Citation Nr: 1300680 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 07-00 155A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to special monthly compensation based on the need of the Veteran's wife for the regular aid and attendance of another person. REPRESENTATION Appellant represented by: Melissa Tyner, Attorney WITNESSES AT HEARING ON APPEAL Appellant and A.C. ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The issue of entitlement to special monthly compensation based on the Veteran's need of regular aid and attendance has been raised by the Veteran, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over that issue, and it is referred to the AOJ for appropriate action. The Veteran had verified active duty for training with the United States Army National Guard from February 15, 1974 to June 14, 1974. He had additional verified active duty for training with the California Army National Guard from June 6 or 7, 1984 to June 20 or 21, 1984, and from August 23, 1984 to September 2, 1984. He had verified inactive duty for training with the California Army National Guard from March 7, 1986 to March 9, 1986. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office in Los Angeles, California (RO), which, in pertinent part, denied entitlement to aid and attendance allowance for the Veteran's spouse. The Veteran testified at a July 2011 videoconference hearing before the undersigned Veterans Law Judge; the hearing transcript has been associated with the claims file. In an October 2011 decision, the Board affirmed the RO's denial of special monthly compensation based on the need of the Veteran's spouse for the regular aid and attendance of another person. The Board remanded issues of entitlement to service connection for (1) an acquired psychiatric disorder, to include posttraumatic stress disorder, (2) a right shoulder disability, (3) a left shoulder disability, to include the residuals of left shoulder surgery, (4) a bilateral ankle disability, (5) a chronic headache disorder, (6) a right wrist disability, (7) type II diabetes mellitus, (8) a chronic kidney disorder, (9) a rash on the face and groin, as well as on both arms and legs, and to (10) an evaluation in excess of 10 percent for degenerative changes of the cervical spine, and (11) a total disability rating based upon individual unemployability due to service-connected disability (TDIU) for further development. The Veteran appealed the October 2011 decision to the United States Court of Appeals for Veterans Claims (Court or CAVC) insomuch as it denied the claim for special monthly compensation based on the need for aid and attendance. In September 2012, the Court granted a Joint Motion for Partial Remand, and the part of the Board's decision, only to the extent that it denied the entitlement to special monthly compensation based on the need of the Veteran's wife for the regular aid and attendance of another person, was vacated and remanded for action consistent with the terms of the Joint Motion. The Joint Motion provided that the parties did not which do disturb the portions of the October 2011 decision that remanded service connection for an acquired psychiatric disorder, a right shoulder disability, a left shoulder disability, a bilateral ankle disability, a chronic headache disorder, a right wrist disability, type II diabetes mellitus, a chronic kidney disorder, a rash; an evaluation in excess of 10 percent for degenerative changes of the cervical spine; and a TDIU. While the Board remanded the aforementioned issues in the October 2011 decision, those issues have not been recertified to the Board and are still in remand status. In that regard, the Appeals Management Center (AMC) has not issued a supplemental statement of the case addressing those issues, and there is no indication that those issues have otherwise been recertified to the Board for adjudication at this time. The Joint Motion provides that the Board erred by failing to consider whether the Veteran, or the record, reasonably raised a claim for VA benefits based on entitlement to special monthly compensation based on the need for the Veteran for the regular aid and attendance of another person. The Joint Motion provided that a remand was necessary so that the Board could consider the issue of whether the Veteran has raised a claim for special monthly compensation based on his need for aid and attendance, and to provide a statement of reasons and bases in this regard. In compliance with the terms of the Joint Motion and September 2012 Order of the Court, the Board finds that the Veteran has raised a claim for special monthly compensation based on his need of regular aid and attendance, and finds that a referral to the AOJ for the initial adjudication of that issue is appropriate. In that regard, the Board finds that an April 2006 correspondence from the Veteran reasonably raised a claim for special monthly compensation based on the need for regular aid and attendance for both the Veteran, and for his wife. In the April 2006 statement, the Veteran indicated that he would like to apply for aid and attendance because his wife was unable to help or do things around the house, "and for me," because she was dealing with her back and knee injury. The Board finds that the statement "and for me," liberally construed, indicates that the Veteran was seeking compensation based his own need for need for aid and attendance in addition to that of his wife. Later statements and evidence submitted by the Veteran provide further clarification with regard to the Veteran's intent to file a claim for special monthly compensation based on his own need for aid and attendance. This includes a May 2006 letter from the Veteran's representative in which he identified a new claim for entitlement to special monthly compensation based on aid and attendance and a June 2008 letter from Dr. R.L.M. stating that the Veteran "is extremely limited in all his activities and requires the help of another individual to help him perform his necessary daily activities." For these reasons, the Board finds that the Veteran has raised a claim for special monthly compensation based on his need of regular aid and attendance. The Board finds that while the RO properly developed and considered the claim for special monthly compensation based on the need of the Veteran's wife for the regular aid and attendance, the Veteran's representative correctly noted in a November 2012 statement that VA did not send the Veteran any VCAA notices regarding his claim for special monthly compensation, and failed to develop his claim in any way. The Veteran's representative correctly noted that instead, the RO issued a denial solely regarding his wife's lack of entitlement to this benefit. Because the AOJ has not yet adjudicated the claim for special monthly compensation based on the Veteran's need for regular aid and attendance, the Board does not have jurisdiction over that issue, and it must be referred to the AOJ for adjudication in the first instance. For these reasons, the Board finds that a claim of entitlement to special monthly compensation based on the Veteran's need of regular aid and attendance has been raised by the Veteran, but has not been adjudicated by the AOJ, and it is referred to the AOJ for adjudication in the first instance. The Board finds, however, that the Veteran submitted a timely appeal to the issue of entitlement to special monthly compensation based on the need of the Veteran's wife for the regular aid and attendance of another person, and this issue was certified to the Board for adjudication. Because the Court vacated and remanded the Board's October 2011 decision in regard to that issue; the appeal for special monthly compensation based on the need of the Veteran's wife for the regular aid and attendance of another person is once again before the Board for review. FINDING OF FACT The Veteran's spouse does not have disabilities which render her unable to adequately attend to the needs of daily living without the regular assistance of another person and/or leave her unable to protect herself from the hazards and dangers inherent in her daily environment. CONCLUSION OF LAW The criteria for entitlement to special monthly compensation based on the need of the Veteran's wife for the regular aid and attendance of another person have not been met. 38 U.S.C.A. §§ 1115, 1502 (West 2002); 38 C.F.R. §§ 3.351, 3.352 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. Id. The Board finds that the VCAA notice requirements have been satisfied by correspondence dated in June 2006, prior to the initial adjudication of the issue currently on appeal. In that correspondence, VA informed the Veteran of the necessary criteria for an award of special monthly compensation based on the need of his wife for the regular aid and attendance of another person. The Board emphasizes that insomuch as the Veteran also raised a claim for special monthly compensation based on his own need for the regular aid and attendance, that issue has been referred to the RO and is not a subject of the current decision. The June 2006 letter informed the Veteran that, on his behalf, VA would make reasonable efforts to obtain records which were not held by a Federal agency, such as records from private doctors and hospitals. To the extent there existed any error by VA in providing the notice required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1), the Board finds that such error was nonprejudicial, in that it did not affect the essential fairness of the adjudicatory process. Based on a review of the entire file, it appears that the Veteran had a clear understanding of the elements required to prevail on the claim presently on appeal. Moreover, neither the Veteran nor his representative have raised allegations of prejudice resulting from error on the part of VA. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009); see also Goodwin v. Peake, 22 Vet. App. 128 (2008). VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In that regard, in connection with the current appeal, VA has obtained both VA and private treatment records and examination reports. For the foregoing reasons, the Board concludes that all reasonable efforts have been made by VA to obtain evidence necessary to substantiate the claim. The evidence of record provides sufficient information to adequately evaluate the present claim for, and the Board is not aware of the existence of any additional relevant evidence which has not been obtained. Therefore, no further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2000), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Special Monthly Compensation Based on the Need of the Veteran's Wife for Regular Aid and Attendance As the Board has discussed in the introduction above, pursuant to a September 2012 Order of the Court, the issue of entitlement to special monthly compensation based on the need of the Veteran's wife for the regular aid and attendance of another person was vacated and remanded for action consistent with the terms a July 2012 Joint Motion for Partial Remand. The Joint Motion provided that a remand was necessary so that the Board could consider whether the Veteran has raised a claim for special monthly compensation based on his need for aid and attendance, and to provide a statement of reasons and bases in this regard. The Board finds that the Veteran submitted an informal claim for special monthly compensation based on the need for regular aid and attendance for both himself, and for his wife in an initial April 2006 correspondence. A "claim" is defined as a formal or informal communication, in writing, requesting a determination of entitlement, or evidencing a belief in entitlement to a benefit. 38 C.F.R. §§ 3.1(p), 3.151 (2012). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs from the claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. 38 C.F.R. § 3.155 (2012). Such informal claim must identify the benefit sought. Id. In the April 2006 statement, the Veteran indicated that he would like to apply for aid and attendance because his wife was unable to help or do things around the house, "and for me." The Board finds that this statement may be liberally construed as an informal claim for special monthly compensation based on the need for the regular aid and attendance for both the Veteran and for his wife. The RO developed the claim for special monthly compensation based on the need of the Veteran's wife for regular aid and attendance, denied that claim in February 2007, and the appeal for special monthly compensation based on the need of the Veteran's wife for regular aid and attendance was certified on appeal to the Board. The Board must, therefore, consider the appeal for special monthly compensation based on the need of the Veteran's wife for regular aid and attendance. The Board notes that the July 2012 Joint Motion did not provide further instruction with regard to the appeal for special monthly compensation based on the need of the Veteran's spouse for aid and attendance, and did not assert any error in the adjudication that appeal. The Board has referred the claim for special monthly compensation based on the Veteran's own need for the regular aid and attendance to the AOJ for adjudication. The Board finds that the issues of entitlement to special monthly compensation based on the Veteran's need for regular aid and attendance his wife's need for regular aid and attendance are not inextricably intertwined such that a final Board decision on one issue cannot be rendered until the other issue has been considered. Cf. Harris v. Derwinski, 1 Vet. App. 180 (1991). The Board may, therefore, proceed with the adjudication of the appeal for special monthly compensation based on the need of the Veteran's spouse for regular aid and attendance. Special monthly compensation is payable to a Veteran by reason of the Veteran's spouse being in need of aid and attendance. The need for aid and attendance means helplessness or being so nearly helpless as to require the regular aid and attendance of another person. The Veteran's spouse will be considered in need of regular aid and attendance if he or she: (1) is 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; or (2) is a patient in a nursing home because of mental or physical incapacity; or (3) establishes a factual need for aid and attendance. 38 U.S.C.A. §§ 1115, 1502 (West 2002); 38 C.F.R. § 3.351 (2012). The following factors will be accorded consideration in determining the need for regular aid and attendance: inability of a claimant to dress or undress himself, or to keep himself 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 (this will not include the adjustments of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of a claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, either physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352(a) (2012). "Bedridden" will be a proper basis for the determination, and is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. It is not required that all of the disabling conditions enumerated above be found to exist before a favorable rating may be made. The particular personal functions which the claimant is unable to perform should be considered in connection with his/her condition as a whole. It is only necessary that the evidence establish that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. Id. The particular personal functions that the claimant is unable to perform are considered in connection with the claimant's condition as a whole. It is only necessary that the evidence establish that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that a claimant is so helpless as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant's condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others. Id. The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate. In the present case, at the time of filing of the claim in April 2006, it was alleged that, due to his spouse's back and knee injuries, she was unable to help him do things around the house. However, at the time of a videoconference hearing before the undersigned Veterans Law Judge in July 2011, the Veteran and his accredited representative freely admitted that, while the Veteran's wife did experience a certain degree of disability, she was "able to take care of herself." Further, a private medical opinion from July 2006 stated that the Veteran was totally dependent on care provided by his wife, indicating that in addition to being able to take care of herself, the Veteran's wife was able to take care of others at that time. The Board finds that the weight of the evidence does not establish that the Veteran's spouse is unable to adequately attend to the needs of daily living without the regular assistance of another person and/or leave her unable to protect herself from the hazards and dangers inherent in her daily environment. Significantly, at no time has it been alleged that the Veteran's wife is blind or nearly blind, or a patient in a nursing home. Nor has it been demonstrated that the Veteran's spouse suffers from disabilities which render her unable to adequately attend to the needs of daily living without the regular assistance of another person, or which leave her unable to protect herself from the hazards and dangers inherent in her daily environment. To date, no evidence has been presented demonstrating that the Veteran's spouse is helpless or so nearly helpless as to require the regular aid and attendance of another person, nor, as is apparent from the Veteran's testimony, is it otherwise alleged. For these reasons, the Board finds that a preponderance of the evidence is against the claim for special monthly compensation based on the need of the Veteran's wife for the regular aid and attendance of another person. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Special monthly compensation based on the need of the Veteran's spouse for the regular aid and attendance of another person is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs