Citation Nr: 1316032 Decision Date: 05/15/13 Archive Date: 05/29/13 DOCKET NO. 07-38 046 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to special monthly compensation based on the need for regular aid and attendance or being housebound. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran served on active duty from June 1967 to August 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied entitlement to special monthly compensation based on the need for aid and attendance. This issue was remanded in October 2011 for additional development, and is again before the Board for further appellate review. FINDINGS OF FACT 1. The Veteran is able to perform the basic functions of self care and is not so helpless due to his service-connected disabilities as to be in need of the regular aid and attendance of another individual. 2. The Veteran is not substantially confined to his house due to service-connected disabilities, nor does he have a single service-connected disability ratable at 100 percent along with other unrelated disabilities, which combine to at least 60 percent. CONCLUSION OF LAW The criteria for an award of special monthly compensation benefits based on the need for regular aid and attendance or by reason of being housebound have not been met. 38 U.S.C.A. §§ 1114, 5107 (West 2002); 38 C.F.R. §§ 3.350, 3.352(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veteran Claims' (Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In April 2007, a letter was issued to the Veteran with regard to his claim. The letter notified the Veteran of what information and evidence is needed to substantiate his claim for special monthly compensation based on the need for regular aid and attendance or being housebound, what information and evidence must be submitted by the claimant, what information and evidence will be obtained by VA, and the evidence necessary to support an effective date. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This 'duty to assist' contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). This issue was remanded by the Board in October 2011, in order to provide the Veteran with a VA Aid and Attendance examination. Examinations were provided in January 2012; however, the examiner did not provide the required opinion. An independent medical opinion was sought and provided in July 2012. As the opinion contained all the relevant data and analysis for an adequate determination of the issue on appeal, the Board finds that there has been compliance with its October 2011 remand directives. There is otherwise no indication of relevant, outstanding records which would support the Veteran's claim. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3). For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issue in appellate status. Special monthly compensation - based on the need for regular aid and attendance or being housebound The Veteran seeks entitlement to special monthly compensation based on the need for the regular aid and attendance of another person or on the basis of being housebound. In that regard, 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 legs at a level, or with complications, preventing natural knee action with prostheses in place, or is permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C.A. § 1114(l) (West 2002). 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 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; inability of the 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 the hazards or dangers inherent in his/her 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/her 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) (2012). Special monthly compensation is also payable where the Veteran has a single service-connected disability rated as 100 percent, without resort to individual unemployability, and, in addition: (1) has a service-connected disability or disabilities independently ratable at 60 percent, 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. This requirement is met when the Veteran is substantially confined as a result of his or her service-connected disabilities to his or her 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 or her lifetime. 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i). Background Service connection is in effect for posttraumatic stress disorder (PTSD), rated 70 percent disabling; residuals of prostate cancer, rated 60 percent disabling; tension headaches, rated 30 percent disabling; residuals of fracture, right (major) distal radius, rated 10 percent disabling; and, residuals of fracture, right (major) fifth metacarpal, rated 10 percent disabling. The Veteran does not have a single service-connected disability rated as 100 percent disabling. In support of his claim, the Veteran submitted a February 2007 statement from his private physician, Alexander S. Magno, M.D., which reflected that the Veteran had restricted range of motion due to bilateral carpal tunnel syndrome, and he needed assistance with dressing and bathing due to limited range of motion. He also needed assistance with the needs of nature to include self-cathing for drainage of bladder, and wiping fecal matter due to bowel incontinence. This private physician noted that the Veteran was able to leave the premises unassisted and that he was able to feed himself. In August 2007, the Veteran underwent a VA Aid and Attendance examination. At the time of such examination, the Veteran's spouse assisted him with walking, toileting, bathing, shaving, and buttoning his pants. The Veteran reported that he had bilateral carpal tunnel syndrome and had pain in his forearm. He indicated that he had trouble carrying things and numbness and tingling in his fingers. In determining whether the Veteran was able to protect himself from the hazards and dangers of his daily environment, the examiner noted that he did not have dizziness, and that he could ambulate and travel beyond the confines of his home. The Veteran had leakage of urine requiring changing pads four to five times per day. He walked with a wheeled walker, but could self-feed. The examiner found that he did not have the strength and coordination for dressing, bathing, shaving or toileting. He reported that his wife assisted in wiping him after he used the toilet and bathing him. He had no problems with weight bearing, balance or propulsion. In November 2008, the Veteran submitted an October 2008 statement from Dr. Magno. It was noted that he needed help with buttons, zippers and belts, and his spouse tied his shoes, washed him in the shower, washed his hair, trimmed his beard, and tied his hair back. He was unable to self catheterize or wipe himself. He also had limited range of motion in his right hand and arms. He noted that the Veteran was no confined to bed; however, this private physician found that the Veteran had complete loss of use of his right upper extremity, due to restricted range of motion. He did not have loss of use of a lower extremity, and could leave the house without assistance. In terms of whether the Veteran was able to live on his own, the private physician opined that he could not, given the inability to self-catheterize and his limited range of motion and problems with ambulation. With regard to whether the Veteran was able to protect himself from the daily environmental hazards of ordinary life, the examiner noted that he was unable to fully ambulate, and if a fall occurred, might not be able to help himself. In his August 2008 substantive appeal, the Veteran stated that he was unable to self-catheterize due to loss of range of motion of his right upper extremity, and thus he required another person to assist him with this bodily function. In an August 2008 statement from his spouse, she stated that the Veteran needed to catheterize four times per day and was unable to do so due to his right upper extremity disabilities. She stated that he had trouble performing his grooming, washing, and wiping with his left hand, so she did it for him. In April 2009, the Veteran submitted a statement and copy of divorce decree indicating that he had been granted a divorce from his spouse in March 2009. The Veteran was provided with a VA examination in January 2012. The examiner noted that the Veteran had a history of prostate cancer and was status post radical prostatectomy with complete inability to control his urinary output. He had residual urinary stricture that prevented adequate drainage of urine and the Veteran was required to self-catheterize four to five times per day. He also related headaches which occurred three to four times per week, and lasted an average of 45 minutes but could range from ten minutes to three hours. The headaches were prostrating for almost an hour a day, with some rare nausea and profound sensitivity to light. The examiner noted that the Veteran was completely incapacitated from these headaches for one hour per day. With regard to the Veteran's right hand disabilities, he reported pain with use and an inability to use the right hand for any gripping. He wore a brace on the right wrist constantly. The examiner also described his non-service-connected low back disability, which caused twice daily falls that did not result in any residuals. The Veteran lived alone and had friends that would help him do all his cleaning. He was capable of self-dressing, showering and feeding himself. The examiner noted that he was able to perform all functions of self-care, and that any limitations with regard to the ability of the Veteran to protect himself from daily hazards or dangers had been addressed above. The Veteran did not need aid for ambulation. The Veteran's service-connected PTSD was also assessed in January 2012. The examiner found that the Veteran's PTSD resulted in occupation and social impairment with deficiencies in most area, such as school, work, family relations, judgment, thinking and/or mood. He lived alone and had limited social relationships. He tended to keep to himself. His symptoms included difficulty in establishing and maintaining effective work and social relationships, an inability to establish and maintain effective relationships and obsessional rituals which interfered with routine activities. As the January 2012 VA examiner did not provide the requested opinion, the agency of original jurisdiction sought further clarification on the matter from another physician, who provided an opinion in July 2012. The physician reviewed the claims file and found that the Veteran's service-connected disabilities did not likely render the Veteran so helpless that he is in need of regular aid and attendance, despite his need to self-catheterize due to his service-connected residuals of prostate cancer. The examiner found that the Veteran did not have loss or loss of use of both lower extremities such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair, blindness in both eyes, having only light perception, plus the anatomical loss or loss of use of one lower extremity, loss or loss of use of one lower extremity together with residuals of organic disease or injury or the loss or loss of use of one upper extremity that so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair or loss or loss of use of both upper extremities such as to preclude the use of arms at or above the elbows. He provided the rationale that the Veteran was able to dress, shower, and feed himself. Despite limitations of the use of his right wrist due to his service-connected disabilities, he was able to catheterize himself. While the Veteran's PTSD caused occupational and social impairment with deficiencies in most areas, the Veteran was not house bound due to a service-connected disability. The examiner noted that the Veteran had a nonservice-connected thoracolumbar degenerative disc disorder, status post L4-5 fusion, with bilateral radiculopathy that limits his walking and causes him to fall a few times a day, and that this represents a potential threat to the Veteran's safety living alone. Analysis Based on the evidence of record, the Board finds that entitlement to special monthly compensation based on the need for regular aid and attendance or being housebound is not warranted. The evidence fails to reflect that the Veteran has suffered the anatomical loss or loss of use of a both legs at any level, and is not permanently bedridden. In addition, he is not service-connected for any disability at a 100 percent disability rating. With regard to the factors taking into consideration for actual need for aid and attendance, the Board finds that the evidence reflects, overall, that the Veteran is not in need of such assistance. The evidence shows that, while the Veteran was married, his wife aided him with several aspects of self care. The February 2007 statement from his private physician and his August 2007 report from his VA examination both reflect that the Veteran received assistance from his wife with dressing, bathing, self catheterization and wiping fecal matter due to limited range of motion. However, these reports referred to the Veteran's bilateral carpal tunnel syndrome in making this finding. The Board notes that the Veteran is not service-connected for carpal tunnel syndrome and is, in fact, only service-connected for a disability of his right arm. In addition, he is not service-connected for any disability causing bowel incontinence. The evidence prior to the Veteran's divorce, including the October 2008 statement from his private physician and statements by the Veteran and his wife, reflected that he needed help with dressing and bathing, and was unable to self catheterize or wipe himself. However, the Veteran was provided with VA examinations after his March 2009 divorce. These records include examinations provided in January 2012, showing that the Veteran was able to dress, shower and feed himself. Importantly, while he indicated that he had the inability to grip using his right hand, this examination shows that he was able to self-catheterize. In addition, the examiner found that he could perform all functions of self-care. The Veteran and his wife have contended that he required this assistance. As lay persons, they are competent to report what they observe. However, it is clear from this evidence that, when he no longer had such assistance, he was able to perform these tasks. The Board notes that the record shows evidence that the Veteran would fall on a fairly regular basis. These falls and any difficulty with ambulation, however, have been associated with a non-service-connected back disorder. The evidence does not show that the Veteran service-connected disabilities cause him to be unable to protect himself from dangers inherent in his daily environment. With regard to the effects of the Veteran's PTSD, the evidence of record does show that the Veteran is rated at a 70 percent disability rating, and that his PTSD causes occupation and social impairment with deficiencies in most area, such as school, work, family relations, judgment, thinking and/or mood. However, as noted in the July 2012 independent medical opinion, there is nothing in the record to show that the Veteran's service-connected disabilities cause him to be substantially confined to his premises. As such, the Board finds that entitlement to special monthly compensation based on the need for regular aid and attendance or being housebound is not warranted, and the claim is denied. As the preponderance of evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Entitlement to special monthly compensation based on the need for regular aid and attendance or being housebound is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs