Citation Nr: 1100020 Decision Date: 01/03/11 Archive Date: 01/11/11 DOCKET NO. 07-10 508 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to special monthly pension (SMP) for a surviving spouse by reason of the need for regular aid and attendance of another person. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran served on active duty from November 1942 to July 1943. He died in October 2005, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. FINDING OF FACT The appellant has not been shown to be so helpless that she requires assistance on a regular basis to protect her from the hazards or dangers incident to her daily environment. CONCLUSION OF LAW The criteria for special monthly pension for a surviving spouse based on regular aid and attendance have not been met. 38 U.S.C.A. § 1541 (West 2002); 38 C.F.R. §§ 3.351, 3.352 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). When VCAA notice is delinquent or erroneous, the "rule of prejudicial error" applies. See 38 U.S.C.A. § 7261(b)(2). In the event that a VA notice error occurs regarding the information or evidence necessary to substantiate a claim, VA bears the burden to show that the error was harmless. However, the appellant bears the burden of showing harm when not notified whether the necessary information or evidence is expected to be obtained by VA or provided by the appellant. See Shinseki v. Sanders, 556 U.S. ___ (2009). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Here, the VCAA duty to notify was satisfied by way of a letter sent to the appellant in May 2006 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed her of what evidence was required to substantiate the claim and of her and VA's respective duties for obtaining evidence. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. Therefore, adequate notice was provided to the appellant prior to the transfer and certification of her case to the Board and complied with the requirements of 38 U.S.C.A.. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist an appellant in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). First, the RO has obtained private treatment records. Further, the appellant submitted written statements in support of her claim. Next, a specific VA medical opinion pertinent to the issue on appeal was obtained in November 2005. 38 C.F.R. § 3.159(c) (4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA opinion obtained in this case is more than adequate, as it is predicated on a thorough examination of the appellant, and provides a complete rationale for the opinion stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). Therefore, the available records and medical evidence have been obtained in order to make an adequate determination as to this claim. Significantly, neither the appellant nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The law provides increased compensation to a surviving spouse of a veteran by reason of need for aid and attendance. See 38 U.S.C.A. § 1541(d),(e) (West 2002); 38 C.F.R. § 3.351. Under 38 C.F.R. § 3.351(b), the need for aid and attendance means helplessness or being so nearly helpless as to require the regular aid and attendance of another person. The criteria for determining whether such need exists are set forth under 38 C.F.R. § 3.351(c). The criteria for establishing the need for aid and attendance include consideration of whether the appellant is blind 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; is a patient in a nursing home because of mental or physical incapacity; or, establishes a factual need for aid and attendance. In determining whether there is a factual need for regular aid and attendance, the following will be accorded consideration: the inability of the appellant to dress or undress herself, or to keep herself ordinarily clean and presentable; whether she requires frequent adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; inability to feed herself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity that requires assistance on a regular basis to protect her from the hazards or dangers incident to her daily environment. It is not required that all of the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made. The particular personal function which the appellant is unable to perform should be considered in connection with her condition as a whole. It is only necessary that the evidence establish that the appellant is so helpless as to need regular aid and attendance, not that there be constant need. 38 C.F.R. § 3.352(a). It may be logically inferred from the governing regulatory criteria that eligibility to receive additional VA disability benefits requires at least one of the enumerated factors be present. See Turco v. Brown, 9 Vet. App. 222, 224 (1996). If the criteria for special monthly compensation based on the need for regular aid and attendance are not met, special monthly pension can be awarded if a surviving spouse is permanently housebound by reason of disability. 38 U.S.C.A. § 1541; 38 C.F.R. § 3.351 (d), (f). A surviving spouse will be considered to be permanently housebound when she is substantially confined to her house (ward or clinic areas, if institutionalized) or immediate premises by reason of a disability or disabilities reasonably certain to remain throughout her lifetime. 38 U.S.C.A. § 1541(e)(2) (West 2002); 38 C.F.R. § 3.351(f). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the appellant is not entitled to special monthly compensation based on the need for regular aid and attendance. The appellant has been diagnosed with various disorders, such as schizoaffective disorder, schizophrenia, bipolar disorder, obesity, and hypertension. The Board observes that the appellant is not blind or 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. She is also not a patient in a nursing home because of mental or physical incapacity. Moreover, the Board notes there is no evidence establishing a factual need for regular aid and attendance. The appellant was afforded a VA aid and attendance examination in November 2005. The examiner found that she could dress and use the lavatory without assistance, ascend and descend stairs, and could feed herself without assistance. She was found to be ambulant and not to be incontinent, although the examiner found that she was not mentally competent. Specifically, the examiner noted that the appellant had a history of schizophrenia, although she appeared to be capable of making decisions rationally. There were no restrictions of the upper extremities, lower extremities, or spine. It was noted that the appellant does not drive and relies on TennCare transportation to go shopping. It was further noted that the appellant needed to be medicated to avoid further hospitalizations. Furthermore, treatment records reveal a history of psychiatric treatment, but do not indicate that the appellant requires regular aid and attendance or is permanently housebound. A hospital treatment record dated in April 1970 indicated that the appellant was diagnosed with catatonic-type schizophrenia after being admitted for bizarre behavior, hallucinations, and paranoid delusions; although she was considered non-psychotic after being placed on medications. A June 1976 hospital treatment record indicated that the appellant was again admitted on a voluntary basis after she stopped taking her medication for approximately 2 months, but was discharged with no evidence of psychosis after being placed back on her medication regimen. In April 1987, she was admitted to a hospital after wandering the streets and espousing religious messages; she showed improvement with treatment and medication but failed to return after being granted one week leave. She was again admitted in October 1987 due to making alleged threats with a knife, and her prognosis was given as "poor" due to the lack of insight into her illness and her history of noncompliance with medications. She was admitted in November 1988 after wandering the streets while attempting to burn herself with a cigarette and walk into traffic; she showed improvement with treatment and medication, but her prognosis was again given as "poor" due to the chronicity of her illness and her history of noncompliance with medications due to lack of insight. She was admitted to the hospital in June 1989 after not sleeping and exhibiting suicidal gestures, but there was improvement in her delusional thinking and hostility after taking medication as scheduled. She was admitted to the hospital again in January 1990 after wandering the streets, stopping traffic, and voicing suicidal ideations; examiners noted that she appeared to be delusional and hallucinating, although she became cooperative and relaxed after taking her medication as prescribed. She was admitted to the hospital in June 1990 after entering into other people's houses and cars claiming they were hers, and her prognosis was given as "guarded" based on a long history of psychiatric disorders with frequent relapse of psychotic symptoms. She was next admitted to the hospital in September 1990 after wandering the streets and exhibiting paranoid behavior, and was discharged after being returned to her medication regimen and deemed to no longer be a threat to herself or to others. In May 1991, the appellant was admitted to the hospital after wandering around her street and running in front of cars, and was discharged after exhibiting good medication compliance with no behavioral problems. She was next admitted in December 1991 after wandering the streets talking to herself and exhibiting paranoid thoughts, and was discharged after showing continuous behavioral improvement while on medication. She was admitted in October 1992 after experiencing confusion, delusions, and visual hallucinations, but was discharged after showing improvement on medication. She was admitted again in September 1998 after not taking her medication for approximately one month and threatening family members, but was discharged after her psychosis dissolved upon returning to medication. She was next admitted in August 2000 after becoming paranoid and abusive toward her family members, but was discharged after taking medication and becoming "much less delusional." Significantly, the discharge summary indicated that the appellant had no physical limitations or restrictions. She was next admitted to the hospital approximately 5 years later, in January 2005, after exhibiting psychosis and threatening to injure family members; she was discharged several days later after being placed on medication and evidencing convincingly the absence of danger to herself and to others. Again, it was noted that the appellant had no activity restrictions. She was next admitted in June 2006 after wandering the streets and exhibiting delusional behavior. The appellant's most recent treatment notes indicate that she is prescribed the following medications to control her psychiatric disorders: Haldol Decanoate 200 mg monthly, and Haldol 10 mg daily. The treatment notes further suggest that it is the appellant's noncompliance with her monthly Haldol Decanoate 200 mg injection that causes her psychiatric symptoms to exacerbate. Based on the foregoing, and resolving all doubt in her favor, it does not appear that the appellant has an incapacity that requires assistance on a regular basis to protect her from the hazards or dangers incident to her daily environment. The evidence shows that, when complying with her prescribed medication regimen, the appellant has no restrictions. It is only when she voluntarily stops taking her monthly Haldol Decanoate 200 mg injection that she begins wandering the streets and making threats toward family members, at which time she is admitted to a hospital and placed back on her medication regimen. Although it is only necessary that the evidence establish that the appellant is so helpless as to need regular aid and attendance rather than to need constant need, see 38 C.F.R. § 3.352(a), the Board cannot conclude that merely ensuring the appellant administers a monthly Haldol Decanoate injection constitutes helplessness resulting in a need for regular aid and attendance. Accordingly, the Board concludes that special monthly compensation for a surviving spouse based on the need for regular aid and attendance is not warranted. ORDER SMP for a surviving spouse by reason of the need for regular aid and attendance of another person is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs