Citation Nr: 1314796 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 07-28 816 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to special monthly pension based on the need for regular aid and attendance. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD A. P. Simpson, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from May 1972 to July 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO). Within one year of the July 2006 rating decision, the Veteran submitted new and material evidence in connection with the claim for special monthly pension, and the RO reconsidered the claim in a March 2007 rating decision. See 38 C.F.R. § 3.156(b) (2012). The Veteran subsequently perfected an appeal in the matter. In May 2010 and August 2011, the claim was remanded for additional development and adjudicative action. An August 2010 rating decision denied the Veteran service connection for posttraumatic stress disorder. In June 2011, he submitted a notice of disagreement with the denial, and in November 2012, the RO issued a statement of the case in the matter. The Veteran has not filed a substantive appeal in the matter. Accordingly, such issue is not before the Board. 38 C.F.R. § 20.200 (2012). FINDING OF FACT The Veteran is not blind or domiciled in a nursing home, and the preponderance of the evidence is against a finding that his disabilities render him so helpless as to require the regular aid and attendance of another person. CONCLUSION OF LAW The criteria for establishing entitlement to special monthly pension based on the need for regular aid and attendance of another person are not met. 38 U.S.C.A. §§ 1502, 1521 (West 2002); 38 C.F.R. §§ 3.351, 3.352 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist him in the development of this claim prior to its initial adjudication. A May 2006 letter notified him of the evidence necessary to substantiate this claim. The letter also informed him of the evidence VA was responsible for providing, and the evidence he was responsible for providing. This claim has been on appeal since 2006, and the Veteran has had ample opportunity to respond/supplement the record. It is not alleged that notice in this case was less than adequate. The Veteran's VA treatment records and Social Security Administration records have been secured. The evidence shows that the Veteran was incarcerated for approximately two years from November 2007 to November 2009. By October 2011 letter, the Veteran was asked to authorize VA to obtain records from "all private or other government health care providers or facilities" where he had been treated since 2007. Later that month he responded, stating that he had not received any treatment from non-VA providers. The Board remanded the claim in May 2010 and August 2011 for VA examinations, which were conducted in September 2010 and September 2012. VA's duty to assist is met. Legal Criteria Initially, the Board notes that the Veteran has limited his claim for special monthly pension (SMP) to SMP based on the need for regular aid and attendance. SMP is also warranted when a veteran claims to be housebound due to the non-service-connected disabilities. In a December 2006 statement, the Veteran wrote: My claim was previously filed and dated 3-24-06. It was incorrectly evaluated for "Aid & Attendance/Housebound." However, the original claim was submitted and intended for consideration as "Aid & Attendance/Required to Perform Activities of Daily Living.".... I am [] requesting re-evaluation of my claim in order to be considered for the purpose originally intended.... See statement. As the Veteran has made it clear that he is not seeking SMP based on being housebound, the Board's determination herein is limited to whether SMP is warranted based on the need for aid and attendance. Section 1521 provides for an increased rate of pension, in the form of a SMP, when an otherwise eligible veteran is in need of regular aid and attendance. 38 U.S.C.A. § 1521(d); see also 38 C.F.R. §§ 3. 351(b), (c). A veteran will be considered in need of regular aid and attendance if he or she: (1) is blind or so nearly 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; or (2) is a patient in a nursing home because of mental or physical incapacity; or (3) establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). 38 C.F.R. § 3.351(c). Determinations as to the need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to such conditions as: inability of the claimant to dress and undress himself or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliance; inability of the claimant to feed himself through loss of coordination of the upper extremities or through extreme weakness; inability to tend to the wants of nature; or incapacity, physical or mental, which requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his daily environment. "Bedridden" will be a proper basis for the determination and is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. It is not required that all of the disabling conditions enumerated above be found to exist before a favorable rating may be made. The particular personal functions which the claimant 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 claimant is so helpless as to need regular aid and attendance, not that there be a constant need. 38 C.F.R. § 3.352(a). In addition, any determination that the veteran 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 to be in bed. They must be based on the actual requirement of personal assistance from others. See Turco v. Brown, 9 Vet. App. 222, 224 (1996). The Veteran's disabilities found by the RO include: low back pain, right leg pain and numbness, right knee pain, ulcer with esophagus spasms and reflux, hypertension, anemia, tinea cruris, and hemorrhoids. The Board's August 2011 remand ordered a psychiatric examination to determine if he has a mental disability. An October 2012 VA psychiatric examination found that the only Axis I diagnosis was polysubstance dependence. See 38 U.S.C.A. § 1521(a); 38 C.F.R. § 3.314(b)(2) (both stating that disabilities due to willful misconduct may not be considered for pension purposes). The Board has reviewed the Veteran's claims file and Virtual VA (VA's electronic data storage system). The records in Virtual VA contain multiple VA treatment records that are relevant to the claim for SMP. From approximately November 2007 to March 2010, there are no treatment records because the Veteran was incarcerated and thus was not receiving treatment from VA. [As noted above, he has advised VA that he received no treatment other than from VA.] However, the records between 2005 and 2007 and 2010 to 2013 provide sufficient information for the Board to determine entitlement to the benefit sought. Factual Background The Veteran submitted his claim for SMP with a "Statement of Attending Physician," dated in March 2006, wherein a treating physician stated the Veteran was not blind, did not have loss of anal or bladder sphincter control, could attend to the needs of nature unassisted, could wash and keep himself ordinarily clean and presentable, was physically or mentally able to protect himself from the everyday hazards of life and not was a patient confined to a nursing home. She also stated that the Veteran needed "some assistance" in undressing and dressing himself. She noted he had a problem with grip strength and buttoning his clothes and that his low back [disability] limited movement. She noted that there was no muscle wasting, that neck examination was normal, and that the Veteran needed a cane to walk. On May 2006 neurosurgical consultation examination of the back revealed "slightly limited movement." The examiner found no atrophy of the legs or the arms. The Veteran was able to heel-and-toe walk and had "fairly good" range of motion in both hip joints and shoulder joints. The Veteran's motor strength in the upper extremities revealed the right side stronger than the left. His grip strength was 110 pounds for the left hand and 290 pounds for the right. Sensory testing to pinprick revealed {full and} equal sensation of both upper extremities, down to the wrists with mildly diminished sensation over the fingers of the hand. Vibratory sensory testing was mildly diminished on the left compared to the right Deep tendon reflexes were 1+ to 2+, bilaterally. The examiner found only mild upper extremity neuropathy. As to the lower extremities, the examiner found good psoas muscle strength, bilaterally, with fair quadriceps and hamstrings. The examiner found no significant weakness in dorsiflexion or plantar flexion of the feet or the toes. Sensory testing of the lower extremities was "grossly intact distally down to the toes." No pathological reflexes were elicited. In June 2006, an examiner noted the Veteran used a cane safely and independently. In September 2006, the VA examiner who completed the March 2006 "Statement of Attending Physician," submitted a copy of the March 2006 statement, with the notation that the Veteran needed "some assistance" with dressing crossed out and unable to dress or undress himself inserted. She indicated that the Veteran could not apply his back brace and could not get into a bathtub without assistance "at present." In October 2006, an examiner noted the Veteran used a cane safely and independently. Upper extremity strength testing was reported to be 4/5. Range of motion in the upper extremities was noted to be within functional limits. Balance, sitting and standing, was normal. In a December 2006 statement, the Veteran claimed that he could not without assistance: (1) dress or undress himself; (2) keep himself clean; (3) apply prosthetic device (back brace, blood pressure cuff); and (4) maintain balance. On September 2010 examination, the Veteran described his daily activities. stating he would wake up between 8 and 9 a.m. and would eat his meals in bed. He took a shower once every two days, sitting in a shower chair. He was able to shower. The Veteran reported he needed help dressing. On physical examination, the examiner wrote the Veteran had "marked difficulty" getting dressed and undressed. The examiner found that the right upper extremity was normal and the left upper extremity had a mild to moderate impairment. She stated the Veteran was able to feed himself, but had some difficulty with bathing and grooming and toileting. She noted the Veteran had imbalance due to left lower extremity weakness. A December 2011 VA treatment record notes the Veteran was being discharged from the Domiciliary Residential Rehabilitation Treatment Program. When asked about the Veteran's activities of daily living, the examiner wrote, "Self-Care." In a separate December 2011 record, the examiner wrote, "Veteran can perform his [activities of daily living] independently." An April 2012 VA treatment record shows the examiner found that the right upper extremity, right lower extremity, and left lower extremity all had 5/5 strength with the left upper extremity having 4/5 strength. On September 2012 examination the Veteran reported he would get up around 10 am, shower, watch television, and visit with family members. When asked what self-care skills the Veteran was unable to perform, the examiner wrote dressing and undressing and bathing (based on the Veteran's report). In November 2012, the Veteran reported to a physical therapist that he had "been walking a lot." In December 2012, the Veteran's back strength was rated as 4/5 and his range of motion was rated as 3/3 (with 3 being normal). The examiner found the Veteran's balance to be normal sitting and standing and that his endurance was "good." He had complete functional independence. Analysis The Veteran is not domiciled in a nursing home. The record does not show nor does he allege that he is blind or nearly blind. He had a left eye pterygium, which impacted on his vision and was removed. [On September 2010 examination, the examiner was asked whether the Veteran's "best corrected vision was 5/200 or worse in both eyes," and she responded, "Yes." The RO contacted the examiner for clarification, and she explained in an October 2010 addendum that the response should have been "No."] Because the Veteran is not blind or nearly blind and is not in a nursing him, to establish entitlement to compensation at the aid and attendance rate, he must show that his disabilities actually require him to have the regular aid and assistance of another person. Upon close review of the record, the Board finds that the preponderance of the evidence is against a finding that the Veteran requires regular assistance from another person with his activities of daily living. The overall disability picture he presents is one of some functional limitations, but not inability to tend to self-care to the extent that he requires care and assistance on a regular basis to tend to daily activity self-care or protect from the hazards and dangers incident to his daily environment. The primary limitations noted are an inability to enter or climb out of a bathtub, difficulty dressing/undressing (including back brace adjustments), and problems with balance. To address the bathtub problem, he showers, sitting on a shower chair. It is not shown that he is unable to keep himself ordinarily clean or presentable. There is conflicting evidence regarding his ability to dress/undress. A treating physician has noted (without detailed explanation) that he has difficulty with such functions, and later that he is unable to perform such function (both in 2006); on September 2010 VA examination it was noted that he has "marked difficulty" dressing and undressing (and on September 2012 examination the examiner found the Veteran was unable to dress or undress). On the other hand on release from a domiciliary program in December 2011, a therapist indicated, regarding activities of daily living, that the Veteran is capable of self-care; and a December 2012 treatment record notes that dressing requires extra time (connoting difficulty, but not inability to do so). A December 2012 treatment record contains explanation that the Veteran's problem with dressing/undressing is related to a problem buttoning (due to left upper extremity weakness and incoordination). The record suggests that there are accommodations being made for this impairment, and that regular assistance of another person is not needed to overcome the problem. The Board notes that a December 2012 record reflects that the veteran continues to maintain a Driver's license (suggesting somewhat less than total upper extremity motor impairment). Significantly, motor strength testing in April 2012 had found full strength in all extremities but the left upper one (where it was 4/5). Regarding balance, the record reflects that the Veteran resolves the problem by using a cane and (more recently, a rolling walker) for mobility. A November 2012 record notes "he walks a lot". The record shows that the Veteran is able to feed himself. Although he has been noted to have some difficulty with toilet functions, he has not been reported (nor does he allege) to be incapable to tend to toilet functions. In summary, while the record reflects some limitations and difficulty in functions associated with dressing and undressing, bathing and toilet, and balance, the limitations are such allow for accommodation, are not shown to be such as to required the regular aid and assistance of another person. Consequently, the criteria for establishing entitlement to SMP on such basis are not met. The preponderance of the evidence is against the claim seeking entitlement to SMP based on the need for aid and attendance. Therefore, the appeal in this matter must be denied. ORDER The appeal seeking entitlement to SMP based on the need for regular aid and attendance is denied. _________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs