Case A25010986

GRACE J. SUH · 2025 · Case ID: A25010986

MIXED

Summary

The Veteran, a Veteran who served from July 1969 to June 1971, including combat service for which he received a Purple Heart and Combat Action Ribbon, appealed the denial of Special Monthly Compensation (SMC) based on housebound status and the need for aid and attendance. The Board considered evidence of record up to the October 2021 rating decision and testimony from a September 2024 hearing. The Veteran is service-connected for numerous conditions, including PTSD (70%), left lower extremity radiculopathy (60%), left foot amputation (40%), and lumbar spine degenerative arthritis (40%), resulting in a 100% combined rating. The Board found the Veteran did not meet the criteria for SMC housebound status, as evidence did not confirm confinement to his dwelling. However, the Board found the issue of entitlement to SMC based on the need for aid and attendance was reasonably raised. While a January 2021 VA Eye Note and a February 2021 VA Form 21-2680 were not fully supportive, subsequent September 2021 VA examinations and the Veteran's own testimony at the Board hearing indicated significant limitations. Specifically, a VA examiner noted the Veteran required a cane for mobility and had severely limited forward flexion of his lumbar spine, consistent with needing assistance to dress. Resolving all reasonable doubt in the Veteran's favor, the Board found that the Veteran required the regular aid and attendance of another person, granting SMC at the aid and attendance rate.

Rationale

Benefit of the doubt resolved in Veteran's favor; September 2021 VA examinations and Board hearing testimony indicated need for assistance; Limited forward flexion of lumbar spine consistent with needing assistance to dress

Special Benefit

SMC - AID & ATTENDANCE; SMC - HOUSEBOUND

Docket No.

211104-195749

Full Decision Text

Citation Nr: A25010986
Decision Date: 02/06/25 Archive Date: 02/06/25

DOCKET NO. 211104-195749
DATE: February 6, 2025

ORDER

Special monthly compensation (SMC) based on the need for aid and attendance is granted.

FINDING OF FACT

Resolving all reasonable doubt in the Veteran's favor, the evidence of record demonstrates that he required the regular aid and attendance of another to dress or undress himself due to his service-connected disabilities.

CONCLUSION OF LAW

The criteria for SMC based on the need for aid and attendance have been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.351, 3.352, 4.3.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from July 1969 to June 1971. For his service, he received, among others, a Purple Heart and Combat Action Ribbon.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2021 rating decision issued by a Department of Veterans Affairs (VA) regional office, an agency of original jurisdiction (AOJ).

The Veteran submitted a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), in November 2021 and elected the Hearing docket. In September 2024, the Veteran testified before a Veterans Law Judge during a Board hearing; a transcript of the hearing is of record. Therefore, the Board may only consider the evidence of record at the time the AOJ issued the October 2021 rating decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the rating decision on appeal and prior to the date of the Board hearing, or (2) more than 90 days following the date of the Board hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, he may file a supplemental claim (VA Form 20-0995, Decision Review Request: Supplemental Claim) and submit or identify that evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a supplemental claim are included with this decision.

Law and Analysis

SMC is payable if, as a result of the veteran's service connected disability, they suffer from additional hardships above and beyond those contemplated by VA's schedule for rating disabilities. Breniser v. Shinseki, 25 Vet. App. 64, 68 (2011) (citing 38 U.S.C. § 1114 )(k)-(s)).

Specifically, for SMC at the aid and attendance rate under 38 U.S.C. § 1114(l), there are five distinct ways for a veteran, as a result of their service-connected disability, to qualify for this rate of SMC: (1) anatomical loss or loss of use of both feet; (2) anatomical loss or loss of use of one hand and one foot; (3) blindness in both eyes with 5/200 visual acuity or less; (4) being permanently bedridden; or (5) having such significant disabilities as to be in need of regular aid and attendance. 38 C.F.R. § 3.350(b)(3).

The need for aid and attendance means being so helpless as to require the regular aid and attendance of another person. The following factors are afforded consideration in determining the need for the regular aid and attendance of another person: inability of the veteran to dress or undress themself, or to keep themself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the 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.); inability of the veteran to feed themself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers
for the regular aid and attendance of another person: inability of the veteran to dress or undress themself, or to keep themself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the 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.); inability of the veteran to feed themself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to their daily environment. 38 C.F.R. § 3.352(a).

The veteran does not need to demonstrate all of the factors enumerated in 38 C.F.R. § 3.352(a) before SMC may be awarded. See Turco v. Brown, 9 Vet. App. 222, 224-5 (1996). Further, 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. 38 C.F.R. § 3.352(a). However, the particular personal functions which the veteran is unable to perform should be considered in connection with their condition as a whole. Id. A determination as to the need for aid and attendance must be based on actual requirements of personal assistance from others. Id.

"Bedridden" will be a proper basis for the determination for the need for aid and attendance. 38 C.F.R. § 3.352(a). "Bedridden" will be that condition which, through its essential character, actually requires that the claimant remain in bed. Id. 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.

SMC at the housebound rate under 38 U.S.C. § 1114(s) is payable if the veteran has a service-connected disability rated as total and (1) has an 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. The requirement of being permanently housebound is met when the veteran is substantially confined to their dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, directly due to their service-connected disability or disabilities and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 C.F.R. § 3.350(i)(2).

SMC at the aid and attendance rate is a greater benefit than SMC at the housebound rate.

The issue of entitlement to SMC based on the need for aid and attendance or housebound status.

The Veteran contends that he is entitled to SMC based on housebound status. See November 2021 VA Form 10182.

Throughout the relevant period, the Veteran has been service connected for posttraumatic stress disorder (PTSD) (70 percent disabling); left lower extremity radiculopathy of the sciatic nerve (60 percent disabling); left foot amputation (40 percent disabling); degenerative arthritis of the lumbar spine (40 percent disabling); atrophy of left lower extremity (30 percent disabling); left lower extremity radiculopathy of femoral nerve (20 percent disabling); left hip bursitis (10 percent disabling); left achilles tendinitis (10 percent disabling); left knee synovitis (10 percent disabling); tinnitus (10 percent disabling); left shin scar (10 percent disabling); scar of chin (10 percent disabling); and other additional scars (each of which are zero percent disabling). His current combined schedular evaluation is 100 percent. However, he does not have a single disability rated at 100 percent.

A January 2021 VA Eye Note indicated that the Veteran did not require assistance with his activities of daily living (ADLs).

The Veteran submitted a February 2021 VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, completed by Dr. J.B. Upon examination, Dr. J.B. indicated the diagnosis pertinent to the examination was degenerative joint disease (DJD) and indicated that the disabilities limiting the Veteran's activities were his foot amputation, DJD, and a stroke. Dr. J.B. determined that the Veteran was able to feed himself. Dr. J.B. did not select any response to indicate whether the Veteran was able to prepare his own meals. Dr. J.B.'s handwritten statements are unclear; however, they suggest that the Veteran's left foot amputation may impact his ability to prepare his own meals. However, Dr. J.B. noted he was able to feed himself. Dr. J.B. concluded that the Veteran needed assistance bathing and tending to other hygiene needs due to falls. Dr. J.B. found that the Veteran was not legally blind, did not require nursing home care, nor required medication management. Further, he had the mental capacity to manage their benefits payments. Dr. J.B. observed that the Veteran's upper limbs were okay. Dr. J.B. indicated that the Veteran's total amputation of the left foot resulted in restriction of the lower extremity but provided no further information regarding his weight-bearing, balance, or propulsion. With respect to his restrictions of his spine, trunk, or neck, Dr. J.B. indicated the Veteran needed the help of a cane to walk. Dr. J.B. determined that the Veteran was able to leave his home, but he required the help of his wife to do so. Dr. J.B. did not state how often per day or week he would be able to do so, nor provided more specific information regarding the circumstances under which he would be able to leave.

Following an April 2021 VA PTSD examination, the examiner determined that the Veteran's relevant symptoms for rating purposes were depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and impaired impulse control. At that time, the Veteran relayed behaviors consistent with extreme social isolation. He stayed at home a lot. While he was unable to do yard work anymore due to chronic pain, he stated that he "kind of piddles" around the house at times. He also went to the hospital or went for short walks outside of his house. The examiner observed that he presented for the examination adequately groomed and casually dressed. He was oriented to all spheres. His memory was intact and intellect appeared to be within normal limits. Further, his thought processes were coherent, logical, and goal oriented, thought content was without any audio or visual hallucinations, and insight was good. The examiner concluded he was competent and capable of managing his financial affairs.

An April 2021 VA Surgery Attending Note and a May 2021 VA History and Physical Note documented the Veteran's report that he remained active around the house.

A May 2021 VA Pre-operative Evaluation and Management Note documented the Veteran's report that his activity tolerance has been stable for the past six months. He walked one to two blocks once per week before pain stops him.

A June 2021 VA Pulmonary Clinic Note indicated that while the Veteran used a cane to walk due to his amputation, he was able to do all his ADLs.

According to the Veteran's VA treatment records, he underwent an endovascular aneurysm repair (EVAR) on June 8, 2021. Although he was assessed to be a high risk of falls following the procedure, a June 2021 VA Addendum noted that he had no history of falling in the past three months preceding the procedure. Additionally, a June 2021 VA Surgery Inpatient Note noted that he remained active working around the house and did not require help with ADLs.

A July 2021 VA Vascular Surgery Clinic Note indicated the Veteran was being seen status post an endovascular aneurysm repair (EVAR). At that time, the VA treatment provider observed that he was looking great. He had no issues with walking. He was managing his ADLs independently without limitations.

Aside from the VA treatment records documenting his EVAR or condition immediately following EVAR, there is no indication that he continued to be at risk of falls due to any of his service-connected disabilities.

The Veteran underwent VA examinations for muscle injuries, knee and lower leg conditions, ankle conditions, foot conditions, amputations, hip and thigh conditions, back conditions in September 2021. During the VA muscles injuries examination, the Veteran reported experiencing more severe pain due to atrophy of his left lower extremity. The examiner concluded that Group X (muscles affecting the movement of his forefoot and toes, propulsion thrust in walking) and Group XII (muscles affecting dorsiflexion, extension of toes, and stabilization of the arch) were affected. His injury affected the muscle substance or function. More specifically, there was some loss of muscle substance and tests of endurance or coordinated movements compared with the corresponding muscles of the uninjured side indicated severe impairment of function. The examiner indicated that he required the constant use of a cane due to his left foot amputation. The examiner concluded that the Veteran would be unable to walk or stand unassisted by a mobility aid of another person. He would not be able to do any occupational tasks that required the full use and weight bearing of the left lower extremity.

During all other examinations, the Veteran generally reported experiencing more severe pain. At the time of the knee and lower leg conditions examination, he also stated he was unable to walk or stand for a prolonged period of time due to his left knee. At the time of the hip and thigh conditions examination, he also stated that it was hard to walk or stand. The examiner reiterated the same findings as to the Veteran's constant need to use a cane due to his left foot amputation and the functional impact on his ability to work. Significantly, during the back conditions examination he was only able to demonstrate forward flexion to 10 degrees (normal range of motion being to 90 degrees). In other words, his ability to bend forward was significantly limited. With repeated use over time, it was estimated to be limited to zero degrees, meaning he was unable to bend forward.

The VA back conditions examination closest in time leading up to the initiation of this claim in February 2021, is from September 2020. At that time, the Veteran's forward flexion was limited to 30 degrees upon initial range of motion testing and estimated to be to 20 degrees following repeated use over time and during flare-ups.

During the September 2024 Board hearing, the Veteran testified that his wife did everything for him. September 2024 Board Hr'g Tr. at 2. She did all the laundry, cooking, and other household chores. She also helped him with everything. She helps him bathe because he has fallen in the shower three times. She helps him dress. He has difficulty getting his socks and shoes on. Other than going to his doctor appointments, he stated that they stayed home 99 percent of the time. When he went out, he always had someone to assist him. Id. at 3. Additionally, he relied on the use of a cane and scooter. He asserted that he required his wife's assistance due to his service-connected disabilities. Id. at 4. However, he also acknowledged that he was able to drive and it was possible for him to leave the house to go out to dinner or to someone else's house. Id. at 5.

In view of the above, the Board finds that the evidence of record persuasively demonstrates that SMC at the housebound rate is not warranted. See Lynch v. McDonough, 21 F.4th 776, 781-82 (2021) (en banc). The Veteran does not have a single disability rated as totally disabling. Further, neither the medical nor lay evidence shows that he has been confirmed to his home and its immediate premises.

Although the Veteran does not meet the criteria for SMC at the housebound rate, the Board finds the issue of entitlement to SMC based on the need for aid and attendance has been reasonably raised by the record as shown by the evidence of record. See Bradley v. Peake, 22 Vet. App. 280, 286 (2008); see also Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2011); Akles v. Derwinski, 1 Vet. App. 118, 121 (1991) (obs
totally disabling. Further, neither the medical nor lay evidence shows that he has been confirmed to his home and its immediate premises.

Although the Veteran does not meet the criteria for SMC at the housebound rate, the Board finds the issue of entitlement to SMC based on the need for aid and attendance has been reasonably raised by the record as shown by the evidence of record. See Bradley v. Peake, 22 Vet. App. 280, 286 (2008); see also Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2011); Akles v. Derwinski, 1 Vet. App. 118, 121 (1991) (observing that entitlement to SMC is an "inferred issue" in the context of an increased rating claim).

As noted above, SMC based on the need for aid and attendance is a greater benefit than SMC based on housebound status.

Considering the evidence above, with the resolution of all reasonable doubt in the Veteran's favor, the Board finds that SMC based on the need for aid and attendance is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.

Here, the February 2021 VA Form 21-2680 completed by Dr. J.B. is not consistent with the Veteran's contemporaneous VA treatment records and his lay statements as documented in those records. While Dr. J.B. generally indicated the Veteran's DJD, left foot amputation, and stroke resulted in the restrictions identified, he provided insufficient information for the Board to distinguish between the restrictions due to his service-connected disabilities versus his non-service-connected stroke. Whereas, inconsistent with Dr. J.B.'s general findings, the Veteran's VA treatment records indicate that he was active and did not require any assistance with his activities of daily living. Thus, neither Dr. J.B.'s findings nor the Veteran's VA treatment records support SMC based on the need for aid and attendance.

However, subsequent to February 2021 VA Form 21-2680 completed by Dr. J.B., the Veteran underwent the series of September 2021 VA examinations. Following examination, the examiner confirmed that the Veteran required the required the constant use of a cane due to his left foot amputation. Of note, the examiner concluded that the Veteran would be unable to walk or stand unassisted by a mobility aid or another person, but it is unclear from the examiner's conclusion that the Veteran actually required the aid of another person for mobility. In conjunction with that conclusion, however, the examiner's range of motion findings during the back conditions examination show that the Veteran's ability to bend forward (forward flexion) was significantly limited and that with repeated use over time he would not be able to bend forward. The Veteran's limitation of forward flexion of his lumbar spine would be consistent with testimony during the Board hearing that he requires the assistance of his wife to get dressed. Based on the foregoing, the Board finds that the benefit of the doubt doctrine is applicable.

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Accordingly, SMC based on the need for aid and attendance is granted.

Grace J. Suh

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board G.W. Neiman

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.

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