Citation Nr: 1332482 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 09-19 692 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran had active service from September 1967 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In June 2013, the Veteran and his spouse testified before the undersigned Veterans Law Judge (VLJ). The Board notes that, in addition to the paper claims files, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims files or are irrelevant to the issue on appeal. FINDING OF FACT The Veteran's service-connected disabilities reasonably result in his requiring assistance with a number of his activities of daily living (ADLs) such as bathing, dressing, and food preparation, and he requires care or assistance on a regular basis to protect himself from hazards or dangers incident to his daily environment. CONCLUSION OF LAW The criteria for special monthly compensation based on aid and attendance are met. 38 U.S.C.A. § 1114(l) (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.352 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duties to notify and assist claimants in developing claims. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that VA must notify 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. In light of the favorable decision below, the Board finds that any error by VA in complying with the requirements of the VCAA is harmless. Legal Criteria Under 38 U.S.C.A. § 1114(l), special monthly compensation is payable if, as the result of service-connected disability, the Veteran has an anatomical loss or loss of use of both feet, or of one hand and one foot; has blindness in both eyes with visual acuity of 5/200 or less; is permanently bedridden; or is so helpless as to be in need of regular aid and attendance of another person. 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b) (2013). Need for aid and attendance means being so helpless as to require the regular aid and attendance of another person. 38 U.S.C.A. § 3.350(b). Under 38 C.F.R. § 3.352(a), the following factors will be accorded consideration in determining whether the Veteran is in need of regular aid and attendance of another person: (1) The inability of the Veteran to dress or undress himself, or to keep himself ordinarily clean and presentable; (2) Frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without such aid; (3) Inability of the Veteran to feed himself because of the loss of coordination of upper extremities or because of extreme weakness; (4) 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 the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). It is required that all the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found to exist before a favorable rating may be made. The particular personal functions which the Veteran is not able to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance, not that there is a constant need. 38 C.F.R. § 3.352(a); see also Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in § 3.352(a) must be present for a grant of special monthly compensation based on need for aid and attendance). For the purposes of 38 C.F.R. § 3.352(a), "bedridden" will be a proper basis for the determination of whether the Veteran is in need of regular aid and attendance of another person. "Bedridden" will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that the claimant has voluntarily taken to bed or that the physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. 38 C.F.R. § 3.352(a). Analysis A review of the record shows that service connection is in effect for the following disabilities: * Coronary artery disease, rated as 100 percent disabling; * Post traumatic stress disorder (PTSD) rated as 50 percent (100 percent prior to September 2012) disabling; * Left knee impairment, rated as 30 percent disabling; * Diabetes mellitus with cataracts and erectile dysfunction rated as 30 percent disabling; * Peripheral vascular disease (PVD) of the left lower extremity, rated as20 percent disabling ; * PVD of the right lower extremity, rated as 20 percent disabling; * Peripheral neuropathy of the right upper extremity, rated as 30 percent disabling; * Peripheral neuropathy of the left upper extremity, rated as 30 percent disabling ; * Peripheral neuropathy of the right lower extremity, rated as 10 percent disabling; * Peripheral neuropathy of the left lower extremity, rated as 10 percent disabling; and * Degenerative joint disease of the left knee, rated as 10 percent disabling. The Veteran has had a combined 100 percent rating since February 2000. The Board has thoroughly reviewed all the evidence in the claims folder. While the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail all the evidence submitted by the Veteran or on his behalf. Gonzales v. West, 218 F.3d 1378, 1380 (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 Veteran should 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 discuss its reasons for rejecting evidence favorable to the Veteran). The pertinent evidence of record includes the January and March 2007 VA examination reports; reports of VA examination for aid and attendance conducted in July 2007, November 2007, November 2008, and February 2011; VA treatment records dated since 2006; Disability Benefit Questionnaires (DBQ) dated in April 2012 along with an undated/unsigned DBQ for ischemic heart disease; and the sworn testimony of the Veteran and his spouse in June 2013. After careful review of the pertinent evidence, the Board finds that it is roughly in equipoise and, therefore, the claim is granted as the benefit-of-the-doubt is afforded to the claimant. Weighing in favor of the claim are report of VA examination dated in January 2007; reports of VA examination for aid and attendance conducted in July 2007, November 2007, November 2008, and February 2011. The January 2007 VA examination report reflects that the Veteran was unable to leave home for short distances unattended and that he was physically and mentally unable to protect himself in his daily environment-the examiner noted that the Veteran required assistance with dressing, undressing, walking, and keeping himself clean. The July 2007 VA examination report reflects that the Veteran was not competent, he was unable to leave home for short distances unattended, and he was physically and mentally unable to protect himself in his daily environment. The examiner noted that his symptoms included drowsiness from his medications, depression, and knee arthritis impeding his ability to walk or stand. The November 2007 VA examination report reflects similarly. The diagnoses were diabetes mellitus, hypertension, coronary artery disease, benign prostatic hypertrophy, and hyperlipidemia. The Veteran's activities were limited to watching television. The examiner determined that the Veteran was not able to leave home for short distances unattended and tha the was permanently confined to home or immediate area. The examiner noted, in regards to functioning independently, that the Veteran was unable to dress or undress, walk unassisted, attend to wants of nature, and keep himself clean. Also, he noted that the Veteran was unable to protect himself in his daily environment. The November 2008 VA examination report indicated the same in regards to the Veteran's independent functioning and that the Veteran was unable to protect himself in his daily environment. It was noted that the Veteran ambulated with a walker. Diagnoses included both service-connected disorders (coronary artery disease, knee arthralgia, PTSD) and nonservice-connected disorders. The February 2011 VA examination report indicated that the Veteran required the daily personal health care serves of a skilled provider without which the Veteran would require hospital, nursing home, or other institutional care. The examiner noted both service-connected and nonservice-connected diagnoses, that the Veteran used a walker for ambulation and had decreased range of knee motion along with imbalance, and that he required help dressing. An April 2012 DBQ for the left knee showed functional impairment due to excess fatigability and pain on movement, and noted that the Veteran ambulated with a cane or walker regularly. Further weighing in favor of the claim is the sworn testimony of record. This reflects that the Veteran's capacity to protect himself from the hazards and dangers of daily living was significantly diminished because of his service-connected psychiatric and musculoskeletal disabilities. Specifically, the Veteran's spouse testified that she assisted the Veteran was dressing, taking medications, bathing, toileting, and hygiene needs due to disabilities that include service-connected problems. She further indicated that prepared all meals and did all the driving. She noted that the Veteran had difficulty going to the second floor of their home due to shortness of breath and fatigue related to his service-connected heart. She also reported that the Veteran had memory problems related to service-connected psychiatric problems and that she had to administer him his medications to ensure that they were taken and that he did not overdose. The Board notes that the VA treatment records corroborate that the Veteran had in fact previously taken too much of his hypertension medication dangerously resulting in hypotension. However, weighing against the claim are the March 2007 VA examination report, which shows that the Veteran was mentally competent, and some content in the reports of VA examination for aid and attendance conducted in July 2007, November 2007, November 2008, and February 2011. These examination reports note that the Veteran had numerous medical disorders both service-connected and nonservice-connected affecting his ability to function independently. His nonservice-connected disabilities included dementia, fecal incontinence, and back pain among other disorders. In February 2011, the examiner reported that memory problems were due to vascular dementia, a nonservice-connected disorder. Also, ischemic heart disease DBQ datnoted that the symptom associated with the Veteran's service-connected heart disorder was dyspnea, not fatigue-however, this report has diminished probative value as it is both unsigned by a medical professional and undated. The April 2012 DBQs for the peripheral neuropathy indicated only mild symptoms of pain in the extremities. The April 2012 DBQ for the left knee showed normal range of motion and no instability of the joint. The April 2012 diabetes mellitus DBQ showed that, other than peripheral neuropathy, there were no symptoms associated with the condition and that it was managed with diet. The April 2012 DBQ for the eyes reflects that the Veteran has cataracts and 20/40 or better corrected visual acuity. The neither the lay nor the medical evidence of records demonstrates that the Veteran has an anatomical loss or loss of use of both feet, or of one hand and one foot; has blindness in both eyes with visual acuity of 5/200 or less; or is permanently bedridden. However, there is evidence both favorable and unfavorable as to whether he is so helpless as to be in need of regular aid and attendance of another person due to service-connected disability. Based on a review of the entire evidence of record, the Board finds that the evidence is at least in equipoise and as a result supports a grant of special monthly compensation based on aid and attendance. The evidence shows that the Veteran is physically limited and needs the assistance of another person to cook, clean, dress, drive, and care for him. He ambulates with extreme difficulty, requires a cane or walker, and has reported that his knee gives out. The record corroborate excess fatigability and painful movement of the left knee, and mild pain of the lower extremities associated with peripheral neuropathy along with peripheral neuropathy of the upper extremities requiring the aid of another for dressing, buttoning shirts, and food preparation. The evidence also shows that the Veteran's capacity to protect himself from the hazards and dangers of daily living is compromised. The Board finds that the Veteran and his spouse are competent and credible in this regard. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Notably, the VA aid and attendance examination reports of record are favorable to the Veteran although the examiners neglected to clearly delineate the symptoms attributable to the service-connected and nonservice connected disorders as part of the conclusion. Nothwithstanding, there is competent and credible evidence of record suggesting the need for regularly aid and attendance of another based on service-connected disability alone as well. Accordingly, the evidence of record is no evenly balanced that special monthly compensation based on regular need for aid and attendance of another is warranted and the claim is granted. ORDER Special monthly compensation based on the need for regular aid and attendance is granted, subject to the controlling regulations applicable to the payment of monetary benefits. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs