Case 22032738

Summary

The Veteran, who served from September 1972 to July 1974, appeals the denial of special monthly compensation (SMC) at the housebound rate. The Board found that the evidence reasonably raised the issue of entitlement to SMC based on the need for regular aid and attendance from another person. The Veteran is service-connected for several disabilities, including lumbar spine disability (50%), cervical spine disability (30%), bilateral peripheral neuropathy (20% each), bilateral sciatica (20% each), bowel dysfunction (noncompensable), and erectile dysfunction (noncompensable), resulting in a 90% combined rating and TDIU since November 2005. Evidence considered included a friend's statement detailing assistance with chores and transportation, DBQs for neck and back conditions noting constant pain and limited range of motion, and the Veteran's own statements about lying down most of the day and needing rest. A VA examination in December 2021 noted significant limitations in lifting, household chores, driving, and a stooped posture, with the Veteran spending approximately 20 hours a day in bed. An addendum in February 2022 confirmed severe limitations despite occasional outings, suggesting the Veteran should not drive and would benefit from provided transportation. The Board granted SMC for aid and attendance, finding the Veteran needs assistance with activities of daily living such as driving, cooking, household chores, dressing, and lifting, thus meeting the criteria for aid and attendance from another person.

Rationale

Veteran requires assistance with driving, cooking, household chores, dressing, and lifting.; Service-connected disabilities render Veteran unable to perform daily activities without assistance.; Meets prerequisite for aid and attendance from another.

Full Decision Text

Citation Nr: 22032738
Decision Date: 06/03/22	Archive Date: 06/03/22

DOCKET NO. 10-21 169
DATE: June 3, 2022

ORDER

Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance of another person is granted, subject to the laws and regulations governing the award of monetary benefits.

FINDING OF FACT

Resolving all reasonable doubt in favor of the Veteran, the evidence shows that he is in need of the regular aid and attendance of another person as a result of his service-connected disabilities.

CONCLUSION OF LAW

The criteria for entitlement to SMC based on the need for regular aid and attendance have been met. 38 U.S.C. § 1114; 38 C.F.R. § 3.350.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from September 1972 to July 1974.

The issue of entitlement to special monthly compensation (SMC) at the housebound rate was raised in a July 2021 brief filed by the Veteran's attorney.

In September 2021, the Board remanded the Veteran's appeal to the RO for further evidentiary development.

Pursuant to the Board's remand, the RO obtained updated VA treatment records in September 2021, and obtained a medical opinion as to whether the Veteran's service-connected disabilities have made him housebound in December 2021, with an addendum added in February 2022.  Therefore, the RO substantially complied with the Board's remand instructions.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C. § 7107(a)(2).

Entitlement to SMC.

The issue of entitlement to special monthly compensation (SMC) at the housebound rate was raised in a July 2021 brief filed by the Veteran's attorney.

The Board has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008) (SMC "benefits are to be accorded when a Veteran becomes eligible without need for a separate claim"). Here, the Board finds that the record also reasonably raises the issue of entitlement to SMC based on the need for regular aid and attendance from another person.

SMC may be granted to a Veteran on the basis of 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 and attendance of another person or for being housebound but not for both simultaneously. SMC by reason of the need for regular aid and attendance of another person is a greater monthly benefit than SMC by reason of being housebound. 38 U.S.C. §§ 1114 (l), (s).

SMC by reason of the need for regular aid and attendance of another person is payable if a Veteran, as the result of service-connected disability, either: (1) has suffered the anatomical loss or loss of use of both feet, (2) has suffered the anatomical loss or loss of use of one hand and one foot, (3) is blind in both eyes, (4) is permanently bedridden, or (5) is with such significant disabilities/so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). Determinations should be on the basis of a Veteran being permanently bedridden rather than needing regular aid and attendance to avoid reduction during hospitalization where aid and attendance is provided in kind. 38 C.F.R. § 3.350 (b)(4).

Bedridden means that the Veteran is actually required to remain in bed. 38 C.F.R. § 3.352 (a). The fact that the Veteran 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. Id. 

In determining the need for regular aid and attendance
1114 (l); 38 C.F.R. § 3.350 (b). Determinations should be on the basis of a Veteran being permanently bedridden rather than needing regular aid and attendance to avoid reduction during hospitalization where aid and attendance is provided in kind. 38 C.F.R. § 3.350 (b)(4).

Bedridden means that the Veteran is actually required to remain in bed. 38 C.F.R. § 3.352 (a). The fact that the Veteran 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. Id. 

In determining the need for regular aid and attendance of another person, several factors are for consideration. Id. These include: (1) the inability of the Veteran to dress or undress himself or to keep himself ordinarily clean and presentable, (2) the frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the Veteran's 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.), (3) the inability of the Veteran to feed himself through loss of coordination of his upper extremities or through extreme weakness, (4) the inability of the Veteran to attend to the wants of nature, (5) incapacity, physical or mental, which requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment, and (6) the Veteran being bedridden. Id. 

Granting SMC by reason of the need for regular need for aid and attendance of another person requires that at least one of the above disabling factors be met. Turco v. Brown, 9 Vet. App. 222 (1996). Regarding being bedridden, however, a favorable determination will not be based solely upon an opinion that the Veteran's condition is such as would require him to be in bed. 38 C.F.R. § 3.352 (a). Such a determination instead must be based on the actual requirement of personal assistance from others. Id. 

Here, the Board finds that the Veteran meets the criteria for SMC by reason of the need for aid and attendance of another. The relevant facts include that, at the time of this decision, the Veteran is currently service connected for the following disabilities: a lumbar spine disability, rated as 50 percent disabling, a cervical spine disability, rated as 30 percent disabling, peripheral neuropathy of the bilateral upper extremities, each rated as 20 percent disabling, sciatica of the bilateral lower extremities, each rated as 20 percent disabling, bowel dysfunction, rated as noncompensable and erectile dysfunction, rated as noncompensable. The Veteran currently has a 90 percent combined rating and is in receipt of a total disability rating based on individual unemployability (TDIU) since November 2005.

Turning to the evidence, a January 2021 letter received from a friend of the Veteran stated that the Veteran lived on the friend's property for years and they assisted with chores.  The friend said that the Veteran has not been able to work since the year 2000 and said that he drives the Veteran and helps him with household tasks.

An April 2021 Disability Benefits Questionnaire (DBQ) for the neck said that the Veteran reported constant pain in his neck which worsened on any movement.  The Veteran said that he was unable to move his head in any direction.

An April 2021 DBQ for the back noted that the Veteran had degenerative disc disease and intervertebral disc disease of the lumbar spine and he reported being in constant pain, which worsened on movement.  The examiner also diagnosed sciatica of the right lower extremity with normal strength and reflexes but decreased sensation and severe pain, paresthesias, and numbness.

An April 2021 medical opinion noted that the Veteran said it was too painful to test his range of motion or perform a straight-leg raising test, but the Veteran was able to walk without pain using his cane in the waiting room and cross the street after the examination with no significant difficulty.

In May 2021, the Veteran wrote to the RO contesting the April 2021 examiners' report.  The Veteran said that the examiner did not perform a weight-bearing test or discuss his pain and instead asked about his military service, which the Veteran did not believe were relevant and therefore did not answer.  The Veteran said that he lies down most of the day and that his primary care provider has advised him to rest as relief for his back pain.

The Veteran provided an affidavit in July 2021 which stated that his service-connected disabilities make it difficult or impossible for him to work.


, but the Veteran was able to walk without pain using his cane in the waiting room and cross the street after the examination with no significant difficulty.

In May 2021, the Veteran wrote to the RO contesting the April 2021 examiners' report.  The Veteran said that the examiner did not perform a weight-bearing test or discuss his pain and instead asked about his military service, which the Veteran did not believe were relevant and therefore did not answer.  The Veteran said that he lies down most of the day and that his primary care provider has advised him to rest as relief for his back pain.

The Veteran provided an affidavit in July 2021 which stated that his service-connected disabilities make it difficult or impossible for him to work.

VA performed a Compensation and Pension Examination for Housebound Status in December 2021.  The examiner said that the Veteran's nutrition was normal, his gait was antalgic, and he was able to walk distances of about 50 feet without a cane, ambulating slowly and with an altered gait due to back pain.  The examiner found that the Veteran's lumbar spine disability impaired him in cooking and doing household chores, including trash removal, cleaning, and picking up dropped objects; his cervical spine disability impaired him in dressing himself and driving; finally, his shoulder disability made it impossible to lift more than a gallon of milk and also impaired his ability to dress himself or wash dishes.  The examiner noted that the Veteran spends about 20 hours a day in bed.  The examiner noted that the Veteran walks stooped forward at a 40-degree angle.  Additionally, the Veteran was unable to shave himself due to limited motion of his neck and shoulders.  The Veteran's lumbar spine was fixed at 40 degrees forward at the hips during the office visit, and the Veteran had no further flexion or extension and was unable to twist or bend laterally in either direction.  The Veteran could move his neck forward 20 degrees and rotate 10 degrees to each side but could not extend it or bend laterally in either direction.  The Veteran said that he goes to McDonalds daily for breakfast, then walks to the park at noon to feed squirrels, then visits a friend's home in the evenings.  The Veteran requires a cane.

As the December 2021 examination did not provide an opinion as to housebound status, an addendum was prepared in February 2022.  The addendum opinion stated that the Veteran has serious limitations with lifting, walking, and household chores and that the Veteran rarely drives. The examiner stated that based on the limitations of the Veteran's neck, back, and nerve conditions, despite leaving the house for visits to restaurants and the park, he probably should not be driving and would be best served with having transportation provided for him.  

In April 2022, the Veteran again wrote to VA to contest the recent examination.  The Veteran said that, contrary to the December 2021 examination report, he does not visit the park daily but only once or twice per week and that when he visits, he puts flowers on a memorial for his dogs and then sits on a park bench.  The Veteran said that he rarely leaves his residence except to eat.  He acknowledged going grocery shopping but said that he is at his home for the majority of every day.  The Veteran also acknowledged traveling to go to funerals in recent years but said that it was difficult for him to do so.  The Veteran said that he does not pay social visits to a friend on a daily basis; he said that he only visits the friend two or three times per week.  He also reported that he is now taking morphine for his pain which makes it unsafe for him to drive, but he has a friend who drives him.

Given the above, the Board finds that entitlement to SMC by reason of the need for regular aid and attendance from another person is warranted. The evidence of record demonstrates that the Veteran needs assistance with activities of daily living including driving, cooking, doing house chores including dishes and trash removal, cleaning of house, picking up dropped objects, dressing himself, and he has an inability to lift anything that weighs more than 1 gallon milk. Thus, he meets the prerequisite for aid and attendance from another. See generally Turco v. Brown, 9 Vet. App. 222 (1996).

As implied from above, it is not required that all of the disabling factors be found to exist before a favorable determination is made for regular need for aid and attendance of another person. 38 C.F.R. § 3.352 (a). The particular personal functions that the Veteran is unable to perform should be considered in connection with his condition as a whole. Id. 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. Id. 

In sum,
 than 1 gallon milk. Thus, he meets the prerequisite for aid and attendance from another. See generally Turco v. Brown, 9 Vet. App. 222 (1996).

As implied from above, it is not required that all of the disabling factors be found to exist before a favorable determination is made for regular need for aid and attendance of another person. 38 C.F.R. § 3.352 (a). The particular personal functions that the Veteran is unable to perform should be considered in connection with his condition as a whole. Id. 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. Id. 

In sum, the medical evidence of record supports that his service-connected disabilities render him unable to perform daily activities of living without the assistance of another. Accordingly, SMC for aid and attendance from another is granted; this is a greater benefit than SMC at the housebound rate and therefore, further inquiry as to the Veteran's assertions that he is housebound is not required. 

 

 

L. ANDERSEN

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	R. Dean, 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.