Citation Nr: 1306350	
Decision Date: 02/25/13    Archive Date: 03/01/13

DOCKET NO.  10-25 356	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to a higher special monthly compensation (SMC) based on the need for regular aid and attendance as contemplated by 38 U.S.C.A. § 1114(r)(1).  


REPRESENTATION

Appellant represented by:	Paralyzed Veterans of America, Inc.


WITNESSES AT HEARING ON APPEAL

The Veteran and S.M. 


ATTORNEY FOR THE BOARD

R. Giannecchini, Counsel

INTRODUCTION

The Veteran had active service from March 3, 1972, to July 1, 1975; he had 16 years, 8 months, and 13 days of service prior to March 3, 1972.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal following a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  

In January 2012, the Veteran and his caregiver testified before the undersigned Veterans Law Judge (VLJ) during a video conference hearing.  A transcript of that hearing is of record.  


FINDING OF FACT

The Veteran does not qualify for the SMC rate under 38 U.S.C.A. § 1114 subsection (p) or the maximum rate under subsection (o), or the intermediate rate between subsections (n) and (o).  


CONCLUSION OF LAW

The criteria for an increased level of SMC based on the need for regular aid and attendance as contemplated by 38 U.S.C.A. § 1114(r)(1) are not met.  38 U.S.C.A. § 1114 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.350, 3.352 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

At the outset, the Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  

In the present case, the Board finds that all notification and development action needed to arrive at a decision on the claim on appeal has been accomplished.

Here, through a February 2009 notice letter, the RO notified the Veteran of the legal criteria governing his claim for aid and attendance and the evidence needed to substantiate his claim.  Thereafter, the Veteran was afforded the opportunity to respond.  Hence, the Board finds that the Veteran has received notice of the information and evidence needed to substantiate his claim, and has been afforded ample opportunity to submit such information and evidence.  

The Board also finds that the February 2009 notice letter satisfies the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA.  See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)).  In that letter, the RO notified the Veteran that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies.  It requested that the Veteran identify any medical providers from whom he wanted the RO to obtain and consider evidence.  The RO also requested that the Veteran submit evidence in support of his claim.  

The Board notes that in an August 2010 notice letter, which pertained to the Veteran's claims for service connection and for increased disability ratings, the RO provided the Veteran notice regarding the assignment of effective dates and disability rating elements.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  This notice was not provided in the February 2009 notice letter and, ideally, should be part of the complete VCAA notice provided prior to an initial unfavorable decision on a claim by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

In the present case, the Board does not find the Veteran to have been prejudiced by the late notice regarding effective dates and disability rating elements, notwithstanding the lack of readjudication of the Veteran's claim for regular aid and attendance after receipt of such notice.  Here, the Veteran has received notice of the information and evidence needed to substantiate his claim for regular aid and attendance, and has been afforded ample opportunity to submit such information and evidence.  Neither the Veteran nor his representative has alleged that the Veteran was prejudiced because of any timing error with regard to the notice pertaining to effective dates and disability rating elements.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination).  

The Board finds that VA has adequately fulfilled its obligation to assist the Veteran in obtaining the evidence necessary to substantiate his claim.  In particular, the Veteran's VA records have been obtained and associated with the claims file, as have the Veteran's Social Security Administration (SSA) records.  Additionally, the Veteran and his representative have submitted arguments in support of the Veteran's claim, and the Veteran's caregiver, S.M., has submitted a statement on behalf of the Veteran.  Furthermore, as noted above, the Veteran has testified before the undersigned VLJ.  Therefore, there is no indication that any additional action is needed to comply with the duty to assist in connection with the claim on appeal.  

II. Analysis

SMC is available when, as the result of service-connected disability, a veteran suffers additional hardships above and beyond those contemplated by VA's schedule for rating disabilities.  See 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350 and 3.352.  The rate of SMC varies according to the nature of the veteran's service-connected disabilities.  Basic levels of SMC are listed at 38 U.S.C.A. § 1114(k).  Higher levels of SMC are provided at 38 U.S.C.A. § 1114(l), (m), (n), and (o).  

With regard to his claim on appeal, the Veteran is requesting an additional rate of SMC greater than that currently assigned based on the need for aid and attendance.  

By way of history, in a March 1993 rating decision, the Veteran was awarded SMC for loss of use of the right upper extremity and of the right lower extremity (i.e., SMC at the (m) rate).  See 38 U.S.C.A. § 1114(m); 38 C.F.R. §§ 3.350(c).  At that time, the Veteran also had additional service-connected disabilities independently ratable at 50 percent or more.  The independently ratable disabilities at 50 percent or more allowed for a "half-step" increase.  See 38 C.F.R. § 3.350(f)(3).  As such, the RO awarded the Veteran SMC at the rate intermediate between subsection (m) and subsection (n) (i.e., m 1/2).  The authority for VA to award intermediate (half step) or next higher statutory SMC rates is provided under 38 U.S.C.A. § 1114 subsection (p).  See also 38 C.F.R. §3.350(f).  Subsection (p) provides for half- or full-step increases to the next higher rate in subsections (l ) through (n) for a veteran whose condition exceeds the requirements of his current rate, but does not qualify for the next higher rate.  

(At the time of the March 1993 rating decision, the service-connected disabilities independently ratable at 50 percent or more were the following:  involvement of the left upper extremity, evaluated as 20 percent disabling; weakness of the left lower extremity, evaluated as 20 percent disabling; spastic bladder, evaluated at 20 percent disabling; bilateral nystagmus and mild bilateral field loss, evaluated as 10 percent disabling; depressive neurosis, evaluated as 10 percent disabling; and bilateral hearing loss, evaluated as noncompensable.)

In a May 2011 rating decision, the Veteran's SMC award was increased based on loss of use of the right upper extremity and loss of use of the right lower extremity, plus the additional loss of use of the left lower extremity.  The level of disability for both lower extremities was noted as being "no natural knee action."  The RO noted that it had awarded the Veteran SMC under 38 U.S.C.A. § 1114 subsection (n) plus additional benefits under subsection (k) (SMC at the (n) rate plus (k)).  The basis of the award included additional intermediate or half-step increases for both service-connected disabilities independently ratable at 50 percent or more (38 C.F.R. § 3.350(f)(3)), and for loss of use of three extremities (38 C.F.R. § 3.350(f)(5)).  Under 38 C.F.R. § 3.350(f)(5), anatomical loss or loss of use, or a combination of anatomical loss and loss of use, of three extremities entitled the Veteran to the next higher rate without regard to whether that rate was a statutory rate or an intermediate rate.  In this regard, the loss of use of the three extremities warranted SMC at the (m) rate plus (k) prior to application of the above-noted immediate or half steps.  Furthermore, notwithstanding the combination of impaired extremities being the right upper and right lower extremities or the right lower and left lower extremities, the statutory rate of SMC, (m) plus (k), remained the same.  See 38 U.S.C.A. § 1114 subsection (m); 38 C.F.R. § 3.350(c)(1)(ii), (iii).  

With respect to the above SMC rate, (n) plus (k), and as noted above, the Veteran is service connected for bilateral hearing loss and for nystagmus and mild bilateral field loss.  The Board is mindful that bilateral deafness and deficits in visual acuity, individually or in combination, can provide a basis for a higher rate of SMC.  In this case, the Veteran's hearing loss disability is evaluated as noncompensable.  The evidence does not otherwise reflect bilateral deafness.  Concerning the Veteran's visual acuity, in a report of November 2010 VA eye examination, distant visual acuity was reported as 20/30 (corrected) in the right eye and 20/25 (corrected) in the left eye.  Near visual acuity was reported as 20/40 (corrected) in the right eye and 20/30 (corrected) in the left eye.  The examiner further commented that visual acuity was not worse than 5/200.  Otherwise, in an April 2011 VA treatment note, the Veteran was noted to deny blindness or decreased vision.  Here, the evidence does not support visual acuity of 5/200, visual acuity equating to light perception only or no light perception, nor is enucleation shown.  Furthermore, the Board is mindful that concentric contraction of the field of vision to 5 degrees or less in both eyes is the equivalent of 5/200 vision.  See 38 C.F.R. § 3.350(b)(2).  A Goldman visual field chart associated with the November 2010 VA eye examination does not reflect findings of concentric contraction of the Veteran's field of vision to 5 degrees or less in either eye.  Furthermore, the VA examiner's assessment in November 2010 of mild loss of visual field is consistent with such a finding.  

With the above in mind, and the Veteran's SMC rate at (n) plus (k), the Board notes that the criteria for establishing the need for aid and attendance includes consideration of whether the Veteran 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; or whether he is a patient in a nursing home because of mental or physical incapacity; or whether he establishes factually a need for aid and attendance under the criteria set forth under 38 C.F.R. § 3.352(a) (inability to dress/undress, or to keep ordinarily clean/presentable; frequent adjustment of special prosthetic/orthopedic appliances requiring the aid of another; inability to feed himself; inability to attend to wants of nature; or incapacity, physical or mental, that requires assistance on a regular basis to protect from hazards/dangers incident to daily environment).  The aid needs to be regular but need not be constant.  

If a veteran is so helpless as to be in the need of regular aid and attendance, he or she can qualify for such benefit under 38 U.S.C.A. § 1114 subsection (l).  See also 38 C.F.R. § 3.350(b)(3).  However, any such award must be based upon disability separate and distinct from those disabilities that form the basis of a veteran's SMC award, if such an award has been granted.  See 38 C.F.R. § 3.350(e)(3).  In the present case, excluding the Veteran's loss of use of his three extremities (the right upper extremity, right lower extremity, and left lower extremity), none of the Veteran's other service-connected disabilities is evaluated as 100 percent disabling, nor does the evidence of record document that the disabilities, individually or in combination, render the Veteran helpless or in need of aid and attendance.  In this regard, the Veteran does evidence weakness in his left upper extremity, but he does retain function of the extremity.  Furthermore, the SMC rate of payment for a combination of loss of use of the Veteran's three extremities (the loss of use appearing to be the reason for the Veteran's claim for aid and attendance), results in SMC payable, at a minimum, at the (m) rate, a higher rate of SMC than that which would be warranted for SMC at the (l) rate for aid and attendance.  As such, the Board does not find that awarding regular aid and attendance under 38 U.S.C.A. § 1114 subsection (l), when considered in light of the Veteran's current SMC award rate, is permissible.  Nor has it been established that the Veteran is entitled to two or more of the rates provided in the subsections (l) through (n).  As already noted, consideration of the same disability for which an (m) rate is warranted when analyzing whether an (l) rate is warranted is not permissible.

The Board also notes that a veteran who receives the SMC rate under 38 U.S.C.A. § 1114 subsection (o) or the maximum rate authorized under subsection (p) and who needs regular aid and attendance or a higher level of care is entitled to an additional allowance under 38 U.S.C.A. § 1114 subsection (r)(1).  See 38 C.F.R. § 3.350(h).  Determination for the aid and attendance need is subject to the provisions of 38 C.F.R. § 3.352(a).  The aid and attendance allowance under (r)(1) is payable whether or not such need was a partial basis for entitlement to the rate under SMC (o) or (p) or was based on an independent factual determination.  In addition, a veteran who receives SMC at the (n 1/2) rate plus (k) and who establishes a factual need for regular aid and attendance is also entitled to the (r)(1) allowance.  See 38 C.F.R. § 3.350(h)(2).  

In the present case, the evidence does not established that the Veteran is entitled to the SMC rate under (o) or the maximum SMC rate under subsection (p).  His service-connected disabilities do not meet the criteria specified under 38 C.F.R. § 3.350(f) for application of subsection (p) at the maximum rate.  The Veteran could also receive the maximum rate under subsection (p) were he already at the intermediate rate between subsection (n) and (o), and there was additional independently rated disability or disabilities at 50 percent or 100 percent.  38 C.F.R. §3.350(f)(3), (4).  However, as noted above, such is not the case here, in that the evidence does not establish the Veteran is entitled to SMC at the (n 1/2) rate plus (k).  

The Board is also aware that a veteran is entitled to SMC (o) if he or she suffers from paraplegia (paralysis of both lower extremities) together with the loss of anal and bladder sphincter control.  See 38 C.F.R. § 3.350(e)(2).  In a report of December 2010 VA examination (pertaining to the left lower extremity), the examiner noted the Veteran's history of paralysis in the upper and lower extremities.  The examiner also noted the Veteran's history of problems voiding due to an inability to stand up, thus resulting in the use of an appliance (catheter).  The Veteran additionally provided a history of impairment of bowl function associated with constipation without fecal incontinence.  On examination, in particular, sensory and reflex evaluations of the left lower extremity revealed absent ankle and knee jerk with normal vibration testing, decreased pain/pinprick, and normal position sense and light touch.  The examiner's diagnoses included loss of use of the left lower extremity.  Paraplegia was not identified.  Otherwise, the clinical findings of record do not reflect paraplegia with loss of anal and bladder sphincter control.  

A veteran is also entitled to SMC (o) when there are disabilities entitling the veteran to two or more SMC rates provided in 38 U.S.C.A. § 1114 subsection (l) through (n), with no condition being considered more than once.  38 C.F.R. § 3.350(e)(1)(ii); Breniser v. Shinseki, 25 Vet. App. 64 (2011).  In the present case, with respect to the loss of use of the Veteran's three extremities, any loss of use of both lower extremities or loss of use of an upper and lower extremity would warrant, at a minimum, SMC at the (l) rate or SMC at the (m) rate, respectively.  However, the additional loss of use of a single extremity (the third extremity), no matter what the level of disability, warrants no more than SMC at the (k) rate.  Furthermore, the above-noted intermediate or half steps under 38 U.S.C.A. § 1114 subsection (p) are not applicable to SMC at the (k) rate.  Therefore, the Board does not find disabilities entitling the Veteran to two or more SMC rates provided in 38 U.S.C.A. § 1114 subsection (l) through (n) has been shown.  

Therefore, having considered the aforementioned requirements delineated by law and regulation, the Board finds that the criteria for an award of higher SMC under (r)(1) on account of the need for aid and attendance have not been met.  Here, the basis of the Board's denial is not necessarily that the Veteran does not need the aid and attendance of another person.  Rather, the basis is the level of disability, which in this case does not allow for an SMC award at a sufficiently high rate to warrant a separate or higher entitlement to benefits based on that need for aid and attendance.  

Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim.  38 U.S.C.A. § 5107 (West 2002).  


ORDER

Entitlement to a higher special monthly compensation (SMC) based on the need for regular aid and attendance as contemplated by 38 U.S.C.A. § 1114(r)(1) is denied.



_________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs