Citation Nr: 0001285 Decision Date: 01/14/00 Archive Date: 01/27/00 DOCKET NO. 98-11 109 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to special monthly compensation based on the need for regular aid and attendance or at the housebound rate. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Nancy R. Kegerreis INTRODUCTION The veteran served on active duty from December 1942 to January 1946. This matter comes before the Board of Veterans' Appeals (Board) from an April 1998 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied the benefit sought on appeal. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. The veteran has the following service-connected evaluations: 50 percent for right total hip arthroplasty; 20 percent for degenerative arthritis of the left shoulder; 20 percent for degenerative arthritis of the left knee; 20 percent for degenerative arthritis of the right knee; 20 percent for degenerative arthritis of the cervical spine with nerve root irritation, 10 percent for degenerative arthritis of the left hip; and a noncompensable evaluation for tonsillectomy. The combined evaluation is 90 percent. 3. The veteran's hemiparalysis and right-sided weakness is secondary to a left middle cerebral artery infarct and not to service-connected degenerative joint disease of the right or left hip, cervical spine, right and left knees, and left shoulder. 4. The veteran does not have a single service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from a 100 percent service- connected disability and involving different anatomical segments or bodily systems, nor is he permanently housebound by reason of service-connected disability or disabilities. CONCLUSION OF LAW The criteria for special monthly compensation based on the need for regular aid and attendance or at the housebound rate have not met. 38 U.S.C.A. §§ 1114(l), 1114(s) (West Supp. 1999), 5107 (West 1991); 38 C.F.R. §§ 3.350, 3.352(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The veteran contends that he should receive special monthly compensation due to the need for aid and attendance or at the housebound rate. In his substantive appeal, he and his representative stated that his service-connected hip, back, ankle, knee, and shoulder degenerative joint disease prevent him from accomplishing any of the activities of daily living without assistance and without the aid of a full-time caregiver. He alleged that whenever he tries to walk without assistance, his knees give way without notice and that he regularly needs help in dressing, bathing, and moving from a chair to his wheel chair. The veteran was afforded a special orthopedic examination in June 1994 to determine the nature and severity of all his service-connected orthopedic disabilities and an examination of his housebound status or permanent need for regular aid and attendance. At the time of this examination, the veteran complained of neck pain, radiating down into both hands; left shoulder pain with increase in pain when attempting to reach or work overhead; chronic pain in both hips aggravated by prolonged standing or walking; and pain in both knees aggravated by activities such as standing, walking, squatting, stooping, or going up and down stairs. As to being disabled, he stated that he was able to shower by himself but needed assistance in taking a tub bath. He reported that he was able to drive his truck almost anywhere he needed to go. Physical examination included range of motion tests of the joints, which the veteran could complete, although with limitations of motion and complaints of pain. A December 1996 VA hospitalization report disclosed that the veteran had a history of stroke in 1993, which had been frontal with right-sided weakness and deep vein thrombosis. He had been admitted on this occasion because of a second stroke, a left middle cerebral artery infarct. Physical examination revealed right upper extremity dense hemiplegia with right lower extremity paresis at 4/5 throughout. Sensory examination disclosed decreased sensation to pinprick, greater in the left than in the right. He was treated with medication and discharged to a nursing home. A December 1996 VA occupational therapy report indicated that the veteran had a diagnosis of left middle cerebral artery cerebrovascular accident with right hemiparesis. At the time of discharge he required maximum assistance of two people for bed/chair transfer and maximum assistance of one person for bedside/commode transfer. He also required standby assistance for bed mobility and feeding. He was found to be unable to perform fully other activities of daily living. In January 1997, an aid and attendance examination was conducted by a physician associated with the Healthsouth Lakeshore Rehabilitation Hospital. This physician noted that the veteran could ambulate 225 feet with a straight cane and that his right knee occasionally buckled. He was not bedridden, but did require assistance in dressing, bathing, eating, attending to the needs of nature, and walking in and out of his home. This physician found that the veteran's joint limits were attributable to muscle weakness due to right hemiplegia secondary to cerebrovascular disorder. A VA examination for housebound status or permanent need for regular aid and attendance in August 1997 stated that the veteran had had strokes in December 1996 and in 1993 and now required a full-time sitter. He needed assistance with dressing, shaving, and bathing. Although he was able to feed himself with his left hand with assistance, his right arm was paralyzed. His lower extremities were noted to be very weak with some paralysis. Before his two strokes, he had had arthritis, causing limited flexion of the knees and thighs. Presently, he was found to require round-the-clock care and could not be left alone, although he was able to assist with feeding, bathing, and using the bathroom. He could walk across a room using a walker, but could not leave his home except by ambulance. Diagnoses were status post cerebral artery infarct in 1996; status post stroke in 1993; history of deep venous thrombosis; hypertension; and diabetes. In November 1997, the veteran was hospitalized at a VA hospital for atrial fibrillation, which had been found on EKG during primary care checkup. He had had no prior history of atrial fibrillation. The condition was considered to be of new onset, of unknown etiology, and to have existed for an unknown length of time. A VA aid and attendance examination in May 1998 indicated that the veteran was not bedridden, although he was reported to be spending as many as 12 hours in bed during the daytime. He was unable to dress, bathe, eat, go to the bathroom, or walk in and out of his home unassisted. Improvement was not anticipated. This physician noted that the veteran was unable to ambulate and that he had right hemiplegia preventing him from using his right upper extremity. He had had a left middle cerebral artery infarct in 1996 with residual right hemiparesis, in addition to many other disorders, including diabetes mellitus, hypertension, history of deep venous thrombosis, glaucoma, osteoarthritis, history of congestive heart failure, paroxysmal atrial fibrillation, and chronic anti coagulation. II. Legal Analysis The Board construes this claim as a claim for an increased rating. Therefore, the veteran's evidentiary assertion that he qualifies for special monthly compensation is sufficient to well-ground his claim. See Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Since the Board is satisfied that all relevant and available facts have been properly developed, no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107. The law provides that special monthly compensation is payable if the veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both feet, or of one hand and one foot, or is blind in both eyes, with 5/200 visual acuity or less, or is permanently bedridden or so helpless as to be in need of regular aid and attendance. See 38 U.S.C.A. § 1114(l) (West Supp. 1999) and 38 C.F.R. § 3.350 (1999). The criteria for determining that a veteran is so helpless as to be in need of regular aid and attendance are contained in 38 C.F.R. § 3.352(a) (1999). This regulation provides that the following criteria be considered in determining the need for regular aid and attendance: inability of the claimant to dress or undress himself, or to keep himself 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; inability of the claimant to feed himself 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 him from hazards or dangers incident to his daily environment. "Bedridden" will be a proper basis for the determination, if the veteran's disability actually requires that he remain in bed. The fact that he may have voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day will not suffice. It is necessary that the evidence establish that the veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that the veteran is so helpless as to be in need of regular aid and attendance must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352(a) (1999). Considering the claim for aid and attendance, the evidence is clear that in June 1994, before his second stroke, the veteran had not lost the use of both feet or of one hand and one foot, was not blind in both eyes with visual acuity of 5/200 or less, and was not permanently bedridden or so helpless as to be in need of regular aid and attendance. On the contrary, he was able to stand, walk, squat, stoop, go up and down stairs, and drive a vehicle. The only limitation as to his activities of daily living was noted as inability to manage a tub bath independently. The above competent medical evidence shows that the veteran's current physical disabilities are not related to the service- connected degenerative joint disease and thus cannot be considered in determining whether he is entitled to special monthly compensation. Rather, the evidence shows that before his second stroke in December 1996, he had been able to accomplish all of the activities of daily living, listed under 38 C.F.R. § 3.352(a). As a result of the 1996 left middle cerebral artery infarct, however, he had residual right-sided muscle weakness and residual right hemiparesis, which have not been service connected. Moreover, other disabling conditions, including diabetes mellitus, hypertension, deep venous thrombosis, glaucoma, and paroxysmal atrial fibrillation are of relatively recent origin and have not been service connected. Accordingly, none of these disabilities, other than the degenerative joint disease, may be considered in assessing his entitlement to special monthly compensation. Since his hemiparesis, the disorder which has resulted in his inability to perform the activities of daily living, is not service connected or related to a service-connected disability, he does not meet the requirements for entitlement to the regular aid and attendance of another person due to service-connected disabilities. 38 U.S.C.A. § 1114(l) (West Supp. 1999); 38 C.F.R. § 3.350, 3.352(a) (1999). Special monthly compensation at the housebound rate is governed by 38 U.S.C.A. § 1114(s) (West Supp. 1999). Compensation is payable where the veteran has a single service-connected disability rated as 100 percent and had 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 is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the veteran is substantially confined as a direct result of service-connected disabilities to his 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 lifetime. 38 C.F.R. § 3.350(i). The veteran has the following service-connected evaluations: 50 percent for right total hip arthroplasty; 20 percent for degenerative arthritis of the left shoulder; 20 percent for degenerative arthritis of the left knee; 20 percent for degenerative arthritis of the right knee; 20 percent for degenerative arthritis of the cervical spine with nerve root irritation, 10 percent for degenerative arthritis of the left hip; and a noncompensable evaluation for tonsillectomy. The combined evaluation is 90 percent. As to the claim for special monthly compensation at the housebound rate, the veteran does not meet the criteria of having a single service-connected disability rated as 100 percent together with separate service-connected disability or disabilities independently ratable at 60 percent. Although it is undeniable that he may be permanently housebound, it is not by reason of service-connected disability or disabilities. 38 U.S.C.A. § 1114(s) (West Supp. 1999); 38 C.F.R. § 3.350 (1999). Accordingly, he does not meet the requirements for entitlement to special monthly compensation at the housebound rate. Based on the above, the preponderance of the evidence is against the veteran's claim for entitlement to special monthly compensation based on the need for aid and attendance or at the housebound rate. ORDER Entitlement to special monthly compensation based on the need for regular aid and attendance or at the housebound rate is denied. J. SHERMAN ROBERTS Member, Board of Veterans' Appeals