Citation Nr: 1312508	
Decision Date: 04/16/13    Archive Date: 05/02/13

DOCKET NO.  10-00 082	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to special monthly compensation based on a need for aid and attendance.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

J. Hager, Counsel






INTRODUCTION

The Veteran served on active duty from March 1960 to January 1963.

This case comes before the Board of Veterans' Appeals (Board) from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.  In that decision, the RO denied entitlement to special monthly compensation based on aid and attendance.  In the body of its decision, the RO also considered entitlement to special monthly compensation based on housebound status and denied this lesser benefit as well.  In his January 2009 notice of disagreement, the Veteran specifically disagreed only with the decision not to grant entitlement to special monthly compensation based on aid and attendance.  The Board will therefore not consider entitlement to special monthly compensation based on housebound status.  See 38 C.F.R. § 20.201 (2012) (providing for identification of specific determinations with which the claimant disagrees where the RO has decided multiple claims).

The Board also notes that the Veteran's representative raised the issue of entitlement to special monthly compensation for loss of use of the right foot in a December 2010 memorandum.  In May 2011, the RO denied entitlement to special monthly compensation based on loss of use, as well as entitlement to service connection for a right leg disability.  The Veteran's June 2011 notice of disagreement identified only entitlement to service connection for right leg disability as a decision with which he disagreed, and the issue of entitlement to special monthly compensation for loss of use is therefore not before the Board.  Id. 


FINDINGS OF FACT

1.  The Veteran is currently in receipt of service connection for right ankle ankylosis, rated 40 percent disabling; right foot muscle group X injuries, rated 30 percent disabling; status post lumbar surgery with lumbar strain and scar, rated 20 percent disabling; left ankle lateral malleolus scar, rated 10 percent disabling; right popliteal area scar, rated 10 percent disabling; right forearm limitation of flexion, rated 10 percent disabling; right hip degenerative arthritis associated with residuals of fractured inferior ramus, both pubic bones, rated 10 percent disabling, and for residuals of a hemorrhoidectomy, right medial tibial scar, and residuals of fractured inferior ramus, both pubic bones, each rated noncompensable.  His combined rating is 70 percent.  The Veteran has also been granted a total disability rating based on individual unemployability, effective March 26, 1975.

2.  The evidence is approximately evenly balanced as to whether the Veteran's service connected disabilities cause physical incapacity that requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment.


CONCLUSION OF LAW

With reasonable doubt resolved in favor of the Veteran, the criteria for special monthly compensation based on the need for regular aid and attendance have been met.  38 U.S.C.A. §§ 1114(l), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.350, 3.352(a) (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act

The Veterans Clams Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012).  As the Board is granting in full the benefit sought, however, further discussion of the VCAA is unnecessary.  Wensch v. Principi, 15 Vet. App. 362, 367-368 (2001).




Analysis

The Veteran contends that he is entitled to special monthly compensation based on the need for aid and attendance.  Under 38 U.S.C.A. § 1114(l), special monthly compensation is payable if, as the result of service-connected disability, the Veteran is so helpless as to be in need of regular aid and attendance of another person.  38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b).

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: the inability of the Veteran 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 such aid; inability of the Veteran to feed himself because of the loss of coordination of upper extremities or because of extreme weakness; and the 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).

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).

The Veteran is currently in receipt of service connection for right ankle ankylosis, rated 40 percent disabling; right foot muscle group X injuries, rated 30 percent disabling; status post lumbar surgery with lumbar strain and scar, rated 20 percent disabling; left ankle lateral malleolus scar, rated 10 percent disabling; right popliteal area scar, rated 10 percent disabling; right forearm limitation of flexion, rated 10 percent disabling; right hip degenerative arthritis associated with residuals of fractured inferior ramus, both pubic bones, rated 10 percent disabling; and for residuals of a hemorrhoidectomy, right medial tibial scar, and residuals of fractured inferior ramus, both pubic bones, each rated noncompensable.  His combined rating is 70 percent.  The Veteran has also been granted a total disability rating based on individual unemployability, effective March 26, 1975.

There is conflicting evidence as to whether the Veteran requires the regular aid and attendance of another person.  As noted by the RO, the March 2008 VA examination report and VA treatment notes reflect that the Veteran uses his right hand to write, eat, and comb his hair, that he can eat without assistance, reposition himself, and is not incontinent.  On the other hand, VA treatment notes have also indicated that the pain from the Veteran's arthritis often prevents him from getting up or performing the activities of daily living and, significantly, that that he requested and receives VA home health care for health problems and personal needs on a regular basis.  For example, VA outpatient treatment noted from June and July 2008 describe the appellant's receipt of assistance from a registered nurse, a home health aide, and a social worker.  While the March 2008 VA examiner indicated that the effect of the Veteran's service connected disabilities on his daily activities "is limitation of most activities secondary to pain and lack of endurance," there are multiple lay statements from neighbors indicating that they have assisted in taking care of the Veteran and maintaining his property.

While the above evidence reflects that the Veteran does not need assistance in most of the activities indicated in the regulation, it shows that he has physical incapacity that requires care or assistance on a regular basis to protect him the hazards or dangers incident to his daily environment.  Moreover, although the Veteran also has multiple non-service connected conditions, the law requires that when it is not possible to separate the effects of service connected and non service connected disabilities, the benefit of the doubt doctrine dictates that such signs and symptoms be attributed to the service connected disabilities.  Mittleider v. West, 11 Vet. App. 181, 182 (1998).  

The evidence is thus approximately evenly balanced as to whether the Veteran's service connected disabilities alone cause him to be so helpless as to need regular aid and attendance, and the reasonable doubt created by this relative equipoise must be resolved in favor of the Veteran.  38 U.S.C.A. § 5107(b).  Entitlement to special monthly compensation based on the need for aid and attendance is therefore warranted.


ORDER

Entitlement to special monthly compensation based on a need for aid and attendance is granted, subject to controlling regulations governing the payment of monetary awards.


____________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs