Citation Nr: 1323528 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 10-36 205A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to special monthly compensation (SMC) based on the need for the regular aid and attendance of another/housebound. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran, his spouse, and his daughter ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps. from September 1942 to October 1945. This case comes before the Board of Veterans' Appeals (the Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In April 2013, the Veteran presented testimony in a travel board hearing before the undersigned. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The Board has reviewed the documents in both the paper claims file and the electronic claims file in rendering this decision. 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 appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran seeks SMC under 38 U.S.C.A. § 1114(s) which provides that SMC will be granted if a veteran has a service-connected disability rated as total, and has additional service-connected disability or disabilities independently ratable at 60 percent or more, or is permanently housebound by reason of a service-connected disability or disabilities. See also 38 C.F.R. § 3.350(i) (2012). The Veteran is currently service-connected for partial paralysis of the peroneal and tibial lateral and medial nerves of the right side, evaluated as 40 percent disabling; muscle group VI with moderate impairment of flexion of the right forearm with traumatic arthritis, evaluated as 30 percent disabling; shell fragment wound multiple, penetrating right thigh anteriolateral aspect, with retained multiple shrapnel muscle and fascia lata defects, evaluated as 30 percent disabling; deformity of the right arm/residual of compound fracture of the humerus with malunion, evaluated as 20 percent disabling; scar of the left forearm with weakness, evaluated as 10 percent disabling; adherent scar of the right upper arm, evaluated as 10 percent disabling; anxiety disorder, evaluated as 10 percent disabling prior to February 15, 2011, and 30 percent disabling thereafter; spondylolisthesis of the lumbar spine, evaluated as 10 percent disabling; shell fragment wound/laceration of the submaxillary region, evaluated as non-compensable; bilateral hearing loss disability, evaluated as 30 percent disabling effective February 15, 2011; and tinnitus, evaluated as 10 percent disabling effective February 15, 2011. Additionally, he is in receipt of a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). The Court of Appeals for Veterans Claims (Court) held in Bradley v. Peake, 22 Vet. App. 280 (2008), held that a TDIU rating could serve as the "total" service-connected disability, if the TDIU entitlement was solely predicated upon a single disability for the purpose of considering entitlement to SMC as provided in § 1114(s). The record is unclear as to whether the TDIU rating for the Veteran was provided for a single disability, i.e. residuals of a shell fragment wound. If the Veteran's residuals of shell fragment wound or any of his other disorders, substantiate the TDIU rating by itself, then the Veteran's remaining service-connected disorders may be sufficient to warrant award of the SMC provided in 38 U.S.C.A. § 1114(s). Therefore, on remand, the Veteran should be examined to determine whether any one of his disabilities render him unemployable. Additionally, the relevant evidence addressing the Veteran's factual entitlement to aid and attendance includes a November 2008 Application for Aid and Attendance and/or Housebound Benefits signed by a VA physician but appears to have been filled out the Veteran. The form reflected that although Veteran was competent, he was not totally blind or bedridden. He was not able to dress/undress, not able to walk unassisted, not able to attend to wants of nature, not able to keep self-clean, and not senile. Additionally, he was not able to leave his home for short distances unattended, not permanently confined to home or immediate area physically and mentally, and not able to protect himself in the daily environment. The Veteran also indicated that he could not put his shoes on, was unstable getting around, and his spouse bathed him. A June 2009 VA examination report showed that the Veteran was not permanently bedridden, he was not currently hospitalized, he could travel beyond his current domicile, and he traveled to the examination alone. The Veteran reported increased difficulty with normal daily activities. He was able to perform all normal self-care tasks but his wife had been assisting him with dressing, driving, and performing household chores. He used a walker and motorized wheelchair. He had dizziness less than weekly, no memory loss, imbalance affected the ability to ambulate weekly, and he was able to perform all functions of self-care. On physical evaluation, the examiner noted that the Veteran could walk without the assistance of another person only within the home and he required the use of a walker. He could leave the home unrestricted, his functional impairments were permanent, his best corrected vision was not 5/200 or worse in both eyes, and he had decreased range of motion of the cervical spine due to pain. There was no limitation of motion or deformity of the thoracolumbar spine, the function of the upper extremities was not normal, and there was no upper extremity amputation. As to upper extremity strength and coordination, the left side was normal but the right side exhibited mild or moderate impairment. He had some difficulty with the ability for self-feeding, to dress and undress, to self-bath, and to self-groom; and he had marked difficulty with toileting ability. Function of the lower extremities was not normal and there was no lower extremity amputation. There were no left lower extremity functional limitations. However, there were functional limitations of the right lower extremity including limitation of joint motion, muscle weakness, and lack of coordination. He had a history of right lower extremity wound with residual partial paralysis of peroneal and tibial lateral and medial nerves causing mild to moderate restriction/difficulty with standing/balance/ambulation. He was able to sit and accomplish most self-care tasks. On weight bearing, the Veteran favored his uninjured left side. Propulsion and balance were not normal and he used a motorized wheelchair. The diagnoses were partial paralysis of the peroneal and tibial lateral and medial nerves shell fragment wound to the right thigh, and deformity of the right arm with history of right compound fracture of the humerus with malunion. Also, the Veteran, his wife, and his daughter presented testimony before the undersigned in April 2013. They all stated that the Veteran needed his family's assistance to prepare his meals, bathe, attend to toileting needs, dress, maintain the house, and transfer from his wheelchair to his bed/couch/chair/car. He stated that he used a wheelchair, walker, and electric scooter due to his leg problems. He also recently fell three times due to his service-connected leg disabilities. The Veteran also indicated that the longest trip he had made in the last several years was to the VA for his medical appointments, and that without his family's assistance he would likely be in a nursing home. The evidence addressing the Veteran's factual entitlement to aid and attendance/housebound is unclear and thus on remand, the VA examiner should address this issue. Accordingly, the case is REMANDED for the following actions: (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.) 1. Schedule the Veteran for an examination to determine whether any one of his service-connected disabilities renders him unemployable, and an opinion as to whether the Veteran is entitled to SMC based on a need for aid and attendance or housebound status as a result of his service-connected disabilities. The claims folder must be made available to the examiner. The examiner should note in the examination report that the claims folder was reviewed. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted at this time, and included in the examination report. The examiner should address the following inquires: (a) Is it at least as likely as not (a probability of 50 percent or greater) that any single service-connected disability (see pages 2-3 of this remand for a listing of service-connected disabilities) renders the Veteran unable to secure and follow a substantially gainful occupation taking into consideration his prior work experience? (b) Is it at least as likely as not (a probability of 50 percent or greater) that the Veteran is entitled to SMC based on a need for aid and attendance or is housebound as a result of his service-connected disabilities. The examiner should address in the examination report whether the following are present as a result of the Veteran's service-connected disabilities: * Inability 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 does not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacking at the back, etc.); * inability to attend to the wants of nature; * inability to feed himself through loss of coordination of the upper extremities or through extreme weakness; 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 daily environment. See 38 C.F.R. § 3.352(a) (2012). 2. Thereafter, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a Supplemental Statement of the Case. The Supplemental Statement of the Case must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable laws and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response 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 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). _________________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).