Citation Nr: 1301018 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 12-15 417 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to an evaluation of 40 percent under 38 U.S.C.A. § 1151, effective from July 10, 2007, for degenerative disc disease (DDD) of the lumbar spine with right lower extremity radiculopathy. 2. Entitlement to special monthly compensation (SMC) based on the need for the regular aid and attendance of another person. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active military duty from December 1951 to August 1952. This case comes before the Board of Veterans' Appeals (Board) on appeal of October 2009 and November 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office in Des Moines, Iowa (RO). FINDINGS OF FACT 1. In a letter dated May 17, 2012, received prior to the promulgation of a Board decision in the appeal, the Veteran's authorized representative indicated that a withdrawal of the appeal as to an evaluation of 40 percent under 38 U.S.C.A. § 1151, effective from July 10, 2007, for degenerative disc disease (DDD) of the lumbar spine with right lower extremity radiculopathy, is requested. 2. Service connection is in effect for radiculopathy of the left lower extremity associated with DDD of the lumbar spine, 40 percent disabling; for radiculopathy of the right lower extremity associated with DDD of the lumbar spine, 40 percent disabling; for DDD of the lumbar spine, 20 percent disabling; for tinnitus, 10 percent disabling; and for hearing loss, 10 percent disabling. The Veteran has been assigned TDIU benefits continuously since June 5, 1995. 3. The Veteran is generally unable to care for the needs of nature or to feed, dress and bathe himself, primarily due to service-connected disabilities. 4. The Veteran appears unable to protect himself from the hazards and dangers of his daily environment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for a compensable evaluation of 40 percent under 38 U.S.C.A. § 1151 effective from July 10, 2007 for DDD of the lumbar spine with right lower extremity radiculopathy have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 2. The criteria for SMC based upon the Veteran's need for the regular aid and attendance of another person have been met. 38 U.S.C.A. §§ 5107(b), 1114 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.350(b), 3.351, 3.352(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Analysis of the Claims Claim for Increased Rating Based on 1151 The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In response to a June 2009 Board grant of entitlement to compensation under 38 U.S.C.A. § 1151 for a spinal disability, to include nerve damage to the lumbar spine, due to surgery at a VA medical facility, an October 2009 rating decision granted service connection for DDD of the lumbar spine, to include right lower extremity radiculopathy, under 38 U.S.C.A. § 1151, and assigned a 60 percent rating effective from June 5, 1995 through April 24, 2008. This rating decision then granted separate 40 percent ratings for radiculopathy of each lower extremity beginning April 25, 2008 and a 20 percent rating for DDD of the lumbar spine, effective April 25, 2008. According to a March 2010 notice of disagreement from the Veteran's attorney, the Veteran should be assigned a 40 percent rating for his DDD of the lumbar spine effective July 10, 2007, which is the date of a VA evaluation. A June 2011 decision review officer's (DRO) decision granted entitlement to total rating for compensation purposes based on individual unemployability (TDIU), effective June 5, 1995. Because the Veteran was assigned a 60 percent rating for DDD of the lumbar spine from June 5, 1995 through April 24, 2008 and has been granted TDIU beginning June 5, 1995, the issue of entitlement to a 40 percent rating for DDD of the lumbar spine with radiculopathy beginning July 10, 2007, is essentially moot. A May 2012 substantive appeal is somewhat confusing because it initially refers to "an initial increased rating and earlier effective date for degenerative disc disease of the lumbar spine with right lower extremity radiculopathy" and to the issue of SMC based on aid and attendance. However, this appeal statement goes on to note that the Veteran was no longer pursuing the appeal with regard to seeking a higher schedular rating; rather, he was continuing his appeal for a higher rating at an earlier date based on entitlement to SMC for aid and attendance. Accordingly, the Board interprets the above as withdrawing the issue of entitlement to an evaluation of 40 percent under 38 U.S.C.A. § 1151 effective from July 10, 2007 for DDD of the lumbar spine with right lower extremity radiculopathy. Therefore, the Board does not have jurisdiction to review the appeal with respect to the issue of entitlement to a compensable evaluation of 40 percent under 38 U.S.C.A. § 1151 effective from July 10, 2007 for DDD of the lumbar spine with right lower extremity radiculopathy; and dismissal is warranted. SMC Claim The Veteran's claim of entitlement to SMC based upon the need for aid and attendance is sufficiently substantiated in the record. Having carefully considered the Veteran's contentions in light of the evidence of record and the applicable law, the Board finds that the weight of such evidence is in approximate balance and the claim will be granted on this basis. 38 U.S.C.A. § 5107(b) (West 2002); Alemany v. Brown, 9 Vet. App. 518 (1996); Brown v. Brown, 5 Vet. App. 413 (1993) (Under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the claimant shall prevail upon the issue). Special monthly compensation is payable to individuals who are permanently bedridden or are so helpless as a result of service-connected disability as to be in need of the regular aid and attendance of another person under the criteria set forth in 38 C.F.R. § 3.352(a). 38 U.S.C.A. § 1114(l) (West 2002); 38 C.F.R. § 3.350(b)(3) (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). A finding that the Veteran is "bedridden" will provide a proper basis for the determination. Bedridden will be that condition which, through its essential character, actually requires that the 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. 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. Id. As noted above, the Veteran is in receipt of service connection for radiculopathy of the left lower extremity associated with DDD of the lumbar spine, 40 percent disabling; for radiculopathy of the right lower extremity associated with DDD of the lumbar spine, 40 percent disabling; for DDD of the lumbar spine, 20 percent disabling; for tinnitus, 10 percent disabling; and for hearing loss, 10 percent disabling. He has been receiving individual unemployability continuously since June 5, 1995. According to a January 2010 statement from the Veteran's caregiver, D. P., she took care of the Veteran 24-7 because he was unable to be left alone or to care for himself. When examined by VA in March 2010, the Veteran noted that he used a cane for stability and that he ambulated primarily within the home for short distances. He came to the evaluation in a wheelchair. He said that he was unable to ambulate for more than a few feet at a time and that he was unable to stand for more than a few minutes at a time. He did not report periods of complete incapacity within the previous year, but he reported that he had had significant and severe flare-ups that resulted in him being entirely inactive for extended periods of time. He had not worked since back surgery in 1989. He complained of pain and numbness, primarily affecting the right lower extremity, that radiated from the low back to the right foot. He did not describe specific weakness involving the lower extremity, but he had difficulty with weight bearing primarily due to pain and decreased sensation. X-rays of the lumbar spine showed advanced DDD with L3-L5 laminectomies, some scoliosis, and compression fracture of the lower thoracic spine. It was concluded that the Veteran's lumbar spine condition prevented substantially gainful employment. According to an October 6, 2011 VA treatment report, the Veteran was in need of regular aid and attendance to perform his activities of daily living. He was in need of personal assistance from others on a regular, noncontinuous basis specifically due to his service-connected disabilities. His limitations included an inability to dress and undress himself; relatively frequent need of assistance with ambulation, daily household maintenance and safety; an inability to consistently feed himself due to torso and extremity pain and weakness; and an inability to attend to the wants of nature. With his physical symptoms, limitations, and incapacities, it was noted that the Veteran required the care or assistance of another person on a regular basis to protect himself from the hazards or dangers incident to his daily environment. A VA examination for housebound status or permanent need for regular aid and attendance was conducted on October 18, 2011. According to the results of this evaluation, the Veteran was able to feed himself and did not need assistance in bathing or tending to other hygiene needs. He was not able to prepare his own meals; he required medication management. It was noted that the Veteran had a left lean onto the left hip of five inches to relieve low back pain, which was noted to be 6-7 out of 10. The Veteran's grip strength was reduced bilaterally; and he required assistance with buttons, suspenders, getting his shirt off and above his shoulders, and washing his neck, shoulders, and back. He experienced decreased sensation in his feet and required the use of a cane or walker for distances greater than 30 feet. On a typical day, he used a cane/walker up to 40-50 feet but required rest after 30 feet. His balance was reduced due to his shuffling gait. He required the use of walls, chairs, and a cane for balance. He was not able to drive due to numbness in his legs and to limited lumbar rotation. He was unable to leave his home without a caretaker. Also on file is an October 2011 letter from the same caregiver who provided a letter in January 2010. She noted that she had been his care giver since November 2009 and that she and the Veteran were not related. She helped him with meals, medicine, dressing, bathing, walking, housework, driving, and more. The above evidence reveals that the October 2011 VA aid and attendance evaluation report indicates that the Veteran is able to feed himself, does not need assistance with bathing and tending to other hygiene needs, and has difficulty with gripping due to nonservice-connected reduction in grip strength, . However, there is VA medical evidence of record indicating that the Veteran requires at least some assistance in major aspects of daily living due to his service-connected disabilities, including dressing, feeding himself, and going to the bathroom. The VA examiner on October 6, 2011 concluded that the Veteran requires the care or assistance of another person on a regular basis to protect himself from the hazards or dangers incident to his daily environment. Consequently, there is medical evidence on file both for and against the claim. However, under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). The mandate to accord the benefit of the doubt is triggered when the evidence has reached such a stage of balance. In this matter, the Board is of the opinion that this point has been attained. Because a state of relative equipoise has been reached in this case, the benefit of the doubt rule will therefore be applied. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993). The relevant criteria that must be evaluated in assessing the Veteran's need for regular aid and attendance are set forth in 38 C.F.R. § 3.352(a). The enumerated factors need not all be present, but at least one must exist to establish eligibility. From the examinations that include references to a need for assistance there is support to find that the Veteran requires assistance in major aspects of self-care on account of service-connected disability. The evidence, viewed liberally, shows appreciable physical impairment of a degree from the service-connected disabilities that would reasonably require another person to assist him in daily self-care tasks. In summary, the Veteran has been found to have significant service-connected physical impairment that has resulted in an impaired ability to perform daily self-care tasks and to protect himself from the hazards present in his daily environment. Therefore, the Veteran is entitled to SMC based on the need for regular aid and attendance. As this decision is a full grant of the benefit sought on appeal, a discussion of the Veterans Claims Assistance Act of 2000 and the effect it has on the Veteran's claim is not needed. ORDER The appeal for an evaluation of 40 percent under 38 U.S.C.A. § 1151, effective from July 10, 2007, for DDD of the lumbar spine with right lower extremity radiculopathy is dismissed. SMC benefits by reason of the need for regular aid and attendance of another person are granted, subject to the law and regulations governing the award of monetary benefits. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs