Case 22036444

Summary

The veteran, a Navy veteran who served from June 1965 to April 1969 and February 1970 to November 1971, including service in Vietnam, appeals the denial of Special Monthly Compensation (SMC) based on housebound status and seeks SMC based on aid and attendance. The veteran has several service-connected disabilities, including PTSD (70%), bilateral hearing loss with otitis media (50%), diabetes mellitus type II (20%), tinnitus (10%), bilateral peripheral neuropathy (10%), left ear tympanic membrane perforation (noncompensable), and erectile dysfunction (noncompensable). He also receives TDIU and SMC for loss of use of a creative organ. The Board reviewed multiple VA examinations and treatment records from 2014 to 2018, as well as the veteran's testimony and his wife's statements. Evidence indicated significant cognitive impairment, memory issues, difficulty with self-care (dressing, hygiene, medication management), unsteady gait, and a need for assistance when leaving home, primarily attributed to PTSD and peripheral neuropathy. The Board found sufficient evidence of a need for aid and attendance, granting SMC for this benefit. The claim for SMC based on housebound status was dismissed as moot due to the grant of the higher aid and attendance benefit.

Rationale

Service-connected disabilities found to require aid and attendance.; Evidence supports need for assistance with bathing, dressing, hygiene, medication management.; Grant of SMC aid and attendance is warranted.

Full Decision Text

Citation Nr: 22036444
Decision Date: 06/23/22	Archive Date: 06/23/22

DOCKET NO. 19-03 234A
DATE: June 23, 2022

ORDER

Entitlement to special monthly compensation (SMC) based on aid and attendance is granted.

Entitlement to SMC based on housebound status is dismissed.

FINDINGS OF FACT

1. The competent and credible evidence of record persuasively establishes a finding that the Veteran's mental incapacity due to service-connected posttraumatic stress disorder (PTSD) is shown to result in the need for aid and attendance of another person.

2. The grant of SMC based on aid and attendance renders the claim of entitlement to SMC based on housebound status moot.

CONCLUSIONS OF LAW

1. The criteria for SMC based on the regular aid and attendance of another person are met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352.

2. The claim of entitlement to SMC based on housebound status is moot and thus dismissed. 38 C.F.R. § 3.350(e)(3); 38 U.S.C. § 7105.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from June 1965 to April 1969, and from February 1970 to November 1971 in the United States Navy including service in the Republic of Vietnam. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2018 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in an April 2021 hearing.

Entitlement to special monthly compensation 

SMC based on the need for aid and attendance is payable if, as the result of service-connected disability, the Veteran has suffered anatomical loss or loss of use of both feet, of one hand and one foot, is blind in both eyes with 5/200 visual acuity or less, or is permanently bedridden, with such significant disabilities as to be in need of regular aid and attendance or is established on a factual need for aid and attendance pursuant to the criteria in 38 C.F.R. § 3.352(a). 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b).

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 her daily environment. 38 C.F.R. § 3.352(a). All of the above criteria need not be met in order for it to be determined that a Veteran requires aid and attendance. Turco v. Brown, 9 Vet. App. 222, 225 (1996). Instead, the functions which the Veteran is unable to perform should be considered in connection with his or her condition as a whole. Id. 

SMC is also payable where the Veteran has a single service-connected disability rated as 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. A Veteran is permanently housebound when he or she 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. 38 U.S.C. § 111(s); 38 C.F.R. § 3.350(i).

"Bedridden" will be that condition which, by its essential character, requires that the Veteran remain in bed. The fact that he or she 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).

The
 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. 38 U.S.C. § 111(s); 38 C.F.R. § 3.350(i).

"Bedridden" will be that condition which, by its essential character, requires that the Veteran remain in bed. The fact that he or she 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).

The Veteran claims he requires aid and attendance and that he is housebound due to his service-connected disabilities. 

Throughout the appeal period, service connection has been in effect for the following disabilities: 1) PTSD with a 70 percent evaluation; 2) bilateral hearing loss with otitis media of the left ear with a 50 percent evaluation; 3) diabetes mellitus type II with a 20 percent evaluation; 4) tinnitus with a 10 percent evaluation; 4) bilateral peripheral neuropathy of the lower extremities, each with a 10 percent evaluation; and 5) left ear tympanic membrane perforation and erectile dysfunction, each with a noncompensable evaluation. The Veteran is also receipt of a total disability rating based on individual unemployability (TDIU) from May 18, 2015, and SMC on account of loss of use of a creative organ from September 15, 2015.

Based on the following, the Board finds that SMC based on aid and attendance is also warranted.

A December 2014 VA examination for the peripheral neuropathy noted that the Veteran wore diabetic shoes, and used a cane and a left wrist brace on occasion. They also indicated that the Veteran was able to perform his activities of daily living without difficulty. The examiner opined that the peripheral neuropathy had no functional impact.

A December 2014 VA examination for the diabetes indicated that he did not require regulation of activities as part of the medical management, and that there were no recognized complications of diabetes. The examiner opined that there was no functional impact.

March 2015 VA treatment records indicate that his social and occupational functioning was fair.

On the May 2015 TDIU application, the Veteran reported that he stopped working in 2008 because he could no longer pick anything up or concentrate, and that he lost his temper easily. He also stated that he could no longer hear well even with hearing aids, could not pick up more than 10 pounds, that the peripheral neuropathy was very painful, and that he had anger issues due to his PTSD.

During a July 2015 VA examination for the PTSD, the examiner noted that the Veteran had near continuous panic or depression affecting his ability to function independently, appropriately, and effectively. They also noted that his memory functions were not rendered impaired, and that he had adequate insight and judgment.

A July 2015 VA examination for the peripheral neuropathy indicated that there was numbness and pain, and that the Veteran could only walk perhaps 100 yards before needing to rest. The Veteran reported trouble dressing because of poor balance, and that he had difficulty with laces and buttons. The examiner noted that the Veteran walked with a cane.

In a September 2015 statement, the Veteran reported that he was hospitalized for behavioral care in September 2015, and that he had frequent anger and memory problems.

October 2015 VA treatment records indicate problems with concentration and memory.

At a December 2015 VA examination for the erectile dysfunction, the examiner noted that the Veteran's wife spoke for the Veteran due to his difficulty hearing.

On a December 2015 VA SMC examination, the examiner indicated that the Veteran had a normal gait, but reported increased stumbling. They noted that he was able to feed himself, prepare his own meals, did not require nursing home care, but did need medication management for his own safety. They opined that the Veteran was able to manage his own financial affairs. The Veteran was noted as being able to bathe and tend to other hygiene needs, but only when prompted on a daily basis as he would forget to do so otherwise due to depression. The examiner opined that the Veteran did not have lower extremity limitations. They noted that chronic PTSD and diabetes, as well as non-service-connected retinal detachment, cerebrovascular accident, blindness in one eye, and tremors affect the Veteran's ability to perform self-care, or ambulate or travel beyond the premises of the home. It was indicated that the Veteran only ventured out of the home with his wife, and that he did not like being around people who are not family. Finally, the examiner indicated that the Veteran did
 manage his own financial affairs. The Veteran was noted as being able to bathe and tend to other hygiene needs, but only when prompted on a daily basis as he would forget to do so otherwise due to depression. The examiner opined that the Veteran did not have lower extremity limitations. They noted that chronic PTSD and diabetes, as well as non-service-connected retinal detachment, cerebrovascular accident, blindness in one eye, and tremors affect the Veteran's ability to perform self-care, or ambulate or travel beyond the premises of the home. It was indicated that the Veteran only ventured out of the home with his wife, and that he did not like being around people who are not family. Finally, the examiner indicated that the Veteran did not use any assistive devices.

In a January 2016 VA examination, it was determined that the Veteran did not have Parkinson's disease, but noted the Veteran's difficulty tying shoes and buttoning, and opening jars. They indicated that he was unable to drive, needed help dressing, had irritable and erratic behavior, stumbled while walking, and forgot to take his medication. His wife did the check books and driving. It was also noted that the Veteran's hearing was so poor that he could not hear the phone when it rang. The examiner indicated that the Veteran walked slowly due to unsteady gait, was a fall risk, and used a walking cane.

On a June 2018 VA SMC examination, the examiner indicated mild cognitive impairment and gait abnormality. They explained that the Veteran had difficulty with memory, that his balance was very unsteady, and that ambulation required the support of an assistive device, person, or wall. They noted that the Veteran could feed himself, but not prepare his own meals. The examiner also endorsed that the Veteran needed assistance in bathing and tending to other hygiene needs, as well as medication management, but did not need nursing home care. They opined that the Veteran did not have the ability to manage his own financial affairs. The examiner opined that the Veteran was able to leave home once or twice a week, but only with the assistance of family, and that they could not do so independently.

In a September 2018 statement, the Veteran reported that he relinquished control of his finances to his wife several years prior. He asserted that neurological examinations reflected that his cognitive impairment was mainly due to PTSD, and that his hearing loss was so bad that his wife had to fill him in daily to have conversations. The Veteran stated that the diabetes caused dizziness due to issues with glucose, which forced him to surrender his driver's license. And he explained that the gabapentin he took for his peripheral neuropathy caused an inability to focus on simple daily tasks.

April 2019 VA treatment records note that the Veteran's memory had worsened, with cognitive impairment mainly due to the PTSD, with some component due to microangiopathic change and non-service-connected sleep apnea. They opined that it is more likely than not that his Agent Orange exposure is directly related to his current neurological conditions.

At the April 2021 Board hearing, the Veteran's wife assisted in the testimony. Collectively, they explained that the Veteran could no longer drive after having to surrender their driver's license due to too many car accidents. They asserted that the Veteran had memory issues due to his PTSD, and that he could not be left alone for long because he would forget to turn the stove or the water faucet off. They explained that the Veteran would forget simple things like what a cucumber is. His wife handled the Veteran's medication and medical appointments, and had taken on their finances on her own. She also stated that the Veteran could not think or speak as clearly as he used to, even just one year prior. They explained that the Veteran was unable to perform his activities of daily living, and that he could not leave home without the assistance of his wife. They stated that the Veteran was able to shower alone since they moved to a home with a walk-in shower, but that he needed help dressing as he could no longer match his clothes appropriately, and needed help with buttoning. They explained that she also prepared all of his meals, although he was able to microwave a frozen meal on occasion. Regarding the hearing loss, they stated that even with the cochlear implant, he still could not hear clearly. As for the peripheral neuropathy, it was explained that the Veteran could not get out of a chair easily, has to go slow while holding onto something, and that he had to use a cane or a walker.

The evidence of record does reflect that the Veteran's service-connected disabilities are productive of a need of assistance in dressing, communicating, maintaining bodily hygiene, following medication schedules, and ambulating.

The Board places significant probative weight in the June 2018 examiner's reporting of the Veteran's needs of assistance in essential daily functions bathing, dressing, and grooming.
 meals, although he was able to microwave a frozen meal on occasion. Regarding the hearing loss, they stated that even with the cochlear implant, he still could not hear clearly. As for the peripheral neuropathy, it was explained that the Veteran could not get out of a chair easily, has to go slow while holding onto something, and that he had to use a cane or a walker.

The evidence of record does reflect that the Veteran's service-connected disabilities are productive of a need of assistance in dressing, communicating, maintaining bodily hygiene, following medication schedules, and ambulating.

The Board places significant probative weight in the June 2018 examiner's reporting of the Veteran's needs of assistance in essential daily functions bathing, dressing, and grooming. Likewise, the Board places probative weight on the Veteran's endorsement of "forgetfulness" in maintaining his medication roster and self-monitoring his basic hygienic needs. This degree of forgetfulness falls within the reach of requiring care and assistance on a regular basis to protect the Veteran from the hazards or dangers incident to his daily environment. See 38 C.F.R. § 3.352(a).

The Board finds that there is sufficient evidence of a need for aid and attendance that meets some of the required criteria and not all criteria must be met to warrant the benefit. There is evidence both for and against the existence of certain factors. However, as noted above, it is not required that all 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.

Consequently, the Board finds that the Veteran's service-connected disabilities cause him to require regular aid and attendance of another person for the entire period of the appeal.  However, the evidence is not sufficient to show a need for a higher level of care by a licensed professional as defined in 38 C.F.R. § 3.352(b).  

Regarding SMC based on housebound status, the June 2016 rating decision granting TDIU did so solely based on the service-connected PTSD. As the remaining service-connected disabilities have a combined disability rating in excess of 60 percent, SMC based on housebound status would typically be warranted here. However, SMC aid and attendance is a greater benefit than SMC at the housebound rate, and one cannot have two levels of SMC based upon the same disability. 38 C.F.R. § 3.350(e)(3).

The grant of SMC at the aid and attendance rate thus renders the question of entitlement to SMC on account of being housebound moot. The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary. 38 U.S.C. § 7104; 38 C.F.R. § 20.104. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105.

Accordingly, the claim of entitlement to SMC aid and attendance is granted, and the claim of entitlement to SMC based on housebound status is dismissed.

 

 

J.W. FRANCIS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Rogos

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.