Citation Nr: 1334766 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 06-10 417 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to a special monthly pension (SMP) based on the need for regular aid and attendance or by reason of being housebound. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. Becker, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1972 to September 1973. This matter comes before the Board of Veterans' Appeals (Board) from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, that denied SMP. After the Veteran appealed, jurisdiction was transferred to the RO in Phoenix, Arizona. A hearing was scheduled, pursuant to his request, for August 2007. It was postponed and ultimately rescheduled for July 2013, but he failed to appear. Therefore, the request is considered withdrawn. 38 C.F.R. § 20.704(d) (2013). The Board has reviewed the claims file and Virtual VA electronic claims file. FINDING OF FACT The Veteran is not blind or nearly blind, does not reside in a nursing home or other care facility, is not bedridden, has difficulties but is able to care for himself, and does not have a single permanent disability rated at 100 percent. CONCLUSION OF LAW The criteria for SMP based on the need for regular aid and attendance or by reason of being housebound have not been met. 38 U.S.C.A. §§ 1502, 1521, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.351, 3.352 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty of notification regarding a claim for VA benefits. 38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159 (2012). VA must notify the claimant and representative of any information and evidence not of record that is necessary to substantiate the claim, that VA will seek to obtain, and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Notification that an initial rating and an effective date will be assigned if the benefit sought is granted for a disability should be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice should be provided prior to the initial decision by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, there is no error in failing to provide prior notice if it was not required at the time. Subsequent VA process following notice instead must be provided. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found. A June 2005 letter notified the Veteran and his representative at that time of the criteria for establishing SMP, the evidence required, and his and VA's respective duties for obtaining evidence. That was prior to the initial rating decision by the RO in September 2005. A June 2008 letter notified the Veteran again. Notice regarding how VA determines a rating and effective date was not provided. However, that omission is harmless since SMP is denied. Any further defect with respect to content or timing also is harmless because the Veteran has had a meaningful opportunity to participate in the processing of this matter. The essential fairness of adjudication has not been impacted. In addition to the duty to notify, VA has a duty to assist with respect to a claim for VA benefits. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013). That includes a requirement to aid the claimant in the procurement of relevant records. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013). VA also is required to provide a medical examination or obtain a medical opinion when necessary. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2013). The Veteran has had opportunities during the pendency of this matter to identify facilities, both VA and private, where he receives treatment. His VA treatment records have been obtained. No private treatment records have been obtained by VA. That is because he did not both identify and authorize the release to VA of any such records. The Veteran instead submitted a private treatment record on his own behalf. He also submitted on his own behalf documentation related to home care. VA medical examinations were conducted in April 2005, August 2007, April 2009, and July 2012. There is no indication that the claims file was reviewed at the first two examinations, and it was noted that they were not reviewed at the last two examinations. Yet that is of no great import since the Veteran's medical history was otherwise known to the examiners. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); D'Aries v. Peake, 22 Vet. App. 97 (2008). He was interviewed, in addition to physically and mentally assessed, at each examination. The first two were conducted by one of his treating VA physicians, while the last two included review of his VA treatment records. In sum, the examinations provide sufficient detail so that this decision is fully informed. Therefore, they collectively are adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). It is significant that neither the Veteran nor his representative has identified any further development necessary for adjudication that has not been completed. The record also does not indicate any such development. Accordingly, the Board finds that no further notice or assistance is required and that VA's duties to notify and to assist have been satisfied. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Adjudication therefore may proceed to adjudicate the claim. Bernard v. Brown, 4 Vet. App. 384 (1993). SMP SMP may be granted to a Veteran on the basis of the need for regular aid and attendance from another person or by reason of being housebound. A Veteran may receive SMP for either needing the regular aid and attendance of another person or for being housebound but not for both simultaneously. SMP by reason of the need for regular aid and attendance of another person is a greater monthly benefit than SMP on the basis of being housebound. 38 U.S.C.A. § 1521(d), (e) (West 2002). SMP by reason of the need for regular aid and attendance of another person is payable if the Veteran: (1) is 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) is a patient in a nursing home because of mental or physical incapacity; or (3) establishes a factual need for aid and attendance. 38 C.F.R. § 3.351(c) (2013); 38 U.S.C.A. § 1502(b) (West 2002). Need for aid and attendance means helplessness or being so nearly helpless as to require the regular aid and attendance of another person. 38 C.F.R. § 3.351(b) (2013). Regular does not mean constant. 38 C.F.R. § 3.352(a) (2013). With respect to the need for regular aid and attendance of another person, criteria for consideration include: the inability to dress or undress or to keep ordinarily clean and presentable, frequent need of adjustment of any special prosthetic or orthopedic appliances which due to disability cannot be done without aid, inability to feed due to loss of coordination of upper extremities or extreme weakness, inability to attend to the wants of nature, physical or mental incapacity which requires care or assistance on a regular basis to protect the claimant from the hazards or dangers inherent in his daily environment, and being bedridden. 38 C.F.R. § 3.352(a) (2013). Bedridden means that the Veteran is required to remain in bed, as opposed to voluntarily taking to bed or being prescribed bed rest for some part of the day to promote convalescence or cure. 38 C.F.R. § 3.352(a) (2013). Not all of the aforementioned criteria need be met. 38 C.F.R. § 3.352(a) (2013). However, at least one must be met. Turco v. Brown, 9 Vet. App. 222 (1996). The particular functions that the Veteran is unable to perform must be considered in connection with his condition as a whole. 38 C.F.R. § 3.352(a) (2013). SMP on the basis of being housebound is payable if the Veteran has a single permanent disability rated at 100 percent excluding such rating based on unemployability (see 38 C.F.R. § 4.17) and either: (1) has an additional disability or disabilities independently ratable at 60 percent or more separate and distinct from the permanent disability rated at 100 percent and involving different anatomical body segments or bodily systems or (2) is permanently housebound by reason of disability or disabilities. 38 U.S.C.A. § 1521(e) (West 2002); 38 C.F.R. § 3.351(d) (2013). The Veteran must have a single permanent disability rated at 100 percent regardless of his age. Chandler v. Shinseki, 676 F.3d 1045 (Fed. Cir. 2012). Permanently housebound means that the Veteran is substantially confined to his dwelling and the immediate premises, or to the ward or clinical area if institutionalized, and it is reasonably certain that the disability or disabilities causing this confinement will continue throughout his lifetime. 38 U.S.C.A. § 1502(c) (West 2002); 38 C.F.R. § 3.351(d) (2013). Substantially confined means that the Veteran is unable to leave to earn a living, not that he is unable to leave at all. Hartness v. Nicholson, 20 Vet. App. 216 (2006). The Board must identify evidence it finds to be persuasive and unpersuasive and explain why any favorable evidence is unpersuasive. Gabrielson v. Brown, 7 Vet. App. 36 (1994), Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Both medical and lay evidence may be discounted in light of inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). When there is an approximate balance of positive and negative evidence, reasonable doubt is resolved in favor of the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The claimant thus prevails when the evidence supports the claim or is in relative equipoise but does not prevail when the preponderance of the evidence is against the claim. Only the most salient and relevant evidence must be discussed, although all the evidence must be reviewed. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Based on the evidence, the Board finds that SMP based on the need for regular aid and attendance is not warranted. There is no indication that the Veteran is blind or nearly blind. Neither he nor his representative has made such a contention. VA treatment records show that although he has a history of glaucoma, his corrected visual acuity was better than 5/200. That conclusion was reached at the April 2009 and July 2012 VA medical examinations. Contraction of the Veteran's visual field to 5 degrees or less is not shown in the evidence of record. Assessment of, or at least reference to, such a significant impediment would be expected if it existed. Buczynski v. Shinseki, 24 Vet. App. 221 (2011). There also is no indication that the Veteran is a patient in a nursing home, whether because of mental or physical incapacity. Neither he nor his representative has made such a contention. Documentation regarding residency in a nursing home is not of record. All the evidence shows that the Veteran lives in his own dwelling. That leaves the question of whether or not a factual need for aid and attendance has been established. Neither the Veteran nor his representative has contended that he must frequently adjust a special prosthetic or orthopedic appliance but cannot do so without assistance. VA treatment records convey that, while a right total knee arthroplasty was performed in May 2008 and left shoulder surgery in December 2008, he has no amputations. He uses braces on various body parts and an ankle-foot orthosis (AFO) during ambulation. However, the records are silent with respect to a frequent need to adjust the braces or AFO. Occasional adjustment is conceded. Yet frequent adjustment is implausible as that would interfere with the purpose of the braces to provide support and the AFO to facilitate walking. Of further note is that regardless of the amount of adjustment needed, neither the Veteran, his representative, nor the VA treatment records suggest that he is incapable of performing adjustments on his own. Despite a cervical condition, the records show that he is able to bend forward to some extent. The records also show that he is able to use his upper extremities at least to some extent despite some paresis and radiculopathy and shoulder conditions. While his left upper extremity is particularly affected, the Veteran is noted to be right-handed in the VA treatment records. Neither the Veteran nor his representative has contended that he is bedridden. VA treatment records convey that he regularly leaves his domicile to attend appointments and rehabilitation and therapy sessions. The records and the Veteran's statements conflictingly indicate both that he cannot drive and that he can drive, but it is clear that he is capable of getting up from bed and transferring from the bed. It also is clear that he is capable of walking on his own, albeit with the help of one or more devices variously noted to be the AFO, a crutch, and a cane due to gait disturbances as a result of paresis and radiculopathy in his lower extremities and a right knee condition. Reference has been is made to a walker and a wheelchair, but they were noted at the July 2012 VA medical examination to be only for occasions when the Veteran's symptoms were particularly bad. It finally was noted at the April 2009 and July 2012 VA medical examinations that he was not bedridden. The Veteran's ability to ambulate on his own if he uses the AFO, crutch, cane, or walker shows that he does not have physical incapacity for which he requires regular care to protect him from the hazards or dangers inherent in his daily environment. His home care attendant, E.G., indicated in a January 2008 statement that she supports him while walking. Yet an August 2007 plan of home care shows that he does not require safety supervision while walking. Therefore, it appears that E.G. provides that assistance even though it is not strictly necessary. It is conceded that the Veteran has lost his balance and fallen, to include once in early 2007. However, all indications are that falls are infrequent. Even if the falls were more frequent, the Veteran has a wheelchair which he can use. Mental incapacity for which he requires regular care to protect him from the hazards or dangers inherent in his daily environment has not been contended by him or his representative, and it is not shown in the VA treatment records. Home care service documentation and the April 2009 and July 2012 VA medical examinations show that such incapacity does not exist. That leaves dressing and undressing, keeping clean and presentable, feeding, and attending to the wants of nature. Some amount of conflict exists, but the weight of the evidence shows that the Veteran is capable of the aforementioned. Dressing, bathing, grooming, and feeding were not specifically mentioned at the April 2005 VA medical examination completed by VA treating physician Dr. S.C. The Veteran was noted to be bowel and bladder continent. It was determined that he could benefit from aid. However, it was not determined that he required aid. Further, no specifics were provided as to the form of aid contemplated. It therefore cannot be concluded that such aid would be with respect to dressing, bathing, grooming, feeding, or toileting. Requests for home care dated in August 2005 and dated in July 2007, but received in August 2007, which also were completed by Dr. S.C., deem the Veteran bowel continent with only occasional bladder incontinence. The conclusion was that he needs partial assistance in dressing (and thus impliedly undressing), bathing, washing, grooming, feeding, and commode toileting. Yet Dr. S.C. opined at the August 2007 VA medical examination that he did not need daily skilled services without which he require placement in a nursing home or similar facility. More weight is assigned to this VA medical examination than the home care service. Of import is that the VA medical examination was tailored specifically to assess whether the Veteran had a need for the regular aid and attendance of another person. The standard used in completing the home care service documentation is unknown but apparently is less stringent than VA's standard. Somewhat differing conclusions were reached by Dr. S.C. notwithstanding that the VA medical examination and some of the home care service documentation is contemporaneous. The August 2007 plan of home care shows that the assistance that would be provided to the Veteran with respect to eating was simply to encourage fluid intake. It finally is notable that the conclusion Dr. S.C. reached in the VA medical examination is consistent with that reached at the April 2005 VA medical examination and later evidence. Following his May 2008 right total knee arthroplasty, VA treatment records reveal that the Veteran required assistance with dressing, bathing, and grooming. Yet he was independent in feeding and toileting. By August 2008, the records show that he was independent in all respects with the exception that he needed assistance in putting on socks and shoes. The Veteran was noted to be independent with respect to shaving, feeding, and toileting at the April 2009 VA medical examination. Dressing, undressing, and bathing were not referenced. At the July 2012 VA medical examination, it was noted that the Veteran was unable to dress and undress himself. Yet it also was noted that he only had some difficulty in dressing and undressing. More weight is assigned to this latter indication than to the former. A complete inability to dress and undress is inconsistent with the other evidence, as aforementioned, and there is no indication in the VA treatment records of a substantial deterioration in the Veteran's condition. Further, the Veteran's right upper extremity was characterized as normal. It follows that even though his left upper extremity was characterized as severely impaired, he would not have an inability to dress and undress. Only some difficulty with bathing, grooming, and feeding was referenced at the July 2012 VA medical examination. It was noted that the Veteran had no difficulty with toileting. Some bowel and bladder impairment was noted, but impairment does not equate to the need for assistance. Use of medication and the Crede method was all that was mentioned. In sum, the Board finds that the Veteran is not so helpless or so nearly helpless as to require the regular aid and attendance of another person. Acknowledgement is given to VA treatment records, particularly one dated in July 2012, showing that the Veteran requires nail and callus care because he cannot bend forward far enough to reach his toes. However, that is only one of many normal grooming tasks. It additionally is necessary only infrequently as opposed to regularly. Acknowledgement also is given to the fact that the Veteran had a home care attendant at least through January 2008. Yet that attendant for the most part assisted him with going to appointments and rehabilitation and therapy session and with performing chores. E.G.'s January 2008 statement mentions going out, cooking, cleaning, ironing, sewing, grocery shopping, and laundry. The requests for home care similarly mention going out, cleaning, meal preparation, shopping, and laundry, while the plan of home care references marketing, laundry, making and changing the bed, ironing, dusting, vacuuming, mopping, cleaning the bathroom and kitchen, and being an escort. Finally, the Veteran himself notes only that he does not leave his home unassisted and needs assistance with daily living. No specifics were provided, but it readily is inferred based on the other evidence that he needs assistance with chores rather than basic functions such as dressing, undressing, bathing, grooming, feeding, and toileting. The Board further finds, considering all the evidence of record, that SMP by reason of being housebound is not warranted. There was no indication of a single permanent disability rated at 100 percent once such a rating based on unemployability is excluded. Neither the Veteran nor his representative has contended to the contrary. His disabilities primarily include a cervical condition, paresis and radiculopathy of the extremities related to the cervical condition, a right shoulder condition, a right knee condition, hypertension, asthma, various nasal and sinus conditions, erectile dysfunction, and insomnia. Of those, a 100 percent rating is not possible for quadriparesis, a right knee condition, shoulder conditions, hypertension, various nasal and sinus conditions, erectile dysfunction, or insomnia. 38 C.F.R. §§ 4.71a, Diagnostic Codes 5200-5203 and 5256-5263, 4.73, 4.97, Diagnostic Codes 6502-6514 and 6522-6524, 4.1014, Diagnostic Code 7101, 4.115b, Diagnostic Code 7522, 4.124, Diagnostic Codes 8510-8730, 4.130, Diagnostic Code 9201-9440 (2013). That leaves the cervical condition and asthma. A 100 percent rating is assigned when there is unfavorable ankylosis of the entire spine, both cervical and thoracolumbar. 38 C.F.R. §§ 4.71a, Diagnostic Codes 5235-5242 (2013). A 100 percent rating also is assigned for asthma when forced expiratory volume in one second (FEV-1) is less than 40 percent of the predicted value, FEV-1/forced vital capacity (FVC) is less than 40 percent of the predicted value, there is more than one attack per week with episodes of respiratory failure, or daily use of systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medications is required. 38 C.F.R. § 4.97, Diagnostic Code 6602 (2013). However, there is no indication that any of the aforementioned criteria has been met. It has not been contended that any has been met. VA treatment records are silent with respect to spinal ankylosis. Assessment of, or at least reference to, such a significant impediment would be expected if it existed. Buczynski v. Shinseki, 24 Vet. App. 221 (2011). VA treatment records show two asthma attacks in late 2007 that quickly were brought under control. Both prior thereto and thereafter, the Veteran's asthma was not reported by him or otherwise noted to be significant. It thus is inferred that his FEV-1 as well as his FEV-1/FVC are greater than 40 percent of the predicted value. Respiratory failure and the need for daily use of systemic high dose corticosteroids or immunosuppressive medications never have been noted or even referenced in VA treatment records. Since there is no single permanent disability rated at 100 percent, proceeding to discuss whether the Veteran has an additional disability or disabilities independently ratable at 60 percent or more or is permanently housebound because of his disability or disabilities is unnecessary. Of brief note in this latter regard, however, is that there is no indication his is permanently housebound. Neither he nor his representative has made such a contention. Dr. S.C. determined that he was not homebound at the April 2005 VA medical examination. It was reiterated that he left daily as of then and the August 2007 VA medical examination. It was noted at the April 2009 VA medical examination that he left home, albeit with assistance, and at the July 2012 VA medical examination that he could travel beyond his domicile. VA treatment records, particularly those dated in 2011 and 2012, relate that the Veteran volunteered at VA. Ultimately, the VA treatment records show that volunteer work led to a temporary employment opportunity at VA. The records relate that he had been going to school. An inability to leave his home to earn a living therefore appears unlikely. The Board finds that the preponderance of the evidence, is against the Veteran's entitlement to SMP based on the need for regular aid and attendance or by reason of being housebound. The negative evidence outweighs the positive evidence. Therefore, the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER SMP based on the need for regular aid and attendance or by reason of being housebound is denied. ____________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs