Citation Nr: 1322708	
Decision Date: 07/17/13    Archive Date: 07/24/13

DOCKET NO.  09-16 724	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to a special monthly pension (SMP) based on aid and attendance for the Veteran's spouse.

2.  Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD).


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

Shauna M. Watkins


INTRODUCTION

The Veteran served on active duty from August 1970 to March 1972.

The Veteran's claims come before the Board of Veterans' Appeals (Board) on appeal from September 2007 and June 2008 rating decisions of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.

The RO certified this appeal to the Board in May 2009.  Subsequently, additional medical evidence was added to the Veteran's Virtual VA claims file.  However, the Veteran's representative waived the Veteran's right to have the RO initially consider this evidence in a statement dated in June 2013.  38 C.F.R. §§ 20.800, 20.1304 (2012).

The Board notes that the psychiatric claim on appeal has previously been developed to include only PTSD.  The United States Court of Appeals for Veterans Claims (Court) has recently held that the scope of a mental health disorder claim includes any mental disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record.  Clemons v. Shinseki, 23 Vet. App. 1 (2009).  As such, the claim on appeal has been recharacterized as an acquired psychiatric disorder, to include PTSD.

The Veteran's Virtual VA paperless claims file was also reviewed and considered in preparing this remand, along with the Veteran's paper claims file.

The issues of entitlement to service connection for bilateral hearing loss and tinnitus have been raised by the record in a May 2009 statement, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  

The issue of entitlement to service connection for an acquired psychiatric disorder 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.
FINDING OF FACT

Entitlement to a SMP based on aid and attendance for the Veteran's spouse is not a legal benefit that exists under the regulations.


CONCLUSION OF LAW

Entitlement to a SMP based on aid and attendance for the Veteran's spouse is denied as a matter of law.  38 U.S.C.A. §1521(d), (s) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.351, 3.352 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  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, 5126 (West 2002 & Supp. 2012)) defined VA's duties to notify and assist a veteran in the substantiation 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, 3.326(a) (2012).

Here, the facts of the case are not in dispute.  As discussed below, resolution of the Veteran's appeal of this issue is wholly dependent on application of the relevant VA statutes and regulations.  Thus, as no reasonable possibility exists that any further factual development would assist in substantiating the claim, should any deficiencies of VCAA notice or assistance exist, they are rendered moot.  See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the VCAA is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim).  Moreover, because the claim is being denied as a matter of law, no further development under the VCAA is warranted.  See Mason v. Principi, 16 Vet. App. 129, 132 (2002); see also Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding that the VCAA is not applicable where it could not affect a pending matter and could have no application as a matter of law); Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) (where the operation of law is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought).

II.  Analysis

SMP is warranted if a Veteran is in need of regular aid and attendance.  38 U.S.C.A. § 1521(d).  The need for aid and attendance is defined as helplessness or being so nearly helpless as to require the regular aid and attendance of another person.  38 C.F.R. § 3.351(b).  A Veteran shall be considered to be in need of regular aid and attendance if: he 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 is a patient in a nursing home because of mental or physical incapacity; or, establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a).  See also 38 C.F.R. § 3.351(c).

Here, the Veteran seeks SMP based on the need for regular aid and attendance for his spouse.  Unfortunately, no such benefit exists under the regulations.  In this regard, the Veteran is currently receiving a non-service-connected pension under PL 95-588, which is contained under 38 C.F.R. § 3.351.  Under this regulation, there is a provision allowing an additional pension for a Veteran who needs the aid and attendance of another person as defined by 38 C.F.R. § 3.352.  This regulation also includes a provision allowing payment of additional compensation to a Veteran whose spouse requires the daily aid and attendance of another person.  Id.  Other provisions included in this section are entitlement to aid and attendance for a surviving spouse receiving death pension and for a surviving spouse receiving dependency and compensation benefits.  Id.  However, there is no provision for additional pension under PL 95-588 payable to a Veteran because of the need for aid and attendance for a spouse.  Id.  Certainly, unreimbursed medical expenses for such a spouse would be considered in arriving at the Veteran's family income for pension purposes, but there is no provision for payment of additional pension to a Veteran simply because his spouse needs the aid and attendance of another person in order to perform her daily necessities of life.  Id.  Furthermore, the Veteran is not service-connected for any disabilities to warrant entitlement to special monthly compensation (SMC) based on aid and attendance of his spouse.  38 U.S.C.A. 
§ 1114 (West 2002); 38 C.F.R. §§ 3.350, 3.352 (2012).  Accordingly, the Veteran's claim must be denied as a matter of law.  Sabonis, 6 Vet. App. at 429-30.


ORDER

Entitlement to a SMP based on aid and attendance for the Veteran's spouse is denied.


REMAND

Inasmuch as the Board regrets the additional delay of this appeal, a remand is required before the service connection claim can be properly adjudicated.   

Initially, the Veteran has not been provided with a proper duty-to-assist notice letter for his acquired psychiatric disorder claim, or proper notice on the new PTSD regulations.  See 38 C.F.R. § 3.304(f)(2012).  His previous notice letters have only dealt with his PTSD claim and the old PTSD regulations.  The Veteran must be provided with this requisite notice before his claim can be decided on the merits.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; see Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006).

Additionally, a remand is required in order to afford the Veteran a VA examination to determine the nature and etiology of the disorder on appeal.  In the case of a disability compensation claim, VA's duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on the claim.  38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4).  An examination or opinion is necessary to make a decision on a claim if all of the lay and medical evidence of record: (1) contains competent evidence that the claimant has a current disorder, or persistent or recurrent symptoms of disorder; and, (2) indicates that the disorder or symptoms may be associated with the claimant's active military, naval, or air service; but, (3) does not contain sufficient medical evidence for VA to make a decision on the claim.  Id.

Here, the evidence of record establishes that the Veteran was diagnosed with chronic anxiety and dysthymia in April 1991 by a VA examination.  Since that time, the Veteran has continued to report PTSD symptoms.  See Veteran's statements dated in November 2006 and October 2008.  The Board acknowledges that the Veteran is competent, even as a layperson, to attest to factual matters of which he has first-hand knowledge, e.g., fear, flashbacks, and night sweats.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).   

Regarding an in-service incurrence of this disorder, during the course of the appeal, the regulations governing PTSD were amended effective July 13, 2010.  See 75 Fed. Reg. 39843-52 (July 13, 2010) (codified at 38 C.F.R. 3.304(f)(3) (2012)).  The amendment eliminates the requirement for corroboration of the claimed in-service stressor if the claimed stressor is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor, provided that the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service.  Id.  The Veteran has reported his PTSD stressors as witnessing injuries and deaths of his fellow soldiers and enemy soldiers, and coming under enemy fire.  See Veteran's statements dated in May 2007, October 2008, December 2008, and May 2009.  The Veteran's DD-214 documents that he was stationed in the Republic of Vietnam during his active military service; thus, his stressors are consistent with the places, types, and circumstances of his service.

The Board notes that, to date, the Veteran has never been afforded a VA psychiatric examination and medical opinion for this claim.  Since the claims file contains lay and medical evidence of a current disorder, in-service incurrences, and an indication that the disorder is related to the Veteran's active military service, the Board finds that a remand is required in order to afford the Veteran a VA examination to determine the nature and etiology of the acquired psychiatric disorder currently on appeal.  McClendon, 20 Vet. App. at 86.

The Veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. §§ 3.158, 3.655 (2012).

Accordingly, the case is REMANDED for the following actions:

1.  Send the Veteran a duty-to-assist notice letter pursuant to 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), which includes, but is not limited to, an explanation as to what information or evidence is needed to substantiate a claim for entitlement to service connection for an acquired psychiatric disorder, to include PTSD.  In particular, notify the Veteran of the requirements for establishing service connection for PTSD under the revised regulations.  See 38 C.F.R. § 3.304(f)(2012).  Additionally, this letter should comply with the case of Dingess, 19 Vet. App. at 473.  

2.  Schedule the Veteran for a VA psychiatric examination with an appropriate expert to determine the nature and etiology of his acquired psychiatric disorder.  The VA examiner should thoroughly review the Veteran's VA claims file, to include his service treatment records (STRs).  The VA examiner should note that this action has been accomplished in the VA examination report.  The VA examiner is requested to specifically address the following:

a) State whether the Veteran has a current acquired psychiatric disorder diagnosis.
b) State whether the Veteran has a current diagnosis of PTSD, consistent with the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition of the American Psychiatric Association (DSM-IV).

c) In addition to the other information provided in the examination report, state whether or not the claimed PTSD stressors are related to the Veteran's fear of hostile military or terrorist activity.

d) Thereafter, is it at least as likely as not (a 50 percent probability or greater) that any currently diagnosed acquired psychiatric disorder was incurred during or is otherwise related to the Veteran's active military service?  

The term "as likely as not" does not mean merely within the realm of medical possibility, rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it.  

Any opinion expressed by the VA examiner should be accompanied by a complete rationale.  If medical literature is relied upon in rendering this determination, the VA examiner should specifically cite each reference material utilized.  If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided.

3.  After the above actions have been completed, readjudicate the service connection claim.  If the claim remains denied, issue to the Veteran and his representative a Supplemental Statement of the Case (SSOC).  Afford them the appropriate period of time within which to respond thereto.

The Veteran has the right to submit additional evidence and argument on the matter 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 or by the Court 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).



_________________________________________________
WAYNE M. BRAEUER  
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs