Citation Nr: 1311316 Decision Date: 04/05/13 Archive Date: 04/19/13 DOCKET NO. 10-36 718 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to special monthly compensation (SMC) based on the need of the Veteran for regular aid and attendance or by being housebound. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD T. Hal Smith, Counsel 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 & Supp. 2012). The Veteran served on active duty from November 1944 to November 1945 and from January 1947 to March 1966, when he retired. The following determination is based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. FINDINGS OF FACT 1. The Veteran is service-connected for a low back disorder, rated 60 percent disabling; a right knee disorder, rated as 20 percent disabling; bilateral chronic sinusitis, rated as 10 percent disabling; gastritis without active duodenal ulcer, rated as 10 percent disabling; gastroesophageal reflux disease (GERD), rated as 10 percent disabling; otitis externa, rated as 10 percent disabling; residuals of a mortar fragment wound to the third finger of the left hand, rated as noncompensable; deviation of the nasal septum, rated as noncompensable; and right upper lobe tuberculoma, rated as noncompensable. The combined evaluation is 80 percent, and the Veteran was awarded a total disability rating due to unemployability based upon service-connected disabilities (TDIU), effective May 13, 1993. 2. The record indicates that the Veteran is so helpless due to his service-connected disabilities that he is need of the regular aid and attendance of another person. CONCLUSION OF LAW The criteria for the assignment of SMC based on the need for aid and attendance are met. 38 U.S.C.A. § 1141(l) and (s) West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.350, 3.352, 4.3 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 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) (2009). 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, and the duty to notify him what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012). 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 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2012). Subsequent judicial decisions have clarified the duties to notify and assist imposed by the VCAA, to include Pelegrini v. Principi, 18 Vet. App. 112 (2004), Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 ((Fed. Cir. 2006), and Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Considering the claim on appeal in light of the above-noted legal authority, and in light of the Board's favorable disposition of this matter, the Board finds that all notification and development action needed to fairly resolve the claim has been accomplished. Applicable Law and Regulations Under 38 U.S.C.A. § 1114(l) (West 2002 & Supp. 2012), SMC is payable if, as the result of service-connected disability, the Veteran has an anatomical loss or loss of use of both feet, or of one hand and one foot; has blindness in both eyes with visual acuity of 5/200 or less; is permanently bedridden; or is so helpless as to be in need of regular aid and attendance of another person. 38 U.S.C.A. § 1114(l) (West 2002 & Supp. 2012); 38 C.F.R. § 3.350(b) (2012). Need for aid and attendance means being so helpless as to require the regular aid and attendance of another person. 38 U.S.C.A. § 3.350(b) (West 2002 & Supp. 2012). Under 38 C.F.R. § 3.352(a), the following factors will be accorded consideration in determining whether the Veteran is in need of regular aid and attendance of another person: (1) the inability of the Veteran to dress or undress himself, or to keep himself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without such aid; (3) inability of the Veteran to feed himself because of the loss of coordination of upper extremities or because of extreme weakness; (4) 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 Veteran from the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a) (2012). It is not required that all the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found to exist before a favorable rating may be made. The particular personal functions which the Veteran is unable to perform should be considered in connection with his 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 is a constant need. 38 C.F.R. § 3.352(a) (2012); see also Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in section 3.352(a) must be present for a grant of SMC based on need for aid and attendance). For the purposes of 38 C.F.R. § 3.352(a), "bedridden" will be a proper basis for the determination of whether the Veteran is in need of regular aid and attendance of another person. "Bedridden" will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that claimant 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. 38 C.F.R. § 3.352(a) (2012). Under 38 U.S.C.A. § 1114(s) (West 2002 & Supp. 2012), compensation is payable if the Veteran has a single service-connected disability rated as 100 percent and - (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the Veteran is substantially confined as a direct result of service-connected disabilities to his dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout the Veteran's lifetime. 38 U.S.C. 1114(s) (West 2002 & Supp. 2012); 38 C.F.R. § 3.350(i)(2) (2012). Background Review of the record reflects that the Veteran is service-connected for a low back disorder, rated 60 percent disabling; a right knee disorder, rated as 20 percent disabling; bilateral chronic sinusitis, rated as 10 percent disabling; gastritis without active duodenal ulcer, rated as 10 percent disabling; gastroesophageal reflux disease (GERD), rated as 10 percent disabling; otitis externa, rated as 10 percent disabling; residuals of a mortar fragment wound to the third finger of the left hand, rated as noncompensable; deviation of the nasal septum, rated as noncompensable; and right upper lobe tuberculoma, rated as noncompensable. The combined evaluation is 80 percent, and the Veteran was awarded a total disability rating due to unemployability based upon service-connected disabilities (TDIU), effective May 13, 1993. The medical evidence of record establishes that the Veteran has a significant low back disorder classified as right far lateral L3-L4 herniated nucleus pulposus, with L4-L5 bulging disc, and degenerative joint disease (DJD) of the lumbar spine with paravertebral myositis and left L4-S1 lumbar radiculopathy. Upon VA spine examination in March 2009, the Veteran stated that due to his back and leg pain, he was unable to walk as usual. He was limited to household ambulation since community ambulation was not possible due to pain. The Veteran stated that bending activities (e.g. reaching to pick up an object off the floor) was very difficult. Also, his bathroom activities required more time than usual. At present, his community ambulation was accomplished by use of a manual wheelchair. On exam, there was significant limitation of ranges of motion of the thoracolumbar spine. There was evidence of muscle spasms, guarding, and tenderness severe enough to be responsible for an abnormal gait. Neurological findings included sensory examination which revealed 1 over 2 for pinprick, light touch, and position sense for the left lower extremity. However, there were no postural abnormalities or fixed deformities of the lumbar spine. As to the effects on the Veteran's usual daily activities, the examiner noted that he was severely limited in completing chores and shopping. His limitations as to recreation were moderate. He had severe limitations on traveling and bathing. As to the ability to feed himself, the limitation was mild. His dressing and toileting ability were severely limited. Grooming limitation was described as moderate. As for his right knee disorder to include DJD, when examined in December 2009, his range of motion was from 0 to 140 degrees with pain in the last 30 degrees with a functional loss of 0 degrees due to pain. Examination showed no instability or crepitance and functional limitations due to the right knee included moderate labels as to chores, recreation, traveling, bathing, dressing, and toileting. Private magnetic resonance imaging (MRI) of the lumbar spine in May 2010 showed suspected laminectomy changes at L5-S1 with bulging disk with right lateral disk protrusion at the L3-L4 level and mild narrowing of the right neural foramen. Additional VA spine examination in August 2010 reflects that the Veteran's gait was not considered normal and that he needed assistance. He used a cane and/or wheelchair. There was severe limitation of motion and degenerative disc disease (DDD) and bulging disks were noted. The examiner noted that the Veteran's back problems limited the Veteran for all of his daily activities and that he required help from caregivers. VA records in November 2010 show that the Veteran's right knee condition had improved, but his low back pain continued. It was noted that spinal blocks had not helped. As for additional service-connected disorders, treatment records and/or examinations of the sinuses and GI conditions in 2009 are also of record. VA records in April 2009 show that the Veteran's esophageal distress was less than a weakly occurrence. He had heartburn or pyrosis, and regurgitation several times per week. There was mild tenderness at the epigastric area. GERD with mild to moderate recurrent symptoms and associated hiatal hernia was diagnosed. These findings were essentially corroborated by a private computerized tomography scan in June 2010. Examination of the sinuses in April 2009 showed normal nasal mucosa and no polyps or obstruction. As for the service-connected left hand, VA examination in December 2009 showed mild degenerative changes. Analysis Based on the evidence presented, the Board finds that SMC based on aid and attendance of the Veteran is warranted. As noted above, it is not required that all of the disabling conditions enumerated in 38 C.F.R. § 3.352(a) (2012) be found to exist before a favorable rating may be made. Therefore, in light of the fact that the most recent VA orthopedic examiner in September 2010 opined that the Veteran requires another person's presence or attendance for all of his daily activities, the Board finds that the evidence is at least in equipoise on the question of whether SMC is warranted based on the need for regular aid and attendance. It is noted that the Veteran's low back disorder results in severe limitation of motion and that he also has complications due to radiculopathy in the lower extremities and a right knee disorder. Therefore, having resolved doubt in favor of the Veteran, the Board finds that the benefit sought on appeal is granted. The Board further notes that the Veteran's claim for SMC on the basis of being housebound is rendered moot by the grant of SMC based on aid and attendance, since SMC based on aid and attendance is the higher benefit and payable at a higher rate. ORDER Entitlement to SMC, based on the need for regular aid and attendance is granted, subject to the controlling regulations applicable to the payment of monetary benefits. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs