Citation Nr: 1014064 Decision Date: 04/13/10 Archive Date: 04/29/10 DOCKET NO. 04-27 026 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to special monthly compensation based on the need for aid & attendance or housebound status. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from February 1963 to February 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In July 2009, the Board remanded the Veteran's appeal to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. The July 2009 remand instructed the RO to issue a statement of the case addressing the issue of service connection for eye disability. The record shows that the RO issued such a statement of the case in January 2010, following which no further communication was received from the Veteran or his representative. The Board therefore has limited its review to the issue listed on the title page of this action. FINDING OF FACT The competent medical evidence shows that the Veteran is not permanently bedridden or in need of regular aid and attendance from another person. CONCLUSION OF LAW The criteria for special monthly compensation based on the need for aid & attendance of another person or housebound status have not been met. 38 U.S.C.A. §§ 1114, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.350(b), 3.352 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not accomplished in a timely manner, such error may be cured by issuance of a fully compliant notice followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (holding that the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). The Board acknowledges that, in the present case, complete notice was not issued prior to the adverse determination on appeal. Fully compliant notice was issued later in December 2005 and July 2009 communications. Thereafter, the claim was readjudicated in December 2009. Accordingly, any timing deficiency has been cured appropriately here. Mayfield, 444 F.3d 1328 (Fed. Cir. 2006). Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. The record also shows the Veteran was examined in the course of his claim. Moreover, the Veteran's statements in support of the claim are of record. The Board has reviewed such statements carefully and concludes that no available outstanding evidence has been identified. The Board also has perused the medical records for references to additional treatment reports not of record but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Veteran contends that he is entitled to special monthly compensation based on the need for regular aid & attendance of another person or because he is housebound. 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. 2009); 38 C.F.R. § 3.350(b) (2009). 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) (2009). 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. 2009); 38 C.F.R. § 3.350(i)(2) (2009). The Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to special monthly compensation based on the need for aid & attendance or housebound status. There is no evidence that the Veteran is so helpless as to require the regular aid and attendance of another person. He continues to receive regular outpatient treatment at VA medical facilities and has reported for multiple examinations with private and VA treating physicians throughout the pendency of this appeal. There is no indication in any of these medical records that the Veteran needs the degree of assistance contemplated by the regulations or is otherwise helpless, as will be emphasized further in the discussion below. When he filed his claim in October 2002, the Veteran included a copy of a VA Form 21-2680 completed by a VA physician in September 2002. This VA physician noted that the Veteran could feed himself, keep himself clean and presentable, walk around, dress and undress, attend to the wants of nature, bathe himself, button his clothing, and shave himself. This physician described the Veteran's balance as fair and noted that he experienced limitation of motion and limitation of propulsion. This physician stated that the Veteran experienced no atrophy of the lower extremities. This physician also stated that the Veteran had no loss of memory, was not mentally incompetent, and did not have poor balance which affected the ability to perform self-care. This VA physician stated further that the Veteran was not confined to his home due to disability. He recommended a gradual increase in daily walking but no lifting, driving, or arm use. He also stated that the Veteran was able to walk without the assistance of another person "at home only" (although this notation appears to have been entered by someone other than the VA physician because the handwriting is not the same). The VA physician stated that the Veteran was able to walk without the assistance of another person for 1 block. He recommended that the Veteran "should be as active as he can within the guidelines of cardiac rehab, slowly increasing activity, stopping and resting whenever tired or short of breath." He also recommended that the Veteran leave his house for cardiac follow-up appointments. The Veteran did not require crutches, a walker, or a cane. The VA physician stated that the Veteran "is to avoid stress of any kind due to its adverse affect" on his heart disease." He stated that the Veteran "just had open heart surgery - recuperation is 6-8 weeks minimum." The diagnosis was coronary artery disease status-post bypass surgery. The Veteran's VA outpatient treatment records show that, in September 2002, 2 days prior to his bypass surgery, the Veteran reported that he was in good condition and was able to climb 10 flights of stairs before needing to stop because of shortness of breath. In a January 2004 statement, the Veteran contended that he was entitled to SMC based on housebound status "for more than two months following triple bypass surgery." In a February 2004 statement, the Veteran contended that he was entitled to SMC because he was unable "to do most simple daily chores for more than two months" while convalescing after bypass surgery. He contended that he had been advised by the VA physician who filled out the September 2002 VA Form 21-2680 that he should not bathe himself, attend to personal grooming, lift anything, or drive anywhere for 2 months. The Board observes that the Veteran's statements concerning his post-surgical recovery period following bypass surgery directly contradict the information provided by the VA physician in the September 2002 VA Form 21-2680. As noted, this VA physician specifically concluded in September 2002 that, during his post-surgical recovery period following bypass surgery, the Veteran could feed himself, keep himself clean and presentable, walk around, dress and undress, attend to the wants of nature, bathe himself, button his clothing, and shave himself. Thus, the Board finds that the Veteran's statements less than credible concerning his limitations during his post-surgical convalescence following bypass surgery in 2002. Attached to the Veteran's January and February 2004 statements were multiple medical articles he had obtained from the Internet. A medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Sacks v. West, 11 Vet. App. 314 (1998). The medical articles submitted by the Veteran in this case were not accompanied by the opinion of any medical expert linking his service- connected disabilities to the need for aid & attendance of another person. Thus, the medical articles submitted by the Veteran are insufficient to establish his entitlement to SMC. See Sacks, 11 Vet. App. at 317 (citing Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996)); see also Libertine v. Brown, 9 Vet. App. 521, 523 (1996). On VA examination in September 2009, the Veteran denied any complaints of chest pain, shortness of breath, dyspnea, orthopnea, paroxysmal nocturnal dyspnea, dizziness, syncope, headaches, or ankle edema. The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records. The Veteran denied any changes in his heart disease symptoms since March 2007. He reported that he had retired in 2003 after working previously as a restaurant owner. He also reported that he walked 2 miles daily going uphill and downhill in about 1 hour without problems. It was noted that the Veteran was not limited in his activities of daily living or his ability to work in a restaurant by his service-connected heart disease and it did not cause any functional impairment. Finally, there is no evidence that the Veteran is unable to attend to the wants of nature or that he experiences physical or mental incapacity which requires care or assistance on a regular basis to protect him from the hazards or dangers incident to his daily environment. See 38 C.F.R. § 3.352(a). Because none of the criteria enumerated in 38 C.F.R. § 3.352(a) are met, and because there is no medical evidence that the Veteran is bedridden, the Board finds that the criteria for special monthly compensation based on the need for aid & attendance are not met. The Veteran also is not entitled to special monthly compensation based on housebound status. The Board acknowledges that service connection is in effect for major depression associated with impaired sexual functioning and fertility, evaluated as 70 percent disabling effective June 25, 2007, coronary arteriosclerosis status-post coronary artery bypass graft (CABG) secondary to stress, evaluated as 10 percent disabling effective December 22, 2002, residual left arm scar, evaluated as zero percent disabling effective February 9, 1998, inguinal hernia, evaluated as zero percent disabling effective March 7, 2000, impaired sexual functioning and fertility, evaluated as zero percent disabling effective March 7, 2000, and for a hydrocele, evaluated as zero percent disabling effective March 7, 2000. The Veteran's combined disability rating for compensation is 70 percent effective June 25, 2007. The Veteran also is in receipt of a total disability rating based on individual unemployability (TDIU) effective June 25, 2007. He is entitled to special monthly compensation under 38 U.S.C.A. § 1114(k) on account of loss of use of a creative organ effective March 7, 2000. It may be reasonably certain that the Veteran's disabilities will continue throughout his lifetime. The Veteran does not have a single service-connected disability rated as 100 percent. He is in receipt of a TDIU, but only effective June 25, 2007, and the TDIU is based in part on the service- connected psychiatric disorder, which is the only disorder ratable at 60 percent or more. Therefore he does not have 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. Nor does the evidence show that he is permanently housebound. For these reasons, and because there is no objective evidence that the Veteran is confined to his home by reason of his service-connected disabilities, the Board finds that the criteria for special monthly compensation based on housebound status also are not met. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to special monthly compensation based on the need for aid & attendance or housebound status is denied. ____________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs