Citation Nr: 0812558 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 06-05 715 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to special monthly compensation based on the need for aid and attendance. 2. Entitlement to financial assistance in the purchase of an automobile or other conveyance and adaptive equipment, or for adaptive equipment. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Millikan Sponsler, Associate Counsel INTRODUCTION The veteran served on active military duty from May 1943 to August 1946. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Cleveland, Ohio, Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2007, the Board granted a motion to advance this case on the docket for good cause. 38 U.S.C.A. § 7107 (West 2002); 38 C.F.R. § 20.900(c) (2007). FINDINGS OF FACT 1. The veteran's service-connected disabilities do not cause anatomical loss or loss of use of both feet or 1 hand and 1 foot, blindness to a specific degree, permanent bedridden status, or a need for aid and attendance. 2. The veteran's service-connected disabilities do not cause loss or permanent loss of use of one or both feet, loss or permanent loss of use of one or both hands, permanent impairment of vision of both eyes to the required specified degree, or ankylosis of one or both knees, or of one or both hips. CONCLUSIONS OF LAW 1. The criteria for special monthly compensation based on the veteran's need for the regular aid and attendance have not been met. 38 U.S.C.A. § 1114 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.350, 3.352 (2007). 2. The criteria for entitlement to financial assistance for automotive and/or adaptive equipment have not been met. 38 U.S.C.A. §§ 3901, 3902 (West 2002 & Supp. 2005); 38 C.F.R. § 3.808 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the veteran's claims for entitlement to special monthly compensation based on the need for aid and attendance and entitlement to financial assistance for automotive and/or adaptive equipment, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Prior to a re- adjudication of the veteran's claims, a January 2006 statement of the case and a March 2006 letters satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (noting that a VCAA defect may be cured by the issuance of a fully compliant notification letter followed by a re-adjudication of the claim). The letter also essentially requested that the veteran provide any evidence in his possession that pertained to these claims. 38 C.F.R. § 3.159(b)(1). The veteran's service medical records, VA medical treatment records, VA examination reports, and identified private medical records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any other additional evidence relevant to the issues decided herein is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Pursuant to a May 2007 Board remand, the veteran was scheduled for a VA examination addressing his aid and attendance needs, but failed to report. In a report of contact, the veteran's wife stated that the veteran was too ill to travel. When a veteran fails to report for an examination scheduled in conjunction with a claim for compensation the claim shall be rated on the evidence of record. 38 C.F.R. § 3.655 (a), (b) (2007). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet App. 537, 542-43 (2006); see also Dingess/Hartman, 19 Vet. App. 473. The veteran claims entitlement to special monthly compensation based on the need for aid and attendance and entitlement to financial assistance for the purchase of an automobile and/or other adaptive equipment. The veteran has two service-connected disabilities: residuals of an injury to Muscle Groups XIV (anterior thigh group) and XX (lumbosacral supraspinal muscles), paralysis superficial posterior lumbar rami with limitation of motion to the left and scar of the left gluteal and lumbar region. See 38 C.F.R. § 4.73, Diagnostic Code 5320 (2007); 38 C.F.R. § 4.118, Diagnostic Code 7804 (2007). The veteran is also assigned a total disability rating based on individual unemployability. 38 C.F.R. § 4.16 (2007). Aid and attendance Compensation for aid and attendance is payable when the veteran, due to service-connected disability, 1) has the anatomical loss or loss of use of both feet, 2) has the anatomical loss or loss of use of one hand and one foot, 3) is blind in both eyes, or 4) is permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C.A § 1114(l); 38 C.F.R. § 3.350(b). Loss of use of a hand or foot is defined as no effective function remaining other than that which would be equally well served by an amputation stump at the site of election below the elbow or knee with use of a suitable prosthetic appliance. 38 C.F.R. § 3.350 (a)(2). The determination is made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc., in the case of the hand, or of balance, propulsion, etc., in the case of a foot, could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 3.350(a)(2). Examples that constitute loss of use of a foot or hand include extremely unfavorable ankylosis of the knee, complete ankylosis of two major joints of an extremity, shortening of the lower extremity of 3.5 inches or more, and complete paralysis of the external popliteal (common peroneal) nerve and consequent foot drop, accompanied by characteristic organic changes, including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve. 38 C.F.R. § 3.350 (a)(2)(a)(b); 38 C.F.R. § 4.63 (2007). Determinations regarding the need for aid and attendance must be based on actual requirements of personal assistance from others. 38 C.F.R. § 3.352(a). Consideration is given to such conditions as: inability of the veteran 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; inability of the veteran 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 veteran from the hazards or dangers inherent in his daily environment. Bedridden is that condition which, through its essential character, actually requires that the veteran remain in bed. It is not required that all of the disabling conditions enumerated above exist and the particular personal functions which the veteran is unable to perform should be considered in connection with his condition as a whole. The evidence need only establish that the veteran is so helpless as to need regular, rather than constant, aid and attendance. 38 C.F.R. § 3.352(a). The Board first finds that the veteran's service-connected disabilities have not caused bilateral blindness or anatomical loss or loss of use of either of the veteran's hands. 38 C.F.R. § 3.350(b). Although April 2006 and February 2007 VA medical records and a September 2006 aid and attendance examination noted bilateral legal blindness and cataracts, left greater than right, the evidence does not suggest that the impaired vision is due to service-connected lumbosacral and thigh muscle injuries and scar. In an October 2004 VA record and at the October 2005 hearing, the veteran stated that his cataracts were caused by Prednisone, which he took for his back pain due to arthritis. January 2006 VA examiners found that the veteran's lumbar spine degenerative joint and disk disease were unrelated to his service-connected disorder. Moreover, although a November 2001 VA record diagnosed bilateral carpal tunnel syndrome, the veteran has not asserted, and the evidence does not demonstrate, the anatomical loss or loss of use of either of the veteran's hands. The Board next finds that the veteran's service-connected disabilities have not caused the anatomical loss or loss of use of either of the veteran's bilateral feet. 38 C.F.R. § 3.350(b). A January 2006 VA medical record diagnosed partial left foot drop. But the examiner found good reflexes and only some weakness and opined that any sensory deficits were not due to the service-connected muscle disability. Moreover, the examiner did not diagnose any anatomical loss or loss of use of either foot. The Board finds that the veteran's service-connected disabilities did not cause the veteran's permanently bedridden status or need for regular aid and attendance. The evidence of record clearly demonstrates that the veteran is in need of regular aid and attendance and is essentially bedridden. The veteran and his wife currently have home health aides a few times per week. The veteran's wife has consistently stated that the veteran is unable, on his own, to bathe, use the restroom, dress, cook, eat, clean, or transfer. The veteran's wife stated she had to adjust his transcutaneous electrical nerve stimulator unit daily. In July 2007, the veteran's wife stated that he was unable to travel due to pain. The veteran has testified that he is unable to, on his own, bathe, dress, cook, eat, use the restroom, or clean the house. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his or her personal knowledge). Accordingly, the crux of this appeal is whether the veteran's bedridden status or need for aid and attendance is due to his service-connected disabilities. VA medical records show diagnoses of the following disorders: shell fragment wound of the buttocks and low back involving muscle groups 20 and 14, with residual muscle group damage, a scar, lumbar spine degenerative arthritis, lumbar spine degenerative disk disease with bilateral lower lumbosacral radiculopathy, lower extremity peripheral neuropathy, bilateral hip degenerative joint disease, congestive heart failure (CHF), chronic obstructive pulmonary disease (COPD), morbid obesity, legal blindness, hypertension, diabetes mellitus, gastroesophageal reflux disease, and left hip osteomyelitis. The claims file clearly demonstrates that the veteran is wheelchair-bound and is essentially non- ambulatory. VA medical records from August 2004, November 2004, and May 2005 suggest that the veteran was wheelchair bound due to chronic back pain from lumbar spine degenerative joint and disk disease or morbid obesity. October 2004, July 2005, and April 2006 VA records indicate that the veteran's lower extremity neuropathy was due to diabetes mellitus. In a January 2002 VA aid and attendance examination, the examiner found 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. A September 2002 VA aid and attendance examination was conducted without review of the claims file. The veteran reported an inservice back injury with resulting neuropathy. The examiner opined that the veteran was housebound mainly due to his service-connected back injury but also due to his CHF, COPD, and morbid obesity. The examiner found the veteran was unable to protect himself from the hazards and dangers of his daily environment, due to severe back pain with neuropathy, COPD, and difficulty breathing. A September 2002 VA neurological examination was conducted without the claims file. Upon examination, the diagnoses included inservice damage to left side muscle groups 14 and 20, neurological deficits secondary to inservice injury and affecting the left lower extremity, lumbosacral degenerative disk disease with bilateral radiculopathy, and morbid obesity. The examiner found that the veteran required aid and attendance solely due to the service-connected muscle and neurological conditions affecting the lower extremities, but then opined that the veteran's morbid obesity, CAD, COPD, and diabetes mellitus contributed to the veteran's lower extremity impairments. A January 2006 VA scar examiner found no functional limitation due to the veteran's service-connected scar. A January 2006 VA neurological examination was conducted upon a review of the claims file. The veteran complained of back and hip pain. The examiner found muscle injury with some loss of feeling and weakness of the left leg. The impression was stable and chronic partial left foot drop with preservation of strength in all muscle groups on the left. The examiner opined that that any hip limitation of motion was due to degenerative arthritic changes, that the lower extremity sensory deficits were not related to the inservice injury, and that the low back and hip degenerative arthritis were not secondary to the inservice injury. A January 2006 VA spine examination was conducted upon review of the claims file. Upon examination, the examiner opined that due to multiple co-morbidities, namely the veteran's obesity, any relationship between the inservice injury and lumbar spine arthritis and degenerative disc disease was speculative. In a September 2006 aid and attendance questionnaire, a physician found that the veteran was bedridden and housebound. The examiner noted the following disabilities: legal blindness, diabetic neuropathy, chronic low back pain due to inservice injury, COPD, lumbar disc degeneration, arthritis, and breathing problems. The veteran had home based primary care. In VA medical records from 2007, the veteran's wife reported that the veteran could not travel due to pain. In July 2007, a VA physician informed the veteran's wife that he did not agree with the idea that the veteran could not travel. The Board finds that the evidence of record does not demonstrate that the veteran's service-connected disabilities cause a need for regular aid and attendance or a permanently bedridden status. First, the veteran has multiple diagnosed non-service-connected disorders that affect his need for aid and attendance and bedridden status. Second, the medical evidence suggests that the veteran is wheelchair-bound and non-ambulatory due to morbid obesity or lumbar spine degenerative joint and disk disease and that the neurological difficulties in his lower extremities are due to nonservice- connected diabetes mellitus and lumbar spine degenerative joint and disk disease. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board is not free to substitute its own judgment for that of an expert). Moreover, the medical opinions of record do not support that the veteran's need for aid and attendance and bedridden status are due to service-connected disabilities. Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board must assess the credibility and probative value of the medical evidence in the record). January 2002 and September 2006 VA aid and attendance examiners did not link any particular disorder to the veteran's need for aid and attendance and bedridden status. A September 2002 VA aid and attendance examiner opined that the veteran's housebound status was mainly due to his service-connected back injury but was also due to CHF, COPD, and morbid obesity. But the opinion was provided without a review of the claims file, relied on the veteran's statements that he had a back injury, and not a muscle injury, and is unclear in linking the veteran's status to service-connected and/or nonservice- connected disabilities. Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179-80 (2005) (noting that although the Board may not reject a medical opinion solely because it is based on facts reported by the veteran but may do so where the facts are inaccurate or are unsupported by the other evidence of record); Sklar v. Brown, 5 Vet. App. 140, 145-46 (1993) (noting that the probative value of a medical opinion is diminished where the opinion is ambivalent). A September 2002 VA neurological examiner, without a review of the claims file, opined that the veteran required aid and attendance and solely due to the service-connected muscle and neurological conditions affecting the lower extremities, but then opined that the veteran's morbid obesity, CAD, COPD, and diabetes mellitus contributed to his lower extremity impairments. Prejean, 13 Vet. App. at 448-9; Sklar, 5 Vet. App. at 145-46. Notably, upon a review of the claims file, a January 2006 VA neurological examiner opined that the veteran's lower extremity sensory deficits and the lumbar spine and hip degenerative arthritis were not related to the inservice injury. Prejean, 13 Vet. App. at 448-9. Also upon a review of the claims file, a January 2006 VA spine examiner opined that due to multiple co-morbidities, namely the veteran's obesity, any relationship between the inservice injury and lumbar spine arthritis and degenerative disc disease was speculative. Prejean, 13 Vet. App. at 448-9. Accordingly, the Board finds that the medical evidence of record links the veteran's need for aid and attendance and bedridden status to his disabilities as a whole, rather than to service-connected disabilities, and entitlement to special monthly compensation based on the need for aid and attendance is not warranted. Automotive and/or adaptive equipment Eligibility for financial assistance in the purchase of an automobile or other conveyance and of basic entitlement to necessary adaptive equipment exists where a veteran exhibits one of the following as the result of service-connected disorder: (i) loss or permanent loss of use of one or both feet; (ii) loss or permanent loss of use of one or both hands; or (iii) permanent impairment of vision of both eyes with central visual acuity of 20/200 or less in the better eye with corrective glasses or central visual acuity of more than 20/200 if there is a field defect of a certain type. 38 U.S.C.A. §§ 3901, 3902; 38 C.F.R. § 3.808(a), (b). For adaptive equipment eligibility only, service-connected ankylosis of one or both knees or one or both hips is sufficient to show entitlement. 38 U.S.C.A. § 3901; 38 C.F.R. § 3.808(b). Loss of use of a hand or foot is defined as no effective function remaining other than that which would be equally well served by an amputation stump at the site of election below the elbow or knee with use of a suitable prosthetic appliance. 38 C.F.R. § 3.350 (a)(2). The determination will be made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc., in the case of the hand, or of balance, propulsion, etc., in the case of a foot, could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 3.350(a)(2). Examples that constitute loss of use of a foot or hand include extremely unfavorable ankylosis of the knee, or complete ankylosis of two major joints of an extremity, shortening of the lower extremity of 3.5 inches or more, complete paralysis of the external popliteal (common peroneal) nerve and consequent foot drop, accompanied by characteristic organic changes, including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve. 38 C.F.R. § 3.350 (a)(2)(a)(b); 38 C.F.R. § 4.63. The Board finds that the evidence of record does not demonstrate that any service-connected disorder caused loss or permanent loss of use of one or both of the veteran's hands or the requisite visual impairment. 38 C.F.R. § 3.350. As noted above, a November 2001 VA medical record diagnosed carpal tunnel syndrome of the bilateral hands, but did not indicate any relationship to the service-connected muscle injury or scar or loss or permanent loss of use of the hands. Also as noted above, VA records indicate the veteran is legally blind in both eyes, but the record suggests that this is due to the veteran's medication for his non-service- connected lumbar spine degenerative joint and disk disease. The Board also finds that the evidence of record does not indicate loss or permanent loss of use of one or both of the veteran's feet. 38 C.F.R. § 3.350 (a)(2)(a)(b); 38 C.F.R. § 4.63. Although as noted above, VA medical records indicated lower extremity neurological difficulties, the records indicated that this is due to diabetic neuropathy and lumbar spine degenerative disk disease with radiculopathy. As noted above, a January 2006 VA record found partial left foot drop, but did not indicate loss or permanent loss of use of the left foot. A January 2006 VA neurological examination noted good strength of left knee flexion and extension and some limitation of left hip motion, thus indicating that there was no ankylosis of the left hip or knee. The medical evidence of record did not indicate right knee ankylosis, or complete ankylosis of two major joints of an extremity, shortening of the lower extremity, or a complete paralysis of the external popliteal nerve accompanied by trophic and circulatory disturbances or other concomitants confirmatory of complete paralysis. Accordingly, because the Board finds that service-connected disabilities do not cause the requisite visual impairment or the loss or permanent loss of use of one or both hands or one or both feet, entitlement to financial assistance in the purchase of an automobile or other conveyance and/or of basic entitlement to necessary adaptive equipment is not warranted. In reaching these decisions the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the veteran's claims, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to special monthly compensation for aid and attendance is denied. Entitlement to automobile and/or adaptive equipment is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs