Citation Nr: 1326574 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 10-03 814 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to special monthly compensation based on the need for regular aid and attendance or on account of being housebound. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Evan M. Deichert, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from August 1983 to January 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in October 2008 of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in May 2011. A transcript of the hearing is in the Veteran's file. FINDING OF FACT The Veteran is not in blind or nearly blind in both eyes; she is not institutionalized in or confined to a nursing home or other facility due to physical or mental incapacity; and the Veteran is not so helpless that she needs regular aid and attendance from others to care for her personal needs or to protect herself from the hazards and dangers incident to her daily environment; and the Veteran does not have disability ratable as 100 percent and other disability rated 60 percent or is permanently housebound. CONCLUSION OF LAW The criteria for special monthly compensation based on the need for regular aid and attendance of another person or by reason of being housebound have not been met. 38 U.S.C.A. §§ 1513, 1521, 5107(b) (West 2002); 38 C.F.R. §§ 3.340, 3.342, 3.351, 3.352(a) (2012). The Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. A January 2008 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b)(1). This letter provided the Veteran with information on how a claim for SMC based on the need for aid and attendance or on account of being housebound is established. This letter also informed the Veteran of her and VA's respective duties for obtaining evidence. The claim was subsequently readjudicated, most recently in an August 2010 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran's Social Security Administration disability determination, and the records considered in that determination, have also been obtained. 38 C.F.R. § 3.159(c)(2). The Veteran has undergone VA examinations specific to her psychiatric disabilities, the conditions which she contend render her eligible for SMC benefits. Though no VA examination was conducted specifically for this claim, no such examination is necessary here, as the claim file contains sufficient evidence to decide the Veteran's claim absent such an examination. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claim file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006); Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Legal Criteria To receive a special monthly compensation based on the need for aid and attendance, the claimant must be a patient in a nursing home on account of mental or physical incapacity; or be blind or so nearly blind as to have corrected visual acuity in both eyes of 5/200 or less or concentric contraction of the visual field to 5 degrees or less; or have a factual need for regular aid and attendance of another person. 38 U.S.C.A. §§ 1114(l), 1502, 1521; 38 C.F.R. §§ 3.350(b)(3), 3.351(b). Factors considered to determine whether regular aid and attendance is needed include: inability to dress or undress oneself, or to keep oneself ordinarily clean and presentable; frequent need to adjust special prosthetic or orthopedic appliances which by reason of the particular disability requires aid (this does not include adjustment of appliances that persons without any such disability would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability to feed oneself 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 a claimant from the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). It is not required that all of the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found to exist before a favorable decision is permissible. Particular personal functions which the Veteran is unable to perform should be considered in connection with her condition as a whole. It is only necessary that the evidence establish that she is so helpless as to need regular aid and attendance, not that there is a constant need. 38 C.F.R. § 3.352(a); Turco v. Brown, 9 Vet. App. 222 (1996). It is logical to infer, however, a threshold requirement that "at least one of the enumerated factors be present." Turco, 9 Vet. App. at 224. "Bedridden" will be that condition which, by virtue of its essential character, actually requires that the claimant remain in bed. The fact that a claimant has voluntarily taken to bed or that a doctor has prescribed rest in bed for a greater or lesser part of the day to promote convalescence or cure is insufficient. 38 C.F.R. § 3.352(a). Where a Veteran does not meet the qualifications for aid and attendance, housebound benefits may be applicable. Housebound benefits are warranted if, in addition to having a single permanent disability rated at 100 percent disabling under the VA Schedule for Rating Disabilities (not including ratings based upon unemployability under 38 C.F.R. § 4.17), a Veteran: Has additional disability or disabilities independently ratable at 60 percent or more, separate and distinct from the permanent disability rated as 100 percent disabling and involving different anatomical segments or bodily systems, or, is "permanently housebound" by reason of disability or disabilities. 38 C.F.R. § 3.351(d). The housebound requirement is met when a Veteran is substantially confined to her dwelling or the immediate premises or, if institutionalized, to the ward or clinical area, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout her lifetime. 38 C.F.R. § 3.351(d). Facts The Veteran is service-connected for: adjustment disorder with depression, dyspepsia, anxiety, and posttraumatic stress disorder (PTSD), rated 70 percent; papulosquamous eruptions, rated 30 percent; recurrent yeast infections, rated noncompensable; gastroesophageal reflux disease, rated noncompensable; and ovarian cysts, rated noncompensable. The Veteran is in receipt of a total disability rating based on individual unemployability. In a letter in October 2007, K.H.R., Ph.D., P.A., stated that she was the Veteran's psychotherapist for the previous four years. Dr. K.H.R. stated that as a result of the Veteran's physical and psychological impairments, her energy and mood fluctuate throughout the month. Dr. K.H.R. added that the Veteran consistently expressed her struggle with her inability to adequately perform her activities of daily living. She stated that the Veteran had difficulty performing duties such as cleaning, cooking, grocery shopping, running errands, and yard maintenance. Dr. K.H.R. stated that the Veteran's condition was chronic and that the Veteran could benefit from aid and assistance. On VA examination in November 2007, the Veteran stated that she did grocery shopping at least once per month. The Veteran stated that she was too fatigued to do laundry. The VA e examiner noted that the Veteran drove herself to the examination, and she appeared bright and alert during the evaluation. The Veteran complained of mental anguish when cooking or cleaning or other chores. Upon examination, the VA examiner noted that the Veteran was alert, oriented, and cooperative. The VA examiner described the Veteran as neatly dressed and groomed, and stated that she was wearing "very nice looking clothing." The VA examiner also reported that the Veteran "demonstrated a capacity for abstract reasoning," and her judgment was good. The VA examiner noted the contradiction in that the Veteran complained of not being able to do household chores and other activities, yet she appeared well-kept and neatly groomed, indicating "that she does have ability to take care of her own hygiene." The VA examiner stated that the Veteran was able to take care of her own hygiene and activities of daily living. In a letter in March 2008, the Veteran stated that she became physically impaired at least two weeks out of the month, staying in bed and unable to perform daily activities. On VA examination in October 2008, the Veteran complained that she could not clean her house or shop for groceries. The VA examiner noted that the Veteran was capable of performing activities of daily living, but she did not do the activities routinely. Upon examination, the Veteran was alert and oriented. On VA examination in July 2010, the Veteran stated that she lived in her own home with her daughter, but stated that their relationship was poor. She stated that she bought clothes from Goodwill for her daughter and that she went to church once a week. Upon examination, the Veteran was described as alert, oriented, and attentive. Her memory was slightly impaired for immediate information, but fairly intact for recent and remote events. Her concentration was intact, her intelligence average, and she had insight into her current condition. The VA examiner reported that the Veteran would skip taking a bath up to a week. The VA examiner stated that the Veteran's social adaptability was severely impaired, but that the Veteran was capable of handling her own funds. In May 2011, the Veteran testified that because of intrusive thoughts she has periods where she cannot carry out daily activities. She stated that she avoided the grocery store, but that when she went she felt that she was being followed or watched. She stated that her mother had recently undergone heart surgery, and that as a result of the demands placed on her time, she had to arrange for help in cleaning her house, grocery shopping, and lawn care. She stated that she participated in religious activities. The Veteran stated that there were times when she would stay indoors for up to three days, but she did what she had to do as there was no one else do for her. The Veteran stated that she left the house to check on her mother and that she continued to drive, dress herself, take care of normal hygiene, and feed herself. She stated that, when she was at a low point mentally, she may not react responsibly in an emergency situation. Analysis Aid and Attendance There is no evidence and the Veteran does not argue that she is blind or is a patient in a nursing home because of mental or physical incapacity. Therefore, a special monthly compensation based upon aid and attendance can be awarded only if the Veteran can establish a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). The Veteran is able to dress herself and to keep herself clean and presentable. She wears no prosthetic or orthopedic appliances. She is able to feed herself. She continues to drive to run errands, including checking on her mother, going out to eat, going to the grocery store, and going to religious activities. The evidence, including the statement of Dr. K.H.R., which is the most favorable, overwhelmingly shows that the Veteran is able to take care of her activities of daily living by herself despite her statements to the contrary. While the Veteran stated that she has periods where she does not want to do the activities of daily living, her reluctance does not equate to the her inability to dress or feed herself, or to keep herself clean and presentable, or to attend to the wants of nature, or to incapacity, physical or mental, to protect himself from the hazards or dangers incident to her daily environment. Housebound The Veteran also does not meet the criteria for SMC based on being housebound. First, she does not meet the scheduler criteria of a 100 percent rating plus another service-connected disability rated at 60 percent. Second, she is not "permanently housebound" by reason of her disabilities. She continues to drive, to run errands, and to attend church. The preponderance of the evidence is against the claim for special monthly compensation; there is no doubt to be resolved; and special monthly compensation based on the need for regular aid and attendance or by reason of being housebound is not warranted. ORDER Special monthly compensation based on the need for regular aid and attendance or by reason of being housebound is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs