Citation Nr: 1304070	
Decision Date: 02/05/13    Archive Date: 02/08/13

DOCKET NO.  07-37 958	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance of another person, or on housebound status. 


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


ATTORNEY FOR THE BOARD

V. Chiappetta, Counsel



INTRODUCTION

The Veteran served on active duty in the United States Navy from February 1970 to February 1974, from August 1974 to June 1976 and from October 1981 to June 1983.  The Veteran passed away in November 2011.  The appellant is the Veteran's surviving spouse, who as noted below, is substituted for the Veteran in this appeal.

Procedural history

This matter is before the Board of Veterans' Appeals (the Board) on appeal of an April 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied the Veteran's claim of entitlement to SMC based on a need for aid and attendance, or on housebound status.  The Veteran disagreed with the RO's determination, and perfected an appeal as to that issue.

The Board denied the Veteran's SMC claim in a June 2010 decision.  The Veteran appealed to the Court of Appeals of Veterans' Claims (the Court), which in a November 2010 issued a memorandum decision vacating the Board's denial and remanding the matter to the Board for additional explanation.  The Board in turn remanded the Veteran's SMC claim to the agency of original jurisdiction for additional evidentiary review in March 2011.  After such was achieved, the RO readjudicated the Veteran's claim in an August 2011 supplemental statement of the case (SSOC) and returned the Veteran's claims file to the Board for further appellate review. 

In February 2012, the Board dismissed the Veteran's SMC claim due to his death, and referred the matter of whether the appellant, his surviving spouse, may be substituted for the Veteran so that she may continue the Veteran's appeal in his place.  In a July 2012 memorandum, the RO approved the appellant's request for substitution in this matter.  The Board appropriately has jurisdiction to decide the SMC claim on its merits following the timely substitution of the appellant for the Veteran.


FINDINGS OF FACT

1.  The Veteran died in November 2011 as a result of colon cancer.

2.  At the time of the Veteran's death, service connection was in effect for posttraumatic stress disorder (PTSD), rated 100 percent disabling, and for residuals of a right fibula and tibia fracture, rated noncompensably (zero percent) disabling.

3.  The evidence of record is in equipoise as to whether the Veteran's service-connected PTSD rendered him so helpless as to require the regular aid and attendance of another person to perform personal care functions of everyday living or to protect himself from the hazards and dangers incident to the daily environment. 


CONCLUSION OF LAW

The criteria for the assignment of special monthly compensation based on the need for regular aid and attendance of another are met.  38 U.S.C.A. §§ 1114(l), 1114(s) (West Supp. 2012); 38 C.F.R. §§ 3.350(b), 3.350(i), 3.351(b), 3.352(a),(c) (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board has given consideration to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA).  The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits.  The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims.

A VCAA notice letter was sent to the Veteran regarding his SMC claim in February 2007 and August 2009.  The Board need not discuss in detail the sufficiency of these VCAA notice letters in light of the fact that the Board is granting the claim below.  Any potential error on the part of VA in complying with the provisions of the VCAA, or with any of the Board's prior remand instructions, has essentially been rendered moot by the Board's full grant of the benefit sought on appeal addressed in this decision.

The Board additionally observes that all appropriate due process concerns have been satisfied.  See 38 C.F.R. § 3.103 (2012).  Accordingly, the Board will proceed to a decision.  

Legal criteria

The Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110- 389, § 212, 122 Stat. 4145, 4151 (2008), created a new Section, 5121A, under Chapter 38 of the United States Code relating to substitution in case of death of a claimant who dies on or after October 10, 2008.  As provided for in this new provision, a person eligible for substitution will include "a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title. . . ." An eligible party seeking substitution in an appeal that has been dismissed by the Board due to the death of the claimant may file a request for substitution with the RO from which the claim originated.  In essence, this change in law permits an eligible person to process any pending claims when a Veteran dies prior to their completion.

SMC is payable at a specified rate if the veteran, as the result of service-connected disabilities, is in need of regular aid and attendance.  Need for aid and attendance means helplessness or being so nearly helpless as to require the regular aid and attendance of another person.  A veteran will be considered to be in need of regular aid and attendance if he or she 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; if the veteran is a patient in a nursing home because of mental or physical incapacity; or if the evidence establishes a factual need for aid and attendance or "permanently bedridden" status under the criteria set forth in 38 C.F.R. § 3.352(a).  See 38 U.S.C.A. § 1114(l) (West Supp. 2012); 38 C.F.R. 
§ 3.351(b) (2012).

The following will be accorded consideration in determining the need for regular aid and attendance: inability of 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 adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.]; inability of 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, 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.  "Bedridden" will be a proper basis for the determination.  See 38 C.F.R. § 3.352(a) (2012).

A veteran will be found to be bedridden if the condition actually requires that he remain in bed, but not if he voluntarily stays in bed or if a physician merely recommends bed rest.  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 functions that the veteran is unable to perform should be considered in connection with his or her condition as a whole.  It is only necessary that the evidence establish that the veteran is so helpless as to need regular aid and attendance, not that there be a constant need.  Determinations that the veteran 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.

Although a veteran need not show all of the disabling conditions identified in 38 C.F.R. § 3.352(a) to establish entitlement to aid and attendance, the Court has held that it is logical to infer there is a threshold requirement that "at least one of the enumerated factors be present."  See Turco v. Brown, 9 Vet. App. 222, 224 (1996).

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(c) (2012).

Special monthly compensation can also be payable at a specified rate if a veteran, as the result of service-connected disability, has one service-connected disability rated as 100 percent disabling and a separate disability rated at 60 percent or higher or he is permanently housebound.  The veteran will be found to be permanently housebound if, due to his service-connected disabilities, he is substantially confined to his home or the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that such confinement will continue throughout his lifetime. 38 U.S.C.A. § 1114(s) (West Supp. 2012); 38 C.F.R. § 3.350(i) (2012).

Analysis

As discussed in the Introduction above, the appellant in this case is the surviving spouse of the Veteran.  The Veteran died in November 2011, while his claim for SMC based on a need for aid and attendance or on housebound status was on appeal before the Board.  Notably, within one year of the Veteran's death, the appellant timely filed an application for death benefits, which included a request to be substituted for any of the appeals pending at the time of the Veteran's death.  As noted above, the RO determined in a July 2012 memorandum that the criteria for substitution have been satisfied with respect to the Veteran's active appeal for SMC, and she is now in essence, standing in the Veteran's shoes as the appellant with respect to this issue.  See 38 U.S.C.A. § 5121A (West Supp. 2012). 

At the time of his death, the Veteran was service-connected for PTSD, rated 100 percent disabling, and for residuals of a tibia and fibula fracture, rated noncompensably (zero percent) disabling.  The Veteran was also granted a total disability rating based on individual unemployability (TDIU), effective February 2007 to September 2010.  

Concerning SMC based on the need for aid and attendance, the Board finds that neither the appellant nor the Veteran contended or demonstrated that the Veteran had a visual impairment to the extent that he was blind or nearly blind prior to his death, or that he was a patient living in a nursing home.  However, as will be explained immediately below, the evidence of record is in equipoise as to whether a factual need for aid and attendance existed based exclusively on the Veteran's service-connected PTSD. 

Prior to his death, the Veteran was diagnosed with both PTSD and major depressive disorder.  As noted above, the RO awarded the Veteran service connection for PTSD in 2003, and recently assigned the Veteran a 100 percent schedular disability rating for this PTSD in a March 2011 rating decision.  The Veteran was not awarded service connection for major depressive disorder.  

Of particular import in this case is the fact that the Veteran's overall mental health symptomatology included an ongoing suicidal ideation.  The Veteran did attempt suicide in the past, and at times exhibited a plan to kill himself "without appearing as suicide so [his] wife would still get benefits."  See the Veteran's March 16, 2006, VA Mental Health Outpatient Note.  It is the appellant's contention that the Veteran required aid and attendance of another person in large part to keep him from harming himself.  See the April 1, 2009, Informal Hearing Presentation, page 2.  

In January 2007, the Veteran's attending physician diagnosed the Veteran with severe PTSD, with associated panic attacks and mental confusion.  The physician also highlighted two other nonservice-connected disabilities [small bowel obstruction and chronic low back pain] and determined that the patient was indeed in need of the aid or attendance of someone else in ordinary activities of daily living.  Although this physician did not specifically state that the Veteran's PTSD in and of itself caused the Veteran to require aid and attendance, she did crucially indicate that the Veteran was not "mentally able to protect himself from the everyday hazards of life."  See the January 17, 2007 Report from M.K.S.  

In December 2007, a VA examiner also determined that the Veteran needed the aid and attendance of another, but summarily stated that his "mental problem would not qualify him for Aid and Attendance."  See the December 2007 VA examiner's report, page 2.  As pointed out by the Board in its April 2009 remand, the December 2007 VA examiner did not adequately discuss the Veteran's psychiatric history, to include his suicidal ideation and plan, and what role, if any such might play in his need for assistance.  A new examination was ordered.  

In July 2009, the Veteran appeared for a VA psychiatric examination.  In pertinent part, the July 2009 VA examiner recognized the Veteran's complaints of constant depression, suicidal thoughts, lack of socialization, lack of motivation to leave his room except to go to the VA, and avoidance of people.  He also noted that the Veteran sometimes got lost and did not know his name or where he lived.  The examiner questioned the validity of the Veteran's PTSD diagnosis, and clarified his belief that the Veteran had depression and dementia that were more prominent disabilities.  In so doing, the examiner essentially linked the Veteran's more serious mental health disability symptoms, to include his suicidal ideation, with his nonservice-connected depression and dementia and not with his PTSD.  The examiner noted that the Veteran's depression was related to his history of alcohol dependence and ongoing health problems, and concluded that the Veteran's PTSD alone did not prevent the veteran from protecting himself from hazards from his environment.  See the July 2009 VA examiner's report, page 7.  

Significantly, the July 2009 examiner added that despite the Veteran's own assertion that he needed an aid to be present with him at all times due to his suicidal ideation, he had not required psychiatric hospitalization in the year prior to the examination, or an increased level of care such as intensive outpatient treatment.  By this observation, it appears that the July 2009 examiner was implying that if the Veteran's suicidal ideation were so serious as to require aid and attendance he would likely have needed more medical care from mental health professionals.  Although it is clear that the Veteran did seek extensive care from the VA and private physicians for his mental health disabilities, the Veteran [and now the appellant] essentially argued that it is precisely because of the aid and attendance already provided by the appellant that the Veteran did not cause harm to himself.  In this connection, the Veteran's private physician, Dr. D.W. submitted a letter in December 2009 indicating that the Veteran's psychiatric history included depression, and that the Veteran was a "danger to himself if not for his spouse and her constant attention to his needs."  See the December 4, 2009, letter from Dr. D.W.  Dr. D.W.'s letter appears to respond to the July 2009 VA examiner's implied conclusions, placing greater emphasis on the aid and attendance the Veteran's spouse had already provided, and noting that but for such care, the Veteran would be a danger to himself.  

Based on the above, to include (1) the January 2007 physician's assessment that the Veteran was not "mentally able to protect himself from the everyday hazards of life," (2) the inadequacy of the December 2007 VA examiner's findings against a relationship between the Veteran's mental health symptomatology and his need for aid and attendance, (3) the assessment of the December 2009 VA examiner, who appeared to link the Veteran's suicidal ideation to his severe depressive disorder, and (4), the opinion of Dr. D.W., who indicated that without the appellant's constant attention to the Veteran's needs at home, the Veteran's depression would cause the Veteran to be a danger to himself, the Board concludes that the evidence of record favors a finding that the Veteran did in fact need regular aid and attendance due to his mental health disabilities prior to his death.  As noted above, the fact that the appellant provided much of this assistance would not prevent the granting of the additional allowance.  38 C.F.R. § 3.352(c) (2012).

That stated, at its core, the key question in this case is not whether aid and attendance was required due to his mental health disabilities in general, but whether aid and attendance was required based on his service-connected mental health disability in particular, i.e., PTSD.  As noted above, the Veteran was not service connected for depression at any time prior to his death.  Indeed, in denying the Veteran's aid and attendance claim, the agency of original jurisdiction (AOJ) clearly relied on the medical finding of the July 2009 VA examiner above to disassociate the Veteran's suicidal ideation and other severe mental health symptoms from his service-connected PTSD and attribute them to his depression.  

Following the Court's November 2010 memorandum decision, the Board remanded the Veteran's SMC claim so that he could be afforded another VA mental health examination.  Significantly, an October 2010 VA examiner also concluded that the Veteran's PTSD and depression symptoms could be differentiated, noting that the Veteran's PTSD involved symptoms of re-experiencing stressful events and arousal with "mood symptoms distinct."  See the October 2010 VA examiner's report, page 6.  Crucially however, unlike the July 2009 VA examiner, the October 2010 VA examiner specifically linked the Veteran's depression with his PTSD, noting that the Veteran's mood condition was "as likely as not secondary to the chronic experience of PTSD symptoms," noting that the onset of PTSD "appears prior to [the] onset of depressive condition . . . ."  Thus, in his concluding remarks, the October 2010 VA examiner associated all of the Veteran's serious mental health symptoms with his PTSD, to include chronic suicidal ideation and an inability to maintain hygiene and to complete activities of daily living independently.  See id. at page 7.  The RO based its decision to award a 100 percent schedular disability rating for the Veteran's PTSD largely on the findings of the October 2010 VA examiner.  See the March 2011 rating decision. 

The Board notes that it is precluded from differentiating between symptomatology attributed to a service-connected disability and a nonservice-connected disability in the absence of medical evidence which does so.  See Mittleider v. West, 11 Vet. App. 181, 182 (1998).  In this case, the observations of both the July 2009 and October 2010 VA examiners do in fact show that the Veteran's mental health symptoms can be parsed out and attributed to different mental disabilities.  It does appear that the Veteran's severe symptoms, to include suicidal ideation with plan, were more likely attributable to his depression than PTSD.  Crucially however, although the July 2009 VA examiner linked the Veteran's depression in part to his alcohol abuse, the October 2010 VA examiner specifically linked the Veteran's depression to his longstanding PTSD symptoms and provided a supporting rationale for this conclusion.  The October 2010 VA examiner also noted that it was possible that the Veteran's PTSD symptoms also caused the Veteran to develop alcohol abuse problems.  See the October 2010 VA examiner's report, page 6.  In any event, based on his understanding that the Veteran's PTSD was as likely as not the root cause of his depression, the October 2010 VA examiner grouped together all of the Veteran's mental health symptoms, to include those serious enough to demonstrate a need for aid and attendance of another, and attributed them to his service-connected PTSD.  The RO has already relied on such findings in awarding the Veteran a 100 percent disability rating for PTSD prior to his death.

As set forth above, although the Veteran clearly had other nonservice-connected physical disabilities that greatly affected his overall health prior to his death, the medical evidence described above supports a finding that a need for aid and attendance can be demonstrated based on the Veteran's overall mental health problems.  Further, in light of the findings of both the July 2009 and October 2010 VA examiners discussed above, the Board believes that the evidence is at the very least in equipoise as to whether the Veteran's need for aid and attendance was due solely to his service-connected PTSD.  Indeed, there is competent medical evidence both for and against the claim, demonstrating on the one hand that the Veteran's depression with suicidal ideation was unrelated to his PTSD [and instead to alcohol abuse and his other physical disabilities], and on the other that his depression with suicidal ideation was specifically caused or aggravated by his PTSD.  When the evidence for and against a claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the appellant.  See 38 U.S.C.A. § 5107 (West 2002);  38 C.F.R. § 3.102 (2012).  Accordingly, with resolution of doubt in the substituted appellant's favor, the Board concludes that a grant of entitlement to SMC based on aid and attendance is warranted.

Because the aid and attendance benefit is paid at a higher rate than the housebound benefit, the claim for housebound benefits in this case, is rendered moot.  Indeed, the assignment of a simultaneous SMC award under both 38 U.S.C.A. § 1114(l), based on a need for aid and attendance, and 38 U.S.C.A. § 1114(s), based on housebound status, would be impermissible at this time, as the appellant would in essence be compensated twice for the same service-connected disabilities.  Such action is prohibited by the "anti-pyramiding" regulation, 38 C.F.R. § 4.14 (2012). 






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ORDER

SMC benefits based on the Veteran's need for aid and attendance prior to his death are granted, subject to controlling regulations applicable to the payment of monetary benefits.



____________________________________________
LANA K. JENG
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs