Citation Nr: 1324027 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 12-04 203 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to special monthly compensation (SMC) based on the need for aid and attendance. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from June 1951 to January 1953. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which denied SMC based on aid and attendance and housebound benefits. 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. In August 2012, the Veteran refused to report for a VA examination to be scheduled in conjunction with his claim for SMC based on a need for aid and attendance, a form of increased rating. 2. The Veteran has not asserted good cause for his refusal to report for a VA examination. 3. The benefit of SMC based on a need for aid and attendance cannot be established without a VA examination. CONCLUSION OF LAW The claim for SMC based on a need for aid and attendance is denied as a matter of law. 38 U.S.C.A. §§ 1114, 1155, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.350, 3.352, 3.655 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The United States Court of Appeals for Veterans Claims has held that the statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply to a claim if resolution of the claim is based on statutory interpretation rather than consideration of the factual evidence. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). As the law is dispositive in the instant claim, further discussion regarding VA's duties pursuant to the VCAA is not required. Aid and Attendance Analysis Under VA law and regulations, a factual need for aid and attendance is established where the veteran meets the following considerations: inability of the claimant to dress 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 the claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to 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 environment. 38 C.F.R. § 3.352(a). Pursuant to 38 C.F.R. § 3.655, when entitlement to a benefit cannot be established without a current VA examination and a claimant, without good cause, fails to report for such examination, action shall be taken in accordance with paragraph (b) or (c) as appropriate. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. 38 C.F.R. § 3.655(a). When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(b). Initially, the Board finds that in this case a VA examination was necessary to assist in determining whether SMC benefits based on the need for aid and attendance were warranted. A review of the claims file reveals that there was very little evidence of current treatment for the Veteran's service-connected disabilities. VA treatment notes did not support a finding of the need for aid and attendance benefits. In VA treatment records dated April 2011 and September 2012, it was noted that the Veteran did not require assistance with outpatient visits. VA treatment records also reflected that the Veteran did not require bedrest or nurse assistance. See VA treatment records in Virtual VA electronic claims file dated April 2011 and September 2012. While the Veteran's wife, who is a registered nurse, submitted statements in November 2010 and April 2011 asserting that the Veteran needs aid or assistance with ambulation, the distribution of the correct amount of medication, bathing, food preparation, dressing, and monitoring medical needs, these general assertions of needing aid or assistance do not facially reflect need for aid and attendance of another according to VA regulatory criteria at 38 C.F.R. § 3.352(a). She states that the Veteran needs assistance to bath; however, assistance bathing is not an aid or assistance criterion. She does not assert that he is unable to dress himself, or to keep himself ordinarily clean and presentable. While she asserts the Veteran has difficulty taking the correct amount of medication, she does not indicate how the Veteran's service-connected physical disabilities of one arm, back, and thigh preclude the task of taking medication. While she asserts that the Veteran has difficulty with certain types of food preparation, she does not assert that the Veteran is unable to feed himself through loss of coordination of upper extremities or through extreme weakness, especially given that the Veteran's left arm is not affected by a service-connected disability. There has also been no assertion that the Veteran requires care or assistance on a regular basis to protect himself from hazards or dangers incident to his environment, or that the Veteran has frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid, although such assertion of these additional factors is not required because a claimant is not required to satisfy all of the enumerated disabling conditions. Turco v. Brown, 9 Vet. App. 222, 224 (1996). Such additional factors are cited only to show that the evidence that is of record, including his nurse wife's statements, does not demonstrate the need for aid and attendance, so the need for aid and attendance cannot be established without a VA examination. Additionally, the wife's statements do not provide a basis for her assertions of the Veteran's needs, or indicate that such general assertions are based on her opinion as a nurse. Such general assertions, which she made for compensation purposes, both for SMC based on aid and attendance and for monetary compensation for being a caregiver, are inconsistent with the other, specific findings of record during VA treatment, which reflect that the Veteran did not need aid and attendance, including specifically that he did not require assistance with outpatient visits and did not require bedrest or nurse assistance. Because the evidence of record did not demonstrate the need for aid and attendance of another person, in August 2012, the RO attempted to schedule the Veteran for a VA aid and attendance examination to assist in obtaining additional evidence, specifically addressing the aid and assistance criteria, which may have resulted in the creation of evidence to support a finding of factual need for the aid and attendance of another person. In August 2012, the VA Medical Center in Minneapolis, Minnesota, contacted the Veteran to schedule a VA aid and attendance examination in connection with his claim for SMC benefits. The Veteran refused to report, stating that he was not willing to attend any examinations. The Veteran further stated that all his records were already at the VA Medical Center. The Veteran has not provided any other reason for his failure to report to the scheduled VA examination. The Board finds that the Veteran's statements regarding his reasons for not attending a necessary VA examination do not demonstrated good cause for failure to report for a VA examination as contemplated under 38 C.F.R. § 3.655(a) (i.e., examples of good cause include illness or hospitalization of the claimant and death of an immediate family member). In the November 2010 and April 2011 statements from the Veteran's wife, a registered nurse, she has stated generally that the Veteran needs assistance with ambulation, the distribution of the correct amount of medication, bathing, food preparation, dressing, and monitoring medical needs; however, these statements do not provide good cause as to why the Veteran was unable to attend the necessary VA examination. This is especially relevant given that the Veteran has otherwise attended scheduled VA medical and dental appointments. In a subsequent December 2012 statement, the Veteran's representative requested that VA contact the Veteran to ascertain whether he would report to a rescheduled VA examination. Specifically, the representative noted that it did not appear from VA clinical records that sufficient documentation was available to establish that the Veteran's service-connected disabilities, in and of themselves, were necessitating his need for aid and attendance benefits. Subsequently, the RO attempted to contact the Veteran in December 2012 and January 2013, to no avail. The RO also contacted the Veteran's representative in January 2013; however, the RO received no response that the representative was able to reach the Veteran. Despite the Veteran's refusal to report to the VA examination, the RO requested a VA medical opinion, based on the current evidence of record, to assist in determining whether the Veteran's service-connected disabilities resulted in the need for aid and attendance. In April 2013, a VA examiner reviewed the Veteran's claims file, which included VA treatment records. Based on these records, the VA examiner noted that the Veteran was able to walk without assistance and his ability to leave the home was unrestricted. Permanent functional impairment was not found and there was no documentation of concern for the Veteran's thinking abilities. The April 2013 VA examiner noted that the Veteran declined an in-person examination, and opined that, upon review of the claims file and medical treatment records, the Veteran was not in need of aid and attendance. For these reasons, the Board finds that entitlement to SMC based on aid and attendance cannot be established by the evidence of record. A claim for SMC is a claim for an "increase" in rating pursuant to 38 C.F.R. § 3.655 as it requests a higher rate of compensation benefits for symptomatology associated with service-connected disabilities in addition to the compensation received for the disability ratings assigned thereto under the Rating Schedule. See also 38 C.F.R. § 3.350 (SMC "ratings"). Evidence of record shows that the Veteran refused a necessary VA aid and attendance examination. The Veteran has neither asserted nor demonstrated good cause for his failure to report for the scheduled VA examination, nor has he asserted a willingness to attend such examination. Entitlement to aid and attendance benefits cannot be established on the current evidence of record, and benefits for aid and attendance cannot be established without a VA examination. For these reasons, the claim for SMC based on the need for aid and attendance is denied as a legal matter. 38 C.F.R. § 3.655(b). ORDER Entitlement to SMC based on aid and attendance is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs