Citation Nr: 1323648 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 11-26 061 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance. 2. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disorders (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from August 1944 to January 1947. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Indianapolis, Indiana, Department of Veterans Affairs (VA) Regional Office (RO). The matter was remanded in June 2012 and March 2013 for further development. In February 2013, the Board also remanded the issue of entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD). The RO issued an April 2013 rating decision in which it granted service connection for PTSD. The grant of service connection constitutes a complete grant of the claim. Consequently, the issue is no longer before the Board. 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). FINDINGS OF FACT 1. The evidence of record is against a finding that the Veteran's service-connected disabilities render him so helpless as to require the regular aid and attendance of another person to perform personal care functions of everyday living or to protect himself from the hazards and dangers incident to the daily environment. 2. The medical and other evidence of record does not indicate the Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The criteria for an award of special monthly compensation based upon the need for the regular aid and attendance of another person or due to housebound status have not been met. 38 U.S.C.A. §§ 103(c), 1114(l), 1114(s), 1155, 1502, 1521 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1(j), 3.4(b)(2), 3.50(a), 3.351, 3.352 (2012). 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in January 2009 that provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claims are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). SMC SMC is payable at a specified rate if the Veteran, as the result of service-connected disability, is in need of regular aid and attendance. Need for aid and attendance means helplessness or being so nearly helpless as to require the regular aid and attendance of another person. A Veteran will be considered to be in need of regular aid and attendance if he or she is blind or is 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; if the Veteran is a patient in a nursing home because of mental or physical incapacity; or if the evidence establishes a factual need for aid and attendance or "permanently bedridden" status under the criteria set forth in 38 C.F.R. § 3.352(a). See 38 U.S.C.A. § 1114(l) (West 2002); 38 C.F.R. § 3.351(b) (2012). The following will be accorded consideration in determining the need for regular aid and attendance: inability of 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 adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.]; inability of 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, 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. "Bedridden" will be a proper basis for the determination. See 38 C.F.R. § 3.352(a) (2012). A Veteran will be found to be bedridden if the condition actually requires that he remain in bed, but not if he voluntarily stays in bed or if a physician merely recommends bed rest. 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. 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 the 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. Although a Veteran need not show all of the disabling conditions identified in 38 C.F.R. § 3.352(a) to establish entitlement to aid and attendance, the Court has held that it is logical to infer there is a threshold requirement that "at least one of the enumerated factors be present." See Turco v. Brown, 9 Vet. App. 222, 224 (1996). The performance of the necessary aid and attendance service by a relative of the beneficiary or other member of his or her household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352(c) (2012). Special monthly compensation can also be payable at a specified rate if a Veteran, as the result of service-connected disability, has one service-connected disability rated as 100 percent disabling and a separate disability rated at 60 percent or higher or he is permanently housebound. The Veteran will be found to be permanently housebound if, due to his service-connected disabilities, he is substantially confined to his home or the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that such confinement will continue throughout his lifetime. 38 U.S.C.A. § 1114(s) (West 2002); 38 C.F.R. § 3.350(i) (2012). Analysis Aid and attendance The Veteran is service-connected for adhesions of peritoneum (stomach trouble), evaluated as 30 percent disabling; PTSD, evaluated as 30 percent disabling; scars of left thumb and knee secondary to gunshot wound, evaluated as 0 percent disabling; and right hip pain due to retained foreign body, evaluated as 0 percent disabling. For SMC based on aid and attendance to be awarded, the evidence of record must show that his service-connected disabilities render him so helpless as to require the regular aid and attendance of another person. See 38 U.S.C.A. § 1114(l) (West 2002). The Board initially notes that the Veteran has not contended or demonstrated that he has a visual impairment to the extent that he was blind or nearly blind, or that he was a patient living in a nursing home, and the evidence of record does not so suggest. As such, the foregoing analysis will focus on whether there is a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). See 38 U.S.C.A. § 1114(l) (West 2002); 38 C.F.R. § 3.351(b) (2012). The Board notes that the Veteran failed to report for VA examinations scheduled for May 2011, July 2012, and April 2013. A May 2011 Report of General Information reflects that the Veteran stated that he was housebound with a broken hip and that he has been bedridden for the past 9 months. A May 2013 Report of General Information reflects that the Veteran indicated that he is bed bound and unable to attend any examinations. He further indicated that the VA can process the claim based on the evidence already of record. The Board observes that the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The failure to report to a scheduled examination, without good cause, may result in a denial of claims for a higher initial rating. See 38 C.F.R. § 3.655. However, the record shows that the Veteran did report for several earlier examinations in February 2009, during the appeals period. Therefore, the Board finds that consideration of these claims based on the evidence of record is appropriate. Virtual VA records reflect that the Veteran's spouse contacted Community Health Nursing in July 2011 and wondered if the VA had doctors that made house calls. She stated that the Veteran is "pretty much bed bound." A January 2012 nursing progress note reflects that the Veteran is confined to bed; and that he has had bed sores to his bilateral hips and buttocks that have come and gone. The claims folder contains various VA treatment records developed between 2008 and 2011. The Board acknowledges that a January 2010 outpatient treatment report references a recent hip fracture. However, in the absence of a VA medical examination, the evidence is insufficient to conclude that the fracture causes the Veteran to be in need of aid and attendance. Instead, pursuant to the Veteran's wishes for the VA to decide the claim on the evidence of record, the Board notes that the Veteran was afforded a VA examination in February 2009. At that time, he reported intermittent right hip pain. The objective examination found normal range of motion of the right hip, which was the same during passive, active, and repetitive movement. There was no additional functional impairment due to pain, weakness, fatigue, or incoordination, and the Veteran did not make any mention of flare-ups. The examiner commented that the retained foreign body irritated the right hip, causing intermittent pain. With regards to the Veteran's PTSD, the Veteran underwent a VA psychiatric examination in February 2009. The examiner noted that the Veteran developed Parkinson's disease; and that as a result, he has had difficulty walking. He used a wheelchair instead. He had no history of psychiatric treatment. The Veteran reported that 15 years prior to the examination, he was diagnosed with prostate cancer, and he received radiation. He reported that he tries to have a positive outlook; but that he sometimes gets depressed. Following the examination, the examiner diagnosed the Veteran with a depressive disorder; and he was assigned a Global Assessment of Functioning (GAF) score of 55. A GAF of 51-60 indicates moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) (Fourth Edition); see 38 C.F.R. § 4.130 (2012). With regards to the Veteran's stomach disability, the Veteran underwent VA examinations in February 2009 in conjunction with a claim for an increased rating for adhesions of peritoneum (stomach trouble). At that time, he reported occasional constipation that was managed by diet. He did not need stool softeners. He was never hospitalized for this disability and had no history of clinical small bowel obstruction related to this disability. The examiner noted that the Veteran's abdominal adhesive disease secondary to gunshot wound and subsequent surgery during World War II was clinically insignificant and asymptomatic. At the scars examination, the examiner noted a 10 cm scar along the left ilioinguinal region, extending to the left lower quadrant of the abdomen. The scar was tender and adhered to the underlying fascia in this region. Skin texture was normal. There was no atrophy, no frequent loss of skin over the scar such as ulceration of breakdown of skin, no edema, no inflammation, no keloid formation, no elevation or depression of the surface, no underlying soft tissue damage, no discoloration of the scar compared to normal skin, no induration of inflexibility of the skin near the scar, and no pain or limitation of motion due to the scar. The examiner noted some mild dysesthesias in the region of the scar, most likely due to injury to the ilioinguinal nerve. Additional VA treatment records do not show treatment for this disability. References to the Veteran's gastrointestinal system have consistently found no symptoms. The Veteran was seen by VA on outpatient basis between 2008 and 2011. There were no complaints made concerning the left thumb. The Veteran was afforded another VA examination in February 2009. He proffered no complaints about the left thumb. No limitations of the digit were noted on objective examination. Finally, the Veteran underwent a February 2009 VA examination specifically for the purpose of determining whether the Veteran's service connected disabilities require the Veteran to need the aid and attendance of another person. The examiner noted that the Veteran was unable to walk for approximately two years after his right hip injury sustained in World War II. However, his functionality improved and he was able to walk unassisted until ten years prior to the examination. The examiner noted that the Veteran was diagnosed with Parkinson's disease in 2002. Two years prior to the examination, he required a walker; and one year prior to the examination he began using a wheelchair most of the time. The examiner noted that the Veteran lives with his wife. She quit her job so that she could take care of her full time. They also had a homemaker that came by twice a week, for three hours at a time. The examiner noted that the Veteran had complete urinary incontinence, which had been persistent since his prostate cancer treatments. The Veteran needs help with all activities of daily living, including transfers, dressing, toileting, cooking, cleaning, and shopping. He could still feed himself and operate his wheelchair on his own. He had a hospital bed with a lift to get him out of bed and into his wheelchair. Following the examination, the examiner diagnosed the Veteran with abdominal adhesions secondary to gunshot wound and subsequent surgery while in World War II, clinically insignificant/asymptomatic; and Parkinson's disease. The examiner opined that the Veteran requires aid and attendance for his Parkinson's disease. The Board notes that outpatient treatment records fail to show that the Veteran is in need of aid and attendance as a result of his service connected disabilities. To the contrary, January 2009 and July 2009 outpatient treatment reports reflect that the Veteran uses a wheelchair and is limited in functional capacity due to severe Parkinson's disease. The Board does not dispute the Veteran's contentions that he is in need of aid and attendance. However, the evidence of record does not suggest that such need for aid and attendance resulted from debilitating effects of his service-connected disabilities, but rather from the effects of his nonservice-connected Parkinson's disease. Indeed, in addition to the Veteran's service connected disabilities, the Veteran suffered from a multitude of medical conditions, to include in pertinent part, coronary artery disease, congestive heart failure, and prostate cancer. See, e.g., the Veteran's January 2009 Cardiology Consult. When analyzed as a whole, the above-referenced medical reports suggest that the Veteran's adhesions of peritoneum (stomach trouble), PTSD, scar of left thumb and knee secondary to gunshot wound, and right hip pain due to retained foreign body play little role in the Veteran's development of a need for aid and attendance. Indeed, there is little evidence to suggest that these disabilities prevent the Veteran from eating, bathing, ambulating, or attending to the wants of nature, nor had such symptomatology rendered him so incapacitated as to require care or assistance on a regular basis to protect him from the hazards or dangers incident to his daily environment. Rather, these treatment reports instead affirm that the Veteran's severe Parkinson's disease played a much more significant role in the Veteran's developing a need for aid and attendance. The Board finds that the preponderance of the evidence favors a finding that any need for aid and attendance resulted from the Veteran's severe Parkinson's disease, and not from the Veteran's service-connected disabilities. As such, entitlement to SMC based on a need for aid and attendance is denied. See 38 U.S.C.A. § 1114(l) (West 2002). Housebound Status As noted in the law and regulations above, SMC can also be payable at a specified rate if a Veteran has one service-connected disability rated as 100 percent disabling and a separate disability rated at 60 percent or higher, or he is permanently housebound. The Veteran will be found to be permanently housebound if, due to his service-connected disabilities, he is substantially confined to his home or the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that such confinement will continue throughout his lifetime. 38 U.S.C.A. § 1114(s) (West 2002); 38 C.F.R. § 3.350(i) (2012). In this case, the Veteran does not have one service-connected disability rated as 100 percent disabling. Thus, SMC may not be awarded based on disability ratings alone, per the provisions of 38 C.F.R. § 3.350(i)(1). Additionally, the evidence does not show that the Veteran's service-connected disabilities result in his being housebound per the provisions of 38 C.F.R. § 3.350(i)(2). As noted above, although the Board will not dispute the contention that the Veteran is housebound, the evidence does not reflect that the Veteran is housebound due to service connected disabilities. Consequently, the claim for SMC at the housebound rate is also denied. The Board adds that it has considered the benefit of the doubt rule in adjudicating the Veteran's claim, but, as the preponderance of the evidence is against the claim and not in relative equipoise, there is no basis to apply it. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). TDIU In order to establish service connection for a total rating based upon individual unemployability due to service-connected disability, there must be an impairment so severe that it is impossible to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. VA regulations establish objective and subjective standards for an award of total rating based on unemployability. When the Veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned provided that if there is only one service-connected disability, this disability shall be rated at 60 percent or more. When there are two or more disabilities, at least one disability must be ratable at 40 percent or more, and any additional disabilities must result in a combined rating of 70 percent or more, and the disabled person must be unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). Thus, the Board must evaluate whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on unemployability. A TDIU claim is an alternate way to obtain a total disability rating without recourse to a 100 percent evaluation under the rating schedule. See Parker v. Brown, 7 Vet. App. 116, 118 (1994). The Veteran is service connected for adhesions of peritoneum (stomach trouble), evaluated as 30 percent disabling; PTSD, evaluated as 30 percent disabling; scar of left thumb and knee secondary to gunshot wound, evaluated as 0 percent disabling; and right hip pain due to retained foreign body, evaluated as 0 percent disabling. His combined rating is therefore 50 percent. See 38 C.F.R. § 4.25. Thus, the Veteran does not meet the schedular requirements for a total disability rating based on individual unemployability due to service-connected disabilities under 38 C.F.R. § 4.16(a). However, the Board must still determine whether the Veteran's service-connected disabilities result in impairment so severe that it is impossible to follow a substantially gainful occupation. The Board emphasizes that a total rating based on individual unemployability is limited to consideration of service-connected disabilities. Following a full and thorough review of the evidence of record, the Board concludes that the preponderance of the evidence is against the Veteran's claim of entitlement to a TDIU. The evidence does not demonstrate that the Veteran is unable to secure or follow a substantially gainful occupation solely by reason of his service-connected disabilities. The Veteran has not submitted a competent medical opinion suggesting that his service connected disabilities alone have caused him to be unable to secure or follow a substantially gainful occupation. To the contrary, the treatment records reflect that the Veteran's right hip disability has not resulted in any loss of motion. The most recent psychiatric examination yielded a finding that the Veteran's symptoms were moderate. The Veteran's stomach disability and scars to the left thumb and left knee have been largely asymptomatic. On the other hand, the treatment records reflect that the Veteran's functionality is limited due to his severe Parkinson's disease. The records reflect that he is in a wheelchair as a result of non-service connected Parkinson's disease. There is no persuasive evidence of record demonstrating or suggesting that the Veteran is unemployable as a result of his service-connected disabilities. In sum, there is no persuasive evidence of record demonstrating that the Veteran's service-connected disabilities alone render him unable to obtain and retain substantially gainful employment, nor is the evidence in a state of equipoise on that question. As such, the Veteran's claim for a TDIU is denied. ORDER Entitlement to SMC based on the need for aid and attendance is denied. Entitlement to a TDIU is denied. ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs