Citation Nr: 1033294 Decision Date: 09/03/10 Archive Date: 09/13/10 DOCKET NO. 08-09 717 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to special monthly compensation on the basis of the need for the regular aid and attendance of another person, or at the housebound rate. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Thomas H. O'Shay, Counsel INTRODUCTION The Veteran had active service from July 1953 to June 1955, and from April 1956 to June 1984. His many awards and decorations include the Silver Star medal and the Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran contends that his service-connected disorders render him so helpless as to be in need of the regular aid and attendance of another person, or otherwise entitle him to benefits at the housebound rate. Factors considered to determine whether regular aid and attendance is needed include: inability to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need to adjust special prosthetic or orthopedic appliances which by reason of the particular disability requires aid (this does not include adjustment of appliances that persons without any such disability would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect a claimant from the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a) (2009). The report of a September 2007 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance completed by M. Bassani, M.D. notes that the Veteran presented unaccompanied to the examination. He was able to ambulate with the aid of a cane, and also had a front-wheeled walker and leg braces. He was able to walk 50 yards without the assistance of another person. Dr. Bassani noted that the Veteran had an unlimited capacity for leaving the house, and concluded that the Veteran does not require daily skilled services. In an unsigned statement received in November 2007, a VA nurse indicated that the Veteran requires assistance with certain activities. In a January 2008 statement, she indicated that the Veteran had been evaluated in October and November 2007, and found to require assistance with his activities of daily living and independent activities of daily living. She noted that he was recently hospitalized for a right leg fracture, and now required aid and attendance. In a February 2008 statement, the nurse noted that the Veteran's disorders had increased in severity to the point where he now required assistance with all activities of daily living, and was not able to leave his home without assistance. In connection with the instant claim, the Veteran attended a VA examination in October 2008. He was accompanied by his spouse. The Veteran was noted to use an electric cart and a cane for mobilization. The examiner determined that he was not permanently bedridden. The examiner indicated that the veteran was capable of managing his benefit payments, and had the capacity to protect himself from the hazards and dangers of daily environment, although with some difficulty. The Veteran reported that at home, he used a chair with rollers to sit on and "scoot" through the house, using his cane for assistance. He also used an electric wheelchair, but was dependent on his spouse to answer the door, shop, do yard maintenance, cook, and clean. He explained that he usually stayed home, leaving the house only for doctor appointments. Physical examination showed truncal obesity with atrophy of the upper and lower extremities. The Veteran was in good nutrition. He walked with a wide-stanced gait using a cane. The Veteran was able to walk at least 10 feet without assistance, and otherwise used an electric scooter. The examiner noted that the limitation of motion in the lower extremities restricted activity, and concluded, without explanation, that the Veteran was eligible for aid and attendance and housebound status as he "is unable to care for himself in this current environment." The September 2007 statement by Dr. Bassani and the statements by the VA nurse suggest that the Veteran's physical state underwent a clear deterioration following the November 2007 right leg fracture. It is unclear whether the deterioration was permanent, however, given that the nurse's last statement was offered in February 2008. The findings on VA examination appear to suggest that the Veteran did regain a measure of mobility. Although the October 2008 examiner concluded that the Veteran was in need of the aid and attendance of another person, his opinion is notably at odds with his own findings on examination. In this regard he specifically indicated that the Veteran was mobile to an extent, but nevertheless had to rely on his spouse for chores. He specifically noted that the Veteran was capable of protecting himself from the hazards and dangers of daily environment, but nevertheless concluded that he required aid and attendance. In light of the inconsistencies in the October 2008 examination report, the Board finds that further VA examination of the Veteran is required. This is particularly true given that the last VA treatment records on file are dated in December 2007, and show that he was still recovering from his leg fracture at that time. Turning to the claim for special monthly compensation at the housebound rate, to establish entitlement under 38 U.S.C.A.§ 1114(s), the evidence must show that a veteran has a single service-connected disability evaluated as 100 percent disabling and an additional service-connected disability, or disabilities, evaluated as 60 percent or more disabling that is separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or, the veteran has a single service-connected disability evaluated as 100 percent disabling and due solely to service-connected disability or disabilities, the veteran is permanently and substantially confined to his or her immediate premises. 38 C.F.R. § 3.350(i) (2009). The record shows that service connection is currently in effect for several disabilities, one of which is rated as 70 percent disabling, and the remainder rated as 40 percent or less disabling. The combined disability rating for the service- connected disorders is 100 percent. The Board notes that, prior to September 2007, the combined rating for the Veteran's service- connected disorders was less than 100 percent, and he was instead assigned a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) effective from May 1995. In September 2007, the RO granted service connection for posttraumatic stress disorder, assigning a 70 percent rating therefor, resulting in a combined schedular disability rating of 100 percent, effective August 30, 2006. In the same rating action, the RO discontinued the award of TDIU, effective the same date. In VAOPGCPREC 6-99, VA's General Counsel determined that, because both a 100 percent disability schedular rating and a total disability rating awarded pursuant to 38 C.F.R. § 4.16(a) reflect unemployability, a determination that that individual is unemployable as a result of service-connected disability under 38 C.F.R. § 4.16(a) is unnecessary to adequately compensate the individual and is superfluous. In Bradley v. Peake, 22 Vet. App. 280 (2008), however, the Court concluded that a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation. As it applies to this case, if the Veteran is entitled to an award of a TDIU, depending on the disability(ies) on which it is predicated, that award may suffice as the single service-connected disability evaluated as 100 percent disabling required for special monthly compensation at the housebound rate. Given that the RO previously awarded the Veteran a TDIU based on disabilities other than PTSD, the Board finds that the RO should consider in the first instance whether a TDIU should be granted, or perhaps reinstated. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested.) 1. After accomplishing any necessary procedural and evidentiary development, adjudicate the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. 2. Contact the Veteran and request that he identify specific names, addresses, and approximate dates of treatment for all health care providers, private and VA, who may possess additional records pertinent to his claim for special monthly compensation for the period since December 2007. When the requested information and any necessary authorizations have been received, the RO should attempt to obtain copies of all pertinent records which have not already been obtained. 3. Then, schedule the Veteran for a VA examination, preferably by an examiner who has not previously examined the Veteran, to specifically address whether his service- connected disorders result in the need for the regular aid and attendance of another person. All necessary tests and studies should be accomplished. The claims folders should be made available to the examiner for review. The examiner should also offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's service- connected disabilities preclude his ability to dress or undress himself; to keep himself ordinarily clean and presentable; to feed himself; to frequently adjust any special prosthetic or orthopedic appliances; to attend to the wants of nature, or whether the service-connected disabilities otherwise result in the need for assistance on a regular basis to protect the Veteran from hazards or dangers incident to his daily environment. The examiner should also indicate whether the service-connected disorders render the Veteran permanently and substantially confined to his immediate premises. The rationale for any opinion offered should be fully explained. 4. The RO should then prepare a new rating decision and readjudicate the issue of entitlement to special monthly compensation based on the need for the regular aid and attendance of another person, or at the housebound rate. If the benefits sought on appeal are not granted in full the RO must issue a supplemental statement of the case, and provide the appellant and his representative an opportunity to respond. After the Veteran and his representative have been given an opportunity to respond to the supplemental statement of the case and the period for submission of additional information or evidence set forth in 38 U.S.C.A. § 5103(b) (West 2002) has expired, if applicable, the case should be returned to the Board for further appellate consideration, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified by the RO. The Veteran and his representative have the right to submit additional evidence and argument on the matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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) (2009).