Citation Nr: 1318448	
Decision Date: 06/06/13    Archive Date: 06/11/13

DOCKET NO.  11-19 860	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to special monthly compensation based on the need for aid and attendance.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

K. J. Kunz, Counsel


INTRODUCTION

The Veteran served on active duty from August 1949 to January 1953 and from August 1954 to September 1973.

This appeal comes before the Board of Veterans' Appeals (Board) from a December 2010 rating decision by the Columbia, South Carolina Regional Office (RO) of the United States Department of Veterans Affairs (VA).  In that decision, the RO denied entitlement to special monthly compensation based on the need for aid and attendance.  In accordance with his request, a hearing was scheduled before a Veterans Law Judge at the RO in March 2013, but the Veteran did not appear or request rescheduling.

The Board has reviewed both the Veteran's paper claims file and the Veteran's file on the Virtual VA electronic file system, to ensure a total review of the 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 is not bedridden, and his service-connected tinnitus and shell fragment wound scars do not make him unable to care for his daily needs without regular aid and assistance from another person.


CONCLUSION OF LAW

The criteria for special monthly compensation based on the need for aid and attendance have not been met.  38 U.S.C.A. § 1114 (West 2002); 38 C.F.R. §§ 3.350, 3.352 (2012).



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REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011)) redefined VA's duty to assist a claimant in the development of a claim for VA benefits. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).

The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b).  The United States Court of Appeals for Veterans Claims (Court) has stated that VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO).  Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Insufficiency in the timing or content of VCAA notice is harmless, however, if the errors are not prejudicial to the claimant.  Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule).

The RO provided the Veteran VCAA notice in a letter issued in September 2010, prior to the December 2010 adjudication of the Veteran's claim for aid and attendance benefits.  That letter addressed the information and evidence necessary to substantiate claims for increased benefits based on the need for aid and attendance.  The letter also addressed how VA assigns effective dates and who was to provide the evidence.

The claims file contains service and post-service medical records, statements from the Veteran, and the report of a VA medical examination addressing the question as to the need for aid and attendance.  The VA examination report is adequate to address the aid and attendance claim.  The Veteran has not reported the existence of any relevant evidence that is not associated with the clams file.

The Veteran was notified and aware of the evidence needed to substantiate the claim on appeal, as well as the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence.  The Veteran has actively participated in the claims process by providing evidence and argument.  Thus, he was provided with a meaningful opportunity to participate in the claims process, and he has done so.  Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication nor to have caused injury to the Veteran's interests.  See Pelegrini, 18 Vet. App. at 121.  Therefore, any such error is harmless, and does not prohibit consideration of the claim on the merits.  See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

Special Monthly Compensation Based on the Need for Aid and Attendance

The Veteran essentially contends that his service-connected disabilities cause him to need the aid and attendance of another person.  Special monthly compensation is payable to a veteran who is, as a result of service-connected disability, has suffered the anatomical loss or loss of use of both feet, or of one hand and one foot, or is blind in both eyes, with 5/200 visual acuity or less, or is permanently bedridden or with such significant disabilities as to be in need of regular aid and attendance.  38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b).  The criteria for determining that a veteran is so helpless as to be in need or regular aid and attendance are contained in 38 C.F.R. § 3.352(a).  38 C.F.R. § 3.350(b)(3).

The following criteria will be considered in determining whether the veteran is in need of the regular aid and attendance of another person: the inability of the veteran 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 such aid; the inability of the veteran to feed himself through the loss of coordination of upper extremities or through extreme weakness; the inability to attend to the wants of nature; or an incapacity, physical or mental, which requires care or assistance on a regular basis to protect the veteran from the hazards or dangers incident to his daily environment.  38 C.F.R. § 3.352(a).

In Turco v. Brown, 9 Vet. App. 222 (1996), the Court held that all of the disabling conditions listed in 38 C.F.R. § 3.352(a) need not exist to establish eligibility for aid and attendance benefits, but that at least one of the listed factors must exist to establish eligibility for such benefits.  The Court added that the personal function that the veteran is unable to perform should be considered in connection with his or her condition as a whole, and that it was 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.

In this case, the Veteran has not had anatomical loss or loss of use of any foot or hand.  He is not blind in both eyes, with 5/200 visual acuity or less.  He does not contend, and no evidence indicates, that he is permanently bedridden.  The Veteran's claim thus is based solely on a need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a).

The Veteran's disabilities for which VA has established service connection are tinnitus and shell fragment wounds of the neck, left leg, right leg, and right arm.  The RO assigned a 10 percent disability rating for the tinnitus, and assigned a 0 percent rating for each of the shell fragment wounds.

The Veteran established treatment at a VA facility in February 2010.  He stated that his left ear drum was blown out during his service in Vietnam.  He reported a two year history of staggering and dizziness.  He stated that he had shortness of breath with exertion such as walking.  He complained of urinary urgency and dribbling.  He reported a history of hypertension.  He related that he lived in his own home with his wife.  He stated that he had no deficits in activities of daily living or instrumental activities of daily living.  

In August 2010, the Veteran had a VA medical examination to address questions of housebound status and the need for regular aid and attendance.  The examiner reported that the Veteran's disabilities were hypertension and arthritis.  He described the Veteran's posture and overall appearance as good.  He indicated that the Veteran was not confined to bed at any time.  He reported that the Veteran was able to feed himself.  He noted that the Veteran did not cook his meals, and that the Veteran's wife managed the Veteran's financial affairs.  He stated that the veteran needed assistance in bathing and tending to other hygiene needs.  In explanation he indicated that the Veteran had urinary incontinence due to frequency.  He reported that the Veteran did not require nursing home care nor medication management.  He found that the Veteran had no restrictions of either upper or either lower extremity, but had mild restriction of the spine, trunk, and neck.  

In a March 2011 statement, the Veteran wrote that he needs the aid of another person.

The VA treatment notes and aid and attendance examination does not indicate that the Veteran needs regular aid and attendance in dressing, undressing, or feeding himself.  There is no evidence that the Veteran has any physical or mental incapacity that requires regular care or assistance to protect him from hazards incident to his daily environment.  The VA examiner indicated that the Veteran needs assistance with hygiene needs because of urinary incontinence.  There is no evidence that the Veteran's urinary incontinence is related to his service-connected disabilities of tinnitus and shell fragment wound scars.  The preponderance of the evidence indicates that the Veteran's service-connected disabilities do not produce any impairment that makes him need regular aid and attendance.  The Board therefore denies special monthly compensation based on a need for aid and attendance.



ORDER

Special monthly compensation based on the need for regular aid and attendance is denied.



____________________________________________
MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs