Citation Nr: 1743968	
Decision Date: 09/15/17    Archive Date: 10/10/17

DOCKET NO.  17-24 054	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance or being housebound.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

D. Van Wambeke, Counsel



INTRODUCTION

The Veteran had honorable active duty service from March 1944 to May 1946 and is in receipt of a Purple Heart, which denotes his participation in combat.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO).  This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1.  The Veteran's does not have anatomical loss or loss of use of both feet, or one hand and one foot due to service connected disabilities, nor does he suffer from service-connected blindness in both eyes with visual acuity of 5/200 or less; he is not shown to be permanently bedridden or so helpless that he is in need of the regular aid and attendance of another person solely as a result of service-connected disabilities.

2.  The Veteran does not have any service-connected disabilities evaluated as 100 percent disabling and entitlement to a total disability rating for compensation based on individual unemployability (TDIU) was established based on consideration of the combined functional impact of the Veteran's service-connected disabilities rather than on a single disability.



CONCLUSION OF LAW

The criteria for special monthly compensation based on the need for regular aid and attendance or being housebound have not been met.  38 U.S.C.A. § 1114 (l) and (s) (West 2014); 38 C.F.R. § 3.350 (b) and (i) (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

SMC at the aid and attendance rate is payable to a Veteran for anatomical loss or loss of use of both feet or one hand and one foot, blindness in both eyes with visual acuity of 5/200 or less, or being permanently bedridden or so helpless as a result        of service-connected disability that he or she is in need of the regular aid and attendance of another person.  38 U.S.C.A. § 1114(l) (West 2014); 38 C.F.R.               § 3.350(b) (2016). 

Factors considered to determine whether regular aid and attendance is needed include: inability to dress or undress himself, or to keep himself ordinarily clean     and presentable; frequent need to adjust special prosthetic or orthopedic appliances which by reason of the particular disability requires aid (this does not include adjustment of appliances that persons without any such disability would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect a claimant from the hazards or dangers incident to his daily environment.  38 C.F.R. § 3.352(a) (2016). 

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 decision is permissible.  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 he is so helpless as to need regular aid and attendance, not that there     is a constant need.  38 C.F.R. § 3.352(a) (2016); Turco v. Brown, 9 Vet. App. 222 (1996).  It is logical to infer, however, a threshold requirement that "at least one of the enumerated factors be present."  Id. at 224.  "Bedridden" will be that condition which, by virtue of its essential character, actually requires that the claimant    remain in bed.  The fact that a claimant has voluntarily taken to bed or that a      doctor has prescribed rest in bed for a greater or lesser part of the day to promote convalescence or cure is insufficient.  38 C.F.R. § 3.352(a) (2016). 

To establish entitlement to SMC based on housebound status under 38 U.S.C.A.       § 1114(s), the evidence must show that a Veteran has a single service-connected disability evaluated as 100 percent disabling and an additional service-connected disability, or disabilities, evaluated as 60 percent or more disabling that is separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or, the Veteran has a single service-connected disability evaluated as 100 percent disabling and due solely          to service-connected disability or disabilities, the Veteran is permanently and substantially confined to his or her immediate premises.  38 C.F.R. § 3.350(i) (2016).  The Court of Appeals for Veterans Claims (Court) has emphasized that a TDIU premised on a single disability may satisfy the requirements for entitlement to SMC under 38 U.S.C.A. § 1114 (s).  See Bradley v. Shinseki, 22 Vet. App. 280, 293 (2008); see also Buie v. Shinseki, 24 Vet. App. 242, 249-250 (2010).

In this case, the Veteran does not have any service-connected disabilities evaluated as 100 percent disabling, and entitlement to TDIU was established based on consideration of the combined functional impact of the Veteran's service-connected disabilities rather than on a single disability.  See March 2003 rating decision.  As such, the preponderance of the evidence is against the claim for SMC at the housebound rate.  

The Veteran is currently service connected for amputation of index and long fingers, status post gunshot wound to left hand, with ankylosis of the ring finger and instability of the thumb; scars on the left side of face extending from the cheek to the anterior surface of the neck with loss of tissue and cosmetic deformity; residuals of left mandible fracture with limitation of motion and deformity and loss of masticatory surfaces; gunshot wound scars on the anterior right upper chest; and left hip scar, site of operation for bone graft.  His combined rating for all disabilities is 80 percent.  Loss of use of any extremity has not been established, nor is such shown by the evidence.  He is not service-connected for disabilities involving his knees or hips or an eye disability.

An April 2016 VA social work note documents that the Veteran and his wife met with a social worker to discuss the social worker's role and VA benefits and resources.  The Veteran reported living in a one story home with his wife.  Their granddaughter helped care for them.  The Veteran was mostly independent in activities of daily living and instrumental activities of daily living but he and his wife were interested in aid and attendance.  The social worker provided them with information and an application.  The Veteran and his wife denied any other social work needs at that time.

The Veteran underwent examination for housebound status or permanent need for regular aid and attendance in April 2016.  The report included the following entries.  The Veteran was 90 years old and weighed 203 pounds.  Nutrition was adequate with assistance.  Blood pressure was 138/77, pulse rate was 77, respiratory rate was 18, and gait was unstable.  The Veteran was able to feed himself but unable to prepare his own meals.  The Veteran did not need assistance in bathing and tending to other hygiene needs; was not legally blind; did not require nursing home care; did not require medication management; and was able to manage his own financial affairs.  The Veteran appeared not disheveled, but stooped posture and walking with a walker were noted.  Bilateral upper extremity strength was 4/5 and there were no restrictions with bilateral upper extremity activities of daily living.  The examiner noted the Veteran reported great difficulty buttoning clothing and that sometimes, his spouse had to do this.  Bilateral lower extremity strength was 4/5, gait was unsteady with a walker, and the Veteran failed the get up and go test.  There were no restrictions of the spine, trunk and neck.  The examiner noted that the Veteran reported frequent loss of bowel control and having to stand a minute on arising to prevent dizziness; he also had difficulty with directions when not familiar with the area and poor balance.  The examiner indicated there were no restrictions to the Veteran being able to leave the home or immediate premises but that the Veteran required a walker for locomotion, noting that the distance was five to six blocks.  The examiner also noted that the Veteran reported he could not walk any distance with or without a cane; that he was just able to walk with a cane and walker in the house; and that he was no longer able to go to the basement level of his house.  

An April 2016 VA geriatric medicine note documents that the Veteran fell on his way to the appointment.  He stated he was tired from driving and from walking from where the car was parked and he had a fall on the way in to the building.  He denied loss of consciousness and attributed the fall to just being tired.  Trauma was minimal.  Otherwise he was doing well, taking medication as prescribed, reporting minimal dizziness with standing but no dizziness with head turning, and still driving without any accidents.  A consult was placed for a wheeled walker with seat and basket based on an assessment of falls.  An occupational therapy home evaluation was offered and refused.  

A November 2016 VA cardiology note indicates that the Veteran denied recent syncope or lightheadedness as well as any chest pain.  He noted gradually worsening exertional dyspnea but denied paroxysmal nocturnal dyspnea or orthopnea.  He could walk at least two blocks with his walker and was still able to do his daily living activities.  A November 2016 VA geriatric medicine note documents that the Veteran fell the week before while leaving a restaurant without his walker.  The Veteran denied dizziness or lightheadedness and thought he may have tripped over a gap on the sidewalk.  The assessment indicated the fall was likely of mixed etiology from deconditioning and a mechanical fall in the setting of knee pain.  It was not orthostatic.  

The Veteran received routine VA follow-up care in March 2017, at which time he was accompanied by his son and denied any major medical events since his last appointment.  He ambulated with a rollator walker without difficulty and appeared well-groomed and in good spirits.  He reported increasing numbness in his right hand, which was most prominent in his fingertips and grew less severe in the palm and wrist.  He described it as a "pins-and-needles feeling" and denied associated weakness.  He was not interested in further intervention.  The Veteran's extensive history of falls in the past was also noted, but on further questioning, he denied a fall since his last follow-up appointment (at which time he was started on a walker for ambulatory assistance) and said the walker had helped significantly in allowing him to maintain gait stability.  The Veteran was living at home with his wife.  Both were functionally independent and required no assistance with activities of daily living.  In an addendum, it was also noted the Veteran still drove limited distances, that his bowel movements had been regular, and that he slept well with nocturia times one to two.  In regards to the right hand numbness, that was noted to not be functionally limiting and did not keep him up at night.  The Veteran denied any clumsiness, his memory remained good, and he still took care of his finances.  

Upon review of the record, the preponderance of the evidence of record is against the claim for entitlement to SMC pursuant to 38 U.S.C.A. § 1114(l) and 38 C.F.R.     § 3.350(b) as a result of service-connected disability.   

The Veteran has not asserted, and none of the medical evidence of record suggests, that he has anatomical loss or loss of use of both feet, one hand and one foot, or service-connected blindness in both eyes with visual acuity of 5/200 or less.  See e.g., VA treatment records; VA examination report.

The Veteran reports the need of aid and attendance.  He has asserted needing help buttoning his clothes; fecal incontinence; having four falls in a month after turning 90; that it was impossible for him to get up by himself; that starting in 2008, extended family had taken over all cleaning, lawn care, snow shoveling and shopping; and that he was compensating his granddaughter for her help.  See July 2016 VA Form 21-0958.  In his April 2017 VA Form 9, the Veteran reported that although not completely bedridden, he and his wife had had to depend on family to do everything for them for the last few years.  He reported that after getting up and eating breakfast, he slept sitting on the sofa most of the morning.  He indicated that there was no way he could walk four blocks and could only walk with a walker to the mailbox and back, which wiped him out.  The Veteran also reported that he had no sense of balance, causing numerous falls; and that he had lost all feeling in his right hand and could not pick anything up, which, combined with his service-connected left hand disability, did not leave much use of his hands.  The Veteran reported that his son drove him to all appointments and that he had very bad use of his legs.  He indicated that he only showered about once a week because he was afraid of falling and that he was pretty much housebound except for doctor's visits.  

The Board acknowledges that the April 2016 VA examiner indicated that the Veteran was unable to prepare his own meals; that he presented with a stooped posture and required the use of a walker; and that he failed the get up and go test, which is consistent with the Veteran's report that it was impossible for him to get up by himself.  There is no indication, however, that these impairments are the result of any of the Veteran's service-connected disabilities.  In addition, although the VA examiner noted the Veteran's report of difficulty buttoning clothing, the April 2016 VA examiner reported that the Veteran appeared not disheveled, did not need assistance in bathing and tending to other hygiene needs, and only exhibited slightly decreased strength in his upper extremities.  Moreover, the Veteran was found to be independent in activities of daily living in April 2016, November 2016, and March 2017, and was noted to be well-groomed in March 2017.  In sum, the evidence of record does not document that the Veteran has been unable to dress or undress himself, to keep himself ordinarily clean and presentable, or to attend to wants of nature, solely as a result of service-connected disabilities.  

It appears that nonservice-connected disabilities affecting the Veteran's bilateral lower extremity cause the Veteran's impairment in functioning.  There is no evidence he is permanently bedridden; frequently needs to adjust any orthopedic appliances which by reason of the particular disability requires aid; or that he is unable to feed himself through loss of coordination of upper extremities or through extreme weakness.  Rather, bilateral upper extremity strength was only slightly weakened at the time of the April 2016 VA examination and the examiner clearly indicated that there were no restrictions with bilateral upper extremity activities of daily living; the Veteran is able to leave the house, to include on his own, walking to the mailbox and back, and driving himself; the only orthopedic aid the Veteran uses regularly is a walker, which was obtained due to a history of falls that have been attributed to mixed etiology from deconditioning and a mechanical fall in the setting of knee pain rather than a service-connected disability; and the April 2016 VA examiner determined that he was able to feed himself.  There is also no evidence that the Veteran requires care or assistance on a regular basis to protect him from the hazards or dangers incident to his daily environment as a result of service-connected physical or mental incapacity.  Although the Veteran has reported needing the help of family, he has clearly reported that this help is provided in order to maintain the house, including cleaning, lawn care, snow shoveling and shopping.  

The evidence as a whole does not support a conclusion that the Veteran is in need   of aid and attendance as a result of his service-connected disabilities.  The Veteran's advanced age cannot be a basis for a grant of SMC.  38 C.F.R. § 4.19.  

For the reasons set forth above, the preponderance of the evidence is against an award of special monthly compensation pursuant to 38 U.S.C.A. § 1114(l) and 38 C.F.R. § 3.350(b).  

In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A. § 5107(b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).

ORDER

Entitlement to SMC based on the need for regular aid and attendance or being housebound is denied. 



____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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