Citation Nr: 1216442 Decision Date: 05/08/12 Archive Date: 05/16/12 DOCKET NO. 09-03 558A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to special monthly compensation (SMC ) based on the need for regular aid and attendance of another person or on account of being housebound. ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from May 1968 to December 1969. This case is before the Board of Veterans' Appeals (Board) on appeal from a rating decision in May 2008 by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in June 2008, a statement of the case was issued in January 2009, and a substantive appeal was timely received in January 2009. The Board notes that a rating decision in March 2005 determined that the Veteran was not competent to handle disbursement of funds. His spouse is his fiduciary. In January 2010, Veterans of Foreign Wars of the United States (VFW) requested that the Power of Attorney submitted by the Veteran's custodian in February 2009 appointing VFW as the representative be revoked because it was submitted after the Form 9 Appeal was filed in January 2009. VFW's Power of Attorney was revoked in February 2010. In February 2010 the Veteran cancelled his request for a Boarding hearing; however, in March 2010 the Veteran again requested a Board hearing and failed to report for the scheduled Board hearing in February 2012. In March 2012 the Veteran withdrew his request for a Board hearing. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDING OF FACT The Veteran's service-connected disabilities render him so helpless as to be in need of regular aid and attendance of another person. He requires assistance with dressing, bathing, and medication management and requires regular care or assistance against dangers in his daily environment. CONCLUSION OF LAW The criteria for SMC based upon the need for regular aid and attendance of another person have been met. 38 U.S.C.A. §§ 1114(l), 5107(b) (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.350, 3.352 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159. In light of the favorable disposition, that is, granting the claim for SMC based upon the need for regular aid and attendance of another person, further discussion here of compliance with the VCAA is not necessary. Analysis SMC at the aid and attendance rate is payable when a 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); 38 C.F.R. § 3.350(b). The term "loss of use" of a hand or foot is defined by 38 C.F.R. § 3.350(a)(2) as that condition where no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the elbow or knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether such acts as grasping and manipulation in the case of the hand, or balance and propulsion in the case of a foot, could be accomplished equally well by an amputation stump with prosthesis. Examples under 38 C.F.R. §§ 3.350(a)(2) which would constitute loss of use of a foot or hand include extremely unfavorable ankylosis of the knee, complete ankylosis of two major joints of an extremity, or shortening of the lower extremity of 3.5 inches or more. Also considered as loss of use of a foot under 38 C.F.R. § 3.350(a)(2) is complete paralysis of the external popliteal (common peroneal) nerve and consequent foot drop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve. 38 C.F.R. § 3.350(a)(2). A factual need for aid and attendance includes the inability to dress, undress, keep ordinarily clean and presentable, feed oneself, or attend to the wants of nature. It also includes the frequent need of adjustment of any special prosthetic or orthopedic appliances or either physical or mental incapacity that requires care or assistance on a regular basis to protect against the hazards or dangers incident to a claimant's daily environment. Also, an individual who is bedridden, as that term is defined by regulation, meets the criteria for aid and attendance. 38 C.F.R. § 3.352(a). The particular personal functions which a veteran is unable to perform should be considered in connection with the claimant's condition as a whole. The evidence need only establish that a veteran is so helpless as to need regular aid and attendance, not constant need. Determinations that a veteran is so helpless as to need regular aid and attendance will not be based solely upon an opinion that the veteran's condition requires the veteran to be in bed. They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352(a). A veteran must be unable to perform one of the enumerated disabling conditions, but a veteran's condition does not have to present all of the enumerated disabling conditions. Turco v. Brown, 9 Vet. App. 222, 224 (1996). "Bedridden" is defined as a condition that, through its essential character, actually requires that a 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. The performance of the necessary aid and attendance service by a relative of the beneficiary or other member of his or her household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352. In order for a veteran to prevail in his claim, the evidence must show that it is a service-connected disability that has resulted in the need for regular aid and attendance. Prejean v. West, 13 Vet. App. 444 (2000). SMC is also payable, under 38 U.S.C.A. 1114(s) , where a 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 a 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 C.F.R. § 3.350(i)(2) (2011). Housebound benefits granted on the basis of being substantially confined to the home, means inability to leave to earn a living. The law and regulation providing housebound benefits are intended to provide additional compensation for veterans who are unable to overcome their particular disabilities and leave the house in order to earn an income as opposed to an inability to leave the house at all. Hartness v. Nicholson, 20 Vet. App. 216 (2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran has been granted service connection for the following disabilities: posttraumatic stress disorder (PTSD) rated 50 percent disabling from February 21, 2003 and 100 percent from August 3, 2004; amebiasis rated noncompensable from December 31, 1969 and 10 percent from August 28, 1970; hypertension secondary to PTSD rated 10 percent from February 21, 2003; bronchitis rated noncompensable from December 31, 1969; residuals of fragment wound of the left knee rated noncompensable from December 31, 1969; gunshot wound scar of the head rated noncompensable from December 31, 1969; and gunshot wound scar of the abdomen and sternoclavicular notch rated noncompensable from December 31, 1969. The pertinent evidence during the appeal period consists of lay statements, VA progress notes, and VA examinations in April 2006, October 2007, February 2009, October 2009, and in March 2010. In multiple statements, the Veteran's spouse contended that the Veteran requires constant supervision due to his mental state as a result of his service-connected PTSD. She indicated she has to protect him from hurting himself, monitor his blood pressure, diet and medications as well as assist him with bathing, dressing, and using his CPAP machine at night for sleep apnea. In November 2007, the Veteran filed a claim for entitlement to aid and attendance benefits through his former representative, Disabled American Veterans. On VA examination in October 2007 for housebound status or permanent need for regular aid and attendance, the Veteran complained that his service-connected PTSD increased in severity. The examiner noted that the Veteran had a depressed effect, moved all extremities equally well, was able to dress and feed himself and his wife picked out his clothing. Lower extremities were normal. The examiner indicated that the Veteran had memory loss and some dizziness with change of position. He was able to watch television, sit on the porch, eat meals at home prepared by his wife, and only on occasion left his home with his wife to go for a ride. He avoided stores, crowds, and shopping. He was able to walk without the assistance of another person and used a cane for stability. The examiner noted that the Veteran was being treated for severe PTSD and concluded that the need of daily skilled services was not indicated but the Veteran needed care at home for safety reasons and his mental state. VA progress notes in October 2007 show the Veteran's wife had to quit her job because his PTSD increased in severity and she reported that he had suicidal ideation, could leave the stove on, and could do something dangerous when left home alone. His wife had to drive him places, help him bathe, and handled all their finances. On VA examination in February 2009 for housebound status or permanent need for regular aid and attendance, the examiner indicated the Veteran was unable to leave his home for short distances unattended, was permanently confined to his home or immediate area, and physically and mentally was unable to protect himself in his daily environment. The Veteran was unable to dress or undress himself or keep himself clean. He spent most of his day indoors and in good weather went outside to look at the cattle. His wife was all day with him. The examiner concluded that while the Veteran's chronic back pain with radiculopathy along with significant chronic obstructive pulmonary disease were quite debilitating, the Veteran's severe PTSD, anxiety, irritability, and depression further limited his ability to function independently. On VA examination in October 2009 for housebound status or permanent need for regular aid and attendance, the examiner indicated that the Veteran was able to feed himself but was unable to prepare his own meals or attend to his personal hygiene due to loss of interest and lack of attention. The examiner also indicated the Veteran required medication management as he could not be trusted to take his medication. While the Veteran did not require nursing home care, his wife was a nurse who had to quit her job to take care of the Veteran. The Veteran spent most of his time on the porch or watched television. He had no hobbies or interests. He only left the house with his spouse and rarely went further than the front porch by himself. The Veteran used a cane to walk. On VA examination in March 2010 for housebound status or permanent need for regular aid and attendance, a VA psychiatrist, Dr. S.G., was of the opinion that the Veteran has severe PTSD and depression, requiring daily supervision and support in addition to his physical problems. VA progress notes in June 2010 show that the Veteran's PTSD and multiple physical problems often precluded him from leaving his home and/or property unattended. The evidence reflects that the Veteran is in need of regular aid and attendance due to his service-connected PTSD. During the appeal period the evidence has consistently shown that the Veteran has needed care at home for safety reasons due to his service-connected PTSD. His wife, who is a professional nurse, had to quit her job to protect the Veteran from dangers in his daily environment due to his mental incapacity. She also has to help him dress, maintain his hygiene, and take his medication. On VA examination in October 2007, February 2009, and March 2010, the examiners concluded that his PTSD limited his ability to function independently and required daily supervision. For these reasons the evidence unequivocally shows that the Veteran is in need of regular aid and attendance of another person due to his service-connected PTSD in order to dress, maintain his hygiene, take his medication, and to protect him against the hazards or dangers incident to his daily environment as a result of his mental incapacity. As the evidence shows that the Veteran is in need of the regular aid and attendance of another person due to his service-connected PTSD, and resolving all reasonable doubt in his favor, the Board concludes that the criteria for SMC on the basis of the need for aid and attendance of another person have been met. 38 U.S.C.A. §§ 1114(l), 5107(b); 38 C.F.R. §§ 3.350, 3.352. SMC at the aid and attendance rate is a greater benefit than the housebound benefit. 38 U.S.C.A. § 1114(l), (s). The claim for SMC on account of being housebound arose at the same time as the claim for SMC based on the need for regular aid and attendance. Hence, the grant of SMC at the aid and attendance rate renders the question of entitlement to SMC on account of being housebound moot. ORDER Entitlement to SMC based on the need for regular aid and attendance of another person is granted. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs