Citation Nr: 1332917 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 09-25 981 ) 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 the regular aid and attendance of another person. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from August 1977 to November 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The issue of entitlement to a total disability rating based on individual unemployability (TDIU) has been raised by the record but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). The Board previously referred back a TDIU claim to the AOJ (in this case, the RO) in an April 2009 decision. To date, however, the RO has not taken any action on this claim. Therefore, the Board does not have jurisdiction over this claim and it is referred to the AOJ for appropriate action. FINDING OF FACT The record evidence shows that the Veteran needs the regular aid and attendance of another person because he is unable to walk without assistance, attend to the wants of nature, to sit up or transfer without assistance, needs assistance in bathing and tending to other hygiene needs, and has difficulty eating. CONCLUSION OF LAW The criteria for special monthly compensation based on the need for aid and attendance of another person have been met. 38 U.S.C.A. §§ 1114(l), 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.350(b)(3), 3.352(a), 4.3 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In a letter issued in October 2006, VA notified the Veteran of the information and evidence needed to substantiate and complete his claim, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter informed the Veteran to submit medical evidence demonstrating his entitlement to special monthly compensation based on the need for aid and attendance and noted other types of evidence the Veteran could submit in support of his claim. The Veteran also was informed of when and where to send the evidence. After consideration of the contents of this letter, the Board finds that VA has satisfied substantially the requirement that the Veteran be advised to submit any additional information in support of his claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Additional notice of the five elements of a service-connection claim was provided in the October 2006 VCAA notice letter, as is now required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As will be explained below in greater detail, the evidence supports granting the Veteran's claim of entitlement to special monthly compensation based on the need for aid and attendance. Because the Veteran was fully informed of the evidence needed to substantiate this claim, any failure of the RO to notify the Veteran under the VCAA cannot be considered prejudicial. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Veteran also has had the opportunity to submit additional argument and evidence and to participate meaningfully in the adjudication process. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). With respect to the timing of the notice, the Board points out that the Court has held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a Veteran before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, although the October 2006 VCAA notice letter was not issued prior to the currently appealed rating decision issued in September 2006, because the Veteran's claim is being granted, any question as to the appropriate disability rating or effective date is moot. See Dingess, 19 Vet. App. at 473. And any defect in the timing or content of the notice provided to the Veteran and his service representative has not affected the fairness of the adjudication. See Mayfield, 444 F.3d at 1328. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the RO and the Board, although he declined to do so. It appears that all known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise. The Veteran's Virtual VA claims file has been reviewed. The Veteran also does not contend, and the evidence does not show, that he is in receipt of Social Security Administration (SSA) disability benefits such that a remand to obtain his SSA records is required. The Veteran has been provided with VA examinations for the purpose of determining his entitlement to special monthly compensation based on the need for aid and attendance. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) ; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Given that the pertinent medical history was noted by the examiners, these examination reports set forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations. Thus, the Board finds the examinations of record are adequate for rating purposes and additional examination is not necessary regarding the claim adjudicated in this decision. See also 38 C.F.R. §§ 3.326, 3.327, 4.2. In summary, VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA. Special Monthly Compensation Claim The Veteran contends that he is entitled to special monthly compensation because he requires the regular aid and attendance of another person (his wife). He specifically contends that he is unable to dress himself, feed himself, or attend to the wants of nature. He also contends that he cannot perform his activities of daily living without his wife's assistance. He finally contends that he is confined to a wheelchair as a result of his service-connected disabilities. Special monthly compensation is payable under 38 U.S.C.A. § 1114(l) if, as the result of service-connected disability, the Veteran 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) (West 2002 & Supp. 2012); 38 C.F.R. § 3.350(b) (2012). Need for aid and attendance means being so helpless as to require the regular aid and attendance of another person. 38 C.F.R. § 3.350(b). As it pertains to the present case, criteria for establishing such need include whether the Veteran is permanently bedridden or is so helpless as to be in need of regular aid and attendance as determined under criteria enumerated under 38 C.F.R. § 3.352(a). 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) 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 (5) physical or mental incapacity 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). It is not required that all of 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 unable 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 for aid and attendance. 38 C.F.R. § 3.352(a); see Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in § 3.352(a) must be present to grant special monthly compensation based on the 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 claimant 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. 38 C.F.R. § 3.352(a). Analysis Service connection is in effect for a mood disorder, 50 percent disabling; degenerative disc disease of the lumbosacral spine, 40 percent disabling; left sided leg weakness, 20 percent disabling; residuals of a right wrist fracture, 10 percent disabling; tinnitus, 10 percent disabling; and bilateral hearing loss, noncompensable. The combined evaluation is 80 percent. The Board finds that the evidence supports granting the Veteran's claim of entitlement to special monthly compensation based on the need for aid and attendance of another person. The Veteran contends that he is entitled to special monthly compensation because he is completely dependent on his wife for his activities of daily living, to include specifically dressing and undressing himself, feeding himself, and attending to the wants of nature. He also contends that he cannot perform his activities of daily living without his wife's assistance. The record evidence supports the Veteran's assertions. For example, on VA outpatient treatment in October 2002, the Veteran was issued a lumbosacral spine corset and a cane for ambulation for his service-connected back disability (which was characterized as low back pain). Following VA spine examination in February 2004, the VA examiner diagnosed the Veteran as having a herniated disc involving L5 and S1 "now with degenerative disc disease noted" and daily chronic low back pain "with acute pain on flare-ups" due to exertional activities. This examiner also stated that the Veteran's service-connected degenerative disc disease had "a significant impact of his occupation and daily activities." In January 2005, it was noted that the Veteran would be issued a wheelchair for his service-connected back disability (which was characterized as low back pain). Following VA examination in March 2006, the VA examiner stated that, although the Veteran did not have loss of use of the bilateral lower extremities due to his service-connected degenerative disc disease, his inability to walk and his confinement to a wheelchair was due to both his service-connected degenerative disc disease and his (non-service-connected) stroke with residual hemiparesis. The March 2006 VA examiner noted that severe weakness of the bilateral lower extremities, left greater than right, was present and the Veteran's "left sided leg weakness is due to the back." On VA aid & attendance examination in May 2006, the Veteran complained that he was unable to bend, walk, dress or undress himself, shower, and had "difficulty tending to stools without significant help." The Veteran was not walking but was in a motorized wheelchair. The VA examiner stated that the Veteran "frequently must have help with cleaning after bowel movements [and] uses various assist devices to dress. Must use electric razor - otherwise would cut self." The Veteran was unable to hold his left leg against gravity and had markedly decreased strength of the bilateral lower extremities, left greater than right, with weak to non-existent dorsiflexion and plantar flexion in the left foot. "Must use crutches if not in chair. Never walks without crutches - that is only chair to bathroom." On VA aid & attendance examination in June 2006, it was noted that the Veteran required assistance with dressing, bathing, transferring from bed to chair, walking, and attending to the wants of nature. The Veteran was "unable to walk." He also had "occasional accidents" and experienced bladder incontinence but not bowel incontinence. He was able to use his upper extremities "fully" but was unable to use his lower extremities "at all." Although he was able to travel to a VA medical facility for care, he could not travel "independently." He was unable to live alone because he was unable to cook, clean, do laundry, or go shopping. The VA examiner stated that these problems were "due to arthritis of the spine and paralysis of sciatic nerves." This examiner also stated that the Veteran "does not enjoy life and doing things with others which he formerly did likely due to mood disorder. Problems with mood have increased over past six months according to wife and Veteran. Wife's assistance with his care is full-time due to his care needs." This examiner finally stated that the Veteran "requires assistance with most" activities of daily living. On VA outpatient treatment in August 2007, it was noted that the Veteran "is unable to safely transfer to and from his full size van" due to his service-connected back disability (which was characterized as arthritis of the spine). The Veteran also was unable to get in and out of his van without assistance and needed assistance transferring to the driver's seat in his van due to his service-connected back disability. In June 2009, the Veteran's complaints included increasing right wrist pain. A history of multiple right wrist fractures was noted. The Veteran was "unable to live alone [and] must have assistance getting into and out of bathroom." He also was unable to use crutches or a manual wheelchair "at this time due to right wrist pain. He must be pushed by others." Physical examination showed he was in an electric wheelchair with no motor function and decreased sensation in the bilateral lower extremities. In a "Medical Statement for Consideration of Aid & Attendance" completed in July 2009 by the Veteran's VA treating physician, it was noted that the Veteran's diagnoses included chronic lower back and degenerative disc disease of the lumbar spine. The Veteran was unable to walk unaided because he was a paraplegic. Although the Veteran was able to feed himself, he "has chronic pain [in his] right hand (dominant) and has difficulty using/cutting." He needed assistance in bathing "and tending to other hygiene needs." He was unable to attend to the wants of nature. "Due to his paraplegia, obesity, chronic severe lower back pain, he is unable to clean the anal area." Although the Veteran was able to sit up, he "must have full assistance" of another person to get out of the bed and into a chair. The Veteran was able to travel "but, due to his severe lower back pain (requiring morphine to control), travel is only local unless medically necessary." He could not leave his home without assistance but did not require nursing home care. The Veteran finally was unable to transfer "without full assistance of at least one other. He is unable to cook for himself. He has difficulty eating." The record evidence shows that the Veteran requires the regular aid and attendance of another person (his wife) in performing his activities of daily living, to include dressing and undressing himself, feeding himself, or attending to the wants of nature. The VA examiner concluded in June 2006 that the Veteran needed full-time help from his wife "due to his care needs." The evidence also shows that the Veteran is no longer able to walk on his own without the assistance of another person. He cannot transfer out of the wheelchair to which he is confined as a result of severe lower extremity weakness which the March 2006 VA examiner related to his service-connected degenerative disc disease. The June 2009 VA examiner noted that the Veteran was unable to use crutches or a manual wheelchair, requiring the assistance of another person in being pushed around in his wheelchair, because of his service-connected residuals of a right wrist fracture. In reaching its decision, the Board recognizes that the Veteran has serious nonservice-connected disabilities which contribute to his medical status. Nevertheless, the Board finds it especially persuasive that the VA examiner who provided the opinions of record dated in May and June 2006 and in June and July 2009 concerning the Veteran's need for aid and attendance is his VA treating clinician. These opinions, taken together, are to the effect that the Veteran is so helpless as to require the regular aid and attendance of another person (in this case, his wife) and is unable to complete his activities of daily living without such assistance as a consequence of his service-connected disabilities. In summary, because at least one of the criteria enumerated in 38 C.F.R. § 3.352(a) are met, the Board finds that special monthly compensation based on the need for the regular aid and attendance of another person is warranted. See 38 U.S.C.A. § 1114(l); 38 C.F.R. §§ 3.350(b)(3), 3.352(a). ORDER Entitlement to special monthly compensation based on the need for the regular aid and attendance of another person is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs