Citation Nr: 1028010 Decision Date: 07/27/10 Archive Date: 08/10/10 DOCKET NO. 10-19 389 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Whether new and material evidence has been received to reopen a claim for entitlement to special monthly compensation (SMC) based upon the need for regular aid and attendance or on account of being housebound, and if so, whether SMC based upon the need for regular aid and attendance or on account of being housebound is warranted. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Pansiri, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1951 to March 1971, during the Korean Conflict through the Vietnam Era. He served in Vietnam from June 3, 1966, to June 2, 1967, and June 20, 1968, to June 19, 1969. This appeal comes before the Board of Veterans' Appeals (Board) from March 2009 and July 2009 rating decisions of the Department of Veterans Affairs (VA), New Orleans, Louisiana, Regional Office (RO), which denied entitlement to SMC based upon the need for regular aid and attendance or on account of being housebound. The Veteran disagreed with such decisions and subsequently perfected an appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. In a May 2002 rating decision, the RO denied entitlement to SMC based upon the need for regular aid and attendance or on account of being housebound; the Veteran was provided notice of the decision and of his appellate rights. 2. The Veteran did not appeal the May 2002 rating decision, and such decision became final. 3. The evidence received since the RO's May 2002 rating decision is not duplicative or cumulative of evidence previously of record, and raises a reasonable possibility of substantiating the Veteran's claim for entitlement to SMC based upon the need for regular aid and attendance or on account of being housebound. 4. Resolving any doubt in the Veteran's favor, due to the severity of his service-connected hypertensive heart disease, he requires the regular aid and attendance of another person in attending to the ordinary activities of daily living, including bathing, toileting, personal hygiene, and walking. He also requires regular aid and assistance in protecting himself from the hazards or dangers incident to his daily environment. CONCLUSIONS OF LAW 1. The RO's unappealled May 2002 decision that denied entitlement to SMC based upon the need for regular aid and attendance or on account of being housebound is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.1103 (2002) (current version 2009). 2. Evidence received since the RO's May 2002 rating decision is new and material; the claim of entitlement to SMC based upon the need for regular aid and attendance or on account of being housebound is therefore reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.156(a), 3.303, 4.9 (2009). 3. The criteria for SMC by reason of being in need of the regular aid and attendance of another person are met. 38 U.S.C.A. §§ 1114(k), 1114(l), 1114(s), 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.350, 3.352 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board reopens the Veteran's SMC claim and grants entitlement to SMC based upon the need for regular aid and attendance. As such, no discussion of VA's duty to notify or assist is necessary. Application to Reopen SMC Claim Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.160, 20.201, 20.302. If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Evidence is considered "new" if it was not previously submitted to agency decisionmakers. 38 C.F.R. § 3.156(a). "Material" evidence is evidence which, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). By way of history, the Veteran initially filed a claim for entitlement to SMC based upon the need for regular aid and attendance or on account of being housebound in December 2001. In a May 2002 rating decision, the RO denied entitlement to SMC based upon the need for regular aid and attendance or on account of being housebound on the basis that the Veteran was not in need of aid and attendance based on his service-connected disabilities. Because the Veteran did not submit a Notice of Disagreement to initiate appellate review and a Substantive Appeal to perfect an appeal of the RO's May 2002 rating decision, that determination became final, based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.1103 (2002) (current version 2009). The evidence of record when the RO decided the claim in May 2002 included the Veteran's service personnel records, STRs, VA treatment records (including a March 2002 VA Examination Report), private treatment records (including a November 2001 Private Examination Report from Dr. P.A.L.), and statements submitted by or on behalf of the Veteran. In October 2008, the Veteran sought to reopen his claim for entitlement to SMC based upon the need for regular aid and attendance or on account of being housebound. See October 2008 "Statement in Support of Claim," VA Form 21-4138. In March 2008 and July 2009 rating decisions, the RO determined that new and material evidence had not been received to reopen the claim, and ultimately denied entitlement to SMC based upon the need for regular aid and attendance or on account of being housebound on the basis that the Veteran was not in need of aid and attendance based on his service-connected disabilities. Evidence associated with the claims file since the prior final May 2002 rating decision includes statements and written argument submitted by or on behalf of the Veteran; an April 2009 Private Opinion Report from Dr. A.M.L.; and a November 2009 VA Examination Report and December 2009 Addendum. On review, the Board finds that new and material evidence has been received to reopen the claim for entitlement to SMC based upon the need for regular aid and attendance or on account of being housebound. In this regard, the claims folder contains an April 2009 Private Opinion Report from Dr. A.M.L., which indicates that the Veteran's "heart condition warrants the need of assistance with activities of daily living (ADLs)." The Board finds that such evidence, either by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. 3.156(a). The April 2009 Private Opinion Report from Dr. A.M.L. is material in that it suggests that the Veteran is need of regular aid and attendance due to his service-connected heart disability, and therefore raise a reasonable possibility of establishing the claim. As such, the Board finds that the April 2009 Private Opinion Report from Dr. A.M.L. is considered new and material for the purpose of reopening the claim for entitlement to SMC based upon the need for regular aid and attendance or on account of being housebound, and such claim is reopened. SMC Claim The Veteran is seeking entitlement SMC benefits based on the need for regular aid and attendance or due to housebound status. He contends that due to his service-connected conditions he is dependent on others "in obtaining basic living necessities." See October 2008 "Statement in Support of Claim," VA Form 21- 4138. SMC is a special statutory award in addition to awards based on the schedular evaluations provided by the diagnostic codes in VA's rating schedule. Claims for SMC, other than those pertaining to one-time awards and an annual clothing allowance, are governed by 38 U.S.C.A. § 1114 (k)-(s) and 38 C.F.R. §§ 3.350 and 3.352. If a Veteran, as the result of service-connected disability, is so helpless as to be in need of regular aid and attendance, an increased rate of compensation, i.e., "special" monthly compensation is payable. 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b). SMC under 38 U.S.C.A. § 1114(l) and 38 C.F.R. § 3.350(b) is payable as the result of service-connected disability if the Veteran has an anatomical loss or loss of use of both feet, or of one hand and one foot; has blindness in both eyes with visual acuity of 5/200 or less; is permanently bedridden; or is so helpless as to be in need of regular aid and attendance of another person. The following will be accorded consideration in determining the need for regular aid and attendance: Inability of a claimant to dress or undress him or herself, or to keep him or herself 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 a claimant to feed him or herself through loss of coordination of the 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 a claimant from the hazards or dangers incident to his or her daily environment. "Bedridden," i.e., the Veteran is actually required to remain in bed, will be a proper basis for the determination. 38 C.F.R. § 3.352(a). It is not required that all of the disabling conditions enumerated be found to exist before a favorable rating may be made. The particular personal functions that the Veteran is unable to perform should be considered in connection with his or her condition as a whole. It is only 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 will not be based solely upon an opinion that the Veteran's condition is such as would require him or her to be in bed. They must be based on the actual requirements of personal assistance from others. 38 C.F.R. § 3.352(a). If the Veteran does not qualify for increased benefits for aid and attendance, increased compensation benefits may still be payable if the Veteran has a single permanent disability rated 100 percent disabling, and has either additional service- connected disability or disabilities independently ratable at 60 percent or more or is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i). A Veteran is "permanently housebound" when he is substantially confined to his house (ward or clinical areas, if institutionalized) or immediate premises due to service-connected permanent disability or disabilities. 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i)(2). For purposes of housebound benefits, the Court has held that being "substantially confined" to the home means an inability to leave to earn an income. Absent a regulation by the Secretary defining the term "substantially confined," the Court held that the term may conceivably be more broadly construed. It found that Congress intended to provide additional compensation for Veterans who were unable to overcome their particular disabilities and leave the house in order to earn an income, as opposed to an inability to leave the house at all. Hartness v. Nicholson, 20 Vet. App. 216, 220-22 (2006); cf. Howell v. Nicholson, 19 Vet. App. 535, 540 (2006) (substantially confined means the inability to leave the house except in instances of seeking medical treatment). In addition, VA's General Counsel found that entitlement to SMC for housebound benefits under Section 1114(s) cannot be based on a TDIU. VAOPGCPREC 6-99 (July 7, 1999) In this case, service connection is in effect for hypertensive heart disease, rated as 100 percent disabling; chloracne, rated as 10 percent disabling; and hearing loss of the left ear, rated as noncompensably disabling. The combined evaluation for compensation is 100 percent. Since the Board in this decision is awarding SMC based on aid and attendance as discussed below, the claim for SMC at the housebound rate is rendered moot because SMC at the aid and attendance rate set forth at 38 U.S.C.A. § 1114(l) is greater than SMC at the housebound rate set forth at 38 U.S.C.A. § 1114(s). With regard to aid and attendance, review of the medical evidence of record does not reveal that the Veteran has an anatomical loss or loss of use of both feet or of one hand and one foot, is permanently bedridden, or is legally blind. Nevertheless, the competent medical evidence of record shows that the Veteran is so helpless as to be in need of the regular aid and attendance of another person. 38 U.S.C.A. § 1114(l) and 38 C.F.R. § 3.350(b), 3.352(a). In this regard, he is currently 82 years old and is under constant care at a nursing home. VA and private treatment records reveal that he is unable to ambulate without the assistance of others. See December 2001 Private Treatment Report Dr. P.A.L.; March 2002 VA Examination Report. He also requires regular aid and assistance in protecting himself from the hazards or dangers incident to his daily environment. See id. The March 2002 examiner also noted that the Veteran cannot dress, bathe, feed, or toilet without assistance. However, the examiner did not provide an opinion as to whether he needed the aid and attendance of others due to his service-connected disabilities. See March 2002 VA Examination Report; see also November 2009 VA Examination Report. Also, in the November 2009 VA Examination Report, the examiner noted that the Veteran was diagnosed with hypertensive cardiovascular disease, bifascicular block per ECG, senile dementia, chronic back pain and leg weakness, and seizure disorder. The examiner notes that the Veteran can only ambulate with a cane and can only ambulate without the assistance of others in the nursing home. Review of the evidence of record also reveals both positive and negative opinions regarding whether the Veteran needs regular aid and attendance of another person in attending to the ordinary activities of daily living based solely on his service-connected disabilities. In this regard, in a December 2009 Addendum to the November 2009 VA Examination Report, the examiner opines that the Veteran's "service-connected heart disease has no effect on the Veteran's activities of daily living." On the other hand, in an April 2009 Private Opinion Report from Dr. A.M.L., the physician indicates that the Veteran's heart condition warrants the need for assistance with his activities of daily living. On review, the Board gives greater probative weight to the April 2006 and November 2006 private medical opinions rather than the June 2007 VA medical opinion, for the following reasons. The Board finds the July 2007 VA medical opinion less probative because the examiner provides no basis for the negative opinion. Further, the Veteran through his representative argued that the examiner failed to take into his account the Veteran's prior medical history of a September 2001 stroke which weakened his extremities and affected his balance and memory. See June 2010 Informal Hearing Presentation. Review of the November 2009 VA Examination Report and December 2009 Addendum is negative for such history and such examination is inconsistent with the evidence of record, specifically the December 2001 Private Treatment Report Dr. P.A.L.; March 2002 VA Examination Report, which reveals severely impaired problems with mobility and inability to perform activities of self-care, and seems to suggest that the Veteran's various disabilities and overall health has improved. The private physician (Dr. A.M.L.) who provided the April 2009 opinion relied on credible and competent medical history as provided by the Veteran and as well-documented in his claims file to opine that he requires aid and attendance due to his service- connected heart disability. In this regard, the Board notes that the Veteran receives regular treatment from Dr. A.M.L., a cardiologist, for his heart disease disability. See April 2010 "Appeal to Board," VA Form 9. The Board also notes that the November 2009 VA examiner was a nurse practitioner and not a physician. Although there is absolutely no legal requirement that medical examinations only be conducted by physicians (see, e.g., Cox v. Nicholson, 20 Vet. App. 563, 568-69 (2007); Goss v. Brown, 9 Vet.App. 109, 114 (1996) (recognizing that nurses' statements regarding nexus were sufficient to make a claim well- grounded); Williams v. Brown, 4 Vet.App. 270, 273 (1993) (finding opinions of a VA registered nurse therapist competent medical testimony and requiring the Board to provide reasons or bases for finding those opinions unpersuasive)), in light of Dr. A.M.L.'s knowledge of the Veteran's history of heart disease and specialty in such area, an opinion predicated on such knowledge is more persuasive. Thus, the Board finds that, because of the severity of his service-connected hypertensive heart disease, he requires the regular aid and assistance of another person in attending to the ordinary activities of daily living - including bathing, dressing, toileting, personal hygiene, and walking. He also requires regular aid and assistance in protecting himself from the hazards or dangers incident to his daily environment. Therefore, the Board resolves reasonable doubt in the Veteran's favor and concludes that the requirements for SMC on the account of regular aid and attendance have been met. 38 U.S.C.A. § 1114(l); 38 C.F.R. §§ 3.350, 3.352. ORDER New and material evidence to reopen a claim of entitlement to SMC based upon the need for regular aid and attendance or on account of being housebound has been received; to this extent, the appeal is granted. Entitlement to SMC based upon the need for regular aid and attendance is granted, subject to the laws and regulations governing payment of monetary benefits. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs