Citation Nr: 1314034 Decision Date: 04/26/13 Archive Date: 05/03/13 DOCKET NO. 09-45 978 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to special monthly compensation by reason of the need for regular aid and attendance of another person, and/or of being housebound due to disabilities. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel INTRODUCTION The Veteran served on active duty from September 1954 to September 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Department of Veterans Affairs (VA) "Tiger Team" Special Processing Unit located at the VA Regional Office in Cleveland, Ohio. Due to the Veteran's place of residence, subsequent development was performed at the VA Regional Office in Houston, Texas (RO). In September 2011, the Veteran, seated at the RO, testified via videoconferencing before the undersigned Veterans Law Judge, seated in Washington, DC. In December 2011 and October 2012, the Board remanded the issue currently on appeal to the Appeals Management Center (AMC) for further development. The Board finds that the RO complied with the remand action and provided the Veteran a VA examination and obtained pertinent medical treatment records. This matter has properly been returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. It is reasonably shown that due to his service-connected disabilities, the Veteran in unable to care for his daily personal needs such as dressing, undressing, bathing, grooming, and chores, thus requiring regular personal care assistance from another person. 2. The Veteran is not permanently housebound by reason of his service-connected disabilities and does not have a single disability rated as 100 percent disabling in addition to a service-connected disability or disabilities independently evaluated as 60 percent or more disabling which are separate and distinct from the 100 percent service-connected disability. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to special monthly compensation based on the need for aid and attendance are met. 38 U.S.C.A. §§ 1114, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.350, 3.352 (2012). 2. The criteria for special monthly compensation based on being housebound due to a service-connected disability have not been met. 38 U.S.C.A. §§ 1114, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.350, 3.352 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), in this case the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Regarding the claim for special monthly compensation due to the need for aid and attendance, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Regarding the claim for special monthly compensation for housebound status, the Board concludes that the Veteran has been afforded appropriate notice under VCAA. The RO provided a VCAA notice letter to the Veteran in January 2008, prior to the initial adjudication of the claim. The letter notified the Veteran of what information and evidence must be submitted to substantiate the claim for special monthly compensation based upon aid and attendance and housebound status, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. He was also told to inform VA of any additional information or evidence that VA should have. The content of the letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The Board finds that all relevant evidence has been obtained with regard to the Veteran's claim, and the duty to assist requirements have been satisfied. VA treatment records also have been associated with the claims folder. The Veteran underwent an adequate VA examination in 2012 to determine whether the service-connected disabilities caused the Veteran to be housebound. The Board finds that there is no identified relevant evidence that needs to be obtained in this regard. Under the circumstances, the Board finds no reasonable possibility that further assistance would aid the Veteran in substantiating the claim. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Special monthly compensation based on the need for aid and attendance Compensation at the aid and attendance rate is payable when the veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b). Determinations as to the need for regular aid and attendance are factual and must be based upon the actual requirements for personal assistance from others. In making such determinations, consideration is given to such conditions as: The inability of the 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 assistance. The inability of the 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, either physical or mental, which requires care or assistance on a regular basis to protect a claimant from hazards or dangers incident to one's daily environment. It is not required that all of the disabling conditions enumerated be present before a favorable rating is made. The particular personal functions that the claimant is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the claimant be so helpless as to be in need of regular aid and attendance, not that there is a constant need. "Bedridden" constitutes a condition which, through its essential character, actually requires that an individual remain in bed. The fact that a claimant has voluntarily taken to bed, or that a physician has prescribed bed rest for a lesser or greater portion of the day will not suffice. 38 C.F.R. § 3.352(a). In Turco v. Brown, 9 Vet. App. 222, 224 (1996), the Court of Appeals for Veterans Claims (Court) held that eligibility for special monthly compensation by reason of regular need for aid and attendance requires that at least one of the factors set forth in VA regulation is met. In addition, determinations that the claimant 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. See Turco, 9 Vet. App. 222, 224. The evidence must show that the claimant is so helpless as to need regular and attendance; constant need for aid and attendance is not required. 38 C.F.R. § 3.352(a). The Veteran's various statements taken together indicate his belief that he is entitled to special monthly compensation based on his need for regular aid and attendance. In a February 2008 written statement, the Veteran indicated that he had to pay someone to care for him. According to him, he required help cleaning the house, bathing, and the activities of daily living in general. During his September 2011 hearing, the Veteran testified that he had lost the use of his right (major) upper extremity and that he could not bathe, dress, or cut his food and that he had a care taker who was at his home eight hours a day. She cooked, cleaned, and did the laundry in addition to bathing and dressing the Veteran. He testified that he took pain medication and that these caused him to be dizzy. Further, the Veteran testified that without a care taker, he would have been in a nursing home. The Veteran further suggested that it was because of the essential loss of the right upper extremity that he required the daily assistance of a caretaker. Service connection is currently in effect for the following disabilities: reflex sympathetic dystrophy of the right hand associated with arthritis and with instability and limited range of motion, status-post right shoulder injury, evaluated as 70 percent disabling and arthritis with instability and limited range of motion status-post right shoulder injury, evaluated as 40 percent disabling. Additionally, the Veteran has been in receipt of a total disability evaluation effective since August 2005 on the basis of the right upper extremity disabilities. He is in receipt of special monthly compensation based upon the limited range of motion and pain of the upper right extremity. The Veteran's 40 percent and 70 percent rating are both based on the status post right shoulder injury and may be considered as one disability under 38 C.F.R. § 4.16. The Court held in Bradley v. Peake, 22 Vet. App. 280 (2008), held that a TDIU rating could serve as the "total" service-connected disability, if the TDIU entitlement was solely predicated upon a single disability for the purpose of considering entitlement to SMC as provided in § 1114(s). The Board finds that the evidence is in equipoise on the question of whether the Veteran requires the regular aid and attendance of another person for dressing or undressing himself, grooming, keeping himself clean and presentable, and performing chores as the result of his service-connected disabilities alone. He is shown to receive help with toileting, bathing and dressing due to the service-connected right shoulder disability and right hand disability. The December 2012 VA aid and attendance examination report indicates that the Veteran reported an inability to perform most of his activities of daily living alone. He reported that he had an assistant in his house who lives with him and the assistant helps bathe, feed, dress, and groom him. The VA examiner indicated that review of recent VA treatment records dated in August 2012 indicate that the Veteran had no major disabilities with the exception of bathing. It was noted that he needed minor assistance with feeding, toileting, and ascending and descending stairs. The Veteran reported at the examination that he was able to toilet without assistance. Examination revealed that the Veteran had severe impairment of the right upper extremity. It was noted that he had some difficulty self-feeding, grooming, and toileting and he had marked difficulty dressing and undressing and bathing. The examiner also indicated in the report that the Veteran was unable to perform self-care skills of feeding, dressing and undressing, and bathing. The examiner noted that the functional impairment was permanent. The diagnosis was monoparesis of the right upper extremity with resulting reduced range of motion of the right shoulder and reflex sympathetic dystrophy of the right hand. The November 2006 VA examination report indicates that the Veteran is right hand dominant. H.T., M.D., the Veteran's private physician completed a form in October 2007 in which he indicated that the Veteran, who was then 75 years of age, was in need of care for help with all of the activities of daily living. The Veteran's major diagnoses, according to Dr. H.T., were a seizure disorder, spinal stenosis, hypertension, and diabetes mellitus. Dr. H.T. also noted a shoulder problem. Dr. H.T. indicated that the Veteran was only able of leave his home or immediate premises with the assistance of another person. The Veteran required a cane or walker depending on the distance travelled, but he could use these devices on his own. Due to the Veteran's right shoulder disability, he needed help with dressing and undressing. The Veteran was in need of assistance in attending to the needs of nature. As well, the Veteran could not keep himself ordinarily clean and presentable without assistance. He was not, moreover, capable of protecting himself from the everyday hazards of life. The Board notes that Dr. H.T. did consider nonservice-connected disabilities when providing an opinion as to whether the Veteran required the aid and attendance of another. However, he also specifically noted that the Veteran needed assistance dressing and undressing due to the right shoulder disability. In a February 2008 written statement, the Veteran indicated that he had to pay someone to care for him. According to him, he required help cleaning the house, bathing, and the activities of daily living in general. At the November 2004 VA examination, the veteran reported that the state paid for an attendant to assist him at home and he had this attendant for 24 hours a week. A November 2006 fee-basis VA medical examination report indicated that the Veteran had severe cervical stenosis that existed since May 1955, which affected the right shoulder, arm, hand, and neck. Indeed the nerves were implicated, and symptoms included tingling, numbness, and weakness. There was constant pain associated with the right upper extremity disability. According to the examiner, the Veteran could not drive or write, and he became disoriented and lost his balance while walking. The Veteran could not dress unassisted and could not use his right hand in any capacity. Also, due to his right shoulder arthritis, the Veteran could not raise his right arm. The Veteran relied on prescription pain medication. The examiner indicated that the Veteran's right upper extremity nerve damage constituted reflex sympathetic dystrophy. According to the examiner, Veteran's service-connected disabilities caused pain. VA outpatient treatment records indicate that the Veteran had some ability of self care. An August 2009 VA nursing note indicated that the Veteran appeared for treatment on his own and was able to perform the activities of daily living. An October 2009 VA nursing note indicated that the Veteran was able to perform the activities of daily living by himself. Later that month, he asked to be seen earlier than scheduled for a VA appointment because he had a bus to catch. The record also includes outpatient treatment records dated in August 2012 which indicate that the motor strength was 3 out of 5 in the right upper extremity. A Functional Ability Screen noted independent with regard to grooming (implements provided), that he needed some help but can do something alone for toilet use, that he needed help cutting food, spreading butter, etc., and independent regarding dressing and was dependent regarding bathing. After a full review of the record, including the lay and medical evidence, the Board finds that the weight of the evidence on the question of whether the Veteran requires the regular aid and attendance of another person for dressing or undressing himself, bathing, grooming, toileting, keeping himself clean and presentable and performing chores as the result of the service-connected right shoulder disability and right hand disability supports the claim. The December 2012 VA examiner indicated that the right upper extremity had severe impairment and while noted difficulty with self-feeding, dressing and undressing, grooming, and bathing, the examiner also concluded that the Veteran was unable to perform self-feeding, dressing and undressing, and bathing. The examiner made with conclusion with consideration of the evidence of record including the August 2012 outpatient treatment records noted above. At the time of the hearing, the Veteran credibly testified that he was essentially unable to use his right arm and he continues to assert that he required the assistance of another person with personal activities. It is not required that all of the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found to exist before a favorable rating may be made. It is logical to infer, however, a threshold requirement that "at least one of the enumerated factors be present." Turco at 224. The performance of the necessary aid and attendance service by a relative or other member of the household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352(c). Thus, on this record the Board finds that the claim for special monthly compensation based on the need for regular aid and attendance is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Special monthly compensation based on housebound The regulations also provide additional compensation on the basis of being housebound where the veteran (1) has, in addition to a single, permanent service-connected disability rated 100 percent disabling, additional service-connected disability or disabilities independently evaluated as 60 percent or more disabling which are 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. A veteran will be considered housebound where the evidence shows that, as a direct result of his service-connected disability or disabilities, he is substantially confined 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 his lifetime. 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350. Regarding the criteria necessary for housebound status, the Veteran does not have a single, permanent service-connected disability rated 100 percent disabling; therefore, he does not meet the legal criteria for payment of compensation at the housebound rate under that criterion. See 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350. Even if the Board considered the Veteran's TDIU rating as the "total" service-connected disability, the Veteran does not meet the requirements under 38 U.S.C.A. § 1114(s) because he does not have additional service-connected disability or disabilities independently evaluated as 60 percent or more disabling which are separate and distinct from the 100 percent service-connected disability. See 38 U.S.C.A. § 1114(s); Bradley v. Peake, 22 Vet. App. 280 (2008). Furthermore, as detailed above, the competent evidence does not show that the Veteran's service-connected disabilities resulted in the Veteran being housebound. The evidence of record shows that the Veteran is able to ambulate with a cane or walker and is able to leave his home with use of a scooter, cane, walker, or wheel chair. There is no evidence showing that the Veteran is bedridden. The record shows that he is able to leave his house for medical appointments. Therefore, the Veteran does not qualify for special monthly compensation by reason of being housebound due to service-connected disability. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the fair preponderance of the evidence is against the claim, in which case, the claim is denied. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The Board finds that, because there is a preponderance of the evidence against the claim for special monthly compensation based upon being housebound, reasonable doubt is not for application, and this claim must be denied. ORDER Entitlement to special monthly compensation based on the need for aid and attendance is granted, subject to the regulations governing payment of monetary awards. Special monthly compensation based on being housebound due to service-connected disability is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs