Citation Nr: 0002956 Decision Date: 02/07/00 Archive Date: 02/10/00 DOCKET NO. 96-42 120A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to special monthly compensation (SMC) based upon the need for the regular aid and attendance of another person, or upon housebound status. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael P. Vander Meer, Counsel INTRODUCTION The veteran served on active duty from January 1958 to December 1960, and from December 1961 to September 1973. This case is before the Board of Veterans' Appeals (Board) on appeal from a September 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. A hearing was held before a hearing officer at the RO in January 1997, and the hearing officer's decision was entered in February 1997. A Video Conference hearing was held before the undersigned Member of the Board in May 1998. The appeal was last before the Board in November 1998, at which time it was remanded for further development. Following completion of the requested development, the RO, in a Supplemental Statement of the Case mailed to the veteran in September 1999, continued to deny the benefit sought on appeal. Thereafter, the appeal was returned to the Board. FINDINGS OF FACT 1. Service connection is in effect for surgical absence, left hip joint, rated as 50 percent disabling under the provisions of Diagnostic Code 5254 (1999); for gastric ulcer, rated 20 percent disabling under Diagnostic Code 7304; and for bilateral defective hearing, rated noncompensable under the provisions of Diagnostic Code 6100. 2. The veteran's service-connected disabilities do not render him so helpless as to be unable to care for himself or protect himself from the dangers or hazards incident to his daily environment. 3. The veteran has neither a single service-connected disability ratable as 100 percent disabling nor a separate and distinct service-connected disability ratable at 60 percent or more. 4. The veteran's service-connected disabilities do not render him substantially confined to his dwelling or immediate premises. CONCLUSION OF LAW The requirements for special monthly compensation based on the need for the regular aid and attendance of another person, or upon housebound status, have not been met. 38 U.S.C.A. §§ 1114, 5107 (West 1991); 38 C.F.R. §§ 3.350(i), 3.352(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the Board finds that this claim is plausible. The Board is also satisfied that all relevant facts have been properly developed, and that no further assistance to the veteran is required to comply with 38 U.S.C.A. § 5107(a). I. Aid and Attendance Service connection is in effect for surgical absence, left hip joint, rated as 50 percent disabling under the provisions of Diagnostic Code 5254 of the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (1999); for gastric ulcer, rated 20 percent disabling under Diagnostic Code 7304; and for bilateral defective hearing, rated noncompensable under the provisions of Diagnostic Code 6100. Where an otherwise eligible veteran is in need of regular aid and attendance due to service-connected disablement, an increased rate of compensation is payable. 38 U.S.C.A. § 1114(l). Factors considered in determining whether a need for aid and attendance exists include whether an ability exists to keep oneself clean, dress and feed oneself, attend to the needs of nature, and protect oneself from the hazards or dangers incident to the daily environment. 38 C.F.R. § 3.352(a). The veteran asserts, relative to his claim for SMC predicated on the need for the regular aid and attendance of another person, that he lives in a split level home that has multiple steps which are difficult for him to negotiate. He also states that he experiences difficulty tying his shoes, and indicates that he must be extremely careful, lest he slip, when he is in the bath tub. When the veteran was examined by VA in 1996, the report of which was received in September 1996, in conjunction with his claim for SMC, he was found to be free of any limitation involving either upper extremity. Relative to his left lower extremity, the veteran was noted to be completely unable to bear weight on his left hip as a consequence of undergoing hip replacement surgery. With respect to his right lower extremity, he was noted to have weakness involving the same, owing to disuse, which "further [made] it difficult to ambulate". The veteran's hearing loss was noted to be "severe". It was remarked by the VA examiner that the veteran could only walk a distance of five feet on crutches. It was additionally noted that the veteran, who had a split level house, was restricted to one floor of the same. The Board does not dispute, based on the report of the above- cited 1996 VA examination, that the veteran may in fact experience difficulty in ambulating over the full expanse of his home (a split level) and especially in negotiating the stairs therein. However, notwithstanding the veteran's conceded overall disablement, the Board must emphasize that an apparently major factor in the veteran's compromised ability to ambulate is disablement traceable to weakness involving his nonservice-related right lower extremity. Equally significant, while the Board acknowledges the veteran's assertion relative to difficulty tying his shoes as well as (based on testimony at his May 1998 hearing) pulling up his clothing when visiting the bathroom, it must respectfully point out that neither of his upper extremities is service-connected for any condition and, in any event, each upper extremity was found to be wholly free of any functional limitation on the 1996 VA examination. It also bears emphasis that, at his May 1998 hearing, the veteran indicated that, while he was not certain he could exit his home in the event of a fire, he was "hopeful[]" that he could do so, possibly by descending window ladders which he was considering installing. In light of the foregoing considerations, then, the Board is of the opinion that the preponderance of the evidence is against an award of SMC based on the need for the regular aid and attendance of another person. 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.352(a). II. Housebound Status As noted above, service connection is in effect for surgical absence, left hip joint, rated as 50 percent disabling under the provisions of Diagnostic Code 5254 of the VA Rating Schedule; for gastric ulcer, rated 20 percent disabling under Diagnostic Code 7304; and for bilateral defective hearing, rated noncompensable under the provisions of Diagnostic Code 6100. Under the applicable statutory and regulatory criteria, SMC is payable where the veteran, in addition to having a single service-connected disability rated as 100 percent under the regular schedular evaluation, has either additional service- connected disability ratable at 60 percent or more which is separate and distinct from the disability rated as 100 percent disabling, or is substantially confined as a direct result of his service-connected disabilities to his dwelling and immediate premises and it is reasonably certain that the disabilities and resultant confinement will continue throughout his lifetime. 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i). The veteran contends that, owing to impairment associable with his several service-connected disabilities, he is essentially confined to his immediate premises. He contends that he therefore qualifies for SMC based upon housebound status. In considering the veteran's claim for such benefit on a purely statutory basis, the Board would observe that the maximum schedular evaluation allowable for his left hip disability (his schedularly most disabling service-related condition) would be only 90 percent, in consideration of extremely unfavorable ankylosis involving the joint pursuant to the provisions of Diagnostic Code 5250 (1999). However, dissuasive of any notion that the veteran's left hip joint is fixed in ankylosis of any character, the Board observes that the veteran was found to yet retain "minimal" motion in the joint when he was seen for VA outpatient treatment in July 1998. In light of such consideration, which negates any notion of left hip disability of sufficient disablement as to warrant a 100 (or even 90 percent) rating, entitlement to SMC based upon housebound status on a purely statutory basis is not in order. In the alternative, SMC predicated on housebound status might be awarded, in accordance with the pertinent above-cited provisions of 38 C.F.R. § 3.350(i), if the veteran is shown to be factually housebound, i.e., substantially confined as a direct result of his service-connected disabilities to his dwelling and immediate premises and it is reasonably certain that the service-connected disablement and resultant confinement will continue throughout his lifetime. In this regard, however, while the Board acknowledges the veteran's inferred contention that, owing to impairment associable with his several service-connected disabilities, he is essentially confined to his immediate premises, it cannot overlook the consideration that, at his May 1998 hearing, he alluded to the possibility, despite his apparently routine use of a wheelchair, of volunteering to do work at his "church" or "maybe a hunger center" or possibly even "at the VA". In the course of the same hearing, the veteran further indicated that he was able to ambulate with "crutches on a limited basis", such as is necessary to get into a "car or vehicle". These latter considerations, in the Board's view, serve to negate any inference that the veteran is factually housebound, i.e., substantially confined as a direct result of his service-connected disabilities to his dwelling and immediate premises pursuant to the pertinent aspect of 38 C.F.R. § 3.350 set forth above. Inasmuch, therefore, as the veteran does not qualify for the claimed SMC on either a statutory or factual basis, entitlement to SMC at the rate provided by 38 U.S.C.A. § 1114(s) is denied. 38 U.S.C.A. §§ 1114(s), 5107; 38 C.F.R. § 3.350(i). ORDER Special monthly compensation based upon the need for the regular aid and attendance of another person, or upon housebound status, is denied. F. JUDGE FLOWERS Member, Board of Veterans' Appeals