Citation Nr: 1328929	
Decision Date: 09/10/13    Archive Date: 09/17/13

DOCKET NO.  09-42 025	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUE

Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance of another person.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

James A. DeFrank, Counsel


INTRODUCTION

The Veteran served on active duty from September 1965 to June 1969. 

This case comes before the Board of Veterans' Appeals (Board) on appeal of a June 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, where the case was brokered from the RO in Chicago, Illinois.  Jurisdiction is with the Chicago RO.

In a June 2012 decision, the Board remanded this issue for additional development.


FINDING OF FACT

The Veteran does not meet the preliminary criteria for sufficient existing SMC to support an additional award of special aid and attendance, or otherwise warrant a higher level of SMC than that which he is already receiving.


CONCLUSION OF LAW

The criteria for entitlement to special monthly compensation based on the need for regular aid and attendance are not met.  See 38 U.S.C.A. §§ 1521, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.351, 3.352 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159).  

In this appeal, the RO provided notice to the Veteran in a February 2007 letter prior to the date of the issuance of the appealed June 2007 rating decision.  The February 2007 letter explained what information and evidence was needed to substantiate a claim for SMC based on the need for regular A&A, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA.  

The Veteran was not provided with notice regarding effective dates.  The Board finds, however, that any error in providing notice was nonprejudical to the Veteran.  The Board concludes below that the preponderance of the evidence is against the Veteran's claim for entitlement to SMC based on the need for regular A&A, and thus any questions as to the effective date to be assigned are rendered moot.

VA has also fulfilled its duty to assist in obtaining the identified and available evidence needed to substantiate the claim adjudicated in this decision.  The RO has either obtained, or made sufficient efforts to obtain, records corresponding to all treatment for the claimed disorder described by the Veteran.  Additionally, per the June 2012 Board remand instructions, he was afforded a VA examination based on the need for aid and attendance in July 2012.  

While the Board notes the Veteran's contentions regarding the adequacy of his July 2012 VA examination, the Veteran gave an accurate history regarding his service-connected disabilities at issue and recounted his relevant symptomatology for each disability.  After receiving this information, the examiner performed a thorough physical and conducted necessary diagnostic tests related to the Veteran's disabilities.  The examiner documented these actions in detail in his examination reports and also indicated in a July 2012 VA addendum that he had reviewed the Veteran's claims file.  Again, the Board has considered the challenges of both the Veteran and his representative as to the adequacies of this examination.  However, despite the Veteran's arguments that he had difficulty communicating with the examiner due to his hearing disability, it appears that the VA examiner was able to obtain substantial information from the Veteran regarding his history and his current circumstances.  In addition, despite the representative's argument that the examiner did not provide information meeting the strict criteria for evaluating entitlement to SMC, the Board finds that the report reflects thorough examination of the Veteran and thoughtful analysis of the Veteran's entire history, and provides ample information so as to allow for an informed decision.  See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"]. 

As such, the Board finds that July 2012 VA examination is adequate.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (defining adequacy with respect to medical examinations and opinions as those providing sufficient detail so that the Board can perform a fully informed evaluation of the claim).

Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 

Factual Background and Analysis

The Veteran has claimed entitlement to SMC based upon the need for regular aid and attendance of another person.  He was granted a 100 percent rating for bilateral hearing loss in a September 2004 rating decision, effective February 26, 2004.  He was awarded SMC under 38 U.S.C.A. § 1114 (k) on account of loss of use, deafness in both ears, but was denied SMC at the higher level, based on aid and attendance.  He filed the instant claim, seeking SMC based on aid and attendance, 38 U.S.C.A. § 1114 (l), in December 2006, arguing that he needed a full-time attendant in order to translate speech for proper communication.  

In August 2011, service connection was granted for B-cell chronic lymphocytic leukemia/small lymphocytic lymphoma.  A 100 percent rating was assigned from August 31, 2010, for that disability.  Entitlement to SMC based on housebound criteria was granted from August 31, 2010, based on a single 100 percent permanent disability and another disability rated 60 percent or more, pursuant to 38 U.S.C.A. §1114 (s).  The Veteran has continued his appeal as to SMC based on aid and attendance.  Parenthetically, the Board notes that service connection is also in effect for tinnitus and this disability is rated 10 percent disabling since 1989.

The Veteran underwent an examination for entitlement to SMC based on aid and attendance in July 2004.  The examiner noted that the Veteran was requesting aid and attendance to translate speech.  He indicated that he was only able to follow speech if the speaker is talking directly to him at a close distance with no background noise present.  During the interview, his wife translated nicely but she was not able to take care of her husband because she was working part-time.  The diagnosis was bilateral hearing loss with tinnitus.  The Veteran's ability to discriminate or understand speech had been gradually diminished for the last several years and he was also very sensitive to loud sounds which prohibited him from turning his hearing aids up.  The examiner concluded that the Veteran needed aid and attendance on a full time basis in order to translate speech for proper communication.

A January 2006 VA audiology hearing aid evaluation indicated that the Veteran reported that when out in public, he relied more on his wife for help with understanding speech if he could not follow the original speaker.  He noted that he took out his hearing aids at home and that his wife knew to increase her speaking volume so he could get by without amplification.  

An April 2007 VA audiology hearing aid evaluation noted that the Veteran had been successfully using hearing aids that were issued in 2002.  The diagnosis was bilateral moderate sloping to severe sensorineural hearing gloss.  

VA treatment records dated include an August 2011 cardiology consultation indicating that the Veteran increased exercising over the last four months and now bicycles 25 miles and lifts weights daily.  However, records dated in December 2011 reflect complaints about his hearing difficulties and his problems with hearing aids.  He returned his Oticon Agil Pro HS hearing aids as he felt that they did not provide enough compression and were uncomfortable.  He expressed interest in trying Phonak  aids as they were the only aids that have been tolerable to him. 

Per the June 2012 Board instructions, the Veteran underwent a VA aid and attendance examination in July 2012.  The examiner noted that the Veteran currently lived with his wife.  He drove himself and his wife to the examination and came walking into the examination without an assistive device.  On a typical day, the Veteran prepared his own breakfast and then put the dirty dishes in the sink.  He then went to the gym where he swam and lifted weights.  He and his wife both cleaned the house while he did general duties such as paying bills, general cleaning and changing the oil of his car.  His hearing aids had newly changed and he currently wore hearing aids in both ears.  The examiner noted that the examination showed that the Veteran was independently ambulatory and independent of his daily living activities.  

The Veteran is requesting entitlement to SMC for aid and attendance.  However, entitlement to a higher level of SMC for aid and attendance is denied as the requirements of the statutory and regulatory scheme for that benefit have not been met.

As detailed above, the Veteran is in receipt of SMC under multiple statutory provisions.  Namely, the Veteran is in receipt of SMC under 38 U.S.C.A. §1114 (k) on account of loss of use, deafness in both ears and is in receipt of SMC for housebound criteria based on a single 100 percent permanent disability and another disability rated 60 percent or more, pursuant to 38 U.S.C.A. §1114 (s).  

In addition, a veteran may also be entitled to SMC where there is an established need for regular aid and attendance.  38 U.S.C.A. § 1114(l) (West 2002); 38 C.F.R. § 3.350(b)(3) (2012).  Requiring aid and attendance means that a person is helplessness or 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: (1) is blind or 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; (2) is a patient in a nursing home because of mental or physical incapacity; or (3) establishes a factual need for aid and attendance under 38 C.F.R. § 3.352(a) (2012).  See 38 C.F.R. § 3.351(b), (c) (2012).

The criteria for determining need for aid and attendance are set forth under 38 C.F.R. 3.352(a).  By that regulation, consideration is to be provided to whether there is an inability of the claimant to dress or undress himself (herself), or to keep himself (herself) 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 (herself) 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.  38 C.F.R. 3.352(a).

In Turco v. Brown, 9 Vet. App. 222 (1996), the Court determined that it is not required that all of the conditions enumerated in the provisions of 38 C.F.R. 
§ 3.352(a) be found to exist in order to establish entitlement to aid and attendance, but that at least one of the enumerated factors must be present.  The Court added that the particular function the claimant is unable to perform must be considered in connection with his or her condition as a whole and that it is only necessary to establish that the claimant is in need of regular aid and attendance, not that there be a constant need.

The Board has considered the assertions of the Veteran that he requires the aid of his wife to communicate due to his hearing loss disabilities, and that such level of disability should render him entitled to SMC based on the need for aid and attendance.  However, while the Board is sympathetic to the difficulties experienced by the Veteran as a result of his hearing loss and tinnitus, the greater weight of the evidence is against finding that SMC is warranted based on the need for aid and attendance.  The evidence of record does not reveal anatomical loss or loss of use of both feet or of one hand and one foot, blindness in both eyes with visual acuity of 5/200 or less, or the Veteran being permanently bedridden.  Furthermore, the evidence does not demonstrate that the Veteran is unable to dress himself or keep himself ordinarily clean and presentable.  No VA clinician or examiner has ever noted a lack of basic hygiene in the Veteran.  During the most recent VA examination, it was specifically noted that, on a typical day, the Veteran prepared his own breakfast and then put the dirty dishes in the sink.  He then went to the gym where he swam and lifted weights.  He and his wife both cleaned the house while he did general duties such as paying bills, general cleaning and changing the oil of his car.  The examiner noted that the examination showed that the Veteran was independently ambulatory and independent of his daily living activities.  He has not been shown to be in need of special prosthetic or orthopedic devices.  Although the record does reflect that the Veteran uses hearing aids, this is not the sort of device identified in the provisions of 38 C.F.R. 3.352(a) as supporting the need for aid and attendance.  In this case, while the Veteran is no doubt significantly impaired as a result of his hearing loss disability, as has been recognized in his disability rating, the evidence does not show that such disability, either alone or in combination with other service-connected disability, renders him in need of regular aid and attendance as contemplated by the regulation.

The Board has considered the conclusion of the July 2004 VA examiner that the Veteran's hearing loss disability did render him in need of regular aid and attendance.  However, the Board finds that opinion to be of very little probative value, as the examiner failed to provide any rationale as to how such disability interfered with his ability to perform various activities of daily living as contemplated by 38 C.F.R. 3.352(a).  In essence, the Board finds that the bare assertion of the VA examiner, by itself, does not show that the need for aid and attendance is established under the criteria of that regulation.

Accordingly, the Board concludes that the Veteran is not entitled to SMC based on the need for aid and attendance.  As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine does not apply.  See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364-65 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).



ORDER

Entitlement to SMC based on the need for regular aid and attendance is denied.


____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs