Citation Nr: 0027969	
Decision Date: 10/23/00    Archive Date: 11/01/00

DOCKET NO.  95-26 198	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Wilmington, Delaware




THE ISSUE

Entitlement to special monthly compensation at the rate 
provided by 38 U.S.C.A. § 1114(r)(2), based on the veteran's 
need for regular aid and attendance at the higher level of 
care.  




REPRESENTATION

Appellant represented by:	Paralyzed Veterans of America, 
Inc.







WITNESS AT HEARING ON APPEAL

The veteran



ATTORNEY FOR THE BOARD

James L. March, Counsel



INTRODUCTION

The veteran served on active duty from June 1948 to April 
1951.  

This appeal originally came to the Board of Veterans' Appeals 
(Board) on appeal from an April 1994 decision by the RO.  

In a June 1997 decision, the Board denied the veteran's claim 
for increased special monthly compensation benefits.  The 
veteran appealed to the Unites States Court of Appeals for 
Veterans Claims (known as the United States Court of Veterans 
Appeals prior to March 1, 1999) (hereinafter the "Court").  

In a May 1998 Order, the Court granted a Joint Motion, 
vacating the Board's decision and remanding the matter for 
additional proceedings.  

In January 2000, the Board requested an opinion of a medical 
specialist from the Veterans Health Administration (VHA).  
The opinion was received in April 2000.  



FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable 
disposition of the veteran's appeal has been obtained.  

2.  The veteran receives daily services for assistance in 
daily living, range of motion exercises, skin care, 
housekeeping and meal preparation.  

3.  The veteran is not shown to require the higher level of 
personal health-care services of a skilled provider (or under 
the regular supervision of a licensed health-care 
professional) without which he would require hospitalization, 
nursing home or other institutional care due to service-
connected disability.  



CONCLUSION OF LAW

The criteria for the assignment of increased special monthly 
compensation at a higher rate provided under the provisions 
of 38 U.S.C.A. § 1114(r)(2) have not been met.  38 U.S.C.A. 
§§ 1114(o), 1114(r), 5107, 7104 (West 1991 & Supp. 2000); 38 
C.F.R. §§ 3.350(h), 3.352 (1999).  



REASONS AND BASES FOR FINDINGS AND CONCLUSION


Factual background

In a December 1951 rating decision, VA granted service 
connection for the residuals of poliomyelitis with the loss 
of use of all four extremities and assigned a 100 percent 
evaluation effective on April 1, 1951.  The same rating 
decision also granted special monthly compensation.  

In a February 1959 rating decision, the RO assigned special 
monthly compensation benefits pursuant to 38 U.S.C.A. § 
1114(r)(1) on account of the loss of use of all four 
extremities and being in need of the regular aid and 
attendance of another person.  

At a February 1994 VA Examination for Housebound Status or 
Permanent Need for Regular Aid and Attendance, it was 
reported that the veteran was nonambulatory.  It was noted 
that, seventy-five percent of the time, he needed assistance 
in dressing, but was able to feed himself if he used 
microwave food.  He, however, needed assistance in meal 
preparation.  He was able to shave himself, but could not 
button his clothes.  He was able to use a urinal.  He needed 
assistance in transferring to and from the commode, but was 
able to clean himself after a bowel movement.  He had fair 
shoulder shrug, but poor proximal use of both upper 
extremities.  Both lower extremities were flaccid.  

It was noted that the veteran was able to leave his home as 
often as he liked when he used a motorized wheel chair and 
customized van with hand controls.  His assistance came in 
from 7:00 to 9:00 in the morning and 9:30 to 10:00 at night 
to transfer him from his bed to his wheel chair or back to 
bed.  The examiner indicated that the veteran required the 
daily personal health-care services of a skilled provider, 
without which he would require hospitalization or nursing 
home or institutional care.  

In a February 1994 letter, the Supportive Service Supervisor 
of the Visiting Nurse Association stated that the veteran 
received homemaker services about two hours a day, five days 
a week.  He was assisted with personal care, skin care, range 
of motion exercises, transfers, light housekeeping and meal 
preparation.  The homemaker was supervised by a registered 
nurse every sixty days.  The registered nurse visited the 
veteran's home and made contact by telephone.  

In a March 1994 statement, the Supportive Service Supervisor 
reported that, on the weekends, the veteran received 
assistance from family members and a neighbor whom he paid.  

At a September 1994 personal hearing at the RO, the veteran 
testified that he needed assistance getting out of bed, 
bathing, dressing and with bowel care and meal preparation.  
He also received daily range of motion exercises.  
Reportedly, his health was deteriorating, and he had been 
hospitalized twice in the previous two years.  He stated 
that, without the visiting nurses, he would have to go into a 
nursing home or some other facility.  He noted that he was 
able to feed himself if someone else cut up the food and he 
was positioned at the table so that his left arm was 
supported.  He stated that he could not button his clothes.  

In a September 1994 statement, a Nurse Manager of Physical 
Medicine and Rehabilitation stated that the veteran 
continuously needed assistance to meet his daily living 
requirements.  It was reported that his physical limitations 
had continued to increase and that, without assistance, he 
would be confined to an institutional setting.  It was noted 
that he required skilled care because of impaired mobility, 
alteration in skin care, altered nutritional status, 
potential for injury and self care deficit.  The family 
member who cared for the veteran on the weekends, received 
instruction twice a month.  

The skilled care required by the veteran included that of 
range of motion exercises to prevent contractures, physical 
assistance in positioning the lower extremities, observation 
of the lower extremities for abrasions due to inaccurate 
placement of the lower extremities, observation of the left 
lower extremity for increase of edema, observation for 
inconsistent bowel habits and pushing of the manual 
wheelchair.  Skilled care for alteration in skin integrity 
included that of assistance in bathing, application of 
topical medications to psoriasis, observing the psoriasis for 
areas of nonhealing or infection and monitoring other areas 
of the skin for the development of pressure ulcers.  

The skilled care required for alteration in nutritional 
status included that of reinforcing positive eating habits, 
assisting with shopping and meal preparation, avoiding 
prepared meals with high fat content, assuring that all 
assistive devices were within reach and minimizing the need 
for hot meal preparation when assistance was not available.  
The skilled care required for prevention of injuries included 
that of physical assistance in all transfers, keeping 
portable telephone within reach at all times, making sure 
that all equipment was in good working order and assessing 
fatigue level-assistance was often required because of 
diminished capability from fatigue.  The skilled care 
required for self care deficits included that of encouraging 
motivation, always trying the assisted devices before doing 
task and assisting in bathing, toileting, grooming and 
dressing.  The veteran reportedly had no ability to bend or 
reach and was unable to retrieve his clothing.  

In a May 1995 statement, a VA physician reported that, after 
reviewing the records, he believed that the veteran was not 
receiving the skilled services needed for the higher level of 
special monthly compensation.  

In a May 1997 memorandum prepared as part of the veteran's 
appeal, Craig Bash, M.D., reviewed the veteran's claims 
folder and provided an opinion concerning the veteran's 
claim.  Dr. Bash initially attempted to provide a legal 
analysis of the veteran's claim.  He referred to a prior 
Board decision (the docket number of which was apparently 
inaccurate) that purportedly granted aid and attendance at 
the higher level.  According to Dr. Bash the veteran in that 
case had "similar needs" to this veteran.  Dr. Bash 
conceded that he "realize[d] that 38 C.F.R. § 1303 [sic] 
state[d] [that] prior Board of Veterans['] Appeals decisions 
[were] nonprecedential."  

Dr. Bash thoroughly reviewed the pertinent medical history of 
the veteran.  He concluded that the veteran was receiving 
skilled nursing services which were well supervised and 
needed for his maintenance of health.  He noted that the 
services were required to prevent "the well[-]known 
complications of contracture and pressure ulcers."  

In an October 1998 statement from the Client Care Supervisor 
of Visiting Nurse Association, it was stated that the veteran 
received homemaker services two hours a day, two days a week.  
She noted that they assisted him with personal care, skin 
care, meal preparation, transfers, light housekeeping and 
shopping, as needed.  In a March 1999 statement, the Client 
Care Supervisor noted that the veteran had stopped using 
their services at the end of 1998.  

As noted hereinabove, an opinion from a VHA Medical Expert 
was received in April 2000.  The VHA specialist first 
reviewed the veteran's recent medical history.  He noted that 
the veteran did not require a nurse to administer injections, 
place indwelling catheters or change sterile dressing.  He 
also noted that he did not see any reason that the veteran 
would need a licensed physical therapist or nurse to take 
care of him at home.  

The VHA specialist stated that he did not find any reason 
that the veteran needed "such highest level of care by 
licensed healthcare providers."  The VHA specialist noted 
that the veteran was receiving "homemaker services" and that 
the "homemaker [was] supervised by a registered nurse" every 
six days and the registered nurse contacted the veteran by 
phone and that would be sufficient to maintain his health at 
the highest level.  


Analysis

The pertinent regulations provide that an increased rate of 
special monthly compensation is payable to the veteran where, 
as a result of service-connected disability for which the 
maximum amount of compensation is being paid, he is in need 
of regular aid and attendance at a higher level of care.  

The determination of such a need is based upon whether the 
veteran meets the criteria provided in 38 C.F.R. § 3.352(a), 
which establish his need for regular aid and attendance; 
whether the veteran needs a higher level of care, the absence 
of which would result in his hospitalization or being cared 
for in a nursing home or other residential institution; and 
documentation that a need for this level of care has been 
deemed necessary by a physician.  38 C.F.R. § 3.352(b)(1).  

Section 3.352(b) provides that a need for a higher level of 
care shall be considered to be a need for personal health-
care services provided on a daily basis in the veteran's home 
by a person who is licensed to provide such services or who 
provides such services under the regular supervision of a 
licensed health-care professional.  It defines personal 
health-care services as including, but not limited to, those 
of physical therapy, administration of injections, placement 
of indwelling catheters, the changing of sterile dressings 
and like functions which require professional health-care 
training or the regular supervision of a trained health-care 
professional to perform.  38 U.S.C.A. § 3.352(b)(2).  

An unlicensed person who is performing personal health-care 
services by following a regimen prescribed by a health-care 
professional and who is in consultation with that 
professional on at least a monthly basis, may be considered 
to be one who is acting under the regular supervision of a 
licensed health-care professional.  38 C.F.R. § 3.352(b)(3).  

The veteran's service-connected disabilities warrant the 
assignment of the maximum amount of compensation provided for 
in 38 U.S.C.A. § 1114(o), as well as the assignment of 
additional compensation provided for in 38 U.S.C.A. 
§ 1114(r)(1), based on his need for regular aid and 
attendance.  Thus, the veteran meets these two initial 
criteria for receiving compensation at the rate provided for 
in 38 U.S.C.A. § 1114(r)(2).  

The Board finds that the preponderance of the evidence is 
against the veteran's claim for special monthly compensation 
benefits at the rate provided by 38 U.S.C.A. § 1114(r)(2), 
based on the veteran's need for regular aid and attendance at 
the higher level of care.  The February 1994 VA examination, 
the February 1994 letter from the Supportive Service 
Supervisor of the Visiting Nurse Association, the September 
1994 statement from the Nurse Manager of Physical Medicine 
and Rehabilitation and the statement of Dr. Bash indicate 
that the veteran would require hospitalization or placement 
in a nursing home without the care he received.  However, 
this evidence shows in the Board's opinion only that the care 
he requires mainly consists of personal health-care services 
such as range of motion exercises, skin care, nutritional 
assistance and assistance in preventing injury and in self 
care.  

Significantly, the VHA specialist who reviewed the entire 
record opined that the veteran did not need "such highest 
level of care by licensed healthcare providers."  The VHA 
specialist described the rendered care as being "homemaker 
services" and that the "homemaker" was only being supervised 
by a registered nurse in order to maintain the veteran's 
health.  

That is, the VHA specialist found based on the evidence of 
record that the veteran did not require the higher level of 
personal health-care as described by the provisions of 38 
C.F.R. § 3.352(b)(3).  The Board finds this medical opinion 
to be consistent with the medical evidence in the record and, 
as such, controlling in this case.  

The other evidence against the veteran's claim consists of 
the May 1995 statement from the VA physician and the recently 
received March 1999 statement from the Client Care Supervisor 
noting that the veteran had stopped using their services at 
the end of 1998.  Regarding the VA physician's statement, the 
Board finds that this opinion also is consistent with the 
medical evidence of record, as discussed hereinabove.  
Regarding the statement from the Client Care Supervisor, it 
also does not serve to establish entitlement to special 
monthly compensation at the rate provided by 38 U.S.C.A. 
§ 1114(r)(2), based on the veteran's need for regular aid and 
attendance at the higher level of care.  

The veteran's representative has argued that the Board has 
"reformed the mandate of the Court" by requesting the VHA 
opinion.  In essence, it is argued that the joint motion 
permitted only two options for the Board:  adjudicate the 
issue or remand for additional development. 

However, the Board may obtain a medical opinion from the 
Chief Medical Director of the Veterans Health Administration 
of the Department of Veterans Affairs on medical questions 
involved in the consideration of an appeal when, in its 
judgment, such medical expertise is needed for equitable 
disposition of the appeal.  38 C.F.R. § 20.901 (1999).  There 
is nothing in the Court's order or the joint motion limiting 
the options of the Board as argued by the veteran's 
representative.  The Board finds the obtaining of additional 
medical opinion was required in this case.



ORDER

Special monthly compensation at the rate provided by 38 
U.S.C.A. § 1114(r)(2), based on the veteran's need for 
regular aid and attendance at the higher level of care is 
denied.  



		
	STEPHEN L. WILKINS
	Member, Board of Veterans' Appeals