Citation Nr: 1331049 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 09-25 822 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to special monthly compensation based on the need for regular aid and attendance of another person. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1989 to February 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). The case was remanded by the Board for additional development in April 2011 and February 2012. In November 2011, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The issue on appeal was adequately explained to him and the submission of evidence which he may have overlooked and which would be advantageous to his position was suggested. See 38 C.F.R. § 3.103(c) (2012). FINDING OF FACT The Veteran, as a result of his service-connected disabilities, is not shown to have suffered the anatomical loss or loss of use of both feet, or of one hand and one foot, he is not blind in both eyes, with 5/200 visual acuity or less, he is not permanently bedridden, and he is not shown to have such significant disabilities as to be in need of regular aid and attendance. CONCLUSION OF LAW The criteria for special monthly compensation based on the need for regular aid and attendance of another person have not been met. 38 U.S.C.A. §§ 1114, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.350 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a 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, 3.326(a) (2012). The Veteran was notified of the duties to assist and of the information and evidence necessary to substantiate his claim by correspondence dated in May 2008. The notice requirements pertinent to the issue on appeal have been met and all identified and authorized records relevant to the matter have been requested or obtained. The available record includes service medical records, VA treatment and examination reports, Social Security Administration (SSA) records, private treatment records, and the Veteran's statements and testimony in support of his claim. Although the February 2012 VA remand instructions included a request for visual acuity testing, the August 2012 VA examiner found that such testing was not indicated for this Veteran. The examiner also specifically found, however, that the Veteran's best corrected visual acuity was not 5/200 or less in both eyes. The development requested on remand in April 2011 and February 2012 has been substantially completed. There is no evidence of any additional existing pertinent records. The Board finds that further attempts to obtain additional evidence would be futile. When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate. VA medical opinions obtained in this case are adequate as they are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints and symptoms. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion as to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4) (2012). The available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to adjudicate the claim would not cause any prejudice to the appellant. Special Monthly Compensation VA law provides special monthly compensation to a Veteran who, as a result of his or her service-connected disabilities, has suffered the anatomical loss or loss of use of both feet, or of one hand and one foot, or is blind in both eyes, with 5/200 visual acuity or less, or is permanently bedridden or with such significant disabilities as to be in need of regular aid and attendance. 38 U.S.C.A. § 1114(l) (West 2002). A person shall be considered to be in need of regular aid and attendance if such person is (1) a patient in a nursing home or (2) blind, or so nearly blind or significantly disabled as to need or require the regular aid and attendance of another person. 38 U.S.C.A. § 1502(b) (West 2002 & Supp. 2012). Regulations provide that a person shall be considered to be in need of regular aid and assistance if such person (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 five degrees or less; (2) is a patient in a nursing home on account of mental or physical incapacity; or (3) establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). 38 C.F.R. § 3.350(b) (2012). The following criteria will be considered in determining whether the Veteran is in need of the regular aid and attendance of another person: the inability of the Veteran 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 such aid; the inability of the Veteran to feed himself through the loss of coordination of upper extremities or through extreme weakness; the inability to attend to the wants of nature; or an incapacity, physical or mental, which requires care or assistance on a regular basis to protect the Veteran from the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a) (2012). In Turco v. Brown, 9 Vet. App. 222 (1996), the United States Court of Appeals for Veterans Claims (hereinafter "the Court") held that it was not required that all of the disabling conditions enumerated in the provisions of 38 C.F.R. § 3.352(a) be found to exist to establish eligibility for aid and attendance and that such eligibility required at least one of the enumerated factors be present. The Court added that the particular personal function which the Veteran was unable to perform should be considered in connection with his or her condition as a whole and that it was only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance, not that there be a constant need. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Court has also held that VA is free to favor one medical opinion over another provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429 (1995). In this case, in his April 2008 claim the Veteran, in essence, requested entitlement to special monthly compensation based upon the need of aid and attendance. He asserted the benefit was warranted due to loss of control of bowel and bladder and due to weakness of the lower extremities. His August 2008 notice of disagreement, in essence, clarified that he was asserting entitlement to special monthly compensation under 38 U.S.C.A. § 1114(l) and was not requesting such compensation based upon the need for a higher level of care under 38 U.S.C.A. § 1114(r)(2). In June 2010, the Veteran submitted a copy of a September 12, 1979, VA General Counsel memorandum which addressed a question concerning whether the loss of bowel and bladder sphincter control presumed helplessness for special monthly compensation purposes. VA records show that service connection is established for neurogenic bowel associated with systemic lupus erythematous with transverse myelitis (100 percent), dysthymic disorder associated with systemic lupus erythematous with transverse myelitis (70 percent), systemic lupus erythematous with transverse myelitis (60 percent), neurogenic bladder associated with systemic lupus erythematous with transverse myelitis (60 percent), residuals of a torn left knee medial meniscus (10 percent), hemorrhoids (0 percent), and erectile dysfunction associated with systemic lupus erythematous with transverse myelitis (0 percent). Special monthly compensation is established under K-1 for loss of use of a creative organ and S-1 for the award of a 100 percent rating and additional service-connected disability rated at 60 percent or more. A June 2003 VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, noted diagnoses of neurogenic bowel and bladder, paraplegia, transverse myelitis due to systemic lupus erythematous, and chronic pain. It was noted the Veteran had a history of neurogenic bladder with management by intermittent catheterization five to ten times per day and neurogenic bowel with management by digital stimulation and suppository use every day. In testimony provided in November 2011 it was clarified that the Veteran was not paraplegic, but that he believed entitlement to benefits should be assumed based upon his requirement of a program to manage his bowel and bladder condition. The Veteran testified that his service-connected disabilities required that he catheterize himself several times per day and perform digital stimulation to relieve his bowels. He reported he was able to perform these activities himself, but that it was becoming more difficult for him to perform activities such as cleaning his apartment and doing his laundry. VA aid and attendance examination in July 2008 found the Veteran had the ability to dress and undress himself, was able to keep himself ordinarily clean and presentable, has a wheelchair but uses a walker to help balance himself and build strength in his lower extremities, has the ability to leave his residence and drive two and a half hours, was currently training for a bicycle marathon, has the ability to attend to the wants of nature unassisted, and had the ability to protect himself from the hazards of daily living. It was noted that he was muscularly built and bench pressed more than 400 pounds at his gym. The examiner noted that he was able to walk up to a few hundred yards without the assistance of another, that his best corrected visual acuity was not 5/200 or less in both eyes, that his upper extremity function was normal, and that he had lower extremity limitations due to muscle weakness. VA aid and attendance examination in August 2012 revealed the Veteran was not permanently bedridden, was not housebound, was independent in all activities of daily living and drove every day, and had no need for permanent aid and attention by reason of his service-connected disabilities. The examiner noted that he exercised every day at his gym and was teaching a spinning class once a week, that he was able to walk up to a few hundred yards without the assistance of another, that his best corrected visual acuity was not 5/200 or less in both eyes, that his upper extremity function was normal, and that he had lower extremity limitations due to limited joint motion. His propulsion was abnormal due to footdrop and his functional limitations of the lower extremity included muscle weakness and knee joint pain upon weight bearing. Based upon the evidence of record, the Board finds the Veteran, as a result of his service-connected disabilities, is not shown to have suffered the anatomical loss or loss of use of both feet, or of one hand and one foot, he is not blind in both eyes, with 5/200 visual acuity or less, he is not permanently bedridden, and he is not shown to have such significant disabilities as to be in need of regular aid and attendance. The Board notes that the September 1979 VA General Counsel memorandum provided in support of the Veteran's claim is not a binding precedential opinion and is not relevant to the Veteran's claim for special monthly compensation under the provisions of 38 C.F.R. § 3.350(b). Moreover, the Board finds the September 1979 memorandum merely clarifies an issue only as to where "there is paraplegia with loss of anal and [bladder] sphincter control." Although a June 2003 VA Form 21-2680 included a diagnosis of paraplegia, the overall evidence of record, including the Veteran's own statements, clearly demonstrates that he has not experienced paralysis to both lower extremities nor helplessness during the course of this appeal warranting entitlement to special monthly compensation under 38 C.F.R. § 3.350(e). The July 2008 and August 2012 opinions are persuasive as to this matter and are shown to have been based upon thorough examinations and reviews of the evidence of record. Therefore, the claim must be denied. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against the claim. ORDER Entitlement to special monthly compensation based on the need for regular aid and attendance of another person is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs