Citation Nr: 1315385 Decision Date: 05/09/13 Archive Date: 05/15/13 DOCKET NO. 06-15 864 ) 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 upon the need for the regular aid and attendance of another person. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1952 to October 1954, including combat service during the Korean Conflict, and his decorations include the Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) from an April 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2009, the Board granted SMC at the housebound rate, but remanded the issue of whether aid and attendance benefits were warranted. Thereafter, in October 2010, the Board again remanded the Veteran's SMC claim for additional development. Once that development was completed, the Board issued a February 2011 decision denying the claim. The Veteran then appealed to the United States Court of Appeals for Veterans Claims (Court), which issued a July 2012 memorandum decision vacating and remanding the Board's denial for further proceedings consistent with that decision. In December 2012 the Board remanded the aid and attendance claim for such proceedings. In his May 2006 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge at the RO. A hearing was scheduled for February 2008, but the Veteran requested that it be cancelled. As such, his hearing request is deemed withdrawn. Subsequent to the March 2013 supplemental statement of the case, the Veteran submitted additional evidence with a waiver of RO consideration. 38 C.F.R. § 20.1304 (2012). Therefore, the Board may properly consider such newly received evidence. 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 The Veteran's service-connected disabilities render him unable to care for his daily needs without requiring the regular aid and attendance of another person. CONCLUSION OF LAW The criteria for SMC based on the need for the regular aid and attendance have been met. 38 U.S.C.A. §§ 1114(l), 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.350(b), 3.351, 3.352 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants SMC based on the need for aid and attendance of another person. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. The Veteran, who is currently in receipt of SMC at the housebound rate, effective December 15, 2004, and a total disability rating based on individual unemployability, effective May 18, 2006, seeks a higher level of SMC based upon the need for regular aid and attendance of another person. Having considered the evidence, the Board finds that the criteria for entitlement to SMC based on the need for aid and attendance have been met. Special monthly compensation is payable at a specified rate if the Veteran, as the result of service-connected disability, is in need of regular aid and attendance. Need for aid and attendance means helplessness or is so nearly helpless as to require the regular aid and attendance of another person. A Veteran will be considered to be in need of regular aid and attendance if he or she is blind or is 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; if the Veteran is a patient in a nursing home because of mental or physical incapacity; or if the evidence establishes a factual need for aid and attendance or "permanently bedridden" status under the criteria set forth in 38 C.F.R. § 3.352(a). 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.351(b). The following will be accorded consideration in determining the need for regular aid and attendance: inability of 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 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 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 daily environment. "Bedridden" will be a proper basis for the determination. 38 C.F.R. § 3.352(a). A Veteran will be found to be bedridden if the condition actually requires that he remain in bed, but not if he voluntarily stays in bed or if a physician merely recommends bed rest. It is not required that all of the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made. The particular personal functions that the Veteran is unable to perform should be considered in connection with his or her 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 be a constant need. Determinations 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 or her to be in bed. They must be based on the actual requirement of personal assistance from others. Id. Although a Veteran need not show all of the disabling conditions identified in 38 C.F.R. § 3.352(a) to establish entitlement to aid and attendance, the Court has held that it is logical to infer there is a threshold requirement that "at least one of the enumerated factors be present." Turco v. Brown, 9 Vet. App. 222, 224 (1996). The performance of the necessary aid and attendance service by a relative of the claimant or other member of his or her household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352(c). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). When there is an approximate balance of evidence for and against the issue, all reasonable doubt will be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection is in effect for the Veteran's ankylosis of the left wrist and thumb with some limitation of other fingers and muscle injury and atrophy arising from internal condyle of the left humerus and a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is in effect. The evidence shows that the Veteran is unable to dress or undress himself without the aid and attendance of another person. A VA hand/thumb/ fingers examination report dated November 2004 addressed major functional impact of his left hand disability, finding that the Veteran had difficulty dressing. In a December 2004 lay statement, the Veteran asserted that he needed someone to help him dress, put on shoes, and remove shoes. A February 2005 VA joints examination report found that because of the Veteran's left hand/wrist disability, he needed assistance to put on shoes and socks, buckle pants, and button shirts. He was unable to tie his shoes. In February 2005 the Veteran also underwent a separate VA aid and attendance examination, which found that the left upper extremity disability caused mild problems with fastening clothing. In June 2007 he underwent another VA hand/thumb/fingers examination, and the examiner found his disability had severe effects on dressing. In June 2009 he underwent another VA aid and attendance examination, and reported to the examiner that he requires the assistance of his spouse for dressing and undressing, and he could not adjust clothing buttons. After physical examination, this VA examiner found that the Veteran had marked difficulty dressing and undressing himself. In June 2009 the Veteran also underwent separate VA hand/thumb/fingers and muscle examinations conducted by a second VA examiner. This VA examiner found that the Veteran's ability to dress himself was severely affected. In a December 2011 VA treatment note the Veteran reported that his spouse had to help him dress occasionally. In a March 2013 lay statement, the Veteran asserted that he had to depend on someone to help him get dressed. He stated that his spouse could barely help him anymore because she was very ill. The evidence also shows that the Veteran has difficulty keeping himself ordinarily clean and presentable without the aid and attendance of another person. The November 2004 VA hand/thumb/fingers examiner found that the Veteran's left hand disability resulted in difficulty bathing and grooming. In a December 2004 lay statement, the Veteran asserted that he needed someone to help him shower. The February 2005 VA aid and attendance examiner found that the left upper extremity disability caused mild problems with bathing and shaving. The June 2007 VA examiner found his disability had severe effects on bathing and grooming. The Veteran reported to the June 2009 examiner that he required his spouse's assistance to bathe because he could not wash his back or posterior aspect of his body. The June 2009 VA aid and attendance examiner found that the Veteran had marked difficulty self-bathing, and some difficulty self-grooming. The June 2009 VA hand/thumb/fingers examiner found that the Veteran's disability severely affected bathing and moderately affected grooming. In a March 2013 lay statement, the Veteran asserted that his disability rendered shaving so difficult that he had to depend on someone to help him. He also referred to the "impossibility of bathing myself." He stated that his spouse was too ill to help him much anymore. His daughter had a job and lived in another city but came over to help him with shaving and other personal activities of daily living (ADLs) when she could. His daughter confirmed in an affidavit dated March 2013 that she was unable to take care of her parents. The evidence also shows that the Veteran has occasional mild difficulty feeding himself through extreme weakness of the left upper extremity. The November 2004 VA hand/thumb/fingers examiner found that the Veteran's left hand disability resulted in difficulty eating and cooking. The February 2005 VA aid and attendance examiner found that the left upper extremity disability caused mild problems with self-feeding. The June 2007 VA examiner found his disability prevented feeding. The Veteran reported to the June 2009 VA examiner that he fed himself without limitations, and ate meals prepared by his spouse, and that examiner found that the Veteran could feed himself normally. The June 2009 VA hand/thumb/fingers examiner found that the Veteran's disability mildly affected feeding. While some of the evidence shows no feeding limitations, the preponderance of the evidence shows at least mild difficulty. The evidence also shows that the Veteran has varying difficulty attending to the wants of nature without the aid and attendance of another person. The November 2004 VA hand/thumb/fingers examiner found that the Veteran's left hand disability resulted in difficulty toileting. The February 2005 VA aid and attendance examiner found that the left upper extremity disability caused mild problems with toileting. The June 2007 VA examiner found his disability prevented toileting. The Veteran reported to the June 2009 examiner that he could attend to toileting without limitations, but that examiner found that the Veteran had some difficulty with toileting ability. The June 2009 VA hand/thumb/fingers examiner found that the Veteran's disability moderately affected toileting. While some of the evidence shows no limitations in toileting, the preponderance of the evidence shows at least mild difficulty. When asked whether the Veteran has any incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment, the February 2005 VA aid and attendance examiner stated that the Veteran was able to perform self-care and travel around his house as well as short distances around the premises of his house. The June 2009 VA examiner stated that the Veteran's vision loss, slow pace, and ambulation with cane affected his ability to protect himself from hazards in his daily environment. A VA treatment record dated October 2012 stated that the Veteran was a high fall risk. Resolving doubt in favor of the Veteran, the Board finds that the Veteran has a physical incapacity which requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. VA treatment records dated July 2010, April 2012, and July 2012 include routine Functional Status Screens completed by nurses. In each of these instances, the nurse listed "self-independent" across the board for 15 ADLs, including dressing and bathing. However, the ADLs also include housekeeping and meal preparation: tasks that the record clearly shows have been completed by the Veteran's spouse and/or paid persons for years. The Veteran's daughter confirmed in an affidavit dated March 2013 that paid persons took care of her parents, house chores, and outside home maintenance. The fact that these ADLs were reported incorrectly leads the Board to attribute no probative weight to what appears to be an auto-populated list that was not tailored to the Veteran's actual functional status. The Board notes that in a September 2009 addendum, the VA examiner who performed the June 2009 aid and attendance examination contradicted her earlier finding, stating that the Veteran could attend to all ADLs without limitation or assistance. She provided no rationale for her change of opinion, rendering her addendum inadequate. See Stefl. In November 2010 she provided another addendum, which the Court found inadequate. Therefore, neither of the addenda provided by the June 2009 VA aid and attendance examiner is probative. Pursuant to the Board's December 2012 remand, in February 2013 the June 2009 VA hand/thumb/fingers examiner provided an addendum opinion. However, half of the addendum effectively parrots the November 2010 addendum that the Court found inadequate. In the remainder of the opinion, the examiner stated that the Veteran was not in need of aid and attendance. The rationale provided was that in the claims file the Veteran reported being able to drive occasionally and help his spouse with food preparation; "this means that he was able to take care by himself without the need of aid and attendance." This reasoning is inconsistent with the regulatory definition of aid and attendance, which does not discuss the ability to drive or help with food preparation. 38 C.F.R. § 3.352(a). The June 2007 examiner stated that the Veteran used his dominant right hand for the ADLs that were prevented or severely affected by the left hand disability. The June 2009 VA hand/thumb/fingers examiner stated that the Veteran could do ADLs "likely dress and undress himself and keep himself ordinarily clean and presentable with his dominant service connected hand." In the February 2013 addendum, the June 2009 VA hand/thumb/fingers examiner stated that this case was analogous to someone who had lost an extremity but learned to complete ADLs with the remaining extremity. None of these examiners reconciled their statements with their concurrent findings of severe or marked difficulty with several ADLs. Moreover, the Veteran's service-connected hand is not his dominant hand, as he is right-handed. On remand, the June 2009 VA hand/thumb/fingers examiner was asked to clarify this sentence. Instead, in the February 2013 addendum she repeated the inaccurate phrase "dominant service connected hand." Based on the foregoing, the Board does not find the negative opinions of the VA examiners probative. Most importantly, the reasoning in these opinions is inconsistent with the regulatory definition of aid and attendance, which is based on actual requirements of personal assistance from others. 38 C.F.R. § 3.352(a). Throughout the appeal period, the Veteran consistently reported that his actual requirements were that he needed daily assistance from his spouse in dressing, undressing, and bathing. The Veteran is competent to report on that of which he has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). His reports, especially as to dressing and bathing, have been confirmed in multiple VA treatment records and examination reports. As his reports have been consistent internally and with the evidence of record, the Board finds them credible. Caluza. In summary, the record shows the Veteran is unable to dress or undress himself, has difficulty keeping himself ordinarily clean and presentable, has occasional mild difficulty feeding himself, and varying difficulty attending to the wants of nature without the aid and attendance of another person. It is not required that all of the disabling conditions enumerated in the provisions of 38 C.F.R. § 3.352(a) exist to establish eligibility for aid and attendance, so long as at least one of the enumerated factors are present. Moreover, the need is not required to be constant. Turco. In this case, more than one of the enumerated factors is present and aid and attendance are regularly needed. Resolving doubt in favor of the Veteran, the Board finds that the Veteran requires the aid of another person on a regular basis. Thus, SMC based on the need for regular aid and attendance of another person is warranted and the benefit sought on appeal is granted. ORDER Special monthly compensation based on the need for aid and attendance of another person is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs