Citation Nr: 1324856 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 09-08 219 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance of another. 2. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected lumbar, cervical and thoracic spine disabilities. 3. Entitlement to an initial evaluation in excess of 10 percent for scoliosis and spondylosis of the thoracic spine. 4. Entitlement to SMC based on loss of use of a creative organ. REPRESENTATION Veteran represented by: Lisa A. Lee, Attorney ATTORNEY FOR THE BOARD S. Dale, Counsel INTRODUCTION The Veteran had active service from March 1971 to October 1978. These matters come before the Board of Veterans' Appeals (Board) on appeal from June 2008 (thoracic spine), July 2009 (erectile dysfunction and SMC-creative organ), and December 2009 (SMC-aid and attendance) rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The June 2008 rating decision assigned a 10 percent rating for the thoracic spine disability, effective from October 23, 1990, the date of award of an earlier effective date for service connection for the disability. (In this regard, the June 2008 rating decision represented readjudication of a July 2007 rating decision which granted service connection for the thoracic spine disability, and assigned a 10 percent intial disability rating, effective from April 2, 2003.) The July 2009 rating decision denied service connection for erectile dysfunction, and denied entitlement to SMC based on loss of use of a creative organ. The December 2009 rating decision denied entitlement to SMC based on the need for regular aid and attendance. As noted above, the June 2008 rating decision granted the Veteran's claim for an effective date earlier than April 2, 2003, for the grant of service connection for scoliosis and spondylosis of the thoracic spine. As requested by the Veteran, an effective date of October 23, 1990, was assigned for the grant of service connection for this disability. As noted in the June 2008 decision, due to the Veteran's statements asserting that an effective date of October 23, 1990, would satisfy his appeal, the assignment of this effective date was considered a full grant of the benefits sought. Further, in a January 2009 statement, the Veteran's private attorney stated that the Veteran did not disagree with the assigned effective date of this award. The Board notes that the Veteran completed an appeal to the Board on the issue of entitlement to service connection for a higher evaluation for scoliosis, degenerative disc disease, and degenerative joint disease of the lumbar spine with radiculopathy, which was remanded by the Board in May 2006. The evaluation was increased to 60 percent disabling effective January 31, 2000, in a July 2007 rating decision. In a September 2007 statement, the Veteran's private attorney stated that the Veteran no longer appealed that issue. Thus, that claim has been withdrawn and the issue is not before the Board. The Board remanded the current issues on appeal for further evidentiary development in August 2012. The Board's August 2012 remand directives have been substantially completed, and the appeal has been returned to the Board. In a substantive appeal received in September 2009, the Veteran's representative asserted that a docket number of 95-32 579 should be assigned for the issues on appeal. As set forth in a letter from the Board issued in July 2005, the March 19, 2003 Board decision which granted the appeal for service connection for scoliosis, which had been under docket number 95-32 579, represented the final appellate decision of that particular claim. Subsequently, the RO effectuated the Board decision and rendered a new decision and assigned an initial rating based on the severity of the scoliosis. The notice of disagreement filed as to the initial rating assigned represented a new appeal, and a new docket number was assigned. As noted above, the Veteran and his representative subsequently withdrew the appeal as to a higher initial evaluation for scoliosis, degenerative disc disease and degenerative joint disease, of the lumbar spine. The current issues on appeal stem from rating decisions outlined above and have been assigned a docket number accordingly. The isuses of entitlement to service connection for erectile dysfunction, entitlement to an initial evaluation in excess of 10 percent for scoliosis and spondylosis of the thoracic spine, and entitlement to SMC based on loss of use of a creative organ, are REMANDED to the RO. VA will notify the Veteran if further action is required. FINDING OF FACT The most probative competent and credible evidence of record fails to establish that it is at least as likely as not that the Veteran's service-connected disabilities render him unable to independently perform daily functions of self-care or to protect himself from the hazards and dangers incident to his daily environment. CONCLUSION OF LAW The criteria for the award of special monthly compensation based on the need for regular aid and attendance of another have not been not met. 38 U.S.C.A. §§ 1114, 5107 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.350, 3.351, 3.352 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In VA correspondence dated in November 2009, the Veteran was informed of what evidence was required to substantiate his claim for SMC based on the need for regular aid and attendance of another, and of his and VA's respective duties for obtaining evidence. Also, this notice informed the Veteran of the criteria for consideration in assigning an effective date and/or disability rating in the event of award of the benefit sought. In Pelegrini, supra, the Court held that compliance with 38 U.S.C.A. § 5103 required that VCAA notice be provided prior to an initial unfavorable AOJ decision. Because VCAA notice in this case was completed prior to the initial AOJ adjudication denying the claim, the timing of the notice complies with the express requirements of the law as found by the Court in Pelegrini. In light of above, the content of the November 2009 notice fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and Dingess/Hartman, 19 Vet. App. 473 (2006). The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notice. All the VCAA requires is that the duty to notify is satisfied, and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996). The Board finds the VCAA notice requirements have been met in this case. Duty to assist With regard to the duty to assist, the claims file contains the Veteran's service treatment records (STRs), statements of the Veteran, and VA examinations as well as VA and private treatment records. The Board has carefully reviewed the Veteran's statements and concludes that there has been no identification of further available evidence not already of record for which VA has a duty to obtain. 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 claim decided herein. As will be further discussed below, the Board is remanding several claims because there is an indication of an outstanding vocational rehabilitation file created by VA. However, there is no indication that this VA vocational rehabilitation folder, if extant, would affect the Veteran's claim decided herein. Specifically, the record reflects that the Veteran's lumbar corset was not prescribed until more than 14 years after the Veteran was last denied VA vocational rehabilitation benefits. Because there is no indication, to include from the Veteran, that these records may affect the present claim, remanding it would merely cause avoidable delay and would not result in any additional benefit to the Veteran. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). A VA examination with respect to the issue decided herein was obtained in February 2013. 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 February 2013VA examination is adequate for the purpose of adjudicating the Veteran's claim, as it includes a physical examination of, and interview with, the Veteran, as well as a review of the complete record. The examination report contains findings and opinions necessary to adjudicate the Veteran's claim under the applicable legal criteria. 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). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist in developing the facts pertinent to the claim decided herein. Essentially, all available evidence that could substantiate the claim has been obtained. Special Monthly Compensation - Aid and Attendance Special monthly compensation is payable at a specified rate if the veteran, as the result of service-connected disability, is permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C.A. § 1114(l) (West 2002 & Supp. 2009); 38 C.F.R. § 3.350(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 daily environment. 38 C.F.R. § 3.352(a). Not all of the disabling conditions enumerated in 38 C.F.R. § 3.352(a) must be found to exist before a favorable rating may be made. The particular personal functions which the veteran is unable to perform should be considered in connection with his 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 is a constant need. 38 C.F.R. § 3.352(a); see also Turco v. Brown, 9 Vet. App. 222, 224 (1996) (noting that at least one factor listed in section 3.352(a) must be present for a grant of special monthly pension based on need for aid and attendance). For the purposes of 38 C.F.R. § 3.352(a), "bedridden" will be a proper basis for the determination of whether the veteran is in need of regular aid and attendance of another person. "Bedridden" will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that a claimant 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. 38 C.F.R. § 3.352(a). Analysis The Veteran is presently service-connected for disabilities of the cervical, thoracic and lumbar spine segments as well as the left index finger. He avers that he is entitled to SMC benefits based on the need for regular aid and attendance of another because he needs the assistance of his neighbor to put on a lumbar corset which was prescribed for his service-connected lumbosacral spine disability. A February 2010 VA outpatient treatment record reflects that, while the Veteran was independent in self-care and the activities of daily living, he cannot put on and take off by himself a back brace necessary for him to use due to his scoliosis, and paid an individual for helping him with such. See September 2009 and October 2010 physician statements. Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against the Veteran's claim for special monthly compensation based on the need for regular aid and attendance. Initially, the Board observes that there is no evidence that the Veteran is blind, in a nursing home due to physical or mental incapacity, bedridden, or unable to keep himself safe from hazards or dangers incident to his daily environment, attend to the wants of nature, dress himself or feed himself. As stated above, the Veteran asserts that he is entitled to SMC benefits based on the need for regular aid and attendance of another because he is unable to put on the lumbar corset by himself. In support of this assertion, the Veteran has submitted several statements from himself, his neighbor, and VA medical professionals which reflect that he is unable to put on a prescribed lumbar corset by himself. The Veteran was provided a VA examination in connection with this claim in February 2013. The VA examination report reflects that the Veteran utilizes the lumbar corset "3 - 4 times [per] week," when he leaves his house. The examiner recorded that the Veteran was not bedridden or hospitalized, and he was able to leave his current domicile in which he lives alone, but with four dogs for which he cares. The examiner reported that the Veteran was able to protect himself from his daily environment and could perform all functions of daily living without difficulty, to include driving. Although the Veteran carried a walker to the VA examination, he could ambulate without it, albeit with a slow, but normal, pattern. All functions of the upper and lower extremities were noted to be normal and the Veteran's eyesight was better than 5/200, bilaterally. After an interview with and thorough examination of the Veteran, the examiner opined that the Veteran's service-connected disabilities less likely as not qualified him for aid and attendance benefits. In providing this opinion, the examiner noted that the Veteran lived alone and was able to attend to his own needs of daily living as well as those of his four dogs. The examiner noted that the Veteran has been prescribed a second lumbar corset which he is able to put on and take off by himself, that he wears this corset for "regular home use," and that his choice to wear the more problematic lumbar corset is subjective. Indeed, the examiner noted in the report that, based on the VA treatment records, it appeared that the VA medical staff had prescribed the second lumbar corset in an effort to wean the Veteran off of using the first, more problematic, one. The examiner noted that the Veteran had good use of both hands, particularly his left (which is used when donning the lumbar corset), and was able to put on compression socks; an act deemed by the examiner to be as strenuous as donning or doffing the problematic lumbar corset. The Board has considered the statements submitted by the Veteran reflecting that he cannot put on or take off one of his lumbar corsets without assistance; however, the Board finds that the February 2013 VA examiner's opinion is more probative concerning the issue at hand. Specifically, although the Board does not doubt that the Veteran has difficulty putting on and taking off one of his lumbar corsets and has been assisted by others in doing so, the examiner noted that he is, otherwise, physically capable of performing equally-strenuous tasks as well as all functions of daily living. Accordingly, the preponderance of the competent and credible evidence of record reflects that the Veteran's service-connected disabilities do not render him so helpless as to be in need of regular aid and attendance. In light of the above, the Board finds that the preponderance of the evidence is against the Veteran's claim. As such, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that SMC based on the need for regular aid and attendance of another is not warranted. ORDER Entitlement to SMC based on the need for regular aid and attendance of another is denied. REMAND After review of the complete record, the Board concludes that another remand is necessary so that the Board may fulfill its duty to assist the Veteran in substantiating the remainder of his claims. The record reflects that the Veteran filed a claim for vocational rehabilitation benefits. Although it appears that the Veteran's claim for such was initially denied, it is unclear whether he was subsequently admitted to the program. Nonetheless, a July 1990 Statement of the Case alludes to a VA Form 28-1902 (Counseling Record-Personal Information) and a VA Form 1900 (Disabled Veterans Application for Vocational Rehabilitation) which were filed by the Veteran in connection with this claim, as well as several vocational rehabilitation counseling sessions attended by the Veteran. The Board notes that the record currently on appeal is devoid of a VA Form 28-1902, VA Form 1900, and/or the records of the vocational rehabilitation counseling sessions. In light of above, the Board concludes that an attempt should be made to obtain the Veteran's vocational rehabilitation file, if extant, as the records contained therein may be useful to the Board in adjudicating the Veteran's claims. The Board is on notice of the existence of those records and is obliged to obtain and consider them. See Moore v. Gober, 10 Vet. App. 436 (1997). This outstanding evidence may affect the outcomes of the Veteran's claim for an increased evaluation for his service-connected thoracic spine disability as well as his claim to establish service connection for erectile dysfunction. As his claim for SMC based on loss of use of a creative organ is partially dependent on his erectile dysfunction claim, the claims are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) As these claims must be remanded for other matters, the Board concludes that the RO should obtain updated treatment records from the VA Outpatient Clinic in Jacksonville, Florida, dated from February 28, 2013, to the present. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain all VA treatment records from the VA Outpatient Clinic in Jacksonville, Florida, dated from February 28, 2013, to the present. All records obtained should be associated with the Veteran's VA claims file. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran should be informed in writing. 2. Contact the appropriate repository and attempt to obtain all vocational rehabilitation records, if any, for the Veteran. Associate all received records, if any, with the claims file. All efforts to obtain such records should be documented in the claims folder, and if no such records exist, such should be noted in writing in the record. 3. Complete any additional development deemed to be necessary in consideration of the evidence added to the record as a result of above. 4. Once the above actions have been completed, the RO must readjudicate the Veteran's claims on appeal, taking into consideration all of the evidence of record. If any benefit remains denied, a Supplemental Statement of the Case must be provided to the Veteran and his private attorney. After they have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matters 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). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs