Citation Nr: 1324153 Decision Date: 07/30/13 Archive Date: 08/07/13 DOCKET NO. 10-00 358 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to special monthly compensation based on aid and attendance. 2. Entitlement to service connection for a vision disability, claimed as bilateral blindness, as secondary to service-connected cerebrovascular accident. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from November 1966 to November 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. FINDINGS OF FACT 1. The Veteran's service-connected disabilities do not cause anatomical loss or loss of use of both feet or one hand and one foot or blindness in both eyes. 2. The Veteran is not bedridden or in need of regular aid and attendance by another individual due to his service-connected disabilities. 3. The Veteran's current visual field loss is causally related to service-connected cerebrovascular accident. CONCLUSIONS OF LAW 1. The criteria for special monthly compensation based on the need for regular aid and attendance have not been met. 38 U.S.C.A. § 1114(l) (West 2002); 38 C.F.R. § 3.352 (2012). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for a vision field loss as secondary to the service-connected cerebrovascular accident have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claims. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court clarified that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claims; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this case, in a July 2007 letter, the RO provided notice to the Veteran needed to substantiate his claims. The letter advised the Veteran what information and evidence must be submitted by the Veteran and what evidence VA would obtain. This letter included provisions for disability ratings and for the effective date of the claim. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. The information and evidence that has been associated with the claims file includes the Veteran's service treatment records, VA treatment records and Social Security records. The Veteran was afforded a VA examination in for his claimed vision disability in October 2007, and an addendum was obtained in January 2008. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA opinion obtained in this case is adequate, as the opinion was predicated on a full reading of the medical records in the Veteran's claims file. The VA nexus opinion provided considered all of the pertinent evidence of record, to include service treatment records, private treatment records, and the statements of the Veteran, and provided a complete rationale for the opinion stated, relying on and citing to the records reviewed. In May 2008, the Veteran was afforded a VA examination for his special monthly compensation claim. The Veteran reported for the VA examination, but the examination report indicates that the Veteran left before the examination could be completed. The Veteran's refusal to cooperate with the examination is tantamount to failure to report for a VA examination. VA's regulations provide that, when entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, action shall be taken in accordance as appropriate. 38 C.F.R. § 3.655(a). 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). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. II. Analysis of Claims A. Special Monthly Compensation Based on Aid and Attendance SMC is available when, "as the result of service-connected disability," a veteran suffers additional hardships above and beyond those contemplated by VA's schedule for rating disabilities. Breniser v. Shinseki, 25 Vet. App. 64 (2011), quoting 38 U.S.C. § 1114(k)-(s). The rate of SMC "varies according to the nature of the veteran's service-connected disabilities." Moreira v. Principi, 3 Vet. App. 522, 524 (1992). Here, the Veteran seeks special monthly compensation based upon the need for regular aid and attendance or for being housebound due to service-connected disabilities. It is noted that he is already receiving special monthly compensation pursuant to 38 U.S.C.A. § 1114(s), which was granted by the RO in a July 2004 rating decision. He is also entitlement to special monthly compensation under 38 U.S.C.A. § 1114(k) on account of loss of use of a creative organ. Compensation at the aid and attendance rate is payable when the veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes with 5/200 visual acuity or less, or is permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b). 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) (2012). 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 are considered in connection with the Veteran's 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. In Turco v. Brown, 9 Vet. App. 222, 224 (1996), the Court of Appeals for Veterans Claims (Court) held that eligibility for special monthly compensation by reason of regular need for aid and attendance requires that at least one of the factors set forth in VA regulation is met. In addition, determinations that the claimant 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. See Turco, 9 Vet. App. 222, 224. In this case, service connection is in effect for PTSD, rated at 100 percent disabling, cerebrovascular accident with residual right facial weakness, rated at 40 percent disabling, adenocarcinoma of the prostate, rated as 40 percent disabling, coronary artery disease, rated at 40 percent disabling, diabetes mellitus type 2, rated as 20 percent disabling, hypertension and erectile dysfunction, both rated as non-compensably disabling. Service connection for loss of field vision in both eyes is granted herein. The evidence does not show that the Veteran has suffered the anatomical loss of use of both feet, or of one hand and one foot or is blind in both eyes with 5/200 visual acuity or less. Although the Veteran has impairment of vision, as documented in VA treatment records, the record does not reflect that he has been assessed with 5/200 visual acuity in both eyes. In addition, the Veteran is not shown to have been rendered helpless as the result of his service-connected PTSD, cerebrovascular accident with residual right facial weakness, adenocarcinoma of the prostate, coronary artery disease with hypertension, diabetes mellitus type 2 and erectile dysfunction or loss of field vision in both eyes. Rather, the evidence shows that the Veteran's service-connected disabilities do not preclude him from caring for his daily personal needs such as dressing, toileting and feeding himself or otherwise protecting himself from the hazards and dangers incident due to his daily environment without the regular assistance of another person. The Veteran had a VA examination in May 2008. The examination report reflects that that the Veteran reported, with regard to his activities of daily living, that he requires some assistance with bathing and partial dressing on account of his legal blindness and also being reminded to eat meals because of impairment due to stroke. The Veteran reported that he was concerned about dietary restrictions. He reported that he exercises regularly and does minimal yardwork. The Veteran reported that he does housework since he lives alone. The Veteran reported that he was shopping with assistance but had not driven his car since 2007 following a stroke. The VA examiner noted that the Veteran became uncooperative at that point and refused to answer further evaluation. After being informed that a complete physical examination would be required, which would take between one and two hours. The Veteran indicated that he would not continue with the evaluation, and he left the examination. In this case, a medical opinion regarding the need for aid and attendance could not be obtained because the Veteran left the VA examination. Although the Veteran reported to the examination, his failure to cooperate or make requested efforts that would have aided in determining his eligibility for the benefit sought, are tantamount to failing to appear for a VA examination, and had the same result of no medical opinion. See 38 C.F.R. § 3.655 (2012). A review of the other evidence of record does not support a finding that the Veteran is bedridden or so helpless as to require the aid and attendance of another person. For instance, an August 2007 VA nursing progress note reflects that the Veteran reported that he needed to have someone remind him to eat, take a bath and take his medications. A VA nurse noted that the Veteran was essentially independent in his activities of daily living. The Veteran stated that he could care for himself, but he needed frequent reminders. The treatment record indicated that the assessment and documentation did support some cognitive impairment, so home health assistance would be authorized with bathing three times a week. In a May 2009 letter, the VA Sunshine Healthcare Network advised the Veteran that nursing home care was approved by his primary care physician. The May 2009 letter indicated that this proposal was based upon sufficient cognitive impairment which impacted the Veteran's ability to care for himself. The letter did not indicate that the Veteran is bedridden or that he requires the regular assistance of another person in attending to the ordinary hazards of daily living. In sum, while the Veteran has significant disabilities, he is in receipt of the appropriate level of compensation. The medical evidence does not reflect that the Veteran's service-connected disabilities have rendered him unable to dress or undress himself, to keep himself ordinarily clean and presentable, to feed himself, to attend to the wants or nature, or that his service-connected disabilities require the need of adjustment of any special prosthetic or orthopedic appliance or result in other incapacity that requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. Although the Veteran has several disabilities that contribute to impairment and requires someone to remind him to eat or take a bath and take his medications, the evidence does not show that the Veteran's service-connected disabilities render him unable to feed, clothe, or bathe himself, or otherwise independently perform activities of daily living. The medical evidence also does not reflect that the Veteran has a service-connected disability which, through its essential character, actually requires that he remain in bed. The Board finds that the medical evidence reflects that the Veteran's service-connected disabilities do not cause him to be permanently bedridden or so helpless as to be in need of regular aid and attendance. Accordingly, the criteria for SMC based on the need for the regular aid and attendance of another person are not met. For these reasons, the Board concludes that the preponderance of the evidence is against the claim for special monthly compensation based on aid and attendance. As the preponderance of the evidence is against the Veteran's claim for special monthly compensation based on aid and attendance, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b). B. Service Connection for a Vision Disability A May 2005 rating decision granted service connection for cerebral vascular accident with residual right facial weakness and impaired right hand function. The Veteran claims service connection for bilateral blindness as secondary to service-connected cerebral vascular accident. Service connection may be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). "Aggravation" is defined for this purpose as a chronic, permanent worsening of the underlying condition, beyond its natural progression, versus a temporary flare-up of symptoms. Id. To prevail on the issue of secondary service causation, generally, the record must show (1) medical evidence of a current disability, (2) a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Effective from October 10, 2006, 38 C.F.R. § 3.310 was amended. See 71 Fed. Reg. 52,744 (2006). The new regulation appears to place additional evidentiary burdens on claimants seeking service connection based on aggravation, specifically in terms of requiring the establishment of a baseline level of disability for the non-service-connected condition prior to the claimed aggravation. The Veteran's claim was received after the effective date of the revision to 38 C.F.R. § 3.310 and therefore the amended version of 38 C.F.R. § 3.310 is applicable to the Veteran's claim. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. A VA eye clinic consult report dated in March 2007 shows that the Veteran had 20/400 vision in each eye. A VA ophthalmologist noted that the Veteran's vision improved to 20/30 after a careful refraction. The VA ophthalmologist stated that there was cause to consider a hysterical component to the Veteran's complaints of loss of vision. A VA ophthalmology treatment note dated in April 2007 indicated that a recent MRI showed a bilateral occipital lobe infarct associated with blood. The report indicated that the question was raised about loss of vision from a recent stroke involving both occipital lobes. On physical examination, the VA ophthalmologist noted vision of 20/400 in both eyes. A comprehensive visual field test showed a loss of the entire field of vision in each eye. The VA ophthalmologist opined that, based upon the vision of 20/400 in each eye and in association with the complete loss of field of vision in each eye, the Veteran is legally blind. The VA ophthalmologist indicated that the loss of vision is directly attributable to a bilateral occipital lobe stroke. A fee basis neuro-ophthalmology examination was performed in April 2007. The report reflects that the Veteran had visual acuity without correction of count fingers at 5 feet in the right eye and count fingers at 4 feet in the left eye. Manifest refraction yielded best corrected visual acuity of 20/20- in the right eye and 20/20+ in the left eye. Visual fields were full to finger counting. The examiner indicated that Humphrey perimetry showed significant suppression in the inferior nasal quadrant of the right eye and inferior temporal quadrant of the left eye. The fee-basis examiner diagnosed visual change. The VA examiner stated that the Veteran has a significant non-organic component to his complaints; however, when reviewing the MRI lesions, there was a true pathology present. The VA examiner noted that he was also having refractive error. The examiner indicated that it is unclear whether the Veteran is naturally hyperopic or if this is secondary to diabetic changes. The VA examiner diagnosed visual field change secondary to occipital cerebrovascular accident. The Veteran had a VA examination in October 2007. The Veteran reported that he cannot see to read or drive. Upon physical examination, the best corrected visual acuities were 20/200 in the right eye and 20/ 100 in the left eye. The pupils were equal, round and reactive with no afferent pupillary defect. The VA examiner indicated that a review of medical records showed that the Veteran's had best corrected visual acuities of 20/25 in the right and left eye in March 2007. The VA examiner indicated that, in March 2007, the Veteran's acuities decreased to 20/400 in each eye with a diagnosis reported as "hysterical component to this patient's complaint of vision loss." The VA examiner indicated that the Veteran was seen in April 2007, and acuities were still 20/300 in each eye and visual field screening showed completed loss of field, according to records. The VA examiner indicated that she had difficulty determining a quantifying amount of vision loss from occipital lobe infarction because kinetic visual field at the VA examination did not have the same findings as the previous one performed April 2007. The VA examiner opined, however, that there does appear to be some inferior nasal visual field loss, right greater than left, on testing. The VA examiner indicated that acuity testing was inconsistent, and the Veteran seemed to have fluctuating vision during testing. The VA examiner indicated that the best assessment was 20/200 in the right eye and 20/100 in the left eye. In January 2008, the VA examiner provided an addendum opinion to clarify whether the Veteran had hysterical loss of vision or actual loss of vision and objective evidence to support that his "blindness" is the result of his service-connected stroke or is related to his service-connected mental illness or neither. The VA examiner reviewed the October 2007 VA examination. The VA examiner noted that the Veteran underwent a comprehensive eye examination, including kinetic visual field testing. The VA examiner indicated that all objective measurements were normal with the exception of the visual field test. The VA examine indicated that the visual field test showed some mild to moderate inferior visual field loss, likely due to the documented bilateral occipital lobe infarcts (per MRI in April 2007). The VA examiner indicated, however, that this did not explain the supposed amount of vision loss that the Veteran was claiming. The VA examiner noted that the Veteran's responses to reading the acuity charts varied, and the VA examiner could not get repeatable, valid responses. The VA examiner indicated that his may be secondary to malingering. The VA examiner noted that all other ocular structures, including the retina, were normal, and no evidence of ocular disease was found. The VA examiner noted that a fee basis neuro-ophthalmology consultation dated in April 2007 demonstrated inconsistencies in the Veteran's vision. This examination was done after the reported occipital lobe strokes, which is documented on an MRI in April 2007. The VA examiner noted that that the physician who performed the neuro-ophthalmology consultation in April 2007 found that the Veteran's uncorrected visual acuities were count fingers at five feet in the right eye and count fingers at four feet in the left eye. However, when the Veteran was refracted, he improved to 20/20 in the left eye and 20/20 in the right eye. The physician also found no evidence of ocular disease but found some evidence of visual field loss, which was likely from the stroke. The VA examiner concluded that there does seem to be objective evidence of some visual field loss from the stroke. However, the examiner indicated that the amount of vision loss is more likely due to malingering or "hysterical blindness" as she could not find any other objective findings to support such vision loss. In a VA treatment record dated in August 2009, indicated that, without glasses, the Veteran had vision of 10/500 in the right eye and 10/400 in the left eye. With a prescription, the Veteran had 20/30 in both eyes for near and distance vision. The VA ophthalmologist indicated that, while the Veteran has excellent vision, he has suffered a significant loss of his field vision in both of his eyes. The VA ophthalmologist opined that the loss of visual field in both eyes is consistent with a history of bilateral occipital lobe infarct suffered in 2007. The VA ophthalmologist stated that, based upon the Veteran's significant loss of field vision in both eyes, he is legally blind. In this case, the record contains several competent medical opinions of a nexus between the Veteran's service-connected cerebrovascular accident and loss of field vision in both eyes. Based upon the positive nexus opinions linking the Veteran's loss of field vision and service-connected cerebrovascular accident, and resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection is warranted for loss of field vision in both eyes. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 3.310. ORDER Entitlement to special monthly compensation based on aid and attendance is denied. Service connection for loss of field vision in both eyes, as secondary to service-connected cerebrovascular accident, is granted. ____________________________________________ M. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs