Citation Nr: 1032308 Decision Date: 08/27/10 Archive Date: 09/01/10 DOCKET NO. 09-38 243 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for additional disability of a bilateral leg and lower extremity disorder as caused by VA medical treatment in December 2002. 2. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for additional disability to the digestive system as caused by VA medical treatment in December 2002. 3. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for additional disability of a kidney disorder as caused by VA medical treatment in December 2002. 4. Entitlement to special monthly compensation by reason of the need for regular aid and attendance or by reason of being housebound. 5. Entitlement to automobile and adaptive equipment or adaptive equipment only. 6. Entitlement to specially adapted housing or a special home adaptation grant. REPRESENTATION Appellant represented by: American Red Cross ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran had active military service from October 1952 to August 1956. This matter comes to the Board of Veterans' Appeals (Board) on appeal from October 2007, June 2008, and April 2009 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. 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). The Board will go ahead and decide the claim of special monthly compensation by reason of the need for regular aid and attendance or by reason of being housebound. But the Board is remanding the section 1151, automobile and adaptive equipment, and specially adapted housing claims to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development and consideration. FINDINGS OF FACT 1. The Veteran currently has the following service-connected disabilities: schizophrenia, rated as 100 percent disabling; and duodenal ulcer disease with anterior gastrojejunostomy, rated as 10 percent disabling. The combined service-connected disability rating is 100 percent when considering the combined ratings table. 2. The evidence of record reveals that the Veteran requires regular assistance with certain activities of daily living, including bathing, dressing, and handling of his financial affairs due to his service-connected disabilities, especially his schizophrenia. In essence, he requires the daily aid and assistance of his spouse or another person. 3. Since the aid and attendance benefit is paid at a higher rate than the housebound benefit, the claim for housebound benefits is rendered moot, and no further analysis is required on that issue. CONCLUSION OF LAW The criteria are met for entitlement to special monthly compensation benefits by reason of being in need of aid and attendance of another person. 38 U.S.C.A. §§ 1114(l), 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.350(b), 3.352(a) (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Duties to Notify and Assist As to the special monthly compensation issue, review of the claims folder shows compliance with the Veterans Claims Assistance Act (VCAA), 38 U.S.C.A. § 5100 et seq. See also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In any event, since the Board is granting the special monthly compensation claim, there is no need to discuss in detail whether there has been compliance with the notice and duty to assist provisions of the VCAA because even if, for the sake of argument, there has not been, this is inconsequential and, therefore, at most harmless error. See 38 C.F.R. § 20.1102. Governing Laws and Regulations with Analysis - Special Monthly Compensation Presently, the Veteran is seeking special monthly compensation benefits based on being housebound as set forth under 38 U.S.C.A. § 1114(s) or based on the need for regular aid and attendance at the higher rate as set forth under 38 U.S.C.A. § 1114(l). Special monthly compensation 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. 38 C.F.R. § 3.352(a). "Bedridden," i.e., the Veteran is actually required to remain in bed, will be a proper basis for the determination. Id. It is not required that all of the disabling conditions enumerated be found to exist before a favorable rating may be made. See generally Turco v. Brown, 9 Vet. App. 222, 224 (1996) (eligibility for special monthly compensation by reason of regular need for aid and attendance requires that at least one of the factors set forth in VA regulation is met, but not all). 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). The performance of the necessary aid and attendance service by a relative of the beneficiary or other member of his or her household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352(c). The Board initially will address the issue of whether the Veteran is entitled to the higher benefit of special monthly compensation based on aid and attendance. Review of the claims folder reveals that the Veteran currently has the following service-connected disabilities: schizophrenia, rated as 100 percent disabling; and duodenal ulcer disease with anterior gastrojejunostomy, rated as 10 percent disabling. The combined service-connected disability rating is 100 percent. See 38 C.F.R. § 4.25 (combined ratings table). The Veteran is 82 years old. He contends that his service- connected disabilities prevent him from engaging in many activities of daily living without regular aid and attendance of another. He currently lives with his spouse. He has been in receipt of a total 100 percent rating for his service-connected schizophrenia since March 1968. He also has many other significant nonservice-connected conditions to include prostate cancer residuals, chronic obstructive pulmonary disease (COPD), coronary artery disease, hypertension, peripheral vascular disease, Type II diabetes mellitus, cataracts, and obesity, among others. See VA treatment records dated from 2007 to 2009. With regard to aid and attendance, the May 2008 VA psychiatric examiner opined that after a careful review of the evidence of record and interview of the Veteran, his service-connected psychiatric disability has deteriorated to the point that he needs assistance. The Veteran is in therapy, and on anti- depressants. He has not worked since the 1960s because of his psychiatric difficulties. He needs help with activities of daily living, chores, and bathing. He is not able to take care of his personal hygiene by himself. The examiner indicated the Veteran is not capable of managing his financial affairs, and that since 1965 his wife takes care of this. He has total occupational and social impairment due to his service-connected psychiatric disorder according to the examiner. VA treatment records also document his recurring service-connected stomach problems that further impair his quality of life. Thus, this evidence reflects the necessity of the regular aid and attendance of another family member, due to his service-connected disabilities, in particular his psychiatric disability. 38 C.F.R. § 3.352(a). It does not appear the Veteran would be able to take care of himself without the regular assistance of another. The Board concedes the Veteran is diagnosed with numerous nonservice-connected disorders to include prostate cancer residuals, COPD, coronary artery disease, hypertension, peripheral vascular disease, Type II diabetes mellitus, cataracts, and obesity, among others. See VA treatment records dated from 2007 to 2009. Admittedly, these disorders have a significant impact on the Veteran's health, and also necessitate the regular aid and attendance of his spouse. In fact, a May 2008 VA aid and attendance examiner implied that the Veteran's need for aid and attendance was more due to his nonservice- connected disorders. The Veteran can only walk with Canadian crutches, and has numerous physical impairments. In addition, according to an October 2009 statement from the Veteran, he was provided an electric scooter by VA due to his numerous nonservice-connected problems. Regardless, overall, VA and private treatment records corroborate that the severity of the Veteran's service-connected disorders, standing alone, would necessitate the regular aid and attendance of another for certain activities of daily living. See Turco, 9 Vet. App. 224 (eligibility for special monthly compensation by reason of regular need for aid and attendance requires that at least one of the factors set forth in VA regulation is met, but not all). Consequently, it is apparent from the medical evidence that the basic requirements for special monthly compensation 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. Therefore, resolving any doubt in the Veteran's favor, the Board finds the evidence supports special monthly compensation for regular aid and attendance. 38 U.S.C.A. § 5107(b). The Board now turns to the issue of whether the Veteran is entitled to the lesser benefit of special monthly compensation by reason of being housebound. Special monthly compensation benefits by reason of being housebound are 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). For purposes of housebound benefits, the U. S. Court of Appeals for Veterans Claims (Court) recently 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). With regard to housebound status, the threshold statutory requirement is that the Veteran must have a single permanent disability rated at 100 percent. In this regard, the Veteran currently meets this requirement by way of his service-connected schizophrenia. Still, he does not have additional service- connected disability or disabilities independently ratable at 60 percent or more. 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i). However, with regard to being "permanently housebound," it is also clear from the record that the Veteran has been unemployed for many years due to his service-connected disabilities, and is "substantially confined" to his home in terms of not being able to leave for the purpose of earning a living, thus meeting the standard under Hartness, 20 Vet. App. at 222. In this respect, the Veteran has not worked due to his service-connected schizophrenia since 1965. While no examination has indicated that the Veteran is bedridden or confined to his house it is apparent that his ability to leave the house to earn income is precluded by his service-connected disabilities. After considering the Veteran's age, disabilities and ability to leave his house, the Board finds that entitlement to housebound benefits by reason of his service-connected disabilities would normally be warranted in the present case. 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i). Notwithstanding the above, in view of the Board's grant of special monthly compensation based on the need for regular aid and attendance herein, the issue of entitlement to special monthly compensation on account of being housebound is moot. In this regard, a Veteran may either receive special monthly compensation based on the need for regular aid and attendance or by reason of being housebound, but may not receive both simultaneously. That is, regular aid and attendance is the greater monetary award. Compare 38 U.S.C.A. § 1114(l) with 38 U.S.C.A. §1114(s). Therefore, the question concerning whether the Veteran is housebound for special monthly compensation purposes is a moot point. ORDER Special monthly compensation by reason of being in need of aid and attendance of another person is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND The Veteran contends that he has developed additional disabilities - to both of his legs / lower extremities, to his digestive system, and to his kidneys as the result of VA treatment in December 2002. Specifically, he asserts that he was prescribed 50mg of prednisone, one tablet every six hours, on December 4, 2002, in preparation for a computed tomography (CT) scan. On December 5, 2002, he was hospitalized by VA for chest pains for 15 days. He continued on the prednisone, and was again hospitalized from February 8, 2003 to February 25, 2003 at Hospital De La Concepcion for diarrhea, kidney problems, and lower leg extremity weakness and edema. He believes VA committed "malpractice" by prescribing an inappropriate medication. He asserts that he already was awarded $25,000 by VA's Office of Regional Counsel per the Federal Court Claim Act due to the improper prescription of prednisone. He says his legs, in particular, are permanently damaged such that he has already been provided a wheelchair and electronic scooter from VA. See May 2003 spouse statement; February 2006, July 2007, December 2008, October 2009 Veteran's statements; June 2007 claim; July 2007 VA letter; and January 2008 Federal Tort Judgment Voucher. However, before addressing the merits of the section 1151, automobile, and housing adaptive equipment claims, the Board finds that additional development of the evidence is required. First, it appears the Veteran has filed a claim under the Federal Tort Claims Act (FTCA), apparently based on the same events that led to his § 1151 claim against VA. See January 2008 Federal Tort Judgment Voucher. Certain medical records or other evidence may have been generated in connection with the FTCA claim, and such evidence must be obtained if possible. Therefore, the RO (AMC) should contact VA's Office of Regional Counsel for any pleadings or judgments, etc., concerning the outcome of that related litigation. Second, both the automobile and specially adapted housing claims are inextricably intertwined with the section 1151 claim, as they turn on whether the Veteran is awarded section 1151 benefits for additional bilateral lower extremity disability. See 38 U.S.C.A. §§ 1151(c); 2101, 3901, 3902 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.808, 3.809 (2009). As such, the Board may not properly review these claims until the section 1151 claim is adjudicated. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Third, after the RO (AMC) readjudicates the section 1151 claim, the Supplemental Statement of the Case (SSOC) should include a copy of the applicable statute - 38 U.S.C.A. § 1151 (West 2002 & Supp. 2009), as well as the implementing regulation - 38 C.F.R. § 3.361. The prior August 2009 SOC incorrectly provided the earlier regulation that was only applicable to section 1151 claims filed prior to October 1, 1997 - 38 C.F.R. § 3.358. In the present case, however, the Veteran's section 1151 claim was filed in June 2007, so only the amended statute and regulation apply here. Accordingly, the section 1151, automobile and adaptive equipment, and specially adapted housing claims are REMANDED for the following action: 1. Determine the disposition of the Veteran's alleged claim under the Federal Tort Claims Act, by contacting VA's Office of District / Regional / General Counsel or other appropriate channels. Obtain copies of any pleadings, judgments, etc., along with any underlying medical records and/or opinions not protected by privilege, that were prepared in the context of denial, settlement, or litigation of the tort claim. Once obtained, these records should be associated with the claims file. If no records are available, a response to that effect is required and should be documented in the file. 2. Then readjudicate the § 1151, automobile and adaptive equipment, and specially adapted housing claims in light of the additional evidence secured. If these claims are not granted to the appellant's satisfaction, send him and his representative a SSOC and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration. This SSOC should include a copy of the applicable statute - 38 U.S.C.A. § 1151 (effective after October 1, 1997), as well as the implementing regulation - 38 C.F.R. § 3.361. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs