Citation Nr: 22013553 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 18-14 256A DATE: March 9, 2022 ORDER Entitlement to special monthly compensation (SMC) based on a finding of need for aid and attendance or housebound status is denied. FINDING OF FACT The evidence does not demonstrate that the Veteran was housebound or in need of aid an attendance as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to SMC based on the need for aid and attendance or housebound status as a result of service-connected disabilities, have not been met. 38 U.S.C. §§ 1155, 1521(d), (e); 38 C.F.R. §§ 3.351, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1965 to February 1969. These matters return to the Board of Veterans' Appeals (Board) following the issuance of an October 2021 Board remand decision which directed the Regional Office (RO) for additional development following the assignment of higher ratings during the time at which the matters were pending before the Board. In July 2021, the Veteran provided sworn testimony before the undersigned Veterans Law Judge (VLJ) at a Board hearing. A copy of the hearing transcript has been associated with the electronic claims file. Special Monthly Compensation 1. Entitlement to special monthly compensation (SMC) based on a finding of need for aid and attendance or housebound status The Veteran asserts that he is entitled to SMC based on the need for aid and attendance or housebound status. Specifically, he has claimed that he is entitled to such benefits by statute. In addition to any benefits already received, a veteran may also be entitled to SMC benefits where there is an established need for regular aid and attendance. 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b)(3). Requiring aid and attendance means that a person is helplessness or so nearly helpless as to require the regular aid and attendance of another person. A veteran will be considered to be in need of regular aid and attendance if by reason of his service-connected disabilities he (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; (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 38 C.F.R. § 3.352 (a). See also 38 C.F.R. § 3.351 (b), (c). The criteria to be considered in establishing a factual need for aid and attendance include: The inability of a 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. See 38 C.F.R. § 3.352 (a). Being bedridden is a proper basis for the determination. "Bedridden" is that 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). It is not required that all of the disabling conditions enumerated be found to exist before a favorable rating may be made. Moreover, 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. Determinations that a claimant is so helpless, as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant's condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others. Id. After a review of the evidence of record, the Board concludes that entitlement to SMC is not warranted based on either the need for aid and attendance or housebound status. Aid and Attendance As an initial matter, the evidence does not indicate, and the Veteran does not assert that he is blind. Next, the Board observes that the Veteran resides at home and has not been admitted to a skilled nursing home. The Board notes that the Veteran has not claimed that he is unable to feed himself or take care of himself in other ways such as dressing, using the bathroom, or bathing. The Veteran has does suffer from ambulation and function issues involving his service-connected left knee and bilateral ankle disabilities. Additionally, he asserted that his right knee is fused and causes difficulty in driving, however, he is not service connected for a disability involving the right knee. He is also a fall risk and uses a wheelchair to assist in ambulation, although he stated at his hearing that he is able to walk with the use of a cane. While the Veteran indicated that he has someone help him out of the shower several days per week, but he did not state that he was unable to shower. Both he and his wife also testified to the impact of the Veteran's acquired psychiatric disorder noting that on some days he does not have the motivation to get out of bed and suffers from angry outbursts. However, there is no indication that he is unable to get out of bed by himself. He remains somewhat active, as he stated that he can go to the store, although he uses a ride along cart to do his shopping. Importantly the Veteran and his wife noted that he is generally able to take care of himself although he feels safer when someone else is there with him. The evidence also does not demonstrate a factual need for aid and attendance under 38 C.F.R. § 3.352 (a). Specifically, after a detailed and comprehensive review of the record, the medical evidence including the Veteran's VA examinations and medical records, reflect that although the Veteran had some issues with his service-connected left knee and bilateral ankle disabilities and acquired psychiatric disorder they do not rise to a level that would necessitate the provision of aid and attendance as the Veteran is able to execute proper judgment, get around by himself, and do most things on his own. In arriving at this conclusion, the Board acknowledges the statements from the Veteran and his wife regarding his belief of entitlement to SMC for aid and attendance, the evidence does not indicate that the Veteran's service-connected disabilities caused significant inference with his daily activities, such as his loss of range of motion, pain, stiffness, or symptoms of his acquired psychiatric disorder, which would require the need for regular aid and attendance of another person. Instead, as discussed, the medical evidence indicates that he is mostly able to take care of himself. While testimony has been provided alluding to moderate to severe manifestations of the Veteran's acquired psychiatric disorder, there is no indication that he is unable to partake in the activities of daily living, more so that he suffers from a dearth of motivation during particularly bad days. Moreover, the evidence also does not indicate that assistance is required to protect him from the hazards and dangers of his daily environment as a result of his service-connected disabilities. Therefore, a factual need for aid and attendance has not been established. Housebound Status Lastly, if not in need of regular aid and attendance, a veteran may also be entitled to special monthly compensation for housebound benefits if, in addition to having a single permanent disability rated 100 percent disabling under the VA Schedule for Rating Disabilities (not including ratings based upon unemployability under 38 C.F.R. § 4.17 of this chapter), the Veteran either: Has an additional disability or disabilities independently ratable at 60 percent or more, separate and distinct from the permanent disability rated as 100 percent disabling and involving different anatomical segments or bodily systems; or Is "permanently housebound" by reason of disability or disabilities. This requirement is met when the Veteran is substantially confined to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical area, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. See 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). Although the total disability requirement must be met by a single disability, the 60 percent requirement may be met by applying the combined rating of the Veteran's remaining disabilities. See Bradley v. Peake, 22 Vet. App. 280 (2008) (noting that combined ratings to satisfy the second requirement but not the first). Moreover, in order to be considered "permanently housebound," the requirement that the Veteran be "substantially confined" to the home or its immediate premises is broadly construed and met when the Veteran is simply unable to leave the home to earn a living, as opposed to requiring that the Veteran be unable to leave the house at all. 38 U.S.C. § 1114 (s). Based upon the evidence of record, the Board determines that the requirements for SMC based on housebound status have not been met. As an initial matter, the Veteran does not meet the schedular basis for housebound status. Specifically, the Veteran is not receipt of a total disability rating based on unemployability (TDIU), and he is not in receipt of a 100 percent disability rating for any of his service-connected disabilities. Therefore, SMC for housebound status on a schedular basis is not warranted. Next, the evidence does not indicate that the Veteran is "permanently housebound" as a result of his service-connected disabilities on a factual basis. As discussed, while the Veteran's service-connected disabilities, do interfere with his range of motion, requiring his use of a cane and occasionally a wheelchair, he is still able to walk within his home on his own accord. Moreover, the Veteran has not claimed that his service-connected disabilities preclude him from ambulating on his own. Additionally, statements made by the Veteran and his wife during his Board hearing indicate that he regularly leaves his home for tasks such as grocery shopping. Therefore, SMC is also not warranted on this basis. The Board has also considered the statements from the Veteran and his wife regarding his claim for SMC for housebound status by statute. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Although the statements from Veteran and his wife are competent in regard to reporting symptoms because this requires only personal knowledge as it comes to them through their senses, they are not competent to identify a specific level of disability of his service-connected disabilities or render an opinion as to their effect on his activities of daily living. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). On the other hand, such competent evidence concerning the nature and extent of the Veteran's service-connected disabilities and his ability to live independently has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. Moreover, it should be noted that the Veteran has not specifically claimed that his service-connected disabilities necessitate the need for assistance in completing tasks of daily living, only that he feels safer when someone else is there to help. The medical findings (as provided in the examination reports and medical records) directly address the criteria under which these disabilities are evaluated. Additionally, the testimony provided by the Veteran and his wife about his ability to ambulate and engage in activities outside the house run against finding that he meets the criteria for entitlement to SMC on the basis of housebound status. Therefore, the Board finds that the medical evidence, which directly address the criteria under which SMC is evaluated, more probative than the assessments from the Veteran. As such, the evidence does not support the Veteran's claim for SMC by reason of the need for regular aid and attendance or housebound status as the Veteran is able to get around on his own accord, he displays proper judgment, and does not require assistance to complete activities of daily living due to his service-connected disabilities. Therefore, the Veteran's appeal is denied. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Hernan, Attorney Advisor