Citation Nr: 0812067 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 05-24 615A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to special monthly compensation based on aid and attendance, for accrued benefits purposes. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The veteran had active service from January 1965 to November 1968. He died in December 2003. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which denied the appellant's claim of entitlement to special monthly compensation based on aid and attendance, for accrued benefits purposes ("accrued benefits claim"). The appellant disagreed with this decision in February 2005. She perfected a timely appeal in August 2005. In January 2006, the appellant requested a videoconference Board hearing. In a written statement received at the RO in August 2006, the appellant withdrew her Board hearing request. See 38 C.F.R. § 20.704. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's accrued benefits claim has been obtained. 2. At the time of the veteran's death, there was a pending claim of entitlement to special monthly compensation based on aid and attendance. 3. Prior to the veteran's death, service connection was in effect for multiple myeloma, evaluated as 100 percent disabling effective March 7, 2003. 4. Prior to his death, the veteran was so helpless due to his service-connected multiple myeloma as to be permanently bedridden or in need or regular aid and attendance from another person. CONCLUSION OF LAW The criteria for entitlement to special monthly compensation based on aid and attendance, for accrued benefits purposes, have been met. 38 U.S.C.A. §§ 1114, 5103, 5103A, 5107, 5121 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.350(b), 3.1000 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In a letter issued in October 2004, VA notified the appellant of the information and evidence needed to substantiate and complete her accrued benefits claim, including what part of that evidence she was to provide and what part VA would attempt to obtain for her. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter informed the appellant to submit evidence showing that benefits were due to the veteran and unpaid at the time of his death and noted other types of evidence the appellant could submit in support of her claim. The appellant was informed of when and where to send the evidence. After consideration of the contents of this letter, the Board finds that VA has substantially satisfied the requirement that the appellant be advised to submit any additional information in support of her claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Additional notice of the five elements of a service- connection claim was provided in August 2006, as is now required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Thus, the Board finds that VA met its duty to notify the appellant of her rights and responsibilities under the VCAA. With respect to the timing of the notice, the Board points out that the Veterans Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the October 2004 letter was issued to the appellant and her service representative prior to the January 2005 rating decision which denied the benefits sought on appeal; this, this notice was timely. Because the appellant's claim is being granted in this decision, any question as to the appropriate disability rating or effective date is moot and there can be no failure to notify the appellant. See Dingess, 19 Vet. App. at 473. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield, 444 F.3d at 1328. With respect to VA's duty to assist, the adjudication of an accrued benefits claim is limited to the evidence physically or constructively of record at the time of the veteran's death. 38 C.F.R. § 3.1000(a); see Ralston v. West, 13 Vet. App. 108 (1999); Hayes v. Brown, 4 Vet. App. 353 (1993). Hence, there is nothing further for VA to do to assist the appellant. VA's notice and assistance obligations are met and the appellant is not prejudiced by the Board's proceeding with appellate review. The appellant contends that she is entitled to special monthly compensation based on aid and attendance, for accrued benefits purposes, because the veteran was completely helpless and required the aid and attendance of another person (the appellant) in the months prior to his death. Upon the death of an individual receiving benefit payments, certain persons shall be paid periodic monetary benefits to which that individual was entitled at the time of death under existing ratings or decisions, or those based on evidence in the file at date of death, and due and unpaid for a period not to exceed 2 years, based on existing rating decisions or other evidence that was on file when the veteran died. See 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000(a); Jones v. Brown, 8 Vet. App. 558 (1996). Only evidence contained in the claims file at the time of the veteran's death, or certain VA and service department records considered constructively in the claims file at that time, may be considered in adjudicating a claim for accrued benefits. 38 C.F.R. § 3.1000(d)(4); Hayes v. Brown, 4 Vet. App. 353 (1993). A review of the claims file shows that, prior to his death, the veteran had filed claims of service connection for multiple myeloma and for end-stage renal disease, status-post failed kidney transplant, as secondary to service-connected multiple myeloma, and entitlement to special monthly compensation based on aid and attendance. In a rating decision dated on June 10, 2003, and issued to the veteran and his service representative on June 18, 2003, the RO granted the veteran's service connection claim for multiple myeloma, assigning a 100 percent rating effective March 7, 2003, and denied the veteran's service connection claim for end-stage renal disease, status-post failed kidney transplant, as secondary to service-connected multiple myeloma. The RO also denied the veteran's claim of entitlement to special monthly compensation based on aid and attendance. In a rating decision dated on June 23, 2003, and issued to the veteran and his service representative that same day, the RO confirmed the prior denial of the veteran's claim of entitlement to special monthly compensation based on aid and attendance. The veteran died in December 2003. Under 38 U.S.C.A. § 5121(c), a claim for accrued benefits requires that the application be filed within one year after the date of death. Normally, there is no basis for an accrued benefits claim unless the individual from whom the accrued benefits claim derives had a claim for VA benefits pending at the time of death. See Jones v. West, 136 F.3d 1296 (Fed. Cir. 1998). In Taylor v. Nicholson, 12 Vet. App. 126 (2007), however, the United States Court of Appeals for Veterans Claims (Veterans Court) clarified that, if a veteran died prior to the expiration of 1 year after the date of notice of an award or disallowance of VA benefits, his or her surviving spouse has up to 1 year after the date of such notice to file an accrued benefits claim. As noted above, in a rating decision dated on June 23, 2003, and issued to the veteran and his service representative that same day, the RO confirmed the prior denial of the veteran's claim of entitlement to special monthly compensation based on aid and attendance. Accordingly, the appellant had until June 24, 2004, to file a claim of entitlement to special monthly compensation based on aid and attendance, for accrued benefits purposes. The appellant filed her accrued benefits claim in May 2004; thus, her claim was timely filed and the Board will proceed to adjudicate it on the merits. Id. Special monthly compensation is payable under 38 U.S.C.A. § 1114(l) if, as the result of service-connected disability, the veteran 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 2002 & Supp. 2007); 38 C.F.R. § 3.350(b) (2007). Need for aid and attendance means being so helpless as to require the regular aid and attendance of another person. 38 U.S.C.A. § 3.350(b). As it pertains to the present case, criteria for establishing such need include whether the veteran is permanently bedridden or is so helpless as to be in need of regular aid and attendance as determined under criteria enumerated under 38 C.F.R. § 3.352(a). Under 38 C.F.R. § 3.352(a), the following factors will be accorded consideration in determining whether the veteran is in need of regular aid and attendance of another person: (1) inability of the veteran to dress or undress himself, or to keep himself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without such aid; (3) inability of the veteran to feed himself because of the loss of coordination of upper extremities or because of extreme weakness; (4) inability to attend to the wants of nature; or (5) physical or mental incapacity which requires care or assistance on a regular basis to protect the veteran from the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a) (2007). It is not required that all of the disabling conditions enumerated in 38 C.F.R. § 3.352(a) 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 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 for aid and attendance. 38 C.F.R. § 3.352(a); see Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in § 3.352(a) must be present to grant special monthly compensation based on the need for aid and attendance). For the purposes of 38 C.F.R. § 3.352(a), "bedridden" will be a proper basis for the determination of whether the veteran is in need of regular aid and attendance of another person. "Bedridden" will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that 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. 38 C.F.R. § 3.352(a). Second, under 38 U.S.C.A. § 1114(s), special monthly compensation is payable if the veteran has a single service- connected disability rated as 100 percent and (1) 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) 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 & Supp. 2007); 38 C.F.R. § 3.350(i)(2) (2007). A review of the evidence of record at the time of the veteran's death in December 2003 shows that, prior to his death, the veteran was treated for multiple myeloma, end-stage renal disease, and status-post failed kidney transplant. For example, on private outpatient treatment in April 2001, the veteran was on hemodialysis for end-stage renal failure. The impressions included end-stage renal disease secondary to interstitial nephritis. The veteran was hospitalized for several days in May 2001 for treatment of right upper extremity swelling. The admitting and discharge diagnoses included end-stage renal disease. On hepatology consult in January 2003, the veteran was confused and unable to report any current complaints. His history included developing end-stage renal disease in 2001 and receiving a live, non-related kidney transplant in December 2002. While hospitalized for a kidney transplant, he was noted to have multiple myeloma. The kidney failed since his transplant. The assessment included end-stage renal disease secondary to hypertension, failed kidney transplant, and multiple myeloma. On orthopedic consult later in January 2003, it was noted that a magnetic resonance imaging (MRI) scan of the veteran's spine showed that his "skeletal system is so riddled with multiple myeloma." On nephrology consult later in January 2003, the private examiner noted the veteran's history of end-stage renal disease "which was diagnosed to be related to multiple myeloma." This examiner also noted that veteran had been hospitalized since December 2002 and was experiencing a primary non-functioning kidney with minimal urine and was still dependent on dialysis. Biopsy of the kidney showed no evidence of myeloma although the veteran was experiencing acute tubular necrosis. MRI scans had shown lytic lesions in the left shoulder, lumbosacral, and pelvic areas. The private examiner also noted that "because of the multiple areas of pathologic lesions in the lumbosacral area, [the veteran] has been bedridden with minimal activities." This examiner concluded that the veteran "will need to be transferred to a long-term facility for rehabilitation." In February 2003, the veteran was in acute tubular necrosis with a non-functioning kidney and receiving dialysis every other day. The veteran's treating nephrologist stated that his end-stage renal disease was secondary to multiple myeloma, which was diagnosed post-kidney transplantation. In a July 2003 letter, which was attached to the appellant's special monthly compensation claim and date-stamped as received by the RO in May 2004, R.A.H., Jr., M.D. (Dr. R.A.H.) stated that the veteran was under his care for multiple myeloma. The veteran had suffered renal failure as a consequence of his multiple myeloma. Following a prolonged hospitalization, the veteran experienced marked weakness, was completely disabled, and required a wheelchair to get around. The veteran also was non-ambulatory and was dependent on his wife for "basic living" and unable to perform his self-care independently. The veteran's death certificate shows that he died in December 2003. The immediate cause of death was cardiopulmonary failure. The underlying causes of death included end-stage renal disease and multiple myeloma. The Board finds that the preponderance of the evidence supports the appellant's claim of entitlement to special monthly compensation based on aid and attendance, for accrued benefits purposes. The evidence of record in the claims file at the time of the veteran's death in December 2003 show that, prior to his death, he was diagnosed as having end- stage renal disease and multiple myeloma. As noted in the Introduction, service connection was in effect only for multiple myeloma. It appears that the veteran was diagnosed as having end-stage renal disease several years before he was diagnosed as having multiple myeloma. In April 2001, a private examiner determined that the veteran's end-stage renal disease was secondary to interstitial nephritis. The veteran was noted to have multiple myeloma while hospitalized for a kidney transplant in December 2002. In January 2003, a different private examiner determined that the veteran's end- stage renal disease was secondary to hypertension. Critically, the veteran's private nephrologist noted later in January 2003 that the veteran was "bedridden with minimal activities" as a result of multiple lytic lesions in his lumbosacral area and would need to be transferred to a long- term rehabilitation facility. In February 2003, this examiner attributed the veteran's end-stage renal disease to his multiple myeloma. Thus, the medical evidence shows that the veteran was so helpless due to his service-connected multiple myeloma as to be permanently bedridden, in need of the regular aid and attendance of another person (in this case, his wife), or permanently housebound. Given the foregoing, the appellant's claim for special monthly compensation based on aid and attendance, for accrued benefits purposes, is granted. ORDER Entitlement to special monthly compensation based on aid and attendance, for accrued benefits purposes, is granted. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs