Citation Nr: 0814716 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 01 08 691 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to special monthly compensation based on the need for regular aid and attendance or by reason of being housebound due to service-connected disabilities. REPRESENTATION veteran represented by: Virginia A. Girard-Brady, Attorney ATTORNEY FOR THE BOARD LouElla Kuta, Associate Counsel INTRODUCTION The veteran served on active duty from October 1965 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied the benefit sought on appeal. The appeal was last before the Board in July 2007, when it was remanded for a clarifying VA medical examination and readjudication by the RO. On October 17, 2002, a Deputy Vice Chairman of the Board granted a motion to advance this case on the docket, based on a finding of good cause. See 38 C.F.R. § 20.900(c). Having carefully reviewed the record, the Board regretfully finds that it must again REMAND the claim to the RO via the Appeals Management Center (AMC), in Washington, DC, to ensure compliance with applicable law. VA will notify the veteran if further action is required on his part. REMAND The veteran is seeking special monthly compensation, which is payable to individuals who are permanently bedridden or are so helpless as a result of service-connected disability as to be in need of the regular aid and attendance of another person under the criteria set forth in 38 C.F.R. § 3.352(a). 38 U.S.C.A. § 1114(l) (West 2002 & Supp. 2007); 38 C.F.R. § 3.350(b)(3) (2007). Although the veteran was afforded a VA medical examination pursuant to the Board's July 2007 remand, the examination is not sufficient for the Board to render an informed appellate decision, and the matter will be remanded for clarification from the VA examiner who conducted the October 2007 medical inquiry. See 38 C.F.R. § 4.2 (If the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.). In determining the need for regular aid and attendance, the following factors will be accorded consideration: inability of a 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 adjustments of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of a 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, either physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352(a) (2007). A finding that the veteran is "bedridden" will provide a proper basis for the determination. Bedridden will be that condition which, through its essential character, actually requires that the veteran remain in bed. The fact that a veteran 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. Id. The particular personal functions that 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 be a constant need. Determinations that a 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. Id. Service connection is in effect for the postoperative residuals of an injury to the right median nerve, rated as 50 percent disabling; post traumatic stress disorder (PTSD), rated as 50 percent disabling; postoperative residuals of injury to the right radial nerve, rated at 30 percent disabling; pterygium of the right eye, rated as noncompensable; and shell fragment wound scars of the back, rated as noncompensable. The combined disability rating is 80 percent, and the veteran is in receipt of a total disability rating based upon individual unemployability. The question is whether his service-connected disabilities render him so helpless as to be in need of the regular aid and attendance of another person, as opposed to any nonservice-connected conditions. The record indicates that the veteran has numerous non- service-connected disorders; including dementia (April 2002 letter by J.C., LBSW), the residuals of fractures of the left and right lower extremities and pelvic region sustained in one or more automotive accidents after military service (September 1983 VA medical examination), first degree spondylolisthesis (February 1978 non-VA medical report). First, the text of the October 2007 VA medical report indicates that although the veteran's C-file was reviewed, "medical records were: not requested by" the RO. Under the law, VA must provide medical examinations by examiners who have full access to and review of relevant evidence. Shipwash v. Brown, 8 Vet.App. 218, 222 (1995); Flash v. Brown, 8 Vet.App. 332, 339-340 (1995). The examiner's comment suggests that there may be medical evidence not reviewed by the examiner. In view of the uncertainties as to whether the veteran is in need of aid and attendance due to service- connected disorders as are discussed below, the RO must ensure that the examiner's review is of all medical evidence. Indeed, this matter was remanded by the Court in March 2007 because it was not clear whether previous VA examiners had reviewed the record. With regard to the question of whether the veteran's service- connected disorders render him helpless as a result of service-connected disability as to be in need of the regular aid and attendance of another, the October 2007 VA examiner noted that the "veteran requires the assistance of another person for most of his activities of daily livings (sic) mainly because of his dementia." (Italics added). The Board is unable to ascertain to what degree the non- service-connected dementia, as opposed to PTSD, is responsible for the veteran's inability to perform activities of daily living. Under the benefit-of-the-doubt doctrine, uncertainties as to the degree of impairment between non- service-connected and service-connected disorders must be resolved in favor of the claimant. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (Observing that when it is not possible to separate the effects of a service-connected condition and a non- service-connected condition, the provisions of 38 C.F.R. § 3.102 mandates that reasonable doubt on any issue was to be resolved in the veteran's favor, and that all signs and symptoms be attributed to the service- connected condition). The issue for resolution by the examiner therefore becomes whether the veteran's impairment from service-connected PTSD may be separated from such impairment resulting from non- service-connected dementia. The October 2007 examination report also contains contradictory findings as to the effect on criteria-specific tasks that must be addressed. It indicates that the veteran is unable to dress and undress, bathe, and perform self- grooming, and that he "gets very dizzy - possible (sic) from his medications." However, the examination report also indicates that the veteran's capacity to dress, undress, bathe, and self groom was characterized by "marked difficulty" thereby suggesting that the veteran retained an ability to perform these tasks. Further complicating, in that section of the examination report, the examiner notes that the effect on the veteran's capability to bathe is "mild;" to dress is "severe;" and to toilet and self-groom is "mild." The veteran's service-connected disorders include the postoperative residuals of an injury to the right median nerve, rated as 50 percent disabling and postoperative residuals of injury to the right radial nerve, rated at 30 percent disabling. The disorders are therefore characterized as "severe" and "moderate," respectively. See 38 C.F.R. §4.124a, Diagnostic Codes 8515 and 8514. Upon remand, the examiner will clarify into a consistent report the effect of the veteran's service-connected disorders on each of the regulatory criteria specific to the benefit he seeks - i.e., the examiner must clarify the degree to which the service- connected right medial and right radial neurological disorders render him unable to perform the tasks as indicated. Accordingly, the case is REMANDED to the RO/AMC for the following action: 1. The RO/AMC will ascertain if the veteran has received any VA, non-VA, or other medical treatment for the service- connected and non-service-connected disorders that must be addressed in the resolution of the claim for aid and attendance, that is not evidenced by the current record. The veteran should be provided with the necessary authorizations for the release of any treatment records not currently on file. The RO/AMC should then obtain these records and associate them with the claims folder. 2. After the passage of a reasonable amount of time or receipt of the veteran's response, the RO/AMC will return the claims folder, and a copy of this remand, to the VA examiner who conducted the October 2007 VA examination for Aid and Attendance. In so doing, the RO/AMC will ensure that the veteran's VA medical records are requested and provided to the examiner. In the event that the VA examiner is no longer employed by VA, or is otherwise unavailable, the RO/AMC will direct that the veteran undergo a clarifying VA Aid and Attendance examination, and any other necessary examinations by qualified physicians. a. If such an examination or examinations by new VA examiners is or are conducted to determine the nature and extent of his service- connected disorders, the examinations scheduled must be of sufficient detail that the rating criteria for mental disorders, neurological disorders eye disorders and orthopedic/muscle disorders may be applied. The examiners are asked to describe all the veteran's health problems, both mental and physical, and their impact on his ability to perform the functions of daily living. The claims folder, and a copy of this remand, must be reviewed by the examiner in conjunction with the examination, and the examiner must acknowledge this receipt and review in any report generated as a result of this remand. All indicated tests and studies should be done, and all subjective complaints and objective findings should be reported in detail. b. Whether the October 2007 examiner or new examiners respond to this inquiry, the examination report should include the specific questions/concerns of an aid and attendance/housebound examination, as are outlined above, into a consistent report specifically addressing: (1) What is the extent of impairment resulting from service-connected PTSD, apart from the non-service-connected dementia on the veteran's capacity for to dress or undress himself, or to keep himself ordinarily clean and presentable; to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, either physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. (2) What is the extent of impairment resulting from service-right radial and medial neurological disorders, apart from the non-service-connected dementia or other non-service- connected disorders, on the veteran's capacity for to dress or undress himself, or to keep himself ordinarily clean and presentable; to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, either physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. The RO/AMC should take such additional development action as it deems proper with respect to the claim, including the conduct of any other appropriate VA examinations not previously scheduled or those that are suggested by any examiner, and follow any applicable regulations and directives implementing the provisions of the VCAA as to its notice and development. Following such development, the RO/AMC should review and readjudicate the claim in accordance with applicable law, in particular the benefit-of-the-doubt doctrine. If any such action does not resolve the claims, the RO/AMC shall issue the veteran a Supplemental Statement of the Case. Thereafter, the case should be returned to the Board, if in order. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).