Citation Nr: A23008252 Decision Date: 04/27/23 Archive Date: 04/27/23 DOCKET NO. 181218-1531 DATE: April 27, 2023 ORDER Entitlement to special monthly compensation based on statutory housebound status is granted. FINDINGS OF FACT 1. The Veteran's major depressive disorder alone renders the Veteran unable to secure or follow a substantially gainful occupation. 2. The Veteran's service-connected disabilities do not render her so helpless as to be in need of regular aid and attendance. CONCLUSION OF LAW The criteria for entitlement to special monthly compensation based on housebound status or the need for aid and attendance have been met. 38 U.S.C. §§ 1114, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.351, 3.352, 4.3. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1994 to October 1995. A rating decision was issued under the legacy system in May 2016. In April 2018, the Veteran opted into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a Rapid Appeals Modernization Program (RAMP) election form and selecting the higher-level review (HLR) lane. The agency of original jurisdiction (AOJ) issued a RAMP HLR decision in October 2018, which is the decision on appeal. In a December 2018 RAMP Selection Form, the Veteran elected to appeal the issues of entitlement to an effective date earlier than June 24, 2011, for a grant of TDIU and entitlement to special monthly compensation based on housebound status to the Board. The Veteran chose the Direct Review option, requesting that the Board's decision be based on evidence of record at the time of notification of the October 2018 rating decision. Therefore, the Board may only consider the evidence of record at the time of the RAMP opt-in. 38?C.F.R. § 20.301. A Board decision in December 2019 denied the Veteran's claim special monthly compensation (SMC). The Veteran thereafter appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a Memorandum Decision dated in April 2021, the Court vacated the Board's decision with regard to SMC and remanded the case for readjudication in accordance with the Memorandum Decision. 1. Entitlement to special monthly compensation based on housebound status or the need for aid and attendance. The Court remanded the issue of SMC because the Board did not provide adequate reasons or bases for whether a single disability served as the basis for the Veteran's total disability rating based on individual unemployability (TDIU). Entitlement to special monthly compensation based on statutory housebound status will be granted when a veteran has a single service-connected disability rated as 100 percent and 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. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350 (i). A TDIU based on a single disability satisfies the "rated as total" element of section 1114(s). Buie v. Shinseki, 24 Vet. App. 242 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008). Thus, the Board reviews whether one of the Veteran's service-connected disabilities can serve as a basis by itself for the TDIU. In that regard, the Board finds the Veteran's major depressive disorder can serve as the sole basis for her award of TDIU. A December 2012 VA mental disorders examination shows the Veteran had from major depressive disorder, recurrent, moderate, pain disorder associated with psychological factors and a general medical condition, and amphetamine abuse in sustained full remission. At the examination, she reported having left a position at a commissary. She left the commissary in March 2011 and applied for about 600 jobs since then. She reported that her problem with employment is that she is only qualified for manual work, and she can't perform any physical activities of work. She also reported working on returning to school to study IT or to be an esthetician. She reported she has been told she can sit on a stool while doing skin care and manicures. The examiner found the Veteran's symptoms to be depressed mood, chronic sleep impairment, flattened affect, and intermittent inability to perform activities of daily living, including maintaining a minimum hygiene. The examiner found the Veteran's occupational and social impairment was "with reduced reliability and productivity." Nonetheless, the examiner found that the Veteran's pain is excessively severe due to psychological factors, which results in her diagnosable mental disorder of Pain Disorder. The examiner found the Veteran's her disability causes significant distress or impairment in major areas of functioning such as work, school and family relations. The examiner found the Veteran was not totally unemployable. An April 2015 VA examination was conducted. The diagnoses of major depressive disorder, insomnia disorder, anxiety disorder, and neurocognitive disorder were found. The examiner found it was not possible to differentiate what portion of occupational and social impairment were attributed to each mental disorder. The examiner found the Veteran had occupational and social impairment with reduced reliability and productivity. Nonetheless, the examiner found the following symptoms were present: near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); difficulty in understanding complex command; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Giving the Veteran the benefit of the doubt, the Board finds that during the appeal period, the Veteran has been unable to secure or follow a substantially gainful occupation based solely on the Veteran's acquired psychiatric disorder. As for the earlier part of the appeal period, the December 2012 examination finding that she has Pain Disorder is especially persuasive and accounts for her inability to believe she is able to perform the requirements of a job. Although the examiner found she was not unemployable, the fact she applied for about 600 jobs and believed she couldn't do the physical work (because of her Pain Disorder) is at least as persuasive. In the later part of the appeal period, the reported symptoms are inconsistent with being a reliable employee. In particular, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, impairment of short and long-term memory, and difficulty in understanding complex commands rise to the equipoise level as to the issue of a TDIU. Therefore, SMC based on the statutory housebound criteria are met. To this extent, the appeal is granted. Next, special monthly compensation based on the need for aid and attendance will be granted when, as a result of a service-connected disability, the Veteran is so helpless (due to physical or mental incapacity), that he or she requires the aid of another person to perform the personal functions required in everyday living. A Veteran will meet the criteria for payment at the aid and attendance rate if the Veteran has: (i) anatomical loss or loss of use of both feet, or one hand and one foot; (ii) blindness or is so nearly blind as to have corrected visual acuity of 5/200 or less in both eyes, or concentric contraction of the visual field to 5 degrees or less; (iii) nursing home care because of mental or physical incapacity; or (iv) been permanently bedridden or with such significant disabilities as to be in need of regular aid and attendance. 38 U.S.C. § 1114(l); 38 C.F.R. §§ 3.350(b), 3.351(b)-(c), 3.352(a). In this regard, the Board finds the evidence is persuasively against the Veteran being so helpless as to be in need of regular aid and attendance. At the July 2012 VA examinations for hip and spine, the Veteran described having pain, and that flare-ups almost put her in bed rest. She reported being unable to sit, stand or walk for great distances or times due to pain. She reported having difficulty bending. This evidence shows she was able to sit, stand and walk for some period of time, which is inconsistent with the need for aid and attendance. At the December 2012 VA mental disorders examination, the Veteran reported applying for numerous jobs and a desire to attend school. She reported that her children were home schooled, and that the family was involved with the church. She described receiving treatment for various medical issues, but did not describe that she needed assistance with any of the factors associated with the criteria for aid and attendance. April 2015 VA examinations show the Veteran cannot engage in labor, prolonged walking or stair climbing. She reported having weekly episodes and bed rest due to pain. Bending, sitting, standing and walking for prolonged periods of time increase her pain to a severe level. She becomes stiff, making it difficult for her to move. The April 2015 VA mental disorders examination shows one symptom was the intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene). The Veteran was afforded a VA examination for housebound status in March 2016. The examiner noted that the Veteran can prepare her own meals, does not require assistance in bathing and tending to hygiene needs, does not require nursing home care, does not require medication management and can manage her own finances. Further, the Veteran reported that a typical day included mainly bed rest, some laundry and a few household chores. The Veteran reported occasionally attending appointments and running errands. She also reported that she no longer drove due to positional intolerance. The Veteran reported leaving her home two to three times per week. See March 2016 C&P Exam. In a March 2016 statement, the Veteran's spouse alleged that the Veteran's ability to function without help from him and their kids was severely limited. He contended that the Veteran's memory was becoming increasingly diminished, and that she has been unable to clean the house and maintain physical appearances. Most days, he stated, she does not even get out of bed. He asserted that the reality of a full-time care giver was becoming increasingly necessary every day. See March 2016 C&P Exam. Despite attending many VA appointments throughout the appeal period, the treatment records do not suggest the Veteran is in need of regular aid and attendance at any time during the appeal period. For instance, she had good grooming and hygiene at appointments in July 2014, March 2015. She reported attempting to cook healthy meals in July 2014. In December 2014, her hygiene was fair, however, she reported she was trying to increase her exercise by walking to the library and spending time outdoors with their new puppy. She further reported an interest in attending VA's weight loss program (MOVE), and that she was socializing more with neighbors. The Veteran attended an in-person physical therapy in November 2015 for knee pain. VA appointment in April 2016 where she reported some ongoing hip pain, low back pain, and new complaints of right knee pain. In June 2016 treatment, she had reported a recent history of "jumping into and out of a truck" and buying a small car instead. The Veteran also attended monthly VA appointments from April 2016 through November 2016 and was able to undergo magnetic resonance imaging in November 2017. See December 2017 Medical Treatment Record-Non-Government Facility at 3; October 2018 CAPRI at 2-22. While the evidence shows that the Veteran was intermittently unable to perform activities of daily living, the Board finds this level of impairment does not demonstrate being helpless. While the Veteran did report in the March 2016 VA examination that a typical day included mainly bed rest, she also reported that she would do laundry and household chores and attend appointments. The March 2016 VA examination, which is contemporaneous to the Veteran's spouse's statement, shows that the Veteran did not need assistance in preparing her own meals bathing, or tending to hygiene needs, or medication management, and she could manage her own finances. The Board finds the March 2016 VA examination more probative than the Veteran's spouse's statement that some days she doesn't get out of bed and that the reality of a full-time care giver was becoming increasingly necessary every day. The VA examination is more specific as to what activities the Veteran was capable of performing as they apply to needing aid and attendance pursuant to VA regulations. The spouse's statement suggests that a care-giver might be needed at some point in the future, not that it was needed at that time. (Continued on the next page) ? The Board acknowledges a May 2012 statement from a private chiropractor. The chiropractor reported at the start of treatment, severe pain prevented the Veteran from performing most daily tasks around the home. The pain was mildly reduced with treatment, but she was still unable to perform some tasks including being able to exercise. The Board further acknowledges a July 2013 VA staff physician reported that the Veteran's chronic pain interfered with activities of daily living. Neither of these statements are specific enough to show that the Veteran was so helpless as to be in need of regular aid and attendance. The first statement shows the Veteran ultimately was unable to perform "some" tasks. The inability to exercise cited is quite a far distance from being so helpless as to need regular aid and attendance. The second statement only shows "interference" with unspecified activities of daily living, which does not equate to the helplessness required for aid and attendance. Thus, the persuasive weight of the evidence demonstrates that the Veteran does not meet the statutory requirements for special monthly compensation based on the need for aid and attendance due to service-connected disability. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Rocktashel, 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.