Citation Nr: 1314326 Decision Date: 05/01/13 Archive Date: 05/15/13 DOCKET NO. 10-40 807A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to an effective date for an award of special monthly pension based upon the need for regular aid and attendance, prior to June 12, 2009. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from June 1953 to April 1955. He died in June 1990. The appellant is his widow. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that granted the appellant's claim for special monthly pension based on the need for regular aid and attendance. The award was effective June 12, 2009. The appellant has disagreed with the effective date of the award. 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). FINDING OF FACT Prior to June 12, 2009, the appellant was able to care for herself, attend to the wants of nature and dress herself. CONCLUSION OF LAW The criteria for an effective date for an award of special monthly pension based on the need for regular aid and attendance prior to June 12, 2009, were not met. 38 U.S.C.A. § 1541 (West 2002); 38 C.F.R. §§ 3.351, 3.352 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance VA has duties 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). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice of the requirements of a claim for regular aid and attendance was provided to the appellant in a May 2002 letter. The appellant, through her attorney, has made arguments addressing her claim. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file include the appellant's testimony at a hearing in conjunction with her claim for an award of special monthly pension, private and VA medical records and the reports of VA examinations. A VA examination has been conducted. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination obtained in this case is adequate, as it is based on an examination of the record and a review of the claims folder. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the appellant in developing the facts pertinent to the claim. Essentially, all available evidence that could substantiate the claim has been obtained. Analysis The Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). For special monthly pension at the higher aid and attendance rate to be granted, it must be shown that the surviving spouse is blind or nearly so 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; is a patient in a nursing home because of mental or physical incapacity, or establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). 38 U.S.C.A. §§ 1502, 1541; 38 C.F.R. § 3.351. In pertinent part, the following criteria will be accorded consideration in determining the need for regular aid and attendance: inability of claimant to dress or undress himself (herself), or to keep himself (herself) 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 aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of claimant to feed himself (herself) through loss of coordination of upper extremities or through extreme weakness; 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 claimant from hazards or dangers incident to his or her environment. "Bedridden" will be a proper basis for the determination. 38 C.F.R. § 3.352(a). The appellant submitted a claim for aid and attendance in May 2002. She indicated her health conditions had worsened and that she needed the help and assistance of others to perform the basic needs of daily living. In July 2002, O. G. Roman., M.D., related the appellant had been his patient since April 1997. He stated she had lumbar radiculopathy, hypertension, lumbosacral muscular spasm and cardiomegaly. The physician indicated the appellant was on medication. Private medical records show the appellant was seen in July 2002, and her blood pressure was 130/80. Additional findings are not legible. The appellant was afforded a VA aid and attendance examination in April 2004. She reported she had generalized body aches from her neck to her legs, and that she had nuchal pain off and on which was only transiently relieved with medication. She stated she had right shoulder pain, right wrist pain and low back pain that radiated to the right lower extremity. She also mentioned she had hypertension and osteoporosis. It was indicated she attended the activities of daily living and to the needs of nature by herself. She lived alone but was looked after by a daughter who helped her with household chores, cooking and washing her clothes. It was also noted the appellant was able to go for a short walk to a grocery store that was very close to her home, as well as to church, which was next to her house. The examiner stated the appellant was brought to the examination by her daughter. It was noted she was not hospitalized or bedridden. She had no major visual problems. During a typical day, the appellant attended to the activities of daily living and needs of nature by herself without assistance. She used a cane to walk. An examination disclosed no restrictions of the upper or lower extremities. Her gait was normal. She had no limitation of motion of the spine, and no deformities were noted. She was able to walk for approximately 10 minutes at a slow to normal pace, but had to make frequent stops to rest on longer walks. The examiner indicated the appellant could leave her home to attend medical appointments, and to go to church and the grocery store. She could not carry anything weighing more than five pounds because of pain in her hands. The diagnoses were degenerative joint disease of the spine, hypertension and osteoporosis. The appellant was again examined by the VA on June 12, 2009. The examiner noted she reviewed the claims folder. It was stated the appellant brought a medical certificate from her private cardiologist that reflected diagnoses of arteriosclerotic heart disease, hypertension, osteoporosis and hypercholesterolemia. It was noted she was not permanently bedridden, but that she could not travel beyond her current domicile. She was brought to the examination by a family member. It was further noted that the appellant's daughter cooked and did the household duties. The appellant complained of dyspnea on exertion upon minimal effort and asserted that her back pain impaired her ability to perform some activities of daily living. It was further stated she needed some help in dressing and undressing, as well as bathing. The appellant was able to eat by herself and groom and toilet herself. An examination demonstrated she had an ataxic gait. She could only walk up to a few hundred yards. She needed company to go outside due to a risk for falls. Her functions represented permanent impairments. The function of her lower extremities was not normal. Weight bearing was abnormal, and showed unbalance. She had difficulty standing up from the chair, and had abnormal balance. The diagnoses were lumbar radiculopathy, hypertension, lumbosacral spasm, cardiomegaly, arteriosclerotic heart disease, osteoporosis and degenerative joint disease. In a statement dated October 2010, the appellant's daughter wrote that due to her mother's condition, she felt obliged to take care of her "since a few years ago," and that she had resigned from her job in order to do so. She stated her mother's conditions included high blood pressure, arthritis and osteoporosis. She added her mother needed help in doing all household chores, going to the doctor, and staying on top of her medication and meals. Occasionally, she was so ill she had to use a wheelchair or a walker. The appellant's daughter stated the appellant was currently in a more delicate condition and could not be left alone since she forgot everything. As noted above, by rating action dated July 2009, the RO granted the appellant's claim for aid and attendance, effective June 12, 2009, the date of a VA examination. The appellant argues her award should be effective the date of her claim, that is, May 2002. The appellant's representative alleges that the July 2002 statement from Dr. Roman reflects treatment for essentially the same conditions noted on the VA examination in 2009, which provided the basis for granting the claim. This is simply not true. The Board notes that Dr. Roman listed lumbar radiculopathy, hypertension, lumbosacral muscular spasm and cardiomegaly. It is significant to point out that the June 2009 VA examination also diagnosed arteriosclerotic heart disease and degenerative joint disease. This was the initial documentation of cardiovascular disease. The Board observes the April 2004 VA examination revealed the appellant was able to live by herself. The appellant attended to the activities of daily living and to the wants of nature without assistance. She was able to go to the grocery store, although she apparently was limited in what she could carry. The Board also points out that the April 2004 VA examination showed the appellant's daughter merely helped the appellant with household chores, but by the time of the June 2009 examination, the daughter performed the household duties. Additionally, the appellant required assistance in dressing on the most recent examination. Thus, a comparison of the examination findings demonstrates the appellant's ability to care for herself had declined, and the June 2009 examination findings supported a conclusion the appellant was in need of regular aid and attendance. That was simply not true based on the April 2004 examination findings. The appellant's attorney asserts there is competent lay evidence the appellant needed assistance of others to perform the basic needs of daily living. The appellant's testimony at an April 2003 hearing at the RO to the effect that her "daughters take care of things" and that [t]hey do everything for me" is not supported by the findings on the April 2004 VA examination. It is not disputed that even then she required some assistance. However, the record simply did not support a conclusion the appellant required the regular aid and attendance of another person prior to June 12, 2009. Under the circumstances, the Board concludes the medical findings of record are of greater probative value than the appellant's allegations regarding her need for the aid and attendance. The Board finds, therefore, that the preponderance of the evidence is against the claim for an effective date for an award of aid and attendance prior to June 12, 2009. ORDER An effective date for an award of special monthly pension based on the need for regular aid and attendance, prior to June 12, 2009, is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs