Citation Nr: 1034674 Decision Date: 09/15/10 Archive Date: 09/21/10 DOCKET NO. 07-31 425 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to special monthly compensation based on the need for regular aid and attendance or at the housebound rate. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and husband ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran had active military service from April 1978 to April 1998. The appeal comes before the Board of Veterans' Appeals (Board) from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which denied entitlement to special monthly compensation based on the need for aid and attendance of another and/or by reason of being housebound. The Veteran and her husband testified before the undersigned Veterans Law Judge (VLJ) in a hearing in July 2010. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. 2. The Veteran's service-connected disabilities of urinary stress incontinence, migraines headaches, degenerative disc disease of the lumbar spine, hysterectomy, fecal incontinence, rotator cuff tendonitis of the right shoulder, right knee osteoarthritis, tinnitus, hiatal hernia, scars, radiculapathy of the lower extremities, osteo arthritis of the cervical spine, parafoveal drusen, and bilateral hearing loss alone do not render her so helpless as to be in need of the regular aid and attendance of another person. The service-connected disabilities alone have not caused the Veteran to be bedridden or rendered the Veteran unable to independently perform daily functions of self- care or to protect herself from the hazards and dangers incident to her daily environment. 3. The Veteran is not blind or nearly so blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less. 4. The Veteran is not presently institutionalized in a nursing home due to physical or mental incapacity. 5. The Veteran is not substantially confined to her dwelling and its immediate premises as a result of her service-connected disabilities. CONCLUSION OF LAW The criteria for an award of special monthly compensation by reason of being in need of regular aid and attendance or based on housebound status have not been met. 38 U.S.C.A. §§ 1114(l),(s), 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.350(b), 3.351, 3.352(a) (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The provisions of the Veterans Claim Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claim (the Court) have been fulfilled. In this case, the Veteran's claim for special monthly compensation based on the need for aid and attendance of another and/or by reason of being housebound was received in September 2006. Thereafter, she was notified of the provisions of the VCAA by the RO in correspondence dated in August 2006 and January 2009. These letters notified the appellant of VA's responsibilities in obtaining information to assist the Veteran in completing her claim, identified the Veteran's duties in obtaining information and evidence to substantiate her claim, and provided other pertinent information regarding VCAA. Thereafter, the claim was reviewed and a statement of the case was issued in August 2007, and a supplemental statement of the case was issued in November 2009. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006); Kent v. Nicholson, 20 Vet. App. 1 (2006), Mayfield v. Nicholson (Mayfield III), 499 F.3d 1317 (Fed. Cir. 2007). The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008, removing the sentence in subsection (b)(1) stating that VA will request the claimant provide any evidence in the claimant's possession that pertains to the claim. Subsection (b)(3) was also added and notes that no duty to provide § 5103(a) notice arises "[u]pon receipt of a Notice of Disagreement" or when "as a matter of law, entitlement to the benefit claimed cannot be established." See 73 Fed. Reg. 23,353-23,356 (Apr. 30, 2008). During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (hereinafter "the Court") in Dingess v. Nicholson, 19 Vet. App. 473 (2006), found that the VCAA notice requirements applied to all elements of a claim. An additional notice as to this matter was provided in August 2006. The Veteran has been made aware of the information and evidence necessary to substantiate her claim and has been provided opportunities to submit such evidence. A review of the claims file also shows that VA has conducted reasonable efforts to assist her in obtaining evidence necessary to substantiate her claim during the course of this appeal. Her service treatment records, private treatment records, and all relevant VA treatment records pertaining to her claim have been obtained and associated with her claims file. She has also been provided with a fee basis VA examination in November 2008 and a VA medical examination in October 2009 to assess her need for aid and attendance. The Board notes that although the Veteran indicated there were outstanding VA treatment records pertaining to her service-connected disabilities, there is no indication that the records would support her claim for aid and attendance. Furthermore, the Veteran has not identified any additional, relevant evidence that has not otherwise been requested or obtained. She has been notified of the evidence and information necessary to substantiate her claim, and she has been notified of VA's efforts to assist her. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). As a result of the development that has been undertaken, there is no reasonable possibility that further assistance will aid in substantiating her claim. Laws and Regulations Special monthly compensation based on the need for aid and attendance of another is payable when the veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to be in need of regular aid and attendance. See 38 U.S.C.A. § 1114(l) (West 2002); 38 C.F.R. § 3.350(b) (2009). Pursuant to 38 C.F.R. § 3.350(b)(3) and (4) (2009), the criteria for determining that a veteran is so helpless as to be in need of regular aid and attendance, including a determination that she is permanently bedridden, are contained in 38 C.F.R. § 3.352(a) (2009). That regulation provides that the following will be accorded consideration in determining the need for regular aid and attendance: inability of a claimant to dress or undress herself, or to keep herself 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 to feed herself 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 her from hazards or dangers incident to her daily environment. "Bedridden", defined as that condition, which, through its essential character, actually requires that a claimant remain in bed, is a proper basis for this determination. The fact that a 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. It is not required that all of the above disabling conditions be found to exist before a favorable rating may be made. The particular personal functions that a veteran is unable to perform should be considered in connection with her condition as a whole. It is only necessary that the evidence establish that a veteran is so helpless as to need regular aid and attendance, not that there is 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 her condition is such as would require her to be in bed. They must be based on the actual requirement of personal assistance from others. See 38 C.F.R. § 3.352(a) (2009). In addition, special monthly compensation at the housebound rate is payable when a veteran has a single service-connected disability rated 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. See 38 U.S.C.A. § 1114(s) (West 2002). The requirement of 38 U.S.C.A. § 1114(s)(2) is met when a veteran is substantially confined as a direct result of service- connected disabilities to her dwelling and the immediate premises or, if institutionalized, to the ward or clinical area, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout her lifetime. See 38 C.F.R. § 3.350(3)(i)(2) (2009). Finally, it is important to note that only the veteran's service- connected disabilities may be considered in support of her claim for special monthly compensation. Any effects of the veteran's multiple nonservice-connected disabilities will not be considered. Factual Background and Analysis After considering the evidence of record in light of the pertinent legal authority, the Board finds that the criteria for entitlement to special monthly compensation based on the need for aid and attendance of another and/or by reason of being housebound are not met. In this case, the Veteran has the following service-connected disabilities: urinary stress incontinence (60 percent disabling), migraines headaches (50 percent disabling), degenerative disc disease of the lumbar spine (40 percent disabling), hysterectomy (30 percent disabling), fecal incontinence (30 percent disabling), rotator cuff tendonitis of the right shoulder (20 percent disabling), right knee osteoarthritis (10 percent disabling), tinnitus (10 percent disabling), hiatal hernia (10 percent disabling), left upper arm scar (10 percent disabling), radiculapathy of the left lower extremity(10 percent disabling), radiculapathy of the right lower extremity (10 percent disabling), osteoarthritis of the cervical spine (10 percent disabling), parafoveal drusen (0 percent disabling), and bilateral hearing loss (0 percent disabling). Furthermore, the Veteran was granted a total disability rating based on individual unemployability (TDIU) from January 6, 2005 to September 16, 2008. During an April 2006 VA examination, the Veteran indicated that she had flare-ups which result in functional loss and her husband will have to help her perform most activities of daily living (ADL). The physician observed that when the flare-ups resulted in "bad" pain on the scale of 10/10 (with 10 being the worst pain), the Veteran required minimal to moderate assistance in activities of daily living. She stated that she did not do many recreational activities, but attended Bible study and she limited her driving secondary to the dizziness and lack of range of motion. In a May 2006 VA social work note, the Veteran reported that she requires assistance of her husband in order to get through her daily routine, and that she ambulates with a cane. She indicated that she required assistance with bathing, dressing, meal preparation, and some housework. In a May 2006 letter, the Veteran indicated that she needs assistance in performing most daily tasks just to make it through each day. She stated she needs her husband to help get in and out of bed, to and from the bathroom, dressing and undressing, as well as help taking a bath and attending to personal hygiene almost daily. She reported her husband has taken over the entire housekeeping, preparation of meals, shopping, and laundry and he also drives her to and from her medical appointments. She stated that although her medical equipment has been a big help, it has not eliminated the need of assistance of another person. A May 2006 statement from the Veteran's spouse confirmed the Veteran's statements regarding her physical disabilities. Associated with her June 2006 claim, was a June 2006 statement from the Veteran's physician that indicated that she used a cane and walker around the home, she needed assistance for toileting and baths, she could feed herself, she was not confined to bed, but could go from bed to a chair, she was able to travel, but not without assistance as she could not navigate stairs, and she did not require nursing home care. The physician further stated that the Veteran needed assistance with dressing and undressing, she did not shop for food, she was able to answer the phone, and she was alert and oriented. Curiously, the physician also noted that the Veteran was blind (she is not blind). A September 2006 VA orthopedic surgery note indicates the Veteran ambulates with a cane and that she was given a subacromial injection with significant improvement of pain which, coupled with occupational therapy for strengthening and range of motion, has lead to almost near-resolution of her symptoms. The examiner reported she has had much improvement with her activities including overhead activities and resolution of pain. A subsequent September 2006 VA progress note reported that the Veteran had returning low back pain after an injection which lasted a few months. In a March 2007 statement, C.N.B, M.D., a neuro-radiologist, indicated that he had reviewed the Veteran's medical records. He concluded that the Veteran was unable to work due to her multiple medical problems; however, despite quoting the Veteran and her husband's statements regarding her inability to perform daily chores, Dr. B. did not provide comment on how her disabilities affected her ability to care for herself and perform activities of daily living. In an undated VA examination for housebound status or permanent need for regular aid and attendance report, the physician's assistant indicated that the Veteran had migraines, chronic low back pain, and cervical spine degenerative disc disease with weakness. The Veteran ambulated with a cane, and she was able to attend to some ADLs such as eating (but not cooking), toileting ( but with assistance on and off commode), and buttoning some clothing. She needed assistance with clothes washing, and she could not cook, clean, or shop. She used a computer to write. The examiner noted that she needed assistance ambulating at home with a walker, and away from home with a cane. The examiner reported no restriction with flexibility of spine at waist, and some decreased motion in the cervical and lumbar spine without limiting transfers and ambulation. The examiner determined that the Veteran required the daily personal health care services of a skilled provider without which she would require hospital, nursing home, or other institutional care. During a November 2008 fee basis VA examination, the Veteran reported constant pain in her right shoulder, and that she can function with medication at the time of pain. She reported she is unable to bathe, brush teeth, or write with her right hand due to the pain in her shoulder, and that she also loses sleep due to pain. She complained of constant right knee pain, and reported the use of a walker for support while walking and getting up from a sitting position. She indicated she has a difficult time getting around due to pain in the right knee. She complained of constant low back pain. The Veteran reported she cannot work and has no friends because she cannot be active and healthy like them. She indicated she cannot sit or stand for prolonged periods of time, and that it is difficult to do daily activities due to pain. Following the examination, which included range of motion studies of the knees, thoracolumbar spine and shoulders, the physician concluded that the Veteran's disabilities caused no limitations on her daily activities. In an October 2009 VA examination, the examiner noted that the Veteran ambulated using a cane and a walker because she had difficulty balancing, which affected her ability to walk. She reported her typical daily routine included staying in bed as she was unable to care for herself. The examiner reported that her best corrected vision was better than 5/200 in each eye. She had no evidence of hand tremor, she was right-hand dominant, her posture was normal with normal gait, and she had no difficulty with weight bearing, balancing or with ambulation. The examiner noted her condition did not cause generalized muscle weakness or muscle wasting. The examiner noted that ,with reference to strength and coordination, she was able to self-feed, fasten clothing, shave, use a toilet, bathe, and dress. The examiner noted she had no fundamental restrictions to the lower extremities. The examiner further noted she did not require any aid for ambulation, she was able to leave home or the immediate premises under any circumstances, she had no permanent restrictions, she was mentally capable of managing benefit payments, she had a normal mental examination, she had no limitations on occupation, and no limitations on daily activity. In her July 2010 Board hearing, the Veteran testified she used a walker at home and a cane when she left her house. She reported she could not dress herself because she could raise her arm. She reported she needed help getting in and out of the shower, because of the weakness in her legs. She reported she could use the restroom on her own, but cannot get to the restroom without assistance because she had a hard time getting her walker through the doorway. She indicated that she could negotiate or ambulate stairs with a cane, but that she has fallen. She reported dizziness and weakness, and that she could not go out of her home without assistance due to the weakness in her legs and back, and because she fell so much. She also reported she was able to feed herself, she attended church a few times a year, and she bought her clothes online. She testified that she could drive, but that she did not. The Veteran's husband testified that he was restricted in leaving the home for extended periods of time because of her conditions, but that he grocery shopped, ran errands, and volunteered away from the home. He reported he was away from the house four to five hours a week. The appellant testified that in December 2009, she drove herself to visited her husband, who was hospitalized. She admitted that she could have paid the bills, but waited until he came home to let him complete that task. While her husband was in the hospital, she relied on anyone who stopped by. Analysis The Board finds that entitlement to additional special monthly compensation based on the need for aid and attendance is not warranted. The Board acknowledges that there are contradictory medical opinions in the Veteran's record, but when weighing the medical opinions finds the October 2009 opinion to be the most probative. The physician provided a full examination report and specifically recorded the Veteran's limitations and abilities. These limitations are consistent with the evidence showing the Veteran's activities and medical complaints. The opinion specifically noted that the Veteran was able to ambulate with a cane and that, although the Veteran complained of being unable dress herself and bathe, objective evidence found with reference to strength and coordination, she was able to self-feed, fasten clothing, shave, use a toilet, bathe, and dress. Regarding the Veteran's undated VA examination, the findings on examination and the conclusion appear to be contradictory to each other and to the non-medical evidence presented by the Veteran. She is not hospitalized or permanently bedridden, and her vision is not worse than 5/200 in either eye. The physician's assistant indicated that she was able to eat without assistance, toilet with assistance on/off commode, and button some clothing. The only difficulty the examiner noted was that the Veteran could not cook, clean or shop. The Veteran had no atrophy of the lower extremities with smooth gait and cane for balance. The examiner noted a decrease range of motion at the cervical and lumbar spine, but noted it would not severely limit transfers or ambulation. Again, a contradiction exists between the Veteran's ability to walk, use a cane, feed herself, and toilet herself and the examiner's opinion that the Veteran required daily personal health care services of a skilled provider. Therefore, the Board finds the undated physician's assistant's opinion to be less probative than the October 2009 physician's opinion. Regarding the undated opinion, it failed to include an examination report or any significant rationale. The examiner noted the Veteran's current diagnoses and complaints and then provide his opinion without providing any substantive basis for the conclusions he reached. In addition, the examiner noted that the Veteran required skilled care without which she would be institutionalized in some form. The external evidence does not indicate that the Veteran required skilled care at any point. As such, the Board finds this opinion to be less probative than the October 2009 opinion. The Board also considered the testimonial and non-medical evidence in making the decision. The evidence shows that the Veteran is capable of driving, though she chooses not to. It also shows that the Veteran independently drove to visit her husband when he was hospitalized. The Veteran feeds and toilets herself with no assistance and requires only minimal occasional assistance in maneuvering her walker into the bathroom or getting herself in and out of the bathtub. Specifically, the Veteran has the ability to dress or undress herself albeit with difficulty. She is also able to keep herself ordinarily clean and presentable again with only occasional assistance required for moving into and out of the bathtub. She has no need of adjustment of any special prosthetic or orthopedic appliances. She is capable of feeding herself and attending to the wants of nature. The Veteran has shown no incapacity, physical or mental, that requires assistance on a regular basis to protect the claimant from hazards or dangers incident to her daily environment. This Veterans' Law Judge was able to observe the Veteran during the July 2010 Central Office hearing. She was able to gesture with her upper extremities without any obvious limitations or signs of incoordination, and at the conclusion of the hearing, she rose from the table by herself, and stood erectly, without the assistance of her husband. At no time in any of her movements did she grimace from pain or otherwise indicate extreme weakness. By her very appearance at the hearing, a two-hour drive from her home (according to mapquest.com), it is obvious that she is not permanently bedridden. "Bedridden", defined as that condition, actually requires that a claimant remain in bed. Despite the fact that the Veteran indicated that she spends much of her time in bed, there are no doctor's orders of record confining her to bed on a permanent basis. Consequently, the criteria for special monthly compensation based on the need for the regular aid and attendance of another person are not met. See 38 U.S.C.A. § 1114(l); 38 C.F.R. §§ 3.350(b), 3.352(a). Furthermore, the Veteran does not have a single service-connected disability rated at 100 percent, and the competent evidence does not otherwise demonstrate that the Veteran is permanently housebound as a result of her service-connected disabilities. Consequently, the criteria for special monthly compensation based on housebound status, likewise, are not met. See 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(3)(i)(2). Under these circumstances, the Board finds that the claim for special monthly compensation based on the need for aid and attendance of another and/or by reason of being housebound must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as no competent evidence supports the claim, the benefit-of-the- doubt doctrine is not applicable. See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to an award of special monthly compensation based on the need for regular aid and attendance or at the housebound rate is denied. ____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs