Citation Nr: 0740576 Decision Date: 12/27/07 Archive Date: 01/02/08 DOCKET NO. 06-14 858 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to special monthly compensation (SMC) based on a need for regular aid and attendance and/or being housebound. REPRESENTATION Appellant represented by: National Association for Black Veterans, Inc. WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD T. L. Reynolds, Counsel INTRODUCTION The veteran served on active duty from October 1968 to May 1970. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision of the Milwaukee, Wisconsin, Department of Veterans Affairs (VA) Regional Office (RO). The veteran presented testimony at a Travel Board hearing chaired by the undersigned Veterans Law Judge in September 2007. A transcript of the hearing is associated with the veteran's claims folders. Also at the time of the hearing, the veteran submitted a waiver essentially waiving review by the agency of original jurisdiction of evidence received at that time. FINDINGS OF FACT 1. Service connection is in effect for degenerative disc disease and degenerative joint disease of the lumbosacral spine with radiculopathy and myofascial strain, evaluated as 60 percent disabling. The veteran has also been awarded a total disability rating based on individual unemployability as well as Dependents' Educational Assistance benefits under Chapter 35 of Title 38 of the United States Code. 2. The veteran is not blind or so nearly blind as to have corrected visual acuity of 5/200 or less in both eyes, or contraction of the visual field to 5 degrees or less. 3. The veteran is not a patient in a nursing home. 4. The veteran's service-connected disability does not render him unable to tend to the basic functions of self care without regular assistance from another person, and does not render him vulnerable to the hazards and dangers incident to his environment. CONCLUSION OF LAW The criteria for SMC based on the need for regular aid and attendance of another person or due to being housebound have not been met. 38 U.S.C.A. §§ 1502, 1521 (West 2002); 38 C.F.R. §§ 3.351, 3.352 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2006), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2007), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In addition, VA must also request that the veteran provide any evidence in the claimant's possession that pertains to the claim. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that, "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that "[i]n making the determinations under [section 7261(a)], the Court shall . . . take due account of the rule of prejudicial error")." Id. at 121. The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the originating agency provided the veteran with the notice required under the VCAA, to include notice that he should submit any pertinent evidence in his possession, by letter mailed in July 2005, prior to its initial adjudication of the claim. Additionally, the veteran was also provided with the requisite notice with respect to the initial-disability-rating and effective-date elements of his claim in a March 2006 letter. Following provision of the required notice and completion of all indicated development of the record, the originating agency readjudicated the veteran's claim in a January 2007 supplemental statement of the case, which was mailed to the veteran in February 2007. The Board also notes that the veteran has been afforded an appropriate VA examination and service medical records and pertinent VA medical records have been obtained. Neither the veteran nor his representative has identified any outstanding evidence, to include medical records, that could be obtained to substantiate the claim. The Board is also unaware of any such outstanding evidence. In sum, the Board is satisfied that any procedural errors in the development and consideration of the claim by the originating agency were insignificant and non prejudicial to the veteran. Accordingly, the Board will address the merits of the claim. Pertinent Law and Regulations The criteria for determining whether SMC is payable by reason of need of aid and attendance is set forth in 38 C.F.R. § 3.351, which in pertinent part provides: (b) Aid and attendance; need. 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 set forth in paragraph (c) of this section will be applied in determining whether such need exists. (c) Aid and attendance; criteria. The veteran, spouse, surviving spouse or parent will be considered in need of regular aid and attendance if he or she: (1) Is blind or nearly so 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; or (2) Is a patient in a nursing home because of mental or physical incapacity; or (3) Establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). The following will be accorded consideration in determining the need for regular aid and attendance: inability of claimant to dress or undress himself, or to keep himself 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 claimant to feed himself through loss of coordination of 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 the claimant from hazards or dangers incident to his daily environment. See 38 C.F.R. § 3.352(a). Although a veteran need not show all of the disabling conditions identified in 38 C.F.R. § 3.352(a) to establish entitlement to aid and attendance, the Court has held that it is logical to infer there is a threshold requirement that "at least one of the enumerated factors be present." Turco v. Brown, 9 Vet. App. 222, 224 (1996). "Bedridden" will be a proper basis for the determination. For the purpose of this paragraph, "bedridden" will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that the claimant 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 will not suffice. 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 functions which 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 is 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 claimant's condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others. See 38 C.F.R. § 3.352(a). SMC is also payable where the veteran has a single service- connected disability rated as 100 percent and, (1) he has additional 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) he is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the veteran is substantially confined as a direct result of service-connected disabilities to his 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 his lifetime. 38 U.S.C.A. § 1114(s) (West 2002); 38 C.F.R. § 3.350(i) (2007). Factual Background In August 2005 the veteran underwent a VA spine examination. During the examination the veteran complained of daily back pain and spasms. He reported that it was difficult for him to accomplish his activities of daily living which included ambulating up and down stairs. The examiner noted that his difficulty with ambulating was not solely due to his back condition but was partly due to his nonservice-connected right knee condition. The veteran reported that he needed the assistance of his wife to accomplish activities associated with daily living which included driving. The diagnosis was myofascial lumbosacral strain with mild degenerative disease. The examiner commented that the veteran's current subjective complaints of increased pain were likely related to impingement at the afferent signal secondary to congenital canal stenosis. He further explained that this was not related to the veteran's degenerative disc disease, as this disease has not progressed. Rather, congenital canal stenosis is a condition experienced since birth and it had been progressing over the course of the veteran's life. VA Forms 21-2680 (Examination for Housebound Status or Permanent Need for Regular Aid and Attendance), dated in July 2005 and January 2006, reflected that the veteran's primary complaints consisted of low back pain and right knee instability. The July 2005 form indicated that the veteran arrived to the examination in a wheelchair and he walked with a shuffle and with the assistance of a cane. He appeared well kept, well dressed and in mild distress. He displayed no problems with his upper extremities. He complained of pain in the lumbar region of his back with radiation to his legs. He was unsteady initially with standing but he used a cane and was able to stand in weight-bearing position. When asked to describe a typical day he reported that he attempted to leave the house for one to two hours to run errands. He was always accompanied by his spouse and usually sat in the car or walked in a store. It was noted that his spouse helped him with bathing and dressing. The diagnosis was spondylosis of the lumbar spine. The January 2006 VA Form essentially echoed the previous findings and a diagnosis of congenital canal stenosis with multilevel degenerative disc disease of the lumbar spine was rendered. Both VA Forms were completed by T. Wittwer, Nurse Practioner (NP). At the conclusion of both examinations, the nurse practioner checked a box indicating that the veteran required the daily personal health care services of a skilled provider without which the veteran would require hospital, nursing home or other institutional care. Upon VA aid and attendance examination in August 2006, the veteran presented in a wheelchair which was available at the front door of the VA medical facility. He was driven to the examination by his wife and despite the examiner's urging, she insisted on undressing and dressing the veteran (including his undershirt and shirt) even though the veteran had satisfactory movement of his arms. His wife stated that she did all the cooking and housework, and she shaved, dressed and bathed the veteran. The veteran was able to feed himself and his vision was satisfactory. The veteran informed the examiner that his bedroom and bathroom were on the upper level of his home. The examiner felt it inconceivable that the veteran could travel up and down the stairs of his home given his presentation at the examination. He also informed the examiner that his wife toileted him most of the time and he was home downstairs all day long. On physical examination the veteran presented in an almost totally immobilized condition, groaning and grimacing. He presented himself as being essentially unable, or not caring, to ambulate. He exhibited extreme difficulty with getting onto the examination table. He was excessively tender to the slightest palpation of the skin on his back, much less the muscles. He raised his arms to shoulder level and said he could not raise them any higher because of his low back pain. He was well muscled and nourished, almost too well given his being overweight. He demonstrated minimal movement of his lower extremities - just enough to get himself up on the examination table and down. While testing for strength of his lower extremities there was negligible effort on his part. He stated he was unable to flex, extend and rotate his trunk, yet he was able to sit in a wheelchair and on an examination table. He was noted to spontaneously raise his leg when trying to adjust for the foot rest for the right leg. The diagnostic impression was degenerative disc disease and spinal stenosis with degenerative arthritic facet hypertrophy of the lumbar spine and continuing normal EMG and neurologic examination with no evidence of any neuromuscular weakness. The examiner commented that any demonstration during the examination of limited mobility, generalized pain and tenderness, and inability to dress and undress were unrelated to his degenerative lumbar spine condition. VA outpatient treatment records dated from 2005 to 2007 reflect continuing treatment for low back pain, degenerative joint disease and degenerative disc disease, along with a variety of other disabling, nonservice-connected disorders, to include neuralgia of the lower radicular nerves, affecting the hand muscles, headaches, obesity, foot and knee pain, and degenerative disc disease of the cervical spine. Outpatient records also contain a number of notations, such as that recorded in September 2006, to the effect that the veteran demonstrated excessive pain behavior when asked to perform activities during assessments, but that such behavior was not present when he performed non-requested activities or believed he was not being observed. It appears that in 2007 the veteran had obtained various devices from the VA to assist with daily functioning. There items included, a reacher, a dressing stick, shoehorn, sockaid, bath sponge, elastic shoelaces, bedrail with tray, manual wheelchair and car swivel. A July 2007 treatment record indicated that the veteran phoned the outpatient clinic asking for a early refill on his medications since he was going out of town on vacation. The Board calls attention to this treatment record because during the veteran's September 2007 hearing both the veteran and his spouse testified that it was difficult for him to leave his home and spend time with his grandchildren doing such activities as attending sporting events. His spouse specifically indicated that the veteran had not been able to see his granddaughter play basketball in three years. Additionally the veteran testified that the only way he could ambulate was with the assistance of other devices such as canes, walkers and wheelchairs. Analysis The record reflects that the veteran is service-connected only for degenerative disc disease and degenerative joint disease of the lumbosacral spine with radiculopathy and myofascial strain, evaluated as 60 percent disabling. The veteran has neither contended, nor does medical evidence show, that he is legally blind. Further, it is clear that the veteran is not confined to a nursing home because of mental or physical incapacity. Thus, the first two criteria of 38 C.F.R. § 3.351(c) are not applicable in this case, and may not be used to support the veteran's claim for SMC benefits based on the need for regular aid and attendance of another person. As a consequence of the above, the veteran's entitlement to the sought after benefits turns on whether evidence on file establishes a factual need for regular aid and attendance. In making such determination, the Board necessarily focuses on only that disability arising from the service-connected lumbar spine disorder. Applying the legal criteria to the facts of this case, the Board concludes that the evidence does not establish a factual need for regular aid and attendance. To the extent that the veteran contends that he requires the aid and attendance of another person, the Board finds that such statement is directly contradicted by the evidence of record. First the Board points out, that both the veteran and his spouse specifically indicated in sworn testimony that it was difficult for the veteran to leave his home even to attend his grandchildren's sporting events. Yet, a July 2007 outpatient treatment record noted that the veteran was going out of town on vacation and needed to obtain an early refill on his prescription. This evidence of record directly contradicts the veteran's unsupported contentions. Of greater significance, the Board notes that although the July 2005 and January 2006 VA Forms 21-2680 commented that the veteran required the daily personal health care services of a skilled provider without which the veteran would require hospital, nursing home or other institutional care, this contention is outweighed by the August 2006 VA examiner's opinion which provided that the veteran's limited mobility, generalized pain and tenderness, and inability to dress and undress were unrelated to his degenerative lumbar spine condition which essentially equates to the fact that there was no medical reason for the veteran to need aid and attendance. The Board notes that the August 2006 opinion is from a physician with expertise in medical matters, as opposed to that of a nurse practioner. Accordingly, the Board places greater weight on the opinion of the VA examiner who has more expertise, knowledge and skill pertinent to physical disabilities. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). Insofar as the nurse practioner concluded that the veteran required the daily personal health care services of a skilled provider without which the veteran would require hospital, nursing home or other institutional care, the Board finds pertinent the fact that the nurse practioner did not opine that he was in need of aid and attendance due solely to his service-connected lumbosacral spine disorder. On the contrary, the VA examiner specifically noted that the veteran suffered from a lumbosacral spine disorder but concluded that any difficulty with functioning was completely unrelated to his lumbosacral spine disorder. In short, the preponderance of the evidence in this case does not provide a basis for a finding that, due to his service- connected disability, the veteran is precluded from taking care of his daily living activities. And insofar as there is no indication that any of the criteria listed in 38 C.F.R. § 3.352(a) are present, the veteran's claim for SMC based on a need for regular aid and attendance must be denied. The veteran is also seeking SMC benefits based on being housebound. Entitlement to these benefits is predicated on the evidence of record showing that the veteran has one single disability ratable 100 percent disabling and has additional disabilities independently ratable 60 percent or more disabling: or, in addition to the 100 percent disability evaluation, is demonstrably housebound due to disability. In this case none of these criteria have been met. The clinical data does not demonstrate that the veteran is confined to his dwelling or the immediate premises due to disability. Thus, there is no legal basis upon which entitlement to housebound status may be established. Because the Board concludes that the preponderance of the evidence is against the veteran's claim for entitlement to SMC based on the need for regular aid and attendance of another person or due to being housebound, the benefit-of- the-doubt doctrine does not apply. ORDER Entitlement to special monthly compensation (SMC) based on a need for regular aid and attendance and/or being housebound is denied. ____________________________________________ N. R. ROBIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs