Citation Nr: 1311281 Decision Date: 04/05/13 Archive Date: 04/19/13 DOCKET NO. 08-22 956A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to special monthly compensation based on the need for the regular aid and attendance of another person. 2. Entitlement to an automobile and adaptive equipment or to adaptive equipment only. REPRESENTATION Appellant represented by: Timothy W. Murphy, Attorney WITNESSES AT HEARING ON APPEAL Appellant and his wife, R.G. ATTORNEY FOR THE BOARD D. Whitehead, Counsel INTRODUCTION The Veteran served on active duty from May 1948 to February 1954. This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Jurisdiction over the case was subsequently transferred to the RO in St. Petersburg, Florida due to the Veteran's change in residence during the pendency of the appeal. Since the RO's most recent consideration of the Veteran's claims, new evidence has been received along with the Veteran's waiver of his right to initial RO consideration of the evidence. In February 2013, the Veteran and his spouse, R.G., testified before the undersigned Veterans Law Judge during hearing held at the RO. A transcript of the hearing has been associated with the claims files. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). The issue entitlement to an automobile and adaptive equipment or to adaptive equipment only is addressed in the REMAND that follows the ORDER section of this decision. FINDING OF FACT The Veteran's service-connected disabilities prevent him from attending to the needs of nature, caring for himself, and/or protecting himself from the hazards of his environment. CONCLUSION OF LAW The criteria for entitlement to special monthly compensation based on the need for the regular aid and attendance of another person have been met. 38 U.S.C.A. §§ 1114, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.350, 3.352 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist As a preliminary matter, the Board notes that the Veteran has been provided all required notice. In addition, the evidence currently of record is sufficient to substantiate his claim for special monthly compensation. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012) or 38 C.F.R. § 3.159 (2012). Special Monthly Compensation- Aid & Attendance Special monthly compensation is payable to a person who is permanently bedridden or so helpless as a result of service-connected disability that he is in need of the regular aid and attendance of another person. 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b). Factors to be considered in determining whether a Veteran requires such are the inability to perform activities of daily living (dressing, cooking, eating, attending to the wants of nature, cleaning, and personal hygiene), a need for assistance in adjusting orthopedic or prosthetic devices, and requiring care or assistance on a regular basis to protect oneself from the hazards or dangers of the daily environment. 38 C.F.R. § 3.352(a). The Veteran asserts that his service-connected disabilities are of such a severity that he requires regular aid and attendance. He essentially claims that he requires assistance to perform daily activities, such as bathing, toileting, and food preparation, due to his service-connected cold weather injuries and arthritis affecting his hands and feet, and lumbar spine disability. He claims to have loss sensation in his feet, and he reports that he has severely limited mobility requiring him to use a wheelchair. The Veteran is currently service-connected for posttraumatic stress disorder (PTSD), bipolar disorder, and major depressive disorder (rated 70 percent disabling); residuals of cold injury of the left foot (rated 20 percent disabling); residuals of cold injury to the right foot (rated 10 percent disabling); arthritis of the left foot (rated 10 percent disabling); arthritis of the right foot (rated 10 percent disabling); residuals of cold injury to the left hand (rated 10 percent disabling); residuals of cold injury of the right hand (rated 10 percent disabling); arthritis of the left hand (rated 10 percent disabling); arthritis of the right hand (rated 10 percent disabling); degenerative disc disease of the lumbar spine (rated 10 percent disabling); radiculopathy and neuropathy of the left lower extremity (rated 10 percent disabling); radiculopathy and neuropathy of the right lower extremity (rated 10 percent disabling); residuals of renal calculus (rated noncompensable); and residuals of a shell fragment wound of the scalp (rated noncompensable). He has a 100 percent disability rating based on unemployability due to his service-connected psychiatric disabilities. Initially, the Board notes that in a June 2010 rating decision, the RO granted special monthly compensation at the housebound rate. A functional mobility evaluation completed by the Veteran's private physician, Dr. J.L., in January 2009 includes the Veteran's reports of numbness, tingling, and chronic pain in his feet, legs, and hands for seven to eight years with progressive worsening. He reported that the Veteran used bilateral crutches/braces for five years but that he now lacked strength to use these devices for any distance. Regarding mobility, Dr. J.L. reported that the Veteran could only move for short distances throughout the house with the use of his crutches. He also needed assistance with bathing and required proper wall mounts for toileting. Dr. J.L. determined that the Veteran's mobility was limited due to pain in his arms and legs, numbness in his feet, and problems with balance. He reported that the Veteran did not have sensation in his arms and legs. According to Dr. J.L., the Veteran has sensory loss that causes his imbalance and results in a high risk of falls, without the strength/sensation in his arms to use his crutches beyond short distances. An April 2010 VA housebound and aid and attendance report essentially documents the Veteran's description of his need for assistance with some of his activities of daily living. The Veteran stated that he is unable to prepare his own meals due to disability and requires assistance with bathing and tending to his other hygiene needs. He reported that he is unable to stand in the tub due to pain in his feet and his degenerative disc disease of the back. He reported having difficulty dressing himself due to tingling and pain in his arms and stiffness and limited mobility of his limbs. The Veteran reported having extreme foot pain caused by frost bite, and he reportedly has fallen in the bathroom due to imbalance. On an August 2011 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance (VA Form 21-2680), Dr. J.L. reported that the Veteran was in a wheelchair and he determined that the Veteran needs assistance with bathing and his other hygiene needs. Although the Veteran has good grip strength, Dr. J.L. stated that the Veteran has a decreased ability to have consistent motor strength with his upper extremities. The physician also reported that the Veteran is unable to ambulate without assistance. Dr. J.L. identified the Veteran's primary medical conditions as neurologic (peripheral) and vascular, and he stated that the Veteran has poor balance. He further stated that the Veteran is unable to ambulate, cannot dress or bathe himself without assistance, and is unable to leave his home without assistance. In a December 2010 letter, Dr. J.L. reported that the Veteran has loss mobility of his lower extremities and that he uses braces, crutches and a wheelchair to ambulate, along with help from his wife. In July 2012, private physician Dr. G.R.P. completed an Examination for Housebound Status or Permanent Need for Regular Aid and Attendance (VA Form 21-2680). Dr. G.R.P. stated that the Veteran is wheel-chair bound. He determined that the Veteran has very limited physical activities as a result of significant problems with ambulation due to degenerative joint disease and frostbite of both lower extremities during service. The physician relayed that the Veteran is unable to leave his home without assistance. Dr. G.R.P. determined that the Veteran needs assistance in bathing and tending to other hygiene needs. During the February 2013 Board hearing, the Veteran and his wife essentially testified that he requires constant care and that he is unable to care for himself. His wife essentially testified that he is unable to tend to his toileting needs without assistance. The Veteran also testified that he is unable to bathe himself and that a nurse's aide comes to his house approximately three times a week to help his wife with his bathing. The opinions from Drs. J.L. and G.R.P., along with the Veteran and his wife's credible statements, support a grant of special monthly compensation based on a need for regular aid and attendance. Essentially, the medical and lay evidence indicates that such is need is the result of the Veteran's multiple disabilities affecting his bilateral lower extremities. The Board finds Dr. J.L. and Dr. G.R.P.'s opinions as to the severity of the Veteran's neurologic and vascular conditions affecting his lower extremities and the resulting physical limitations are the most probative evidence concerning whether the Veteran's service-connected disabilities are sufficient by themselves to render him in need of the regular aid and attendance of another person. Accordingly, the Board finds that entitlement to special monthly compensation based on the need for the regular aid and attendance of another person is warranted. ORDER Entitlement to special monthly compensation based on the need for the regular aid and attendance of another person is granted, subject to the criteria applicable to the payment of monetary benefits. REMAND Unfortunately, a remand is required with respect to the Veteran's remaining claim. The Veteran is seeking entitlement to financial assistance in the purchase of an automobile and adaptive equipment, or of adaptive equipment only. In multiple statements submitted in support of his claim and his February 2013 testimony before the Board, the Veteran stated that he has problems driving due to pain, tingling, and diminished sensation in his lower extremities. He essentially testified, and VA treatment records reflect that he was referred for driver rehabilitation training due to neuropathy. He successfully completed this training in June 2007. In further support of his claim, the Veteran submitted a December 2010 letter from his private physician, Dr. J.L., in which the physician reported that the Veteran has lost mobility of his lower extremities. Dr. J.L. opined that the Veteran would benefit greatly from having automobile adaptive equipment. To date, the Veteran has not been afforded a VA examination with respect to this claim. Given the above, a medical examination and opinion are necessary to determine whether he is entitled to an automobile and adaptive equipment or adaptive equipment only. This must be accomplished on remand. Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim. 2. Then, afford the Veteran a VA examination by an appropriately qualified health care professional to determine if the Veteran qualifies for an automobile and adaptive equipment or adaptive equipment only. The claims files and any pertinent evidence in Virtual VA that is not contained in the claims files must be made available to and reviewed by the examiner. The examiner should indicate if the Veteran has the following, due to service-connected disability or disabilities: (a) A loss of use of his upper or lower extremities, that is, whether remaining function of one foot and/or both feet is "that which would be equally well served by an amputation stump at the site of the election below the elbow or knee, with use of a suitable prosthetic appliance" such that it precludes locomotion without the aid of braces, crutches, canes or a wheelchair; (b) Ankylosis of one or both knees or one or both hips; (c) A loss of use of one lower extremity which, together with the residuals of an organic disease or injury, affects the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes or a wheelchair, and (d) A loss of use of one lower extremity which together with the loss of use of an upper extremity affects the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes or a wheelchair. The examiner should clearly outline the rationale and discuss the medical principles involved for each opinion expressed. If a requested medical opinion cannot be given, the examiner must state the reason why. 3. Undertake any other development deemed warranted. 4. Then, readjudicate the claim. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative must be furnished a supplemental statement of the case and be given the requisite opportunity to respond thereto before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). As noted above this case has been advanced on the Board's docket. It must also be handled in an expeditious manner by the RO or the AMC. See 38 U.S.C.A. §§ 5109B, 7112. ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs