Citation Nr: 1127787 Decision Date: 07/26/11 Archive Date: 08/02/11 DOCKET NO. 07-37 949 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee THE ISSUE Entitlement to special monthly compensation based on the need for aid and attendance for the Veteran's spouse. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.B. Freeman, Counsel INTRODUCTION The Veteran served on active duty from December 1972 to June 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the RO in Nashville, Tennessee, which denied special monthly compensation for the Veteran's spouse due to the need for aid and attendance. While the instant case pertains to the Veteran's spouse, the Veteran filed and pursued the instant claim to adjust his own VA disability compensation benefits; thus he is listed as the appellant in this case. See Redding v. West, 13 Vet.App. 512, 514-15 (2000). FINDINGS OF FACT 1. The Veteran's spouse is not blind, does not have visual acuity of 5/200 or less or contraction of the visual field to 5 degrees or less. 2. The Veteran's spouse is not a patient in a nursing home. 3. The Veteran's spouse does not require aid and attendance due to an inability of the appellant to dress or undress herself, or to keep herself ordinarily clean and presentable, for the frequent adjustment of any special prosthetic or orthopedic appliances, an inability to feed herself through loss of coordination of upper extremities or through extreme weakness, an inability to attend to the wants of nature, or an incapacity that requires assistance on a regular basis to protect her from the hazards or dangers incident to her daily environment. CONCLUSION OF LAW The criteria for special monthly pension for a surviving spouse based on regular aid and attendance have not been met. 38 U.S.C.A. § 1541 (West 2002); 38 C.F.R. §§ 3.351, 3.352 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claim for special monthly compensation for aid and attendance for his spouse. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2010). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2010). The United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). Prior to initial adjudication of the Veteran's claim, a September 2006 letter fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187. The Board also concludes VA's duty to assist has been satisfied. The Veteran has provided some records pertaining to treatment for his spouse. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See, e.g., Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2010). The RO did not provide a VA examination in this case. Instead, the RO rated the case based on the medical evidence received in support. As will be discussed below, the medical evidence shows that the Veteran's spouse has a level of functioning that does not require the regular aid and attendance of another person. As the medical evidence was current at the time of the Veteran's claim and provides the necessary information to resolve this claim, the Board concludes that a VA examination is not necessary in this case. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). II. Special Monthly Compensation Based on the Need for Regular Aid and Attendance The Veteran claims that his spouse requires regular aid and attendance from their daughter. For the reasons that follow, the Board finds that the Veteran's spouse is not so helpless as to require regular aid and attendance. Entitlement to special monthly compensation for the Veteran's spouse is not warranted. SMC is also warranted when a veteran or a spouse is so helpless as to be in need of regular aid and attendance. 38 U.S.C.A. § 1114(l) (West 2002 & Supp. 2011); 38 C.F.R. § 3.350(b) (2010). The need for aid and attendance means helplessness or being so nearly helpless as to require the regular aid and attendance of another person. 38 C.F.R. § 3.351(b)(2010). The criteria for establishing the need for aid and attendance include consideration of whether the appellant is blind or is 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 5 degrees or less; is a patient in a nursing home because of mental or physical incapacity; or, establishes a factual need for aid and attendance. 38 C.F.R. § 3.351(c). The Board observes that the Veteran's spouse is not 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 5 degrees or less. The medical evidence does not reference any visual impairment. An August 2006 neurological evaluation noted her pupils react to light. The Veteran submitted a list of disorders and problems from which his spouse suffers in February 2007. Visual impairment was not among those problems. She is also not a patient in a nursing home because of mental or physical incapacity. The Veteran's statements indicate that she lives in their house. The remaining basis of entitlement is whether the Veteran's spouse has a factual need for aid and attendance. In determining whether there is a factual need for regular aid and attendance, the following will be accorded consideration: the inability of the appellant to dress or undress herself, or to keep herself ordinarily clean and presentable; whether she requires frequent 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 that requires assistance on a regular basis to protect her from the hazards or dangers incident to her daily environment. 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. The particular personal function which the appellant is unable to perform should be considered in connection with her condition as a whole. It is only necessary that the evidence establish that the appellant is so helpless as to need regular aid and attendance, not that there be constant need. 38 C.F.R. § 3.352(a). It may be logically inferred from the governing regulatory criteria that eligibility to receive additional VA disability benefits requires at least one of the enumerated factors be present. See Turco v. Brown, 9 Vet. App. 222, 224 (1996). The Veteran submitted an October 2006 statement on behalf of his wife. The Veteran's spouse listed her problems as torn rotator cuffs in her shoulders, pain all over, a brain tumor, arthritis, pain in all joint and low back, blockages in both legs due to blood clots, and severe headaches. The Veteran's spouse reported being on pain medication and blood thinners. She reported that she was unable to do housework, needing help from her daughter and that she could not get around most of the time. The Veteran also described his spouse's condition in his January 2007 Notice of Disagreement. He indicated that she was very ill and had gotten progressively worse. She had significant memory loss, could not stand without falling and walked into walls. He reported that their daughter assisted her in everything, including all cooking, cleaning and helping her dress. The Veteran submitted a February 2007 election of Decision Review Officer appeals process. On it, he wrote that his spouse had three "masatory" surgeries, a brain tumor, blood clots and blockages in both legs, torn rotator cuffs in both shoulders, memory loss, deafness in the right ear and is in severe pain in most parts of the body with headaches. He indicated that she has to be assisted in their home by their daughter. A December 2006 letter from the Veteran's spouse's physician was received. The doctor indicated that the spouse was followed for peripheral vascular disease with chronic leg pain. She also had a history of a brain lesion followed by neurosurgery. The spouse had musculoskeletal back pain which limited her activities. Finally, the doctor noted that the spouse had difficulty concentrating and focusing due to memory loss. The spouse's treatment records from the physician were associated with the claims file. The spouse established care with that physician in April 2005. At that time, the spouse complained of a left rotator cuff tear, pain in her arms and legs and left side facial swelling. She reported cramping in both legs with walking. The Veteran's spouse was noted to have claudication. She was provided with a vascular examination, including an arterial Doppler study and exercise testing, and a CT scan of her face. The Veteran's spouse was noted to have highly significant peripheral vascular disease in the left lower extremity. The exercise test indicated that an exercise regimen is appropriate for her and does improve flow in the left leg. Consultation with a vascular surgeon and likely arteriogram would be indicated for intervention in particular in the left leg. The Veteran's spouse also needed to quit smoking. The CT scan revealed subcutaneous soft tissue swelling without underlying bony or periodontal abnormality. The CT of the face and orbits was otherwise unremarkable. The Veteran's spouse did not want to see a vascular surgeon. No changes were noted in June, July, August, September and October 2005. The Veteran's spouse complained of esophagus pain in November 2005. The notes from early 2006 show refills of pain medications, with continued notations of peripheral vascular disease. The Veteran's spouse was in a July 2006 motor vehicle accident in which she was rear ended. The record is not clear whether she was driving at that time. She complained of being sore all over. A CT scan of the head revealed a brain lesion. She was referred to neurosurgery. The Veteran's spouse was initially evaluated by a neurosurgeon on August 15, 2006. At that time, she was reported to have persistent headache and dizziness, without nausea and vomiting. A CT scan demonstrated a cystic structure on the right posterior fossa that appear to be extraaxial and the mastoid air cells opacified. There was no evidence of hemorrhage, no significant mass effect. The Veteran's spouse was noted to have had a small tumor removed from the left side of her face in 2001. She was also noted to have a history of rotator cuff and mastoid surgery and history of blood clots in her legs. On physical examination, the Veteran's spouse was normal cephalic, atraumatic, pupils equal, round and react to light. The extraocular muscles were intact. The oropharynx was without lesions. She had a well healed surgical scar just behind her right ear which was nontender. There was no evidence of pseudomeningocele and no palpable mass. The Veteran's spouse had no meningismus, goof flexion-extension of her neck and had full strength in her upper and lower extremities. The deep tendon reflexes were diminished with downgoing toes. There was no clonus. An August 2006 MRI of the brain was performed. The MRI was compared to a March 2001 MRI. According to the neurosurgeon, the MRI showed the same likely postoperative changes on the right cerebellar pentene angle with some calcification around the petrus ridge, small cystic area with some mild malacia around the lateral portion of the cerebellum. It did not appear to be changed in size, being around 3 cm. in diameter. The accident did not cause the abnormality. The change was found to be secondary to previous mastoid surgery that she had as a child. Based on her symptomatology, the neurosurgeon found concussive with post concussive syndrome likely to improve over ensuing weeks. The Board finds that the record does not support a finding of a need for regular aid and attendance. While undoubtedly a serious concern, the presence of the brain lesion does not render the Veteran's spouse in need of aid and attendance. The lesion is stable and longstanding according to the medical evidence. There is no indication that the lesion is having a significant impact on her level of functioning. There is no indication that the Veteran's spouse has prostheses or orthopedic appliances of any type. There is no indication of an inability to feed herself through loss of coordination of upper extremities or through extreme weakness. Instead, the Veteran's spouse has been admonished to stop smoking, which implies the ability to lift objects to her mouth. The August 2006 neurological evaluation showed full strength in upper and lower extremities. The Veteran's Notice of Disagreement is the only evidence suggesting that she requires assistance in dressing. There is no mention that the Veteran's spouse cannot keep herself ordinarily clean and presentable. The range of motion and strength required to dress and undress is compatible with the full strength noted in the August 2006 neurological examination. Thus, the Veteran's description of the extent of his spouse's physical capacity is unreliable, and therefore not credible as she demonstrated full strength in her upper and lower extremities on examination in August 2006. The Board finds that the medical evidence regarding the Veteran's spouse's physical capacity is more probative than the Veteran's unsupported report of his spouse requiring assistance in dressing. There is no evidence to suggest an inability to attend to the wants of nature. The medical evidence does not indicate a difficulty in toileting. The Veteran's statements in support also do not indicate such an inability. The Veteran's Notice of Disagreement is the only evidence which suggests she requires assistance to protect her from the hazards or dangers incident to her daily environment, due to an inability to stand and walking into walls. There is no supporting evidence of such incapacity in the medical evidence of record. The Veteran's spouse was mobile on these occasions. Furthermore, she had significant retained function including full strength in the upper and lower extremities. There was no indication of falling or falling risk, despite reporting dizziness to the doctors. There was no indication that the Veteran's spouse had lost directional control while walking, such that she was in danger of hitting walls. Thus, the Veteran's contention in this regard is inconsistent with the medical evidence that describes his spouse's functioning, and is therefore not credible evidence of the need for protection from the hazards or dangers incident to the daily environment. The Veteran has argued that his spouse is unable to complete ordinary tasks around the house. Their daughter had taken over many such tasks. The Board notes that the need for their daughter to help complete housework tasks such as cleaning and cooking are not within the definition of regular aid and attendance. As such, this evidence is not relevant to the issue in this case. Finally, the Veteran has discussed that his spouse has memory loss that impedes her functioning. It is not clear from the record how severe such memory loss is or how that memory loss renders her so helpless as to require regular aid and attendance within the meaning of the regulation. Memory loss does not, in itself, render impossible the performance of any particular activity of daily living discussed above. The allegation is simply far too vague to find that the Veteran's spouse requires regular aid and attendance in light of the above evidence showing otherwise. The Board finds that none of the individual criteria for regular aid and attendance, including inability to perform any particular personal function, are present in this case. The criteria for special monthly compensation for a dependent spouse for regular aid and attendance are not met. See Turco. In many cases, if the criteria for the need for regular aid and attendance for the Veteran's spouse are not met, additional inquiry is conducted into whether the Veteran's spouse is permanently housebound by reason of disability. 38 U.S.C.A. § 1541; 38 C.F.R. § 3.351 (d), (f). This benefit is only available where a surviving spouse is in receipt of dependency and indemnity compensation or death pension benefits. The Veteran is alive and seeks modification of his own benefits. Thus, no additional benefit is available on the basis of a spouse who is permanently housebound. Id. No further inquiry is warranted. As such, the Board finds that the preponderance of the evidence is against the Veteran's claim. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to special monthly compensation based on the need for aid and attendance for the Veteran's spouse is denied. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs