Citation Nr: 1334396 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 13-20 118 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to special monthly compensation (SMC ) based on a need for the regular aid and attendance of another person, or being housebound. ATTORNEY FOR THE BOARD R.N. Poulson, Counsel INTRODUCTION The Veteran served on active duty from August 1941 to November 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. (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).) FINDINGS OF FACT 1. The Veteran is able to perform the basic functions of self care and is not so helpless as a result of his service-connected disabilities as to be in need of the regular aid and attendance of another individual. 2. The Veteran is not substantially confined to his house because of his service-connected disabilities, nor does he have a single service-connected disability ratable at 100 percent along with other unrelated disabilities that combine to at least 60 percent. CONCLUSION OF LAW The criteria for an award of SMC benefits based on the need for regular aid and attendance or by reason of being housebound have not been met. 38 U.S.C.A. §§ 1114, 5107 (West 2002); 38 C.F.R. §§ 3.350, 3.352(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's 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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, a pre-decisional letter dated in June 2012 complied with VA's duty to notify the Veteran with regards to the issue addressed herein. Specifically, this correspondence apprised the Veteran of what the evidence must show to establish entitlement to the benefit, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. The letter notified the Veteran of the criteria for assigning a disability rating and an effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The letter also set forth the criteria for obtaining increased benefits through SMC. The RO told the Veteran he could qualify if the evidence showed that he needed aid and attendance or he was housebound. Both sets of criteria were detailed. Therefore, sufficient notification regarding the necessary information and evidence was provided to the Veteran for this claim. Moreover, the Board finds that VA has complied with its duty to assist the Veteran in the development of his claim. VA has obtained VA treatment records. In addition, the Veteran was provided VA physical and mental examinations in connection with his SMC claim. The reports contain sufficient evidence by which to determine whether the criteria for SMC have been met. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. II. Analysis SMC is payable in addition to the basic rate of compensation otherwise payable on the basis of degree of disability for service-connected disability. See 38 U.S.C.A. § 1114 (West Supp. 2012); 38 C.F.R. § 3.350 (2013). The Veteran seeks SMC based on the need for regular aid and attendance of another person or on the account of housebound status. Increased compensation at the aid and attendance rate is payable when a veteran is helpless or so nearly helpless as the result of service-connected disability that he requires the regular aid and attendance of another person . 38 U.S.C.A. § 1114(l) (West 2002 & Supp. 2013); 38 C.F.R. § 3.350(b) (2013). To establish a need for regular aid and attendance, the veteran must, as a result of service-connected disability, (1) be 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 5 degrees or less; (2) be a patient in a nursing home because of mental or physical incapacity; or (3) show a factual need for aid and attendance. Id. A factual need for aid and attendance includes the inability to dress, undress, keep ordinarily clean and presentable, feed oneself through loss of coordination of the upper extremities or through extreme weakness, or attend to the wants of nature. It includes the frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid. A need for aid and attendance also includes either physical or mental incapacity that requires care or assistance on a regular basis to protect against the hazards or dangers incident to the daily environment. Additionally, an individual who is bedridden meets the criteria for aid and attendance. 38 C.F.R. § 3.352(a) (2013). Bedridden is defined as a condition that, 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. Id. SMC may be awarded at the housebound rate if a veteran has a single service-connected disability rated as total and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) by reason of service-connected disability or disabilities, is permanently housebound. 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i) (2013). A veteran will be determined to be permanently housebound when he is substantially confined to his house (or ward or clinical areas, if institutionalized) or immediate premises due to disability or disabilities when it is reasonably certain that such a condition will remain throughout his lifetime. Id. The Veteran is service connected for anxiety reaction, rated as 50 percent disabling; traumatic fibrositis of the left pectoral muscle, rated as 30 percent disabling; Hill-Sach's deformity of the right acromion, rated as 20 percent disabling; and tonsillectomy, rated as noncompensably disabling. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities was established by a decision dated in May 1997, at which time it was determined that the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation. Evidence relevant to the issue of whether the Veteran is in need of regular aid and attendance of another person includes a January 2012 VA aid and attendance and housebound examination. He reported that his daily activities included praying, riding an electric wheelchair to get the mail, walking around the house, and visiting his children. He was able to perform all self-care functions, but needed help with laundry and house cleaning. He was able to walk a few hundred yards without the assistance of another person. The Veteran complained of dizziness once or more per day that affected his ability to ambulate constantly, or nearly constantly. He also complained of mild (occasional) memory loss. The examiner noted that the Veteran's spinal stenosis caused poor sensation and weakness in the toes and legs, which affected his balance. There was muscle weakness and lack of coordination in the lower extremities. He also noted that the Veteran's best corrected vision was 5/200 or worse in both eyes, and that his macular degeneration required magnifiers to read or write checks. The examiner indicated that the Veteran required a walker for ambulation due to instability caused by spinal stenosis. The Veteran submitted to a VA mental disorders examination in January 2012. The examiner noted that the Veteran's current presentation "no longer shows evidence of excessive worry," and that the Veteran denied panic symptoms. Rather, his worries were related to his multiple medical problems. He managed his worries through prayer, and went to church every Sunday. He spent most of the day on the couch and "might watch television." He stated that bad days were due to pain in his feet, legs, and hips. Family members visited daily and provided assistance regarding meal preparation, housework, grocery shopping, transportation, medication management, and finances. He knew the name of his bank and was able to manage his financial affairs in his own best interests. He was able to dress, bathe, groom himself, make a sandwich, and straighten his house. He lived independently, and obtained rides from family members. The Veteran reported sadness due to the recent death of his wife. He denied crying spells and suicidal ideation. He was still interested in things he used to enjoy, but was no longer capable of doing them because of his medical condition. Family relationships were stable and satisfying. The examiner noted evidence of mild cognitive impairment. She determined that the Veteran's symptoms represented "substantial stabilization" since the 1996 award of service connection for anxiety disorder. She concluded that there was occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The examiner opined that the Veteran's anxiety disorder was mild and did not present a significant barrier to his ability to perform routine activities of daily living. The Veteran also submitted to a VA shoulder examination in January 2012. He stated that he was unable to use his right shoulder and could not lift his arm over the shoulder level. The examiner noted that there was limited range of motion with severe pain when he moved the right arm up to shoulder level. He concluded that this condition would have an impact on employment that required the regular use of both arms. The record also contains an April 2012 VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, wherein the Veteran's VA treating physician noted that the Veteran was able to feed himself, needed assistance in bathing and tending to hygiene, needed medication management, was able to manage his own financial affairs, and was able leave home 3-4 times per week if someone was with him. He did not require nursing home care. The physician identified problems of spinal stenosis, osteoarthritis, vertigo, falls, balance dysfunction, anxiety disorder, and macular degeneration. In June 2012, the Veteran submitted to another aid and attendance examination by the same VA examiner who had provided the January 2012 aid and attendance report. His daily activities still consisted of praying, riding his electric wheelchair to get the mail, walking around the house, and visiting with his children. He continued to report dizziness once or more per day and mild (occasional) memory loss. He continued to perform all self-care functions. It was noted that the Veteran's spinal stenosis caused poor sensation and weakness in the toes and legs, which affected his balance. He relied on a cane or walker for balance and partial support. He could walk without the assistance of another person only within the home. His ability to leave the house was unrestricted. The examiner diagnosed early dementia, rotator cuff impingement syndrome, spinal stenosis, grieving, monocular vision due to wet macular degeneration, and paroxysmal vertigo. He noted that the Veteran was capable of managing his financial affairs. The Veteran submitted to another VA mental disorders examination in July 2012 by the same VA physician who submitted the January 2012 report. It was reported that his children visited on a daily basis. He went to church every Sunday. Inside the house, he used his cane or wheelchair to assist with balance and muscle fatigue. He complained of daily back, elbow, neck, and foot pain that he rated 5/10. He spent the day praying. He ate at least one meal per day. He used a microwave to prepare breakfast and a pressure cooker to prepare beans; he was able to fry eggs. Family members brought him prepared foods. The Veteran drove short distances. He normally went shopping with his daughter and used an electric cart, but went by himself to the grocery store once every two weeks. His daughter managed his medications. The Veteran was able to dress, bathe, and groom himself. He used a shower chair and grab bars. It was uncomfortable to bend down to put on shoes and socks due to back pain. He was independent with toileting, and was able to transfer in and out of bed and chairs without assistance. He watched television and read the newspaper, but reported decreased vision. He continued to report sadness about the loss of his wife. He felt "useless" and attributed his limitations to his medical conditions and chronic pain. The examiner noted that the Veteran's presentation was consistent with that noted during the January 2012 examination. She concluded that there was occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. There was no evidence of significant decline in memory and concentration function. The examiner noted the June 2012 examiner's diagnosis of early dementia, but noted that this diagnosis was "not found on the CPRS problem list." The Veteran has submitted lay statements from his children. These statements, dated in January 2012, describe the Veteran's poor eyesight and difficulty walking without assistance. His son noted that while the Veteran could tend to his personal needs by himself, "this is also becoming increasingly difficult to achieve due to his age and being unsteady in the shower/bath." His son also reported that the Veteran's poor eyesight had diminished his ability to drive and do chores. After reviewing the claims folder in its entirety, the Board must conclude that the criteria for aid and attendance benefits are not met. The evidence of record shows that the Veteran is not a patient in a nursing home due to mental or physical incapacity, nor is he helpless or blind due to service-connected disabilities, or so nearly helpless and blind due to service-connected disability as to need the aid and assistance of another person. As detailed above, the evidence establishes that the Veteran has diminished sight due to macular degeneration, but service connection is not in effect for an eye disability. Likewise, examiners have stated that he has limitations due to his back, feet, balance, and vision difficulties. There is also some question as to whether the Veteran suffers from early dementia. These conditions are not service connected. In fact, none of the examiners has indicated that the Veteran's limitations are due to service-connected disability. Furthermore, VA treatment records do not contain evidence that the Veteran, as a result of service-connected disability, requires a special prosthetic or orthopedic appliance. Rather, VA treatment records dated from March 2012 to June 2013 confirm that the Veteran suffers from mobility issues due to his non-service-connected back, feet, and balance disorders. Nor does the evidence demonstrate that the Veteran has, as a result of service-connected disability, an inability to dress, undress, keep ordinarily clean and presentable, feed himself through loss of coordination of the upper extremities or through extreme weakness, or attend to the wants of nature. Moreover, the evidence does not show that the Veteran experiences physical or mental incapacitation. While acknowledging that the Veteran requires the aid and attention of his family members to attend to his daily needs, this is required because of non-service-connected disabilities, not because of service-connected disability. Although it is acknowledged that his anxiety disorder and shoulder disability have an effect on his mental and physical capabilities, it is also clear that they are not so severe as to render him in need of regular aid and attendance. It is not established that his service-connected disabilities render him unable to attend to the needs of daily living without the regular aid and assistance of another person. Although the record shows that the Veteran requires the use of a walker or motorized wheelchair, those devices are needed because of the Veteran's non-service-connected problems. Furthermore, it is not shown that the Veteran's anxiety reaction, traumatic fibrositis, Hill-Sach's deformity, and/or tonsillectomy results in physical or mental incapacity that requires care or assistance on a regular basis to protect against the hazards or dangers incident to the daily environment. Although it is noted that the Veteran has frequent falls, there is no indication that those falls are due to service-connected difficulties. Accordingly, the Board concludes that the requirements for SMC based upon the need for regular aid and attendance of another person have not been met. With respect to the issue of housebound status, the Veteran does not meet the eligibility requirements. No service-connected disability is rated as 100 percent disabling. While entitlement to TDIU has been established, because that rating was based on all of the Veteran's service-connected disabilities, it cannot serve to satisfy the "rated as total" element of 38 U.S.C.A. § 1114(s). See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). Thus, the general requirements for housebound status are not met. Moreover, the evidence of record does not reflect actual housebound status. As discussed, there is no evidence to indicate that the Veteran is housebound due to his service-connected disabilities alone. He is not substantially confined, as a result of his service-connected anxiety disorder, shoulder disability, chest injury or tonsillectomy, to his dwelling and the immediate premises; nor is he institutionalized due to his service-connected disabilities. He continues to attend church regularly and go shopping with his daughter. Again, he requires help getting out and about because of his non-service-connected problems with his back, feet, balance, and vision. The preponderance of the evidence is against a finding that the regulatory criteria for entitlement to SMC based on the need for aid and attendance or housebound status have been met. ORDER Entitlement to SMC based on a need for the regular aid and attendance of another person, or being housebound, is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs