Citation Nr: 1322355 Decision Date: 07/12/13 Archive Date: 07/18/13 DOCKET NO. 12-15 609 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to special monthly compensation based on the need for regular aid and attendance of another or being housebound. 2. Entitlement to automobile and adaptive equipment or for adaptive equipment only. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Barner, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1946 to August 1948. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In his May 2012 VA Form 9, the Veteran requested a Travel Board hearing. In May 2013, he indicated that he was unable to attend the hearing. The hearing request is considered withdrawn. 38 C.F.R. § 20.704(e)(2012). After the claim was certified to the Board the appellant, through his spouse, raised a claim for increased ratings for the service connected disorders. The RO is working on that claim and it is not part of this appeal. 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). The issue of entitlement to automobile and adaptive equipment or for adaptive equipment only is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Service connection has been granted for duodenal ulcer disease with postoperative pyloroplasty, vagotomy and partial gastrectomy as 40 percent disabling, and for tender keloid scar, upper abdomen, from gastric surgery as 10 percent disabling, for a total combined evaluation of 50 percent disabling. 2. A service-connected disability has not resulted in the Veteran's confinement to his dwelling or immediate premises, or rendered him unable to protect himself from the hazards and dangers incident to his daily environment. The service-connected disabilities do not require the daily personal assistance of another. CONCLUSION OF LAW The criteria for special monthly compensation based on the need for aid and attendance of another or being housebound have not been met. 38 U.S.C.A. §§ 1114, 5103 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.350, 3.352 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist a claimant in the development of a claim. 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 claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b)(2012). 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). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in a March 2011 letter issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, VA treatment records and examination reports, and private treatment records. The VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument and presenting for a VA examination. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Special monthly compensation is payable at the housebound rate where the veteran has a single service connected disorder rated 100 percent and has (1) additional service-connected disability or disabilities rated 60 percent or more, 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 direct result of service-connected disabilities to his or her dwelling and immediate premises. 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i). Special monthly compensation is payable to individuals who are permanently bedridden or are so helpless as a result of service-connected disability as to be in need of the regular aid and attendance of another person under the criteria set forth in 38 C.F.R. § 3.352(a). 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b)(3). The following factors will be accorded consideration in determining the need for regular aid and attendance: inability of a 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 adjustments of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of a 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, either 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. 38 C.F.R. § 3.352(a). A finding that the veteran is "bedridden" will provide a proper basis for the determination. Bedridden will be that condition which, through its essential character, actually requires that the veteran remain in bed. The fact that a veteran has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. 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. Id. 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 a 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. The Veteran's duodenal ulcer disease with postoperative pyloroplasty, vagotomy, and partial gastrectomy is service-connected, and currently rated as 40 percent disabling. In addition, his tender keloid scar, upper abdomen gastric surgery is service-connected and rated as 10 percent disabling. As such, his combined disability evaluation is 50 percent. The Veteran and his wife have contended that as a result of his stomach surgeries, and resulting scar tissue the Veteran's stomach is small and he is unable to eat enough protein to fight off infections. They have also discussed his previous back surgeries, and the fact that he was told he would never walk again. August 1975 medical examination notes show that the Veteran reported that he had injured his spine handling materials at work, which partially paralyzed him from the chest down. He reported that he had operations on his spine in 1974, and also on his stomach ulcer. He indicated that he remained partially paralyzed, unable to walk without the aid of crutches or a cane. VA treatment records show that the Veteran experienced chronic low back pain for which he had surgery in 1976, and the most recent surgery in 1991, from which time he experienced difficulty walking. Treatment notes from Maryview Medical Center in 1996 revealed the Veteran underwent a pancolonoscopy where impression was of diverticulosis coli, otherwise normal examination to cecum and ileocecal valve. An esophagogastroduodenoscopy gave an impression of large leiomyoma of greater curvature with stigmata of hemorrhage, rule our leiomyosarcoma. Then, the Veteran underwent a gastrotomy and evaluation of the tumor, with partial gastrectomy with removal of the tumor and frozen section. A 2007 treatment note indicated the Veteran experienced inability to move his legs, and progression of weakness in his upper extremities. Magnetic resonance imaging (MRI) review showed extreme atrophy of his thoracic cord in a place of a mid-thoracic laminectomy, no acute changes, no compression to the cord, and no evidence of instability. Assessment was of progressive normal aging on a cord that had been extremely damaged in the past, and it was indicated that it was hard to imagine the Veteran had been ambulating at all with a thoracic cord that was atrophic. Whatever functionality he had was likely less with vascular insufficiency to his cord from normal aging, and a flare-up. Treatment notes from The Spine Center of Hampton Roads in 2008 show that the Veteran experienced weakness in his lower extremities and was still unable to walk independently. Following review of previous MRI's that showed severe thoracic myelopathy with atrophy of the Veteran's thoracic cord that had progressed, assessment was of atrophy and progression secondary to aging in addition to his previously traumatized thoracic cord. There was no ongoing stenosis. Treatment notes from 2009 show that the Veteran had a colonoscopy showing scattered diverticula. There was an endoscopy that gave impression of hiatal hernia with small segment of Barrett esophagus, and partial gastric resection with normal appearing pylorus and duodenum. Joseph Hollis, M.D., indicated that he was unsure why the Veteran had anemia as he only had a very small part of his stomach removed, and he had an intact pylorus and duodenum. Dr. Hollis indicated that the Veteran might have a partial gastric resection of the ulcer. There were no signs of any decreased iron absorption since he had adequate gastric mucosa for iron absorption. Rafael Gunzon, M.D., in reviewing the Veteran's medical history indicated that the Veteran had been a paraplegic since June of the previous year, that he had two thoracic disk surgeries, that he was able to walk using a walker, that he developed sacral decubitus ulcer, had a history of hypertension, kidney stone with lithotripsy, asymptomatic gallstones, partial gastrectomy, peptic ulcer disease, and had cataract surgery. June 2010 notes indicated that the Veteran needed to use a wheelchair for the previous 3 years, and was homebound. The Veteran's wife wrote that the Veteran had been hospitalized for two weeks in January and February 2011, and was assessed as quadriplegic. She indicated that in addition to the loss of use of his legs, he could no longer use his hands. A patient assessment indicated the Veteran required stretcher transport for safety, and was unable to get up from bed without maximum assistance to ambulate, and was otherwise unable to sit in bed, such that he was confined. His problems included pulmonary embolism, a history of femoral deep vein thrombosis (DVT), paraplegia (although the box for quadriplegia was checked, paraplegia was handwritten below), sacral decubitus, hypertension, gastroesophageal reflux disease, and glaucoma. A January 2011 examination for housebound status or permanent need for regular aid and attendance, indicated that the Veteran's diagnoses included muscle weakness, difficulty in walking, and a history of DVT. The Veteran was confined to his bed from 9pm to 9am. He was able to feed himself, and did not require medication management. The Veteran was not legally blind, and did not require nursing home care. The Veteran, however, was unable to prepare his own meals, needed assistance in bathing and tending to other hygiene needs, required medication management, and was unable to manage his financial affairs (due to dementia). The Veteran was fairly nourished, and well developed. He had bed and wheelchair activity. He was weak in the trunk, neck and both legs, with an indwelling Foley catheter. Regarding his upper extremities, the Veteran's grip was good, and he was able to feed himself; however, he needed assistance in all daily activities. The Veteran experienced low back pain and weakness of his legs bilaterally. While in the wheelchair the Veteran could not lean his body either direction due to weakness in the muscles of his trunk and neck. In sum, the Veteran was confined to bed and wheelchair activity, and needed assistance with activities of daily living. He was unable to leave his home without a companion or assistant. In sum, although the Veteran and his wife have suggested that he is bedridden and in need of aid and assistance due to his service-connected duodenal ulcer disease with postoperative pyloroplasty, vagotomy and partial gastrectomy, the medical evidence of record has suggested otherwise. Specifically, while the aid and attendance examination has shown that the Veteran requires assistance with daily activities and was confined to bed and wheelchair activity, the focus was on the weakness in his legs and inability to walk. In May 2010 the RO denied the Veteran's claim of service connection for loss of use of his lower extremities, inability to walk. As such, this issue is not service-connected. Further, although the Veteran and his wife have discussed his inability to eat enough protein to fight infections resulting from his service-connected duodenal ulcer disease and partial gastrectomy, medical evidence of record has indicated that there were no signs of any decreased iron absorption since he had adequate gastric mucosa for iron absorption. As such, the medical evidence does not establish that the Veteran's service-connected disabilities have resulted in the requisite level of impairment to warrant entitlement. In the instant case, the claim must be denied, because the essential criterion for eligibility-service-connected disabilities that have resulted in the requisite level of impairment-has not been met. The only evidence of record supporting the Veteran's claim is his various lay assertions and lay assertions submitted on his behalf. Although the Veteran and his lay witnesses are competent to provide evidence of visible symptoms, they are not competent to provide evidence that requires medical knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). The Veteran and his wife, as laypeople, are not qualified to provide a medical diagnosis or competent opinion indicating that the Veteran's service-connected disabilities resulted in the requisite level of impairment. Thus, in the absence of documented medical evidence or other indicia to corroborate their contentions, their contentions are of minimal probative value. It is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable regarding the issue on appeal because the preponderance of the evidence is against his claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). Accordingly, the benefit claimed on appeal is denied. ORDER Entitlement to special monthly compensation based on the need for aid and attendance of another or being housebound is denied. REMAND In a September 2011 rating action, entitlement to an automobile and adaptive equipment or for adaptive equipment only was denied. In a letter to a congressman dated and received be the VA in August 2012, it was indicated that he appealed the denial of the special van. This can be taken as a notice of disagreement, and there is a subsequent rating, but no statement of the case. Because the Veteran filed a timely NOD under 38 U.S.C.A. § 7105, appellate review of the RO's rating decision denying entitlement to automobile or other conveyance and adaptive equipment was properly initiated, and the RO was then obligated to provide him a statement of the case (SOC) with respect to this issue. 38 U.S.C.A. § 7105; 38 C.F.R. § 19.26. Because the Veteran has not been furnished an SOC that addresses the issue of entitlement to automobile or other conveyance and adaptive equipment, a remand is warranted. See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) The RO should issue an SOC to the Veteran and representative addressing the issue of entitlement to automobile and adaptive equipment or for adaptive equipment only. They should also be advised of the need to file a substantive appeal if the Veteran wishes to complete his appeal of this issue. If an appeal of the issue is perfected, then the appeal should be returned to the Board for further appellate consideration, as appropriate. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs