive device. The Board finds that the weight of the evidence indicates that the Veteran's imbalance constantly affects her ability to ambulate and she required the use of a cane, wheelchair, or walker due to symptoms of her service-connected lumbar spine disability, bilateral lower extremity radiculopathy, and bilateral carpal tunnel syndrome. The Veteran is in receipt of a combined 100 percent disability rating for her service-connected disabilities, and there is no indication that her ability to ambulate will improve. Therefore, the Board concludes that the Veteran has permanent and total service-connected disability due to the loss of use of both lower extremities, such as to preclude locomotion without the use of a cane, walker, or wheelchair. As such, she is eligible for assistance in acquiring specially adapted housing under 38 U.S.C. § 2101; 38 C.F.R. § 3.809. 4. Entitlement to special home adaptation. Where entitlement to a certificate of eligibility for specially adapted housing is not established, an applicant may nevertheless qualify for a special home adaptation grant. 38 U.S.C. § 2101(b); 38 C.F.R. § 3.809a(b). However, in this case, the Veteran has been granted a certificate of eligibility for specially adapted housing, which is a greater benefit. Therefore, any claim for a special home adaptation grant under 38 U.S.C. § 2101(b) is rendered moot, as this benefit is available only if a veteran is not entitled to the more substantial benefit of specially adapted housing under 38 U.S.C. § 2101(a). 38 C.F.R. § 3.809a(a). Thus, the appeal seeking a certificate of eligibility for a special home adaptation grant is dismissed as moot. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brennae L. Brooks, 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.