Citation Nr: 1543601 Decision Date: 10/09/15 Archive Date: 10/13/15 DOCKET NO. 09-38 289 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II (diabetes). 2. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance or housebound status. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.A. Flynn, Counsel INTRODUCTION The Veteran served on active duty from July 1976 to July 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from two rating decisions of the VA RO in Oakland, California. A September 2008 rating decision denied the Veteran's claim of entitlement to SMC based on aid and attendance or housebound status. A September 2009 rating decision denied the Veteran's claim of entitlement to service connection for diabetes. Jurisdiction over these matters has since been transferred to the VA RO in St. Louis, Missouri. This appeal has previously been before the Board, most recently in May 2013, when it remanded the Veteran's claims in order to provide her with a hearing before the Board. The Veteran participated in a hearing before the Board in June 2015, and as such, the Board finds that its remand instructions have been substantially complied with, and the Board will proceed in adjudicating the Veteran's claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that when the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The issue of entitlement to service connection for diabetes is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran, as the result of service-connected disability, does not have an anatomical loss or loss of use of both feet, or of one hand and one foot, or have blindness in both eyes with visual acuity of 5/200 or less, or is not permanently bedridden, or is not so helpless as to be in need of regular aid and attendance of another person. 2. The Veteran is not substantially confined to her house due to service-connected disabilities, nor does she have a single service-connected disability ratable at 100 percent along with other unrelated disabilities, which combine to at least 60 percent. CONCLUSION OF LAW The criteria for entitlement to SMC based on the need for regular aid and attendance or by reason of being housebound are not met. 38 U.S.C.A. §§ 1521, 5103, 5103A (West 2014); 38 C.F.R. §§ 3.350, 3.352(a) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has certain notice and assistance obligations to claimants. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). In the instant case, the Veteran has been provided with all appropriate notification, and she has not otherwise alleged or demonstrated any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of her claim at this time is warranted. With respect to the duty to assist, VA has done everything reasonably possible to assist the Veteran with respect to her claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2014) and 38 C.F.R. § 3.159(c) (2015). Service treatment records have been associated with the claims file. All identified and available post-service treatment records have been secured, which include VA treatment records, VA examination reports, and private treatment records. The Veteran has received examinations that have elicited information relevant to her claim for SMC in August 2008 and November 2014. The examination reports indicate that the examiners conducted appropriate evaluations and rendered appropriate findings consistent with the evidence of record. While these examinations were not rendered specifically for the purpose of addressing the criteria for aid and attendance or housebound status, the examinations indeed discussed the symptoms that are relevant to such analysis. The Board, therefore, concludes that the examination reports are adequate for the purpose of rendering a decision in the instant appeal. 38 C.F.R. § 4.2 (2015); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Neither the Veteran nor her representative has contended otherwise. In June 2015, the Veteran presented testimony before the undersigned, and a transcript of this hearing has been associated with the record. The Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file, and it is not contended otherwise. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Thus, the duties to notify and assist have been met, and the Board will proceed to a decision. SMC SMC is payable if, as the result of service-connected disability, the Veteran has 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. 38 U.S.C.A. § 1114(l) (West 2014); 38 C.F.R. § 3.350(b) (2015). VA considers the following factors in order to determine whether a veteran is in need of regular aid and attendance of another person: the inability of the veteran to dress herself or to keep herself ordinarily clean and presentable; the frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without such aid; the inability to feed herself because of the loss of coordination of upper extremities or because of extreme weakness; the inability to attend to the wants of nature; or incapacity, physical or mental, that requires care or assistance on a regular basis to protect the Veteran from the hazards or dangers incident to her daily environment. 38 C.F.R. § 3.352(a) (2015). A veteran need not demonstrate all of these conditions in order to obtain SMC based on aid and attendance. Instead, VA considers the particular personal functions that the veteran is unable to perform in connection with her condition as a whole. Rather than meeting all of the above criteria, the veteran need only demonstrate that she is so helpless as to need regular aid and attendance, not that there is a constant need. 38 C.F.R. § 3.352(a) (2015); Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that the evidence of record must demonstrate at least one factor for a grant of SMC based on need for aid and attendance). In addition, a "bedridden" veteran also warrants the regular aid and attendance of another person. 38 C.F.R. § 3.352(a) (2015). The term "bedridden" means the condition that, through its essential character, actually requires that the veteran remain in bed. The fact that the veteran has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure does not suffice. 38 C.F.R. § 3.352(a) (2015). SMC is also payable when the veteran has a single service-connected disability rated as 100 percent disabling, without resort to individual unemployability, and, in addition: (1) has a 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, or (2) is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the Veteran is substantially confined as a result of her service-connected disabilities to her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout her lifetime. 38 U.S.C.A. § 1114(s) (West 2014); 38 C.F.R. § 3.350(i) (2015). In this case, the Veteran is service-connected for a seizure disorder with an 80 percent rating, tinnitus with a 10 percent rating, and left ear hearing loss with a 0 percent rating. The Veteran's combined schedular evaluation is 80 percent. The Veteran is additionally in receipt of a total disability evaluation due to individual unemployability. In March 2008, VA received a statement that was treated as an inferred claim for SMC. In that statement, the Veteran's sister stated that the Veteran had poor problem solving, an inability to finish tasks, poor concentration, and forgetfulness. In a March 2008 treatment record, the Veteran complained of faintness without a loss of consciousness. The Veteran was concerned with the bouts of dizziness and blurred vision that she had been experiencing since she started taking oxcarbazepine in treatment of her seizures. In a separate March 2008 record, the Veteran complained of memory loss. A clinician noted that the medications rendered the Veteran unable to work. In an April 2008 neuropsychological evaluation, the Veteran reported having ongoing problems with attention, learning, and memory, which she felt impacted both her everyday activities and her ability to maintain employment. The Veteran believed that these problems became most noticeable after her anti-seizure medication was changed to Trileptil. When specifically asked about her memory and activities of daily living, the Veteran reported that she was "fine" with keeping track of her medications, but she also reported bouncing two checks that month and forgetting up to 20 percent of her medical appointments. The Veteran reported that she was not driving or working, and she had limited activities and socializing outside of the house. The Veteran owned her home. The clinician noted that the Veteran was alert, oriented, and fully conversant. The Veteran was neatly dressed and groomed. The Veteran's speech was spontaneous and normoproductive. Testing revealed that the Veteran's cognitive ability remained strong. The clinician encouraged the Veteran to continue to use prompts such as notes and reminders. In a May 2008 neurosurgery consultation, the Veteran indicated that her anti-epileptic drugs affected her short-term memory and slowed her mental processing. It was recommended that the Veteran undergo vagal nerve stimulation. In May 2008, it was noted that the Veteran had to rely on VA transportation to and from the VA medical center for her neurology visits. The Veteran was unable to drive due to her seizure disorder, and she lived alone. In July 2008, it was noted that the Veteran was on the maximum tolerated dose of oxcarbazepine due to the side effects of weight gain, diplopia, and cognitive problems. The Veteran underwent an examination addressing her epilepsy in August 2008. At that time, it was noted that the Veteran had taken multiple seizure medicines on the maximum tolerated dosage, but she had side effects from almost all of these medications. It was noted that the Veteran had generalized seizures in July 2008 and several spells that were accompanied by a transient loss of consciousness. The Veteran took oxcarbazepine for her seizures and had side effects of blurry vision, dizziness, headaches, memory loss, muscle weakness, poor balance, and a sleeping disorder. The Veteran reported "zoning out" and "spacing out" on this medication. The Veteran's epilepsy was noted to be a type of generalized tonic clonic seizure with the possible question of concurrent absence seizures. The Veteran stated that she always felt weak, exhausted, and dizzy. As a result, the Veteran did not do any household chores, and she was not able to cook much. The Veteran reported eating eggs and peanut butter toast. The Veteran's blurred vision affected her ability to cook or do any of her usual tasks. The Veteran indicated that she was fired from her last job in February 2006 as the result of the concentration problems that she had as the result of her seizure medications. The Veteran indicated that she was unable to concentrate and was extremely forgetful. The Veteran found it difficult to keep up with her bills. The examiner noted that the Veteran's seizure disability left her unable to drive, and it led to a mild cognitive disorder, stress, and a depressed mood. An August 2008 psychiatric treatment record indicated that the Veteran had no impairment in her ability to care for herself. In an August 2008 psychiatric examination, the examiner noted that the Veteran was independent in her activities of daily living. It was noted that the Veteran was capable of managing her financial affairs. An August 2008 neurology noted indicated that in June, the Veteran had a spell in which she felt herself falling and suffered a transient loss of consciousness. The Veteran had a generalized seizure in July. In December 2011, it was noted that the Veteran had not experienced a seizure for one year. In February 2012, it was noted that the Veteran was currently tolerating Depakote and had only mild difficulties in organization multitasking. In March 2012, the Veteran and her sister indicated that the Veteran experienced a number of "small spells" on a daily basis. These spells consisted of very short-lived interruptions of conversation that were not otherwise detectable to individuals who did not know the Veteran. The Veteran did not drive and was reasonably satisfied with the control of her seizures. The Veteran underwent an additional examination addressing her seizure disorder in November 2014. At that time, the examiner noted that while the Veteran "may have had some brief spells while she was on the telephone," seizures were not otherwise occurring. The Veteran took Divalproex in treatment of her disability. The Veteran reported that she had problems with concentration, mentation, and an inability to keep track of events. The Veteran had to set alarms for functional purposes to remind her of activities such as preparing meals. In December 2014, the Veteran's representative stated that she required assistance based on poor problem solving, inability to complete tasks, poor concentration, forgetfulness, and misplacing important items. The Veteran's representative noted that the Veteran's treatment records did not show an inability to perform the activities of daily living or confinement to her home. During her June 2015 hearing before the undersigned, the Veteran indicated that she was unable to drive as the result of her seizures. The Veteran asked friends for car rides, and she otherwise used public transportation. The Veteran indicated that "the rule" was that she could only travel one place daily. The Veteran stated that she was very forgetful, which resulted in her occasionally neglecting to order her medications. The Veteran indicated that she was able to use the microwave in order to cook "very basic things" for herself. The Veteran could no longer use the stove because she once experienced a seizure while cooking food on a burner. The Veteran stated that while she had not experienced a grand mal seizure since 2010, she continued to have absence seizures. Turning to an application of the law to the facts in the instant case, the Veteran does not, as the result of service-connected disability, have an anatomical loss or loss of use of both feet, or of one hand and one foot; have blindness in both eyes with visual acuity of 5/200, nor is the Veteran permanently bedridden. The Board further finds that the Veteran is not so helpless as to be in need of regular aid and attendance of another person as a result of her service-connected disabilities alone. The evidence is against a finding that the Veteran is unable to dress herself or to keep herself ordinarily clean and presentable as a result of her service-connected seizure disorder. Clinicians consistently found the Veteran to be well-groomed, and the Veteran herself has not otherwise alleged that her service-connected disabilities result in an inability to dress herself or keep herself ordinarily clean and presentable. Thus, the Board finds that the weight of the evidence does not support a finding that the Veteran is unable to dress herself or to keep herself ordinarily clean and presentable as a result of her service-connected disabilities. The Veteran's service-connected disabilities do not require frequent adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without such aid, nor has the Veteran so argued. The weight of the evidence does not show that the Veteran has, as a result of her service-connected disabilities, the inability to feed herself because of the loss of coordination of upper extremities or because of extreme weakness. In August 2008, the Veteran indicated that she was not able to cook "much" as the result of her seizures, and she ate foods such as eggs and peanut butter toast. In June 2015, the Veteran indicated that she used a microwave to cook her foods as a safety precaution because she previously experienced a seizure while cooking using the stove. While the Board acknowledges that the Veteran's seizure may limit the ways in which the Veteran may safely prepare her food (for example, cooking simpler meals using a microwave rather than more elaborate meals using a stove), the evidence does not support a finding that the Veteran is unable to feed herself as a result of her service-connected disabilities. The weight of the evidence does not show that the Veteran, as a result of her service-connected disabilities, is unable to attend to the wants of nature, nor has the Veteran so argued. The weight of the evidence does not show that the Veteran has, as a result of her service-connected disabilities, incapacity, physical or mental, that requires care or assistance on a regular basis to protect her from the hazards or dangers incident to her daily environment. With that said, the Board acknowledges the Veteran's consistent complaints of symptoms such as memory loss, problems with attention and learning, an inability to engage in chores, difficulty keeping up with bills, and an inability to drive. Upon review of the evidence, however, the Board cannot find that such symptoms rise to the level of demonstrating the regular need for assistance to protect the Veteran from the dangers in her daily environment. In making this determination, the Board observes that an April 2008 neuropsychological examination showed that the Veteran's cognitive ability remained strong, and the Veteran was to continue with her use of self-prompts such as notes and reminders. In August 2008, a clinician found that the Veteran had no impairment in her ability to care for herself. A different clinician from August 2008 found that the Veteran was independent in her activities of daily living and was capable of managing her financial affairs. In November 2014, the Veteran indicated that she set alarms for functional purposes to remind her of activities such as preparing meals. The record also reflects that the Veteran has developed alternate transportation strategies such as using VA transportation, seeking car rides from friends, and taking public transportation. In sum, while the Veteran has complained of, and clearly experiences, impairment as the result of her service-connected disabilities, the Veteran has consistently implemented strategies to address these impairments, such as using a microwave rather than a stove, seeking alternate transportation instead of driving herself, and using self-prompts to aid with her memory. Clinicians have not found that the Veteran requires protection from the hazards of her daily environment. Thus, upon review of the evidence of record, the Board finds that the weight of the medical evidence of record is against the conclusion that the Veteran's service-connected disabilities require care or assistance on a regular basis to protect her from the hazards or dangers incident to her daily environment. Therefore, upon consideration of all of these factors, the Board finds that the weight of the evidence of record does not support a finding that the Veteran is so helpless as to need regular aid and attendance. With regard to the Veteran's housebound status, the Veteran does not have a single service-connected disability rated as 100 percent disabling without resort to individual unemployability. Furthermore, the evidence does not suggest that the Veteran has at any time been permanently housebound by reason of any service-connected disability. Accordingly, the Board concludes that the Veteran is not entitled to SMC based on the need for aid and attendance or housebound status. In rendering this decision, it is important for the Veteran to recognize that, as the recipient of an 80 percent schedular evaluation, VA has already acknowledged the great severity of the Veteran's disabilities. As stated above, however, the evidence of record simply does not meet the criteria for the additional award of SMC based on the need for regular aid and attendance or being housebound. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364-65 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER SMC based on the need for regular aid and attendance or by reason of being housebound is denied. REMAND The Veteran claims that she has diabetes as the result of medications that she has taken in treatment of her service-connected seizure disability. The Veteran underwent a VA examination of her diabetes in November 2010. The Board finds this examination to be inadequate. The examiner noted the Veteran's significant swings in weight since her diagnosis with diabetes and concurrent with her use of anti-seizure medications, with a loss of approximately 70 pounds recorded in 2004, a subsequent gain of approximately 70 pounds, and a subsequent loss of approximately 20 pounds. The examiner concluded that there was insufficient evidence to support a diagnosis of anti-seizure medication leading to weight gain and causing her diabetes. Instead, the examiner indicated that the etiology of her diabetes was unknown, but it was less likely than not related to her anti-seizure medications. The examiner, despite noting the Veteran's great fluctuations in weight while taking anti-seizure medications, did not provide a rationale for this conclusion, nor did the examiner address whether the Veteran's use of anti-seizure medications aggravated her diabetes. Furthermore, the examiner did not note the medical evidence that appears to be contrary to his conclusion. For example, in July 2008, it was noted that the Veteran was on the maximum tolerated dose of oxcarbazepine due in part to the side effect of weight gain. In August 2008, a VA neurologist noted that the Veteran "did well" taking Valproate for seizures, but she suffered from weight gain and the onset of diabetes associated with this medication (the Board notes that it is unclear whether this assessment is simply a transcription of the Veteran's statement or the physician's own conclusion). An October 2008 clinician indicated that the Veteran believed that Valproate was related to weight gain and the onset of her diabetes. In January 2009, the Veteran indicated that she had weight changes, an increased appetite, and an inability to feel full as the result of taking Depakote. Accordingly, on remand, the Veteran should be provided with an additional examination addressing the etiology of her diabetes. Furthermore, in June 2015, the Veteran stated that she had submitted studies from the National Institutes of Health (NIH) finding a connection between weight gain, diabetes, and the use of valproic acid. The Board notes that such studies are not currently of record, and the Veteran should be afforded the opportunity to submit such studies. Accordingly, the case is REMANDED for the following action: 1. Inform the Veteran that the NIH studies that she referenced in her June 2015 hearing before the undersigned are not currently of record, and afford the Veteran with a reasonable time to submit such studies. 2. Then, schedule the Veteran for a VA examination with a physician of appropriate expertise in the field of endocrinology to determine the etiology of her diabetes. After reviewing the Veteran's claims file and discussing the nature of her diabetes, the examiner should: a) Opine as to whether it is at least as likely as not (that is, a 50 percent probability or greater) that the Veteran's diabetes was caused by the Veteran's service-connected seizure disorder, including the medications that the Veteran took in treatment of such disorder. Why or why not? b) Opine as to whether it is at least as likely as not (that is, a 50 percent probability or greater) that the Veteran's diabetes was aggravated (that is, permanently increased in severity beyond the natural progress of the disorder) by the Veteran's service-connected seizure disorder, including the medications that the Veteran took in treatment of such disorder. Why or why not? If aggravation is found, the extent thereof must be set forth, to include a baseline level of the diabetes prior to being aggravated. 3. Then, after ensuring any other necessary development has been completed, readjudicate the claim. If action remains adverse to the Veteran, provide the Veteran and her representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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 2014). ______________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs