Citation Nr: 22015803 Decision Date: 03/19/22 Archive Date: 03/19/22 DOCKET NO. 16-34 724 DATE: March 19, 2022 ORDER Entitlement to special monthly compensation (SMC) based on housebound status is denied. FINDING OF FACT The Veteran is not permanently housebound, and he does not have a single disability rated as 100 percent disabling. CONCLUSION OF LAW The criteria for special monthly compensation (SMC) at the housebound rate have not been met. 38 U.S.C. §§ 1114(s), 5107; 38 C.F.R. §§ 3.102, 3.350(i), 4.16(a), 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army National Guard, service which included periods of Active Duty for Training (ACDUTRA) between July 2003 and February 2004 and from October 4 to October 23, 2009. This case comes to the Board from a November 2017 decision of the Agency of Original Jurisdiction (AOJ), which denied four claims for benefits, including the Veteran's request for special monthly compensation (SMC) based on the need for the aid and attendance of another person and/or housebound status. During earlier proceedings concerning the Veteran's SMC claim, the Board considered the issue together with many other claims for benefits, including several originating from other AOJ decisions. In December 2018,the Board remanded 21 claims, including the SMC housebound claim, to the AOJ to obtain records and arrange examinations. In a March 2021 decision and remand, the Board resolved most of these claims, remanding only the claim for service connection for headaches and the requests for SMC based on both housebound status and on the alleged need for the aid and attendance of another person. In January 2022, the Board granted service connection for a headache disorder and denied the claim for SMC based on the alleged need for aid and attendance. SMC housebound was remanded because, as the Board explained, the initial rating for the Veteran's service-connected headaches could potentially affect whether he was eligible for this benefit. As a result of the March 2021 and January 2022 decisions, SMC housebound is the only issue remaining in this appeal. Analysis The Veteran has the following service-connected disabilities: (1) lower extremity radiculopathy of the left sciatic nerve with foot drop; (2) lower extremity radiculopathy of the left femoral nerve; (3) thoracolumbar strain with degenerative disc disease; (4) migraine headaches; (5) residuals of an in-service fracture of the third metatarsal of the right foot; (6) patellofemoral pain syndrome of the left knee; (7) trochanteric pain syndrome of the bilateral hips; (8) tinnitus; (9) bilateral hearing loss; (10) erectile dysfunction; and (11) midsagittal surgical scar. Under 38 U.S.C. § 1114(s), a claimant may be entitled to receive special monthly compensation (SMC) at the "housebound rate" if (1) he has at least one disability rated at 100 percent disabling and another disability or disabilities rated at least a combined 60 percent, or (2) is permanently housebound by reason of service-connected disability or disabilities. "[T]he requirement of 'permanently housebound' will be considered to have been met when the veteran is substantially confined to such veteran's house (ward or clinical areas, if institutionalized) or immediate premises due to service-connected disability or disabilities which it is reasonably certain will remain throughout such veteran's lifetime." Id.; see also 38 C.F.R. § 3.350(i)(2). The Veteran first applied for service-connected compensation in April 2011, shortly after the end of his National Guard service. In September 2011, the AOJ arranged an examination of his back and right foot. At that time, according to the examiner's report, these disabilities limited the Veteran's ability to walk medium or long distances. He told the examiner that, "on average, he can walk 0.5 miles. He indicates it takes 30 minutes to accomplish this." There were many subsequent examinations assessing the symptoms of the disabilities mentioned above and collecting the information necessary to apply the relevant rating criteria. But the Board will limit its summary of the evidence to the information which is most relevant to determining whether or not service-connected disabilities have rendered the Veteran permanently housebound. According to an August 2014 VA back (thoracolumbar spine) report, the Veteran's lumbar strain and degenerative disc disease caused pain and limited motion as well as radiculopathy of the left lower extremity. But the Veteran retained normal muscle strength in his lower extremities and his gait was normal. He did not require any assistive devices such as a cane, crutches, walker or wheelchair for normal locomotion. There was another VA back examination in February 2016. This time, the report noted left foot drop and indicated some weakness (4/5 or "Active movement against some resistance") in the left lower extremity with both ankle dorsiflexion and great toe extension. The examiner summarized the Veteran's description of "flare-ups" or episodes in which his symptoms are at their worst: "Only able to walk [a] couple blocks, always catching [left] foot on things." The Veteran still did not require assistive devices. In March 2016, an examination revealed patellofemoral pain syndrome of both knees. Flexion in the left knee was somewhat limited zero degrees extension to 90 degrees of flexion (zero to 140 is normal) but muscle strength in both knees was normal, and the Veteran did not require assistive devise for locomotion. There was another series of examinations in February 2018. The back examination questionnaire indicates that the Veteran experienced "chronic back pain [with] sharp pain [radiating] down [the] left leg [and] left foot drop. . ." There was numbness and weakness with instability on the left side. The Veteran told the examiner that, during flare-ups, he "can only walk a short distance, [and] frequently lose[s] balance." According to part 3F of the report ("Additional factors contributing to disability"), the Veteran lost his balance and fell down every few months. Muscle strength was slightly reduced (4/5) with left ankle dorsiflexion and great toe extension. There was muscle atrophy in the area of the left calf. Otherwise, muscle strength was normal. Once again, the Veteran did not require assistive devices for normal locomotion. The February 2018 peripheral nerves report indicates that the Veteran walked with an antalgic gait. He experienced mild constant pain, paresthesias and dysesthesias, numbness, and moderate intermittent pain in the left lower extremity. According to the most recent peripheral nerves examination report, dated February 2020, the Veteran was capable of walking a maximum of one mile each day, but took no other exercise. The report indicates that, "Veteran states he can walk 14 mile. . ." To reconcile both statements, the Board finds that the Veteran was capable of walking one quarter of a mile without stopping, but no more than one mile during a single day. The peripheral nerves report further indicates that the Veteran spent approximately three hours each day doing chores and taking care of his children. The February 2020 knees report states that the Veteran could drive up to one hour. Both the knees report and the March 2020 hips questionnaire indicate, like the earlier reports, that the Veteran did not require assistive devices for normal locomotion. As noted, the Board granted service connection for the Veteran's headache disorder in January 2022 while remanding his claim for SMC based on housebound status. This was necessary, the Board explained, because the AOJ would assign an initial rating for headaches to implement the January 2022 decision and that rating could potentially affect whether the Veteran satisfied the requirements of 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i). For the period between February 14, 2013 and August 24, 2021, the AOJ assigned a zero percent (noncompensable) rating for headaches. For the period since August 24, 2021, the AOJ assigned a 30 percent rating. The effective date of the 30 percent rating assigned to the Veteran's headaches is the date of the most recent VA headaches examination. According to the examination report, the diagnosis was migraine headaches and the Veteran experienced characteristic prostrating attacks of migraine headache pain approximately once every month. The typical duration of his headache pain was between one and two days. His headache pain was associated with nausea, vomiting, sensitivity to light, and changes in vision. Having reviewed the evidence, the Board finds that the Veteran is not entitled to SMC at the housebound rate pursuant to 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i). He does not have at least one disability rated at 100 percent disabling and another disability or disabilities rated at a combined 60 percent disabling. His most severe disability is sciatic nerve radiculopathy of the left lower extremity, currently rated 40 percent disabling. The combined rated of all of his service-connected disabilities is 90 percent. Thus, his service-connected disabilities do not satisfy the criteria of 38 C.F.R. § 3.350(i)(1). Moreover, the evidence weighs against a finding that the Veteran is permanently housebound by reason of his service-connected disabilities. Walking and standing has been difficult for him because of pain and weakness in his back, hips, and left knee. But the most recent information indicates that he is capable of walking up to one quarter of a mile without stopping and up to one mile in a day. He has consistently been capable of normal locomotion without assistive devices. He can also drive a motor vehicle for up to one hour. This information is inconsistent with any finding that the Veteran is housebound. It seems that his service-connected headache disorder is sometimes associated with prostrating attacks of migraine headache pain. But these attacks end after one or two days. Even if it were true that the Veteran is unable to leave his home during these attacks, his headache disorder does not make him "permanently" housebound as the term is used in 38 U.S.C. § 1114(s). Before reaching this conclusion, the Board has considered the Veteran's statements. In his July 2017 application and his November 2017 notice of disagreement, he indicated that he wanted to receive special monthly compensation. But he did not explain why he believed he was entitled to this benefit. In October 2017, March 2018, and December 2020, the Veteran submitted very detailed statements describing various experiences during his military service, the symptoms of his current disabilities, and his criticisms of various rulings of the AOJ. But none of the information in any of these statements suggest that, because of his service-connected disabilities, the Veteran was substantially confined to his house. The Veteran has the burden of proving, at least to an equipoise standard, all of the requirements of his claim for SMC based on housebound status. See 38 U.S.C. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Because the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply, see 38 U.S.C. § 5107(b), and the request for SMC at the housebound rate is denied. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Nye, 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.