Citation Nr: 0811031 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 06-12 792 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to special monthly compensation (SMC) based on a need for regular aid and attendance or on housebound status. ATTORNEY FOR THE BOARD D. Johnson, Associate Counsel INTRODUCTION The veteran served on active duty from December 1986 to March 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 decision rendered by the Columbia, South Carolina Regional Office (RO) of the Department of Veterans Affairs (VA), which denied SMC. FINDINGS OF FACT 1. The veteran's service connected disabilities do not include loss of use of both feet or of one foot and one hand or blindness, do not render him permanently bedridden, and do not render him helpless so as to require regular aid and attendance; they do not preclude his tending to self-care functions, tending to the wants of nature, or protecting himself from the hazards of his daily environment. 2. The veteran does not have a single service-connected disability rated (or ratable) 100 percent, and he is not confined to his home by the service connected disabilities. CONCLUSION OF LAW The criteria for entitlement to special monthly compensation based on the need for aid and attendance or housebound status are not met. 38 U.S.C.A. §§ 1114(l)(s), 5107 (West 2002); 38 C.F.R. §§ 3.350, 3.352 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2005); 38 C.F.R. § 3.159(b) (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). Proper VCAA notice must inform the claimant of any information and evidence not of record that is necessary to substantiate the claim. The veteran should be informed as to what portion of the information and evidence VA will seek to provide, and what portion of such the claimant is expected to provide. Proper notification must also invite the claimant to provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that a substantially complete claim was received in August 2005. Since then, the provisions of the VCAA have been fulfilled by information provided to the veteran in a letter from the RO/AMC dated in August 2005. This letter notified the veteran of VA's responsibilities in obtaining information to assist him in completing his claim, identified his duties in obtaining information and evidence to substantiate his claim, and requested that he send in evidence in his possession that would support his claim. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). During the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a claim, including the degree of disability and the effective date of an award. The veteran received such notice in April 2006 letter. The veteran has had a meaningful opportunity to participate in his appeal, and this matter was readjudicated in April 2006 by a Decision Review Officer (DRO). (See Statement of the Case sent to the veteran in April 2006.) If there has been any deficiency in the notice to the veteran, the Board finds that the presumption of prejudice on the VA's part has been rebutted in this case based on the written notices provided to the veteran by the VA over the course of this appeal. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record the veteran's service medical records, as well as his post-service records of VA and private medical treatment for his disabilities. There is no indication that any other treatment records exist that should be requested, or that any pertinent evidence has not been received. VA examinations were provided in connection with the veteran's claim. For the foregoing reasons, the Board therefore finds that VA has satisfied its duty to notify (each of the four content requirements) and the duty to assist pursuant to the VCAA. See 38 U.S.C.A. §§ 5102 and 5103 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.159(b), 20.1102 (2006); Pelegrini, supra; Quartuccio v. Principi, 16 Vet. App. 183 (2002). Factual Background The evidentiary record includes the following: VA examination reports dated in March 2004 and April 2005; VA outpatient treatment records dated between January 2004 through April 2005; and private treatment records dated from February 2005 to November 2006. At the March 2004 general VA examination, the veteran reported that due to his back pain he was unable to enjoy activities such as riding a bike, playing sports, running, and playing with his daughter. The veteran further noted that he was unable to do the following: drive more than 30 minutes; sleep in his bed most of the time; sit for more than 15 minutes; and walk around the block. He stated that in the last 12 months he had a total of 100 days of physican- directed bed rest. Upon observation, the veteran was noted to walk with a cane, limp, and a slow gait. The examiner's notes indicated that the veteran was able to disrobe and robe, and get on and off of the examination table, albeit with difficulty. The examiner stated that the veteran did not wear a brace in connection with his back disorder, or any assistive device for his shoulder. He uses a cocktail of medication for pain relief. The veteran had no bowel or bladder incontinence problems. Notes from the VA mental health examination, also conducted in March 2004, reflect that upon arrival the veteran was able to sit on a sofa through the course of the evaluation, although he did favor his left shoulder and arm while sitting. It is noted that the veteran denied any vision difficulties at his VA eye examination in March 2004. At a VA orthopedic examination performed in April 2005, the veteran indicated that he spent most of his days in a recliner chair, trying to get comfortable. The veteran stated that he tolerated minimal standing for about 10 minutes, sitting for 10 minutes, and walking 100 yards before needing rest. He denied any problems with bowel or bladder function. The veteran estimated that he could drive up to 40 minutes, but indicated that he had to plan his medication around his drive time. He stated that he required assistance with activities of daily living of showering and dressing, which his wife provided. The examiner noted that the veteran had no external support, other than a cane for ambulation. He had no history of falls secondary to pain. The veteran was able to participate in range of motion testing during the evaluation. At his VA mental health examination, also performed in April 2005, the veteran again reported that he was only able to walk and stand for short periods of time. Upon questioning, he indicated that during a typical day he took his medication and checked on his garden. He added that there were days when he was able to work in his garden with the help of the "neighbor kids." In a written personal statement dated in October 2005, the veteran reported that his wife and daughter had to assist him with the basic activities of daily living. He noted that there had been occasions when his spouse had to lift him out of bed and carry him to the bathroom and back to bed. The veteran also wrote that his wife often has to remind him which medications he has taken. He noted that his wife had lost several days of work staying at home to take care of him or drive him to medical appointments. The veteran further stated that he has used a cane since February 2004, but only intermittently, because sometimes he is ashamed to use it. Finally, he stated that he is not an invalid and does not need or want constant attention; however, if special monthly compensation were awarded it would allow his wife to be available during those times when he did need assistance with activities of daily living. In letters of correspondence dated in October 2005 and November 2006, the veteran's private physican (Dr. K.) noted that the most notable disorders affecting the veteran were his multi-level degenerative disc disease (cervical, thoracic, and lumbar) with osteoarthritis, bilateral shoulder arthritis, and nerve root impingement at L5-S1. Dr. K. stated that at times these disorders caused with extreme weakness, loss of incoordination, and severe episodes of pain. During those times, the veteran needed assistance to attend to personal functioning and to avoid any dangers in his environment. He noted that the veteran also used a cane to offset pain and nerve damage in the lower left extremity. Dr. K. wrote further that the veteran presented an exceptional/unusual disability picture and would be unable to engage in any substantial gainful activity. Analysis The veteran asserts that he is entitled to special monthly compensation based on the need for the regular aid and attendance. The Board has considered his contentions, but finds that the preponderance of the evidence is against the claim. If the veteran, as the result of service connected disabilities has suffered the loss, or loss of use, of both feet or one foot and one hand, or is blind in both eyes (5/200 acuity or less) or is permanently bedridden or so helpless as to be in need of regular aid and attendance, he is entitled to SMC at the aid and attendance rate. 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350. Under 38 C.F.R. § 3.352(a), the criteria for establishing need for regular aid and attendance include the inability of the veteran to dress or undress himself, or to keep himself ordinarily clean and presentable; whether he requires frequent adjustment of any special prosthetic or orthopedic appliances with the aid of another; inability to feed himself; inability to attend to the wants of nature; or incapacity, physical or mental, that requires assistance on a regular basis to protect himself from hazards or dangers incident to his daily environment. "Bedridden" will be a proper basis for the determination under this section. For the purposes of this section, "bedridden" constitutes a condition that through its essential character actually requires that an individual remain in bed. The fact that the veteran has voluntarily taken to bed or that a physician has prescribed bed rest for a lesser or greater portion of the day will not suffice. It is only necessary that the evidence establish that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. SMC at the House bound rate is payable to a veteran who has a single service-connected disability rated as 100 percent disabling and either (a) has an additional service-connected disability, or disabilities, independently rated as 60 percent disabling, which (i) is/are separate and distinct from the service-connected disability rated as 100 percent disabling and (ii) involve(s) different anatomical or bodily symptoms; or (b) is permanently housebound by reason of a service-connected disability or disabilities. The latter requirement is met when the veteran is substantially confined to his dwelling and the immediate premises as a direct result of service-connected disabilities, or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities will continue throughout the veteran's lifetime. 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i). Although the veteran need not show all of the disabling conditions in 38 C.F.R. § 3.352(a) to establish entitlement to aid and attendance, the United States Court of Appeals for Veterans Claims (Court) has held that it is logical to infer that there is a threshold requirement that "at least one of the enumerated factors be present." See Turco v. Brown, 9 Vet. App. 222, 224 (1996). The performance of the necessary aid and attendance service by a relative of the claimant or other member of his or her household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352(c). In the present appeal, the veteran does not have a single service-connected disability rated as 100 percent. Service connection is currently in effect for the following: mood disorder rated 50 percent disabling; lumbar and thoracic degenerative disc disease with osteoarthritis and erectile dysfunction rated 60 percent disabling; sleep apnea rated 30 percent disabling; right shoulder osteoarthritis rated 20 percent disabling; left shoulder osteoarthritis rated 20 percent disabling; cervical degenerative disc disease with osteoarthritis rated 20 percent disabling. The veteran is also service-connected for the following disabilities, each rated as 10 percent disabling: nerve root impingement L5-S1, left lower extremity; osteoarthritis of the left little finger and right ring finger; status post left wrist ganglion cyst removal; left knee partial ligamental tear; tinnitus; sinusitis; hypertension; gastroesophageal reflux disease; and bilateral plantar warts. Finally, he is also service-connected for the following disabilities, each rated as noncompensably (0 percent) disabling: status post left little finger fracture; status post right ring finger fracture; status post right lower lid cyst removal and right upper lid injury; high frequency hearing loss, left ear; status post uvulopalatopharyngoplasty; pseudofolliculitis barbae; status post removal of calcified right testicular mass; and nerve injury postoperatively for left wrist ganglion cyst. Based upon a review of the cumulative evidence, the Board finds that the veteran is not entitled to special monthly compensation based upon a need for regular aid and attendance. The veteran is not bedridden and is not permanently housebound due to his service-connected disabilities. The veteran indicated that he was on physician-ordered bed rest for only 100 days, during a 12- month period prior to 2004. Also, as the cumulative medical evidence shows, the veteran remains able to walk, drive, and attend his various medical appointments. At his March 2004 VA general examination, the veteran stated that sometimes he is able to work in his garden, albeit with some assistance. He also stated that due to his back pain, he was unable to sleep in his bed most of the time. More recently, at the October 2005 orthopedic examination, the veteran indicated that he spent his days mostly sitting in a recliner chair, trying to get comfortable. The veteran indicated in his October 2005 statement that he is not an invalid and does not need constant attention. Clearly, then he is neither bedridden nor confined to his home. Therefore, the Board must therefore consider if the veteran's numerous service-connected disabilities alone, render him in need of regular aid and attendance. To this end, the Board has carefully reviewed the cumulative medical evidence. The March 2005 VA orthopedic examination report reflects that the veteran's wife assists him with dressing and showering; yet the cumulative record does not indicate that he is unable to dress or undress himself at all, or that he is unable to keep himself ordinarily clean and presentable. Both the veteran and Dr. K. indicate that the veteran requires assistance with activities of daily living from his wife, but this is particularly during times of severe pain or weakness, not a constant need. The veteran does not use any special prosthetics, and does not require frequent adjustment of orthopedic appliances. There also is no indication that the veteran is unable to feed himself or is unable to attend to the wants of nature. In the absence of such factors, the preponderance of the medical evidence of record does not favorably support the veteran's claim of entitlement to special monthly compensation based upon the need for regular aid and attendance. For these reasons, the Board concludes that special monthly compensation based on the need for the regular aid and attendance of another person is not warranted. ORDER Special monthly compensation based on the need for regular aid and attendance or on housebound status is denied. ____________________________________________ Dennis F. Chiappetta Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs