Citation Nr: 1329663 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 07-16 732 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to special monthly compensation (SMC) based on the need of aid and attendance of another person. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The appellant had active service from July 1960 to July 1964, and from February 1965 to October 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), located in Winston-Salem, North Carolina. This appeal was previously before the Board in January 2011, at which time it was remanded to obtain additional medical evidence including the affording the appellant a VA examination. Such records were obtained and the appellant was afforded a VA examination, a copy of which has been included in the claims folder for review. Given the foregoing, the Board finds that VA has substantially complied with the Board's prior remand with regard to this appeal. Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with Board's remand instructions). The Board remand also found that the Veteran had submitted a valid and timely notice of disagreement as to an October 1999 rating decision denying claims of entitlement to automobile adaptive equipment and a clothing allowance. As a statement of the case was never issued, the Board found that issue to still be in appellate status. Thus, the RO was instructed to issue a statement of the case with respect to those claims. This was accomplished in April 2011. As no substantive appeal was received, the appeal was not perfected and those claims are no longer in appellate status. FINDINGS OF FACT 1. The medical evidence of record does not show that the impairment resulting from the appellant's service-connected disabilities requires the care or assistance of another on a regular basis. 2. The appellant is not 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 five degrees or less, nor is he a patient in a nursing home because of mental or physical incapacity. CONCLUSION OF LAW The criteria for special monthly pension based on the need for the regular aid and attendance have not been met. 38 U.S.C.A. §§ 1502(b), 1521(d) (West 2002); 38 C.F.R. §§ 3.23, 3.351(b) and (c), 3.352(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the appellant's claims file. Although there is an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act of 2000 (VCAA) 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) (2013). 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) (2013); 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); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Moreover, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In April 2005, a Veterans Claims Assistance Act of 2000 (VCAA) letter was sent to the appellant by the agency of original jurisdiction (AOJ). Although such communication did not explain how VA establishes disability ratings and effective dates, such was accomplished in a March 2006 letter. Though this notice did not precede the adverse determination on appeal, a readjudication occurred after the corrective notice was sent. (See April 2007 supplemental statement of the case.) Accordingly, any notice deficiency was cured. In sum, VA has informed the appellant of which evidence he was to provide to VA and which evidence VA would attempt to obtain on his behalf. In this regard, the VA sent the appellant notice of the VCAA, which spelled out the requirements of the VCAA and what the VA would do to assist the appellant. VA informed the appellant that it would request records and other evidence, but that it was the appellant's responsibility to ensure that the VA received the records. The appellant was told that he should inform the VA of any additional records or evidence necessary to substantiate his claim. VA also fulfilled its duty to assist by obtaining the appellant's available medical treatment records. He also had the opportunity to offer testimony in support of his appeal, though he decline to do so. Given the foregoing, the Board finds that the VA has substantially complied with the duty to procure the necessary medical and other records. Additionally, VA has a duty to obtain a medical examination or opinion when such examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012). In June 2011, a VA Aid and Attendance Examination was performed and the results of that examination have been included in the claims folder for review. The Board would further add that a review of that examination report notes that a thorough examination of the appellant was accomplished, and the opinion provided was supported by sufficient rationale. Therefore, the Board finds that the VA examination is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). During the course of this appeal, the appellant has proffered documents and statements in support of his claim. In sum, VA has given the appellant every opportunity to express his opinions with respect to the issue now before the Board and the VA has obtained all known documents that would substantiate the appellant's assertions. Therefore, in light of the foregoing, the Board will proceed to review and decide the claim. II. Laws and Regulations As previously indicated, the appellant has applied for a special monthly pension based on the need of aid and attendance. SMC at the aid and attendance rate is payable when a veteran is helpless or so nearly helpless that he requires the regular aid and attendance of another person. To establish a need for regular aid and attendance, a veteran must be 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; a patient in a nursing home because of mental or physical incapacity; or show a factual need for aid and attendance. 38 C.F.R. §§ 3.351(b)-(c), 3.352(a) (2013). A factual need for aid and attendance includes the inability to dress, undress, keep ordinarily clean and presentable, feed oneself, or attend to the wants of nature. It also includes the frequent need of adjustment of any special prosthetic or orthopedic appliances or either physical or mental incapacity that requires care or assistance on a regular basis to protect against the hazards or dangers incident to a claimant's daily environment. Also, an individual who is bedridden, as that term is defined by regulation, meets the criteria for aid and attendance. 38 C.F.R. § 3.352(a) (2013). The particular personal functions which a veteran is unable to perform should be considered in connection with the claimant's condition as a whole. The evidence need only establish that a veteran is so helpless as to need regular aid and attendance, not constant need. Determinations that a veteran is so helpless as to need regular aid and attendance will not be based solely upon an opinion that a condition requires the veteran to be in bed. They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352(a) (2013). A veteran must be unable to perform one of the enumerated disabling conditions, but a veteran's condition does not have to present all of the enumerated disabling conditions. Turco v. Brown, 9 Vet. App. 222, 224 (1996). The criteria for determining whether a veteran is in need of the aid and attendance of another person may be met if he is bedridden. "Bedridden" is defined as a condition that, through its essential character, actually requires that a 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. The performance of the necessary aid and attendance service by a relative of the beneficiary or other member of his or her household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352 (2013). Finally, in order for a veteran to prevail in his claim, the evidence must show that it is a service-connected disability that has resulted in the need for regular aid and attendance. Prejean v. West, 13 Vet. App. 444 (2000). III. Facts and Discussion The appellant has asserted that his various disabilities preclude him from carrying out basic daily activities without assistance from another person. His service- connected disabilities are as follows: coronary artery disease status post three myocardial infarctions, rated as 100 percent disabling; posttraumatic stress disorder, rated as 70 percent disabling; postoperative ventral hernia, rated as 40 percent disabling; peptic ulcer disease with gastrectomy and vagotomy, gastric ulcer, cholecystectomy and hiatal hernia repair, rated as 20 percent disabling; type II diabetes mellitus with renal insufficient, rated as 20 percent disabling; peripheral neuropathy of the left lower extremity, rated as 20 percent disabling. Special monthly compensation at the S-1 level has been previously granted. The appellant's nonservice-connected disabilities include the residuals of a fracture of left clavicle with arthritis, diabetic retinopathy, hearing loss, hypertension, and the residuals of hemiparesis of the right upper and lower extremities, status post cerebrovascular accident associated with diabetes mellitus with renal insufficiency. The appellant underwent an Aid and Attendance Examination in April 2011. The examiner indicated that the appellant was not hospitalized but that he needed assistance to get in and out of his wheelchair. The examiner further noted that the appellant: . . . depends exclusively on his spouse for regular assistance with ordinary activities of daily living including management of his multiple daily medication and treatment. The veteran also needs assistance in evacuation of his bowels three times weekly. Some form of aid may be necessary to provide additional assistance and allow the veteran's spouse to obtain occasional relief which is often needed in such a situation. The examiner did not attribute the possible need for aid and attendance to the Veteran's service-connected disabilities. Although the service-connected disorders were listed, the examiner did not specify whether the appellant's need for assistance was due to the service-connected or nonservice- connected disorders. In June 2011, the appellant underwent another VA Aid and Attendance Examination. The examiner noted that the health care provider had reviewed the appellant's claims folder prior to examining the appellant. The examiner wrote the following of the Veteran: Currently he is mainly restricted to his home and immediate vicinity and utilizes a wheelchair for mobilization. He uses his private vehicle and is accompanied by a family as an attendant when reporting for medical examination. However, his home restriction and utilization of an attendant is because of his NSC disability (paraplegia). The veteran is not bed ridden, he is not hospitalized and has no orthopedic or prosthetic appliance because of his SC disability. The veteran['s] inability to ambulate and protect himself from the hazard/danger of daily environment is mainly due to his NSC disability and he requires assistance with his wheelchair transfer; however his mental health examination shows some memory impairment and he reports a certain degree of memory loss due to his SC PTSD. . . . The veteran[ is] able to feed and groom himself. While the veteran is unable to dress himself, bath and evacuate his bowels without assistance, it is not due to his service connected disabilities. The veteran is able to read and watch TV but because of his reported poor memory due to SC PTSD, he allows his spouse to manage all of his finances. The examiner further added: While the veteran has NSC disabilities for which assistance is necessary for toileting and bathing, he is not (bedridden) and he is able to groom and feed himself. His frequent follow ups for his SC disabilities shows adequate management with relatively controlled diabetes mellitus and no significant changes of the remaining SC disabilities. The particular personal functions which the veteran is unable to perform are not due to his SC disabilities and therefore there is no need for A&A on the basis of the service connected disabilities. To review, the claims folder contains the appellant's assertions that he needs aid and attendance, and that such a need has been the result of his service-connected disorders. However, the medical evidence of record does not support his assertions. The Board must weigh the credibility and probative value of the medical opinions, and in so doing, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995); see also Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (it is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases for doing so). The Board must account for the evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). In determining the weight assigned to this evidence, the Board also looks at factors such as the health care provider's knowledge and skill in analyzing the medical data. See Guerrieri v. Brown, 4 Vet. App. 467, 470-1 (1993); see also Black v. Brown, 10 Vet. App. 279, 284 (1997). With regard to medical opinions, the probative value or evidentiary weight to be attached to a medical opinion is within the Board's province as finder of fact. The guiding factors in evaluating the probative value of a medical opinion include whether the opinion is based upon sufficient facts, which may include a review of medical literature; and whether the opinion applied valid medical analysis to the significant facts of the case in order to reach the conclusion submitted in the opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Also, the probative value of a medical opinion is generally based on the relative merits of the analytical findings, and the probative weight of a medical opinion may be reduced if the physician fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). Among the factors for assessing the probative value of a medical opinion are the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444 (2000). The medical evidence that might be considered favor of the claim consists of the medical statement provide by the VA health care provider in April of 2011. Although the statement was made by a health-care professional, the notation is nevertheless a mere conclusion without medical analysis, it does not cite to the appellant's medical history or records, and it is insufficient to allow the Board to make an informed decision as to what weight to assign against contrary evidence on the question of whether there is factual need for aid and attendance. Stefl v. Nicholson, 21 Vet. App. 120 (2007) (a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign the opinion). Moreover, as discussed below, the evidence of record, to include the appellant's treatment notes, contradict and therefore do not support the April 2011 findings. Therefore, the Board finds that the health care professional's statement, while it is a statement by a competent medical professional, is less persuasive in support of the claim. Again, the April 2011 opinion is refuted by the June 2011 examination. In this instance, the Board finds that the June 2011 opinion was factually accurate. The examiner pointed to established facts in the opinion. The Board further believes that the examiner provided sound reasoning in the analysis of the appellant's service-connected and nonservice-connected disabilities, and his overall health status. In other words, the VA examiner in June 2011 reviewed in detail the pertinent medical records, discussed the salient facts, and provided complete rationale for all conclusions presented, as noted in the discussion above. The VA examiner supported his conclusions based on the objective evidence of record and sound medical principles. Additionally, the VA examiner's opinion was not equivocal. That examiner was very specific and direct in the opinions he provided. Based on the clarity and specificity provided in the VA opinion of June 2011, the VA examiner's opinion does not appear speculative or based on information that is second-hand. See generally Bloom v. West, 12 Vet. App. 184 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). See also 38 C.F.R. § 3.102 (2013)(when considering application of the benefit- of-the-doubt doctrine, reasonable doubt is one within the range of probability, as distinguished from pure speculation or remote possibility). Accordingly, the Board attaches the most significant probative value to the VA opinion of June 2011 as it is well reasoned, detailed, consistent with other evidence of record, and included an access to the accurate background of the appellant. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.) In considering this claim, the Board has also considered the appellant's assertions. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). In this case, the appellant is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the question of the impact of his heart, neuropathy of the left leg, diabetes mellitus with renal insufficiency, peptic ulcer disease, PTSD, and postoperative ventral hernia on his need for aid and attendance, in the context of his overall health, to include nonservice-connected conditions, is medically complex in nature and thus extends beyond the scope of knowledge possessed by a lay person. Therefore, the Veteran's own personal opinion as to his need for aid and attendance based on his service-connected disabilities does not constitute probative evidence in support of the claim. After a careful review of the evidence of record, it is the decision of the Board that the appellant is not entitled to special monthly pension benefits based on the need for regular aid and attendance. The medical evidence does not indicate that he meets the criteria outlined in 38 C.F.R. § 3.351 (2013). The record does not show that the appellant is blind, hospitalized, or mentally incapacitated. Although the service member has many ailments, disabilities, and conditions, the record does show that he is able to feed himself and he does not regularly depend on others for the preparation/service of his meals. Moreover, there is no evidence that the appellant is regularly unable to bathe or shave himself or that he is unable to attend to all of the needs of nature by himself. While the appellant is unable to ambulate due to his paralysis of the legs, the underlying condition is not a service-connected disorder. The accident that caused the appellant's loss of use of his lower extremities occurred after the appellant was released from service. The Board further notes that the results of the most recent VA examination indicated that while the appellant may require occasional aid and attendance, the disabilities that cause such a need are those that are not service-connected. Therefore, the Board concludes that the appellant is not entitled to special monthly pension based on the need for regular aid and attendance. ORDER Entitlement to special monthly compensation based on the need for regular aid and attendance is denied. ____________________________________________ Eric S. Leboff Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs