Citation Nr: 0502948 Decision Date: 02/07/05 Archive Date: 02/15/05 DOCKET NO. 04-18 394 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to special monthly compensation based on the need for aid and attendance, for accrued benefits purposes. REPRESENTATION Appellant represented by: Samuel Hart, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant and an observer ATTORNEY FOR THE BOARD S. Higgs, Counsel INTRODUCTION The veteran served on active duty from May 1966 to May 1968. The appellant is the veteran's surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in September 2002 by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. As this Board decision grants the appellant's accrued benefits claim of entitlement to special monthly compensation based on the need for aid and attendance, and this is the greater benefit, the accrued benefits claim of entitlement to special monthly compensation at the housebound rate is moot. This case was the subject of an October 2004 hearing before the undersigned Veterans Law Judge. FINDINGS OF FACT 1. The veteran applied for service connection for prostate cancer during his lifetime, and the claim remained unadjudicated; the appellant filed her claim for accrued benefits within one year of the veteran's death. 2. The appellant has been granted service connection for the cause of the veteran's death as due to prostate cancer, as well as service connection for prostate cancer for accrued benefits purposes. 3. The veteran's inability to perform the activities of daily living without assistance during treatment for terminal cancer cannot be dissociated with his service-connected prostate cancer, determined by medical professionals to have causally shared in producing death and described in August 2002 treatment records as the "terminal illness of prostate cancer." CONCLUSION OF LAW The criteria for special monthly compensation based on the need for regular aid and attendance are met. 38 U.S.C.A. §§ 1114(l), 5107, 5121 (West 2002); 38 C.F.R. §§ 3.102, 3.350, 3.352, 3.1000 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 There was a significant change in the law prior to the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. First, VA has a duty to notify the appellant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103 (West 2002); 38 C.F.R. § 3.159(b) (2003). Second, VA has a duty to assist the appellant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2003). As discussed in detail below, sufficient evidence is of record to grant this claim. Therefore, no further notice or development is needed. Background Private medical records of treatment show that the veteran was diagnosed as having prostate cancer in July 2001. He was referred to an oncologist. He was apparently treated conservatively. In May 2002, the veteran underwent a colonoscopy. Biopsies were performed and other studies were conducted. The veteran was found to have liver cancer and colon cancer in addition to prostate cancer. In July 2002, the veteran applied for service connection for prostate cancer. The claim was not adjudicated prior to his death in September 2002. In August 2002, the veteran's condition deteriorated significantly. Records of treatment dated in August 2002 describe the veteran has having the "terminal illness of prostate cancer." Other records characterize the condition as colon cancer, and other records simply described "terminal cancer." Private records of treatment further indicate that beginning in August 2002 the appellant was cared for by his wife with the help of a registered nurse, a social worker and a private physician. The services were characterized as hospice care. The veteran died in September 2002. His death certificate lists the immediate cause of death as metastatic colon cancer. Prostate cancer is listed as an other significant condition contributing to death but not related to the immediate cause of death. Only days later in September 2002, the RO granted service connection for the cause of the veteran's death, on the basis that his prostate cancer, which contributed to death, was due to exposure to Agent Orange during service in Vietnam. Additionally, because the veteran had applied for service connection for prostate cancer before he died, but the claim had remained unadjudicated, the RO granted service connection for prostate cancer for accrued benefits purposes, and in March 2004 further granted entitlement to special monthly compensation based on loss of use of a creative organ for accrued benefits purposes. However, the RO denied the appellant's accrued benefits claim for entitlement to special monthly compensation based on aid and attendance or at the housebound rate. The RO's rationale was essentially that the veteran was not shown to be in need of aid and attendance or housebound due to his now-service- connected prostate cancer. In December 2002, a private physician wrote that the veteran was a patient of his on a hospice program from August 2002 until his death in September 2002, as he was receiving medical care for terminal cancer. The private physician asserted that the veteran was seen by the entire hospice team, which included a nurse, physician, and social worker. The hospice program was initiated due to the veteran's terminal prognosis, and his inability to leave the home for routine visits with a medical doctor. This physician noted that the first time he saw the veteran, it was quite obvious that he was too week to care for himself. The veteran's wife and daughter were in the home providing 24-hour care, as he was too unsafe to leave unattended. He was incontinent of bowel, and required regular diaper changers for bowel movements, and had an indwelling Foley catheter whose bag required regular emptying. Additionally the veteran was impotent secondary to his disease process and various medications which he was taking for palliation of his illness. Law and Regulations Under the provisions of 38 U.S.C.A. § 5121 (West 2002), as relevant here, a veteran's surviving spouse may receive accrued benefits consisting of up to two years of due but unpaid benefits to which the veteran was entitled at death under existing ratings or decisions, or those based on evidence in the file at date of death. 38 U.S.C.A. 5121 (West 2002); 38 C.F.R. § 3.1000 (2003). Applications for accrued benefits must be received within one year after the date of the veteran's death. 38 U.S.C.A. § 5121(c). Special monthly compensation is payable at a specific rate if the veteran is permanently bedridden or so helpless as to be in need of the regular aid and attendance of another person as a result of his service-connected disabilities. 38 U.S.C.A. § 1114(l); 38 C.F.R. §§ 3.350(b). Determination as to the need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to such conditions as: inability of a claimant to dress himself or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliance which by reasons of the particular disability cannot be done without aid; inability of the claimant to feed himself through the loss of coordination of upper extremities or through extreme weakness; inability to tend to the wants of nature; or incapacity, physical or mental, that requires care and assistance on a regular basis to protect claimant from the hazards or dangers incident to his daily environment. "Bedridden" will be a proper basis for the determination and is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. It is not required that all the disabling conditions enumerated above be found to exist before a favorable rating may be made. The particular personal functions that the claimant is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establishes that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. 38 C.F.R. § 3.352(a). It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. 38 C.F.R. § 3.102 (2003). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also, 38 C.F.R. § 3.102 (2003). When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis The veteran filed for service connection for prostate cancer in July 2002, a claim that remained unadjudicated at the time of his death. The appellant filed her claim for accrued benefits in September 2002, clearly within a year of his death. Appropriately, service connection for prostate cancer for accrued benefits purposes has been granted, as well as service connection for the cause of the veteran's death. The current issue is whether the appropriate level of compensation for accrued benefits purposes includes special monthly compensation based on the need for aid and attendance. From the August 2002 and September 2002 terminal treatment records, it is clear that the veteran was housebound and required the aid and attendance of medical professionals as he received treatment for his terminal cancer. He was unable to perform even the most basic activities of daily living without assistance. The veteran's death certificate indicates that his now-service-connected prostate cancer shared in producing death. To find that the veteran's colon cancer was unrelated to his prostate cancer would be consistent with the wording of his death certificate, though the record certainly leaves some room for doubt on this matter. However, to find that the veteran's service- connected prostate cancer shared in producing death, as was expressly indicated on the death certificate, and yet was not a significant factor in rendering the veteran housebound and in need of aid and attendance during treatment for terminal cancer, would at best be a speculative and hypothetical distinction without sufficient evidentiary support in the record. In this light, the preponderance of the evidence cannot be said to be against the appellant's claim. See Alemany v. Brown, 9 Vet. App. 518 (1996). In sum, the Board finds that it is at least as likely as not that, by reason of his service-connected prostate cancer, the veteran was in need of aid and attendance of another person to perform the activities of daily living, within the meaning of the cited legal authority. It follows that the criteria for special monthly compensation based on the need for regular aid and attendance are met. 38 C.F.R. §§ 1114(l) 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352. As noted in the introduction to this decision, as this is the greater benefit, the accrued benefits claim of entitlement to special monthly compensation at the housebound rate is moot. Accordingly, entitlement to special monthly compensation based on the need for aid and attendance, for accrued benefits purposes, is warranted. ORDER Entitlement to special monthly compensation based on the need for aid and attendance, for accrued benefits purposes, is granted. ____________________________________________ R. F. WILLIAMS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs