Citation Nr: 0814521 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 06-08 350 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to special monthly compensation based upon the need for regular aid and attendance or on account of being housebound. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD A.G. Alderman, Associate Counsel INTRODUCTION The veteran had active military service from April 1969 to April 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, that denied special monthly compensation based on aid and attendance. FINDINGS OF FACT 1. The veteran is not blind, or nearly blind, and is not institutionalized in a nursing home on account of physical or mental incapacity. 2. The evidence of record demonstrates that the veteran requires the daily aid and assistance of his spouse due to his service connected disabilities. CONCLUSION OF LAW The criteria for special monthly compensation based on the permanent need for aid and attendance of another person have been met. 38 U.S.C.A. § 1114 (West Supp. 2005); 38 C.F.R. §§ 3.350, 3.351, 3.352 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Special monthly compensation is payable to a veteran who is, as a result of his service-connected disabilities, so helpless as to need or require the regular aid and attendance of another person. 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b)(3). A veteran will be considered in need of regular aid and attendance if he: (1) is blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to five degrees or less; (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). 38 C.F.R. § 3.351(c). The following criteria will be considered in determining whether the veteran is in need of the regular aid and attendance of another person: the 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 such aid; the inability of the veteran to feed himself through the loss of coordination of upper extremities or through extreme weakness; the inability to attend to the wants of nature; or an incapacity, physical or mental, 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). In Turco v. Brown, 9 Vet. App. 222 (1996), the Court held that it was not required that all of the disabling conditions enumerated in the provisions of 38 C.F.R. § 3.352(a) be found to exist to establish eligibility for aid and attendance and that such eligibility required at least one of the enumerated factors be present. The Court added that the particular personal function which the veteran was unable to perform should be considered in connection with his condition as a whole and that it was only necessary that the evidence establish that the veteran is so helpless as to need regular aid and attendance, not that there be a constant need In this case, no medical evidence indicates that the veteran is blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to five degrees or less; or that he is a patient in a nursing home because of mental or physical incapacity. It thus appears that the veteran's claim is based solely on a factual need for aid and attendance of another person under the criteria set forth in 38 C.F.R. § 3.352(a). The veteran is currently service connected for depression, diabetes mellitus type II, coronary artery disease with stent placement, bilateral cataracts and retinopathy associated with his type II diabetes, left lower extremity peripheral neuropathy associated with his type II diabetes, and right lower extremity peripheral neuropathy associated with type II diabetes. The veteran also receives special monthly compensation for loss of use of a creative organ. He is not service connected for his skin problems and sleep apnea. Dr. M.L., MD, a private physician, completed an examination for aid and attendance in November 2006. She noted that the veteran is unable to bend over to clean his feet and needs help shaving and grooming due to dizziness. It was also noted that the veteran has chest pain on exertion with coronary artery disease, becomes tired easily, and suffers dizziness and poor balance. Dr. M.L. indicated that the veteran can walk only 100 feet without the assistance of another person and that a cane might help the veteran walk 200 feet. The diagnosis was diabetes mellitus, coronary heart disease, autonomic dysfunction, osteoarthritis, status post angioplasty, depression and PTSD. She concluded that the veteran requires the daily personal health care of a skilled provider without which he would require hospital, nursing home, or other institutional care. Dr. M.L. also drafted three letters, one undated, one dated March 2006, and another dated August 2006, each indicating that the veteran is cared for by his wife, who takes care of his medication and food and drives him to medical appointments. Dr. M.L. indicated that the veteran needs help with activities of daily living, providing evidence in support of this claim. In addition, the March 2006 letter indicates that the veteran needs full time assistance, including assistance with showering and transportation to medical appointments. The August 2006 letter indicates that, in addition to the above, the veteran's chest pains and hypoglycemic episodes can cause him to fall, cause unsteady gait, and render him unable to exert himself. The VA psychological exam conducted in October 2005 for the veteran's depression indicates that the veteran has occasional difficulty performing activities of daily living. The veteran also had his VA internal medicine evaluation October 2005. The examiner indicated that the veteran has difficulty performing strenuous physical activity and sometimes has difficulty performing activities of daily living as a result of his diabetes and heart condition. He indicated that the veteran is not permanently bedridden and that he is able to take care of himself to a certain extent. The veteran reported that his wife usually assists him with showering, shaving, and keeping him on schedule with meals and medication. During the examination, the examiner noted that the veteran could walk, feed himself, and fasten clothing without the assistance of another person. The veteran needs assistance with bathing and shaving but can use the toilet and dress himself. The examiner noted that the veteran's wife reported frequent falls due to the veteran's gait imbalance. A report from Dr. L.L.R., MD (Dr. L.R.), dated September 2003, indicates that the veteran could perform activities of daily living without assistance, such as dressing and undressing, bathing, feeding, and protecting himself from normal hazards of daily living. He also indicated that the veteran was not in a nursing home, bedridden or confined to his immediate premises. Dr. L.R. stated that the veteran needs help with activities of daily living and that his wife takes care of his medication and food, and drives him to medical appointments. A lay statement from the veteran and his wife, dated March 2004, indicates that the veteran depends on his wife to look after him, drive him the 2-3 hours to his doctor appointments, test his blood sugar and blood pressure, and prepare his meals. A statement dated December 2004 states that he depends on his wife for care and that he would not take care of himself without her. Another statement dated September 2005, indicates that the veteran cannot take walks without someone beside him in case he cramps up or becomes dizzy and almost falls. He indicated that he needs help showering as he cannot bend down to wash or dry himself. He needs help remembering his medication, driving to his medical appointments, and preparing meals. A statement dated March 2006 reiterates his inability to care for himself. In adjudicating this claim, the Board has considered the doctrine of reasonable doubt. As the Court has written: A unique standard of proof applies in decisions on claims for veterans' benefits. Unlike other claimants and litigants, pursuant to 38 U.S.C.A. § 3007(b) [now 38 U.S.C.A. § 5107(b)], a veteran is entitled to the "benefit of the doubt" when there is an approximate balance of positive and negative evidence. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Citing to the Supreme Court of the United States, the Court in Gilbert noted that the standard of proof is to instruct the fact-finder in the "'degree of confidence our society thinks we should have in the correctness of a factual conclusion for a particular type of adjudication.'" This burden "'reflects not only the weight of the private and public interest affected, but also a societal judgment about how the risk of error should be distributed between the litigants.'" Id. (citations omitted). Although the veteran does not meet all the factors of aid and attendance set forth in 38 C.F.R. § 3.152, the Board finds that the facts demonstrate the need for regular aid and attendance due to his service connected disabilities for the performance of certain daily activities, including bathing and grooming, preparing meals, taking medications, and walking. See generally Turco v. Brown, 9 Vet. App. 222 (1996) (eligibility for special monthly compensation by reason of regular need for aid and attendance requires that at least one of the factors set forth in VA regulation is met). It is not disputed that the veteran is severely disabled due to his service connected disabilities. The veteran is currently receiving a 50 percent disability evaluation for his depression, a 40 percent evaluation for his diabetes mellitus type II, a 30 percent evaluation for his coronary artery disease with stent placement, a 30 percent evaluation for his bilateral cataracts and retinopathy associated with his type II diabetes, a 10 percent evaluation for his left lower extremity peripheral neuropathy associated with his type II diabetes, and a 10 percent evaluation for his right lower extremity peripheral neuropathy associated with type II diabetes. In light of the aid and attendance examination, various letters and opinions from medical providers, and lay statements indicating that the veteran needs assistance with his activities of daily living, it appears that the veteran's service connected depression, diabetes, coronary heart disease, and peripheral neuropathy of the lower extremities cause the veteran to require the aid and attendance of another person. Accordingly, special monthly compensation is warranted on the basis that the veteran requires regular aid and attendance of another person due to his service-connected disabilities. Review of the claims folder finds compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et. seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). However, if any defect in VCAA notice or assistance is found, such defect is not prejudicial to the veteran, given the completely favorable disposition of the appeal. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). ORDER Entitlement to special monthly pension by reason of regular aid and attendance is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs