Citation Nr: A24040887 Decision Date: 07/25/24 Archive Date: 07/25/24 DOCKET NO. 210325-149386 DATE: July 25, 2024 ORDER Entitlement to an effective date prior to November 22, 2021 for an award of special monthly compensation (SMC) pursuant to 38 C.F.R. § 3.350(i) is denied. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance is denied. FINDINGS OF FACT 1. Prior to November 22, 2021, the Veteran did not have a single disability rated 100 percent disabling, and was not shown to be permanently housebound as a result of service-connected disability alone. 2. The Veteran is not service-connected for blindness, and was not service-connected for a lower extremity disability prior to November 22, 2021. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date prior to November 22, 2021 for an award of SMC pursuant to 38 C.F.R. § 3.350(i) and 3.350(s) have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The Veteran's service-connected disabilities did not require the regular aid and attendance of another person. 38 U.S.C. §§ 1114, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1984 to January 1990. In the March 28, 2022 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the March 2021 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 1. Entitlement to an effective date prior to November 22, 2021 for an award of SMC pursuant to 38 C.F.R. § 3.350(i). 2. Entitlement to SMC based on the need for regular aid and attendance. The Veteran contends he is entitled to SMC at the housebound rate and entitled for the SMC due to a need for regular aid and attendance. See IHP dated August 26, 2021. As initial matters, the Board notes the period on review for this appeal closed with the issuance of the March 2021 rating decision on appeal. Further, the Board notes that an April 2022 rating decision by the agency of original jurisdiction (AOJ) granted the Veteran total disability due to his acquired mental health condition, and awarded SMC based on housebound criteria effective November 22, 2021. SMC under 38 U.S.C. § 1114(s) is payable where a Veteran has a single service-connected disability rated as 100 percent and, either has an additional service-connected disability or disabilities independently ratable as 60 percent or more that is separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems (i.e., statutory housebound), or is permanently housebound by reason of service-connected disability or disabilities wherein he is substantially confined to his dwelling and immediate premises as a direct result of service-connected disabilities (i.e., housebound in fact). 38 C.F.R. § 3.350(s). SMC under 38 U.S.C. § 1114(s) is also payable when a veteran has a service-connected disability rated as 100 percent and is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s)(2). This requirement is met when a Veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. Id. In Bradley v. Peake, the Court held that, although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of TDIU predicated on a single disability may form the basis for an award of SMC. Bradley v. Peake, 22 Vet. App. 280 (2008) (holding that there could be a situation where a Veteran has a schedular total rating for a particular service-connected disability and could establish a TDIU rating for another service-connected disability to qualify for SMC under 38 U.S.C. § 1114(s) by having an "additional" disability of 60 percent or more ("housebound" rate)). However, because TDIU is merely a rating, not an actual disability, and because it can be assigned based on multiple service-connected disabilities, it does not always satisfy that element. Rather, to qualify as a single disability rated as total, the Court held that an award of TDIU must be based on one service-connected disability standing alone. Buie v. Shinseki, 24 Vet. App. 242 (2010). Special monthly compensation is payable under 38 U.S.C. § 1114(l) if, as the result of service-connected disability, the Veteran is permanently bedridden or is so helpless as to be in need of regular aid and attendance of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). The need for aid and attendance means being so helpless as to require the regular aid and attendance of another person. 38 C.F.R. § 3.350(b). The criteria for establishing that need include whether the Veteran is permanently bedridden or is so helpless as to be in need of regular aid and attendance as determined under criteria enumerated under 38 C.F.R. § 3.352(a). The following factors will be considered in determining whether the Veteran is in need of regular aid and attendance of another person: (1) inability of the Veteran to dress or undress himself, or to keep himself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without such aid; (3) inability of the Veteran to feed himself because of the loss of coordination of upper extremities or because of extreme weakness; (4) inability to attend to the wants of nature; or (5) physical or mental incapacity which requires care or assistance on a regular basis to protect the Veteran from the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). It is not required that all of the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found to exist before a favorable rating may be made. The particular personal functions which the Veteran is unable to perform should be considered in connection with his condition as a whole. 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 for aid and attendance. Turco v. Brown, 9 Vet. App. 222 (1996) (at least one factor listed in 38 C.F.R. § 3.352(a) must be present to grant special monthly compensation based on the need for aid and attendance). The record shows that prior to November 22, 2021, the Veteran did meet the criteria for SMC based on statutory housebound status, as he did not have a single disability rated as 100 percent disabling. Although the Veteran was granted TDIU since 2017, records demonstrate that was granted for both the Veteran's service connected disability for headaches and his tinnitus. Thus, the Board did not consider his TDIU coming from a single disability. Further, a VA aid and attendance examination conducted shortly before the November 2021 SMC grant shows that the Veteran's housebound status is predicated largely on his blindness, which is not a service connected disability. The examiner also noted the Veteran's lower extremity symptoms as contributory to his infirmity. The Veteran was not service-connected for any lower extremity condition prior to the currently assigned effective date in this case. Those findings are not controverted anywhere in the record, and the Veteran has not established that service connected disability alone rendered him housebound as that term is defined in the code. In sum, the basis for the Veteran's current SMC award at the housebound rate is his 100 percent disability evaluation for an acquired psychiatric disability. The effective date of the assignment of that evaluation is November 22, 2021, and that effective date is not at issue in this matter. As there is no other basis in the record for SMC at the housebound rate or higher, the appeal for an earlier effective date must be denied. The Board also finds that the weight of the evidence is against a finding that the Veteran is bedridden or so helpless as to require the aid and attendance of another person. The Board has considered the lay statements of the Veteran's wife, who explained that she to prepare all of the Veteran's meals due to his lack of sight and that she needs to drive the Veteran to all of his appointments. Moreover, the Veteran's wife relayed that she takes care of all the laundry, cleaning and maintenance. The Veteran also relayed in a January 2021 VA 21-2680 that his wife has to get him into the bathtub and that he often gets unstable due to weakness in his legs. Importantly, the Veteran's limitations, as described by the Veteran and his spouse, are primarily due to his blindness and neuropathy in which he was not service-connected. Accordingly, the Board finds that the weight of the evidence is against the claim of entitlement to SMC based on the need for the regular aid and attendance of another person or being housebound. The Board finds that the evidence is not in approximate balance and there is no reasonable doubt to resolve in favor of the Veteran. Therefore, the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Paul R. Casey Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Sahraie, 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.