Citation Nr: 1333287 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 13-00 713 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to special monthly compensation (SMC) based on the need for the regular aid and assistance of another person. REPRESENTATION Appellant represented by: Calvin Hansen, Attorney ATTORNEY FOR THE BOARD J. W. Loeb, Counsel INTRODUCTION The Veteran had active service from January 1978 to August 1980. This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office in Lincoln, Nebraska (RO). FINDINGS OF FACT 1. Service connection is in effect for depressive disorder not otherwise specified (NOS), anxiety disorder NOS, with panic attacks and agoraphobia, 70 percent disabling; and for amputation of the right first, second, third, and fourth toes, 20 percent disabling. The Veteran has been assigned a total disability rating based on individual unemployability due to service-connected disability benefits continuously since December 10, 2003. 2. The Veteran is able to care for the needs of nature and to feed, dress, and bathe himself. 3. The Veteran is able to protect himself from the hazards and dangers of his daily environment. CONCLUSION OF LAW The criteria for SMC based upon the Veteran's need for the regular aid and attendance of another person have not been met. 38 U.S.C.A. §§ 5107(b), 1114 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.350(b), 3.351, 3.352(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied. The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO sent the Veteran a letter in June 2012, prior to adjudication, which informed him of the requirements needed to establish entitlement to SMC. In compliance with the duty to notify, the Veteran was informed in the June 2012 letter about disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In accordance with the requirements of VCAA, the June 2012 letter informed the Veteran what evidence and information he was responsible for and the evidence that was considered VA's responsibility. No additional private evidence was subsequently added to the claims file after the letter. VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. A VA aid and attendance evaluation was conducted in July 2012. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the July 2012 VA evaluation obtained in this case is adequate, as it includes a discussion of the Veteran's relevant symptomatology and how it affected his ability to function. There is adequate medical evidence of record, which include VA treatment records and a recent VA examination report, to make a determination on the SMC issue in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination relevant to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Veteran has been given ample opportunity to present evidence and argument in support of his claim. The Board additionally finds that general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claim. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007). Analysis of the Claim The Veteran contends that entitlement to SMC based upon the need for aid and attendance is warranted because he has severe panic attacks that render him totally disoriented and require constant care and support. Special monthly compensation is payable to individuals who are permanently bedridden or are so helpless as a result of service-connected disability as to be in need of the regular aid and attendance of another person under the criteria set forth in 38 C.F.R. § 3.352(a). 38 U.S.C.A. § 1114(l) (West 2002); 38 C.F.R. § 3.350(b)(3) (2013). The following factors will be accorded consideration in determining the need for regular aid and attendance: inability of a claimant 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 adjustments of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of a claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, either physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352(a) (2013). A finding that the Veteran is "bedridden" will provide a proper basis for the determination. Bedridden will be that condition which, through its essential character, actually requires that the Veteran remain in bed. The fact that a veteran 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. 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. Id. As noted above, the Veteran is in receipt of service connection for depressive disorder NOS, anxiety disorder NOS, with panic attacks and agoraphobia, 70 percent disabling; and for amputation of the right first, second, third, and fourth toes, 20 percent disabling. He has been receiving individual unemployability continuously since December 10, 2003. VA treatment records dated from July 2011 to May 2012 reveal that the Veteran was hospitalized from July to August 2011 for recurrent major depression, which was noted to be moderate, and for a panic disorder. It was noted that his condition had worsened over the previous couple of months, with increased anxiety and panic attacks. He was considered incapable of full-time employment. It was noted in October 2011 that although he normally did not leave his bedroom very often, he had helped his wife at work and had helped around the house. He indicated in March 2012 that he was taking steps to increase the things he did and the places he went. The Veteran said in May 2012 that his daughter was moving home and that he and his wife were going to travel for the next three months. According to a May 2012 statement from a VA psychiatrist who had treated the Veteran since 2003 for severe depression, chronic pain, agoraphobia, and Tourette's syndrome, the Veteran's ability to perform activities of daily living was limited, as he frequently required hourly assistance around the clock to accomplish needed tasks. It was concluded that the Veteran could not live alone and function, as this would require that he be placed in a higher level of care instead of residing in his own home. VA aid and attendance evaluations, which included review of the claims file, were conducted in July 2012. With respect to his service-connected amputations, the examiner noted that the Veteran is able to perform all self-care skills, that he is able to walk and is not housebound, and that he is able to drive. He does not use an orthopedic or prosthetic appliance. He does not have a problem with dizziness or imbalance; he has mild occasional memory loss. His gait is normal. He stays indoor a lot because he does not like to socialize due to his medical condition of tics and anxiety. He does household chores with his wife and watches television. He feels safe in his environment and can recognize and escape a dangerous situation, such as a fire in his home. The examiner concluded that the Veteran's right foot disability does not render him unable to attend to any activities of daily living, as he is able to dress, bathe, toilet, and feed himself and help around the house. On VA psychiatric evaluation in July 2012, it was reported that the Veteran avoids going out in public as much as possible. However, he is able to go shopping with his wife. He is largely able to take care of activities of daily living. The examiner noted that his psychiatric condition has improved with medication and psychotherapy, with the severity of his depressive episodes much improved although he still has panic attacks. He is taking psychiatric medications for mood, anxiety, Tourette's syndrome, and sleep. He is receiving outpatient psychotherapy. He spends most of his time in his room watching television and using his iPad. His wife pays all the bills and sets up all of his medications. His psychiatric symptomatology consists of depressed mood, anxiety, panic attacks weekly or less often, disturbances of motivation and mood, difficulty in adapting to stressful situations, and suicidal ideation. He is considered capable of managing his financial affairs. He expressed no problems with being able to protect himself from the hazards and dangers of his daily environment. His abstract reasoning is fine and he demonstrates no defect in short-term or long-term memory. Thoughts are organized and goal directed. He said that he can feed himself, bathe himself, dress and undress himself, groom himself, and take care of his toileting needs. The examiner concluded that the Veteran's service-connected disabilities do not render him unable to attend to the necessary activities of daily living. There is evidence on file both for and against the Veteran's claim for SMC. The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Court has held that the Board may not reject medical opinions based on its own medical judgment. See Obert v. Brown, 5 Vet. App. 30 (1993). The Board finds the July 2012 VA opinions against the claim to be of more probative value, when considered along with the other evidence of record, than the May 2012 VA opinion in favor of the claim. The Veteran does not contend, and the evidence does not show, that he is permanently bedridden. Although the VA opinion in May 2012 found that the Veteran's ability to perform activities of daily living was limited, as he frequently required hourly assistance around the clock to accomplish needed tasks, the opinion did not discuss what specific activities required assistance. The evidence does not show, and he has not contended, that he is unable to dress or undress himself, that he is unable to keep himself ordinarily clean and presentable, that he has a frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid, that he is unable to feed himself through loss of coordination of upper extremities or through extreme weakness, or that he is unable to attend to the wants of nature. It must also be determined whether there is an incapacity, either 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. He is able to drive. He is also able to walk without the assistance of another person and does not require the use of mechanical aids or other assistive devices. Although he normally prefers to stay home due to his service-connected psychiatric disability, he is able to leave home and has gone out on occasion, including to help his wife at work. In fact, it was noted in December 2012 that the Veteran and his wife were planning to take a three month trip. The evidence, viewed liberally, does not show impairment from the Veteran's service-connected disabilities of a degree that would reasonably require another person to assist him in daily self-care tasks and to protect him from the hazards present in his daily environment. Therefore, the Veteran is not entitled to SMC based on the need for regular aid and attendance of another person. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to SMC by reason of the need for regular aid and attendance of another person is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs