Citation Nr: 1331015 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 12-31 778 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES Entitlement to special monthly compensation (SMC) for the Veteran's spouse based on the need for regular aid and attendance. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant, his spouse and daughter ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran served on active duty from September 1955 to July 1979. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In July 2013, the Veteran testified at a hearing before the undersigned using video-conferencing technology. A transcript of the proceeding is of record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT Resolving all reasonable doubt in favor of the Veteran, the medical and lay evidence of record establishes that his spouse has a factual need for aid and attendance demonstrated by her inability to dress or undress herself without assistance, her inability to feed herself without assistance and her inability to keep herself ordinarily clean and presentable without assistance. CONCLUSION OF LAW The criteria for SMC for the Veteran's spouse based on the need for regular aid and attendance have been met. 38 U.S.C.A. §§ 1114, 1115, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.350, 3.351, 3.352 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Board has given consideration to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. A VCAA notice letter was sent to the Veteran regarding his claim in September 2010. The Board need not discuss in detail the sufficiency of this VCAA notice letter in light of the fact that the Board is granting the Veteran's claim below. Any potential error on the part of VA in complying with the provisions of the VCAA has essentially been rendered moot by the Board's full grant of the benefit sought on appeal addressed in this decision. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2013). Accordingly, the Board will proceed to a decision. Aid and Attendance The Veteran is claiming SMC for his spouse based on her need for regular aid and attendance due to her physical disabilities. The Veteran's spouse has been diagnosed with rheumatoid arthritis, fibromyalgia, glaucoma, essential tremors, osteoarthritis which required knee replacement and high blood pressure. The Veteran mentioned that his spouse also has depression, but there is no medical evidence documenting a diagnosis for depression. See Veteran's statement dated in October 2012. Therefore, only the Veteran's spouse's physical disabilities will be considered in this decision. Any Veteran who is entitled to disability compensation at the rates provided in 38 U.S.C.A. § 1114, whose disability is rated not less than 30 percent disabling, and whose spouse is a patient in a nursing home, or helpless or blind, or so nearly helpless or blind as to need or require the regular aid and attendance of another person, is entitled to additional compensation. 38 U.S.C.A. § 1115. Under 38 C.F.R. § 3.351(a)(2), SMC is payable to a Veteran by reason of the Veteran's spouse being in need of aid and attendance. Here, the Veteran is currently rated as 100 percent disabled due to his service-connected disabilities. His service-connected disabilities include radical retropubic prostatectomy, adenocarcinoma, status post pelvic lymph node dissection, diabetes mellitus, Type II, peripheral neuropathy of the left lower extremity, peripheral neuropathy of the right lower extremity, chip fracture of the left elbow, and erectile dysfunction. See RO decision dated in March 2013. He is also in receipt of a total disability evaluation based on individual unemployability. Therefore, he meets the initial requirements for this provision. Under 38 C.F.R. § 3.351(b) , the need for aid and attendance means helplessness or being so nearly helpless as to require the regular aid and attendance of another person. The criteria for determining whether such need exists are set forth under 38 C.F.R. § 3.351(c). The criteria for establishing the need for aid and attendance include consideration of whether the spouse is blind or is 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; or, whether the spouse is a patient in a nursing home because of mental or physical incapacity; or, whether the spouse has a factual need for aid and attendance. 38 C.F.R. § 3.351(c). In determining whether there is a factual need for regular aid and attendance, the following will be considered: whether the spouse is unable to dress or undress herself, or to keep herself ordinarily clean and presentable; whether the spouse requires frequent adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability could not be done without aid; whether the spouse is unable to feed herself through loss of coordination of upper extremities or through extreme weakness; whether the spouse is unable to attend to the wants of nature; or, whether the spouse's incapacity requires assistance on a regular basis to protect her from the hazards or dangers incident to her daily environment. 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. The particular personal function that the spouse is unable to perform should be considered in connection with her disability as a whole. It is only necessary that the evidence establish that the spouse is so helpless as to need regular aid and attendance, not that there be a constant need. 38 C.F.R. § 3.352(a). An individual who is bedridden shall also be considered to require regular aid and attendance. "Bedridden" constitutes a condition that through its essential character actually requires that an individual remain in bed. The fact that a claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for a lesser or greater portion of the day to promote convalescence or cure will not suffice. If the criteria for SMC based on the need for regular aid and attendance are not met, SMC can be awarded if a spouse is permanently housebound by reason of disability. 38 U.S.C.A. §§ 1502(c), 1521(e); 38 C.F.R. § 3.351(e). A spouse will be considered to be permanently housebound when she is substantially confined to her house (ward or clinical areas, if institutionalized) or immediate premises by reason of a disability or disabilities reasonably certain to remain throughout her lifetime. 38 U.S.C.A. §§ 1502(c), 1521(e); 38 C.F.R. § 3.351(e). The Veteran's spouse was afforded an examination for housebound status or permanent need for regular need for aid and attendance in August 2010. The examiner opined that the Veteran's spouse was able to feed herself, prepare her own meals and did not need assistance in bathing or tending to other hygiene needs. The examiner also noted that the Veteran's spouse was not legally blind, did not require nursing home care or did not require medication management. She also had the ability to manage her own financial affairs. Despite this, the examiner found that the Veteran's spouse mobilized slowly with a cane and had decreased rotation of motion of her right shoulder more so than with her left. She had decreased grip strength and decreased strength in the arms. Upon examination, she also had severe osteoarthritis of the knees and osteoarthritis of the hips. The examiner found that the Veteran's spouse's arthritis created extreme difficulty leaving the home and that she rarely left the home. The Veteran submitted a statement in October 2012. In that statement, the Veteran reported that he assists his spouse with dressing. He explained that she could not reach her back. He described that she could not reach pots and pans under the cabinets. He noted that if there was a fire in the house, he worried about both of them being able to get out of the house. He also reported that he helped her bathe because he feared that she would fall if he did not help. In addition, he reminded her to take her medication. The Veteran contended that his spouse is eligible for aid and assistance. During the July 2013 hearing, the Veteran's daughter, who is also a nurse practitioner, testified that that the Veteran's spouse could not dress and tend to her hygiene adequately. See July 2013 hearing at page 10. She explained that the Veteran's spouse had central tremors which caused food to go everywhere when she tried to feed herself. See July 2013 hearing, pages 6 and 10. The Veteran's daughter also noted the difficulty the Veteran's spouse had with hygiene. She explained that due to rotator cuff tears and bursitis the Veteran's spouse could not reach parts of her body. See July 2013 hearing at page 11. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary of the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board finds that the evidence of record is in relative equipoise as to whether the Veteran's spouse requires the regular aid and attendance of another person and, therefore, the Board will resolve all reasonable doubt in the Veteran's favor and find that his spouse has a factual need for aid and attendance as demonstrated by her inability to dress or undress herself without assistance, inability to keep herself ordinarily clean and presentable and her inability to feed herself due to her tremors. In this regard, the Veteran reported that he assisted his spouse with dressing and bathing. The Veteran's daughter reported that the Veteran's spouse was unable to reach and clean certain areas of her body due to disabilities and was unable to feed herself properly due to essential tremors. Hence, the Board finds that the Veteran's spouse's disabilities reasonably render her in need of assistance from others in attending to most of her basic daily needs. Therefore, resolving all reasonable doubt in the Veteran's favor, the Board concludes that SMC for his spouse based on the need for regular aid and attendance is warranted. ORDER SMC for the Veteran's spouse based on the need for regular aid and attendance is granted. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs