Citation Nr: 1331109	
Decision Date: 09/26/13    Archive Date: 09/30/13

DOCKET NO.  12-00 749	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in 
St. Petersburg, Florida


THE ISSUE

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


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Mary C. Suffoletta, Counsel 



INTRODUCTION

The Veteran served on active duty from January 1942 to February 1944.

This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision that denied entitlement to SMC based on the Veteran's need for regular A&A or on being housebound.  The Veteran timely appealed.

In May 2012, the Board remanded the matter for additional development.  The Board is satisfied there was substantial compliance with its remand orders.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998).  

Lastly, in addition to reviewing the Veteran's paper claims file, the Board has surveyed the contents of his Virtual VA file.

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).


FINDING OF FACT

It is at least as likely as not that the Veteran's service-connected disabilities prevent him from being able to bathe himself and tending to other hygiene needs, or to avoid the hazards or dangers incident to his daily environment without assistance.


CONCLUSION OF LAW

The criteria for SMC, based on the need for the regular A&A, have been met. 38 U.S.C.A. § 1114(l) (West 2002); 38 C.F.R. §§ 3.350(b), 3.352 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

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 Veterans Claims Assistance Act of 2000 (VCAA) is not applicable where further assistance would not aid the Veteran in substantiating his claim.  Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance).  In view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the Veteran in substantiating his claim.  

II.  Analysis

A Veteran shall be considered to be in need of regular A&A (aid and attendance) if the Veteran has the anatomical loss or loss of use of both feet, one hand and one foot, or is so helpless or blind or permanently bedridden as to need or require the regular aid and attendance of another person.  38 U.S.C.A. § 1114(l) (West 2002 & Supp. 2012); 38 C.F.R. § 3.350(b).

In determining whether the Veteran is helpless or nearly so helpless as to require the regular A&A of another person, the following circumstances will be considered:  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 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 the Veteran to feed himself 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 Veteran from hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a).

Determinations that the Veteran is so helpless, as to be in need of regular aid and attendance, will not be based solely upon an opinion that the Veteran's condition is such as would require him to be in bed. They must be based on the actual requirement of personal assistance from others.  38 C.F.R. § 3.352(a).

The performance of the necessary A&A service by a relative of the Veteran or other member of his household will not prevent the granting of the additional allowance.  38 C.F.R. § 3.352(c).

In this case, the Veteran is neither blind nor bedridden, nor confined to a nursing home.  While the evidence reflects that the Veteran has the loss of use of one foot due to service-connected disability, he has neither the anatomical loss nor the loss of use of either hand.  Hence, in order to meet the regulatory criteria for A&A, the evidence must demonstrate that the Veteran is so helpless as to need or require the regular A&A of another person.  38 C.F.R. § 3.350(b).

It is not required that all of the factors enumerated in 38 C.F.R. § 3.352(a) be found to exist.  The particular personal function which the Veteran is unable to perform should be considered in connection with his condition as a whole.  Moreover, the evidence must establish that the Veteran is so helpless as to need regular A&A, not that there is a constant need for A&A.  38 C.F.R. § 3.352(a); see VAOPGCPREC 21-94.

The Veteran's service-connected disabilities include impairment of the left tibia with non-union of fibula and limitation of motion of left ankle and deformity of left foot with partial paralysis of peroneal nerve and posterior tibial nerve, evaluated as 40 percent disabling; status-post right hip replacement, evaluated as 30 percent disabling; osteoarthritis of the left shoulder, evaluated as 20 percent disabling; osteoarthritis of the right shoulder, evaluated as 20 percent disabling; osteoporosis of the left knee, evaluated as 10 percent disabling; post-traumatic osteoarthritis of the left knee, evaluated as 10 percent disabling; traumatic trochanteric bursitis of the left hip, evaluated as 10 percent disabling; and left wrist sprain, evaluated as 0 percent (noncompensable) disabling-for a combined schedular evaluation of 90 percent.  

In this case, the Veteran already is entitled to special monthly compensation on account of loss of use of one foot from April 1948.  38 C.F.R. § 3.350(a) (2012).

In October 2011, the Veteran reported that his service-connected disabilities had caused him to fall and to break his right hip in November 2010; and that, since then, he has been unable to walk without a walker and can no longer drive.  In January 2013, the Veteran essentially reported that he needed help with his basic living activities.

In determining whether a permanent need for regular A&A existed, a VA physician evaluated the Veteran and completed VA Form 21-2680 in January 2011.  The physician concluded that the Veteran was able to feed himself, but was not able to prepare his own meals; and that the Veteran needed assistance in bathing and tending to other hygiene needs.  At that time the Veteran required nursing home care for his broken hip, and he sat upright in a wheelchair.  Restrictions of the upper extremities included minimal help with dressing and bathing, and being unable to cook.  Restrictions of the lower extremities included weakness with periods of vertigo, and requiring help with ambulation.  The physician noted that the Veteran had vertigo and poor balance, and that he could leave home only with an escort and was unable to drive.  In addition, the physician noted that the assistance of another person was required for locomotion-i.e., around home for transfer.

The report of a March 2011 VA examination reflects that the Veteran still partook of rehabilitation therapy and physical therapy for strength, balance, and gait training; and that the Veteran's daughter brought him to sessions because the Veteran was unable to ambulate without assistance.  Examination revealed some difficulty in the Veteran's ability to feed himself; and marked difficulties in his ability to dress and undress, bathe, groom, and toileting.  The examiner noted that the Veteran left home only for medical care.  Following examination, the examiner opined that the Veteran needed A&A.

In September 2011, a private physician noted that, since the Veteran's right hip fracture, he needed to use a walker at all times due to significant gait instability; and that the Veteran was able to dress himself, as long as he had the walker and sat in a chair.  While the physician noted that the Veteran had no arm limitations in feeding himself, the Veteran did require assistance in getting in and out of the shower or tub, due to his poor balance.

Private treatment records, dated in January 2012, show that the Veteran demonstrated weakness in isolated muscle groups of bilateral lower extremity; decreased chair mobility; and decreased gait speed.  The Veteran also had difficulty negotiating architectural barriers, and was unable to perform transitions.

In January 2013, the Veteran's son reported that the Veteran could not bathe himself; nor could he do almost any other function due to being practically chair bound.

The Board notes that the evidence does not show that the Veteran is housebound or confined to his immediate premises due to his service-connected disabilities.  In fact, examiners found that the Veteran could leave home with an escort.

The overall clinical findings and observations made by the March 2011 examiner, coupled with statements by the Veteran and his son, suggest that the Veteran is nearly helpless as to require the regular A&A of another person due to his service-connected disabilities.  As noted above, the evidence of record demonstrates an inability to keep himself ordinarily clean and presentable, and suggests that the Veteran is unable to protect himself from the hazards of his daily environment.  Marked difficulties have been found in certain activities of daily living.  Under these circumstances, the Board finds the evidence at least in relative equipoise on the question of whether the Veteran is so helpless as to need regular A&A.

When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  See 38 C.F.R. § 3.102. 

Accordingly, an award of SMC, based on the Veteran's need for A&A, is warranted.  In reaching this decision, the Board has extended the benefit of the doubt to the Veteran.  38 U.S.C.A. § 5107.


ORDER

Special monthly compensation 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