Citation Nr: 1338524 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 09-30 136 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to special monthly compensation (SMC) based on need for regular aid and attendance of another person or by reason of being housebound for accrued benefit purposes. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from June 1969 to March 1971. The Veteran died in October 2007. The appellant is the Veteran's surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) from a rating decision dated in April 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland Oregon. The appellant testified at a Travel Board hearing before the undersigned Veterans Law Judge in December 2011. A transcript of the hearing is of record. The Board remanded this matter in April 2012 for further evidentiary development. The RO continued the denial of the claim as reflected in September 2012 supplemental statement of the case (SSOC) and returned this issue to the Board for further appellate consideration. FINDINGS OF FACT 1. The claim of entitlement to special monthly based on the need for regular aid and attendance of another person or by reason of being housebound was pending at the time of the Veteran's death in October 2007. 2. The appellant is the Veteran's surviving spouse who filed a claim for accrued benefits within one year of the date of his death. 3. The Veteran was service connected for the following disabilities at the time of his death: posttraumatic stress disorder, rated as 70 percent disabling and left knee strain, rated as 10 percent disabling. He was also in receipt of a total disability rating based on individual unemployability. 4. The Veteran was not blind, nor did he have loss of use of both feet or one hand and one foot as the result of his service-connected disabilities and the weight of the evidence indicate that he was not bedridden or helpless due to his service-connected disorders. 5. The Veteran's service-connected disorders did not render him unable to care for most of his daily personal needs without regular personal assistance from others, nor did they result in an inability to protect himself from the hazards and dangers of his daily environment. CONCLUSION OF LAW The criteria for an award of SMC, based on the need for the regular aid and attendance of another person or on being housebound, for accrued benefit purposes have not been met. 38 U.S.C.A. § 114, 1502, 1521, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.350, 3.351, 3.352 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance The United States Department of Veterans Affairs (VA) has a duty to notify and assist a claimant in developing a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 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 or her representative, if any, 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). Proper notice from VA 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. 38 C.F.R. § 3.159(b). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). After careful review of the claims folder, the Board finds that a VA letter dated in December 2005 satisfied the duty to notify provisions prior to the initial AOJ decision in December 2006. 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). In this regard, the February 2008 VCAA letter informed the appellant of how to substantiate her claim for accrued benefits. Specifically, the appellant was notified that VA pays accrued benefits when a person dies before receiving a benefit in which he or she was entitled based on existing ratings, decisions or evidence in the file at the time of his or her death, but the benefits were not paid before the Veteran's death and she is the surviving spouse of the Veteran or she paid the expenses of the deceased Veteran's last sickness and burial. This letter notified the appellant of her and VA's respective duties for obtaining evidence. As for VA's duty to assist, the outcome of an accrued benefits claim hinges on the application of the law to evidence, which was in the file at the time of the Veteran's death. See 38 C.F.R. § 3.1000(a) (2013). "Evidence in the file at the date of death means evidence in VA's possession on or before the date of the beneficiary's death." 38 C.F.R. § 3.1000(d) (2013). Documents generated from a VA facility are deemed constrictively in VA's possession. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). In this case, the claims file contains the following relevant records at the time of the Veteran's death: the Veteran's service treatment records, VA treatment records from June 2007 to October 2007, a June 2007 Report of Medical Examination in Support of Aid and Attendance or Housebound benefits and the Veteran's lay statement. The record also contains a transcript of the appellant's Board hearing conducted in December 2011. As noted in the Introduction, these issues were previously remanded in April 2012 to obtain all pertinent VA treatment records to include those from Dr. A and Dr. Z. All VA treatment records from June 2007 through October 2007 were associated with the claims file. Accordingly, the Board finds that there has been substantial compliance with the April 2012 remand directive. See Stegall v. West, 11 Vet. App. 268, 271 (1998). There is no indication in the file that there are additional relevant records that were in VA's constructive possession at the time of the Veteran's death that have not been associated with the claims file. Therefore, the Board is satisfied that VA has complied with the duty to assist requirements and the record is ready for appellate review. II. Criteria and Analysis The appellant filed a claim for death benefits, which the RO interpreted to include a claim for accrued benefits, in November 2007. At the time of the Veteran's death in October 2007, he had one pending claim: entitlement to SMC based on need for regular aid and attendance of another person or by reason of being housebound. The Veteran did not have any further claims pending at the time of his death. As such, the only basis for entitlement to accrued benefits is through the pending claim for SMC, which will be discussed below. See Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 90 (1998). Upon the death of a veteran, periodic monetary benefits to which that individual was entitled at death under existing ratings or decisions, or those based on evidence in the file at the date of his death ("accrued benefits") and due and unpaid, shall, upon the death of such individual be paid to the living person first listed as follows: (1) his spouse, (2) his children (in equal shares), (3) his dependent parents (in equal shares). 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000(a). In order for a claimant to be entitled to accrued benefits, "the veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating decision." Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). The Board emphasizes that by statute, entitlement to accrued benefits must be based on evidence in the file at the time of death, or evidence, such as VA records, deemed to be of record at that time. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000; Zevalkink v. Brown, 6 Vet. App. 483 (1994). As noted above, the Veteran had only the claim of entitlement to SMC based on the need for the regular aid and attendance of another person or on being housebound pending at the time of his death. The Veteran asserted that as a result of multiple service-connected disabilities he is need of aid and attendance for VA compensation purposes, or, at the very least, is housebound. He was service connected for the following disabilities: posttraumatic stress disorder (PTSD), rated as 70 percent disabling and left knee strain, rated as 10 percent disabling. He was also in receipt of a total disability rating based on individual unemployability (TDIU). Special monthly compensation (SMC) at the housebound rate is warranted when a veteran has a single service-connected disability rated as 100 percent disabling and is permanently housebound. 38 U.S.C.A. § 1114(s) (West 2002); 38 C.F.R. § 3.350(i) (2013). Housebound status is defined as being when the veteran is substantially confined as a direct result of service-connected disabilities to his dwelling and the immediate premises and it is reasonably certain the disability or disabilities and resultant confinement will continue throughout his lifetime. Id. Under the law, subsection 1114(s) benefits are not available to a Veteran whose 100 percent disability rating is based on multiple disabilities, none of which is rated at 100 percent disabling. Regardless, the Court has held that 38 U.S.C.A. § 1114(s) for housebound benefits does not limit "a service-connected disability rated as total" to only a schedular rating of 100 percent, and that 38 C.F.R. § 3.350(i) permits a TDIU rating based on a single disability to satisfy the statutory requirement of a total rating. Bradley v. Peake, 22 Vet. App. 280, 293 (2008). The TDIU rating based on a single disability that satisfies the total (100 percent) rating requirement must be separate and distinct from the additional disability or disabilities independently ratable at 60 percent or more for purposes of housebound benefits. Id. The Court also declared that the direction to treat multiple disabilities as one under 38 C.F.R. § 4.16(a) was specifically limited to TDIU ratings. A TDIU rating based on multiple service-connected disabilities does not satisfy the criteria for one total disability rating in considering entitlement to housebound benefits under 38 U.S.C.A. § 1114(s). Id. at 290-91. The Veteran was not in receipt of service connection for a disability rated as 100 percent disabling. Furthermore, the January 2002 rating decision that granted entitlement to a TDIU shows that it determined that the Veteran was unable to secure or follow a substantially gainful occupation as result of service-connected disabilities. Thus, the record shows that the TDIU rating was based on multiple service-connected disabilities and he does not satisfy the criteria for one total disability rating. Accordingly, inasmuch as he does not meet the first criterion for housebound status, his claim for SMC at a housebound rate must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). SMC is also warranted, however, is also warranted when a veteran, as a result of service-connected disability, is so helpless as to be in need of regular aid and attendance. 38 U.S.C.A. § 1114(l) (West 2002); 38 C.F.R. § 3.350(b) (2013). The following will be accorded consideration in determining the need for regular aid and attendance: inability of veteran 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; inability of veteran to feed himself through loss of coordination of upper extremities or through extreme weakness; 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 claimant from hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a) (2013). It is not required that all of the disabling conditions enumerated in this paragraph be found to exist, nor is it necessary that there be a constant need for aid and attendance. Id. In this case, the Veteran notes that due to his multiple disabilities including encephalopathy, hepatitis C, porta hypertension, high blood pressure, PTSD, emphysema, cirrhosis of the liver, arthritis, degenerative joint disease, high pain levels and knee injury have rendered him in need of aid and attendance. See July 2007 claim. The Veteran explained that he is unable to vacuum, do dishes, change bedding, cook or fix food, take his medicine, do laundry, shower, clean house, take care of his pet, pay bills, drive to appointments, read, take out the garbage, shop or engage in light exercise. Id. The appellant's representative has also argued that the Veteran's PTSD resulted in mental incapacity, which required regular care or assistance in order to protect the Veteran as the VA treatment record demonstrate that the Veteran was on suicide watch. He also asserted that the Veteran's PTSD alcohol addiction was associated with his PTSD and that this resulted in the Veteran's physical incapacity, which required regular care and attendance prior to his death. The evidence does not show that the Veteran was blind, or that he has loss of use of both feet or one hand and one foot due exclusively to his service-connected PTSD and left knee strain. The Veteran's VA physician filled out a Private Physicians Report of Medical Examination for Aid and Attendance or Housebound benefits in June 2007. He noted that the Veteran had hepatic cirrhosis, hepatitis C, chronic obstructive pulmonary disease, PTSD, hypertension, arthritis, and chronic pain syndrome. He reported that the Veteran was able to walk unaided, he was not permanently bedridden and he was not blind. The physician reported that on certain days the Veteran may suffer from exacerbation of his disease which limits him from feeding, bathing or dressing himself. It is unclear which disease the physician was referring to in this comment. However, he did provide the opinion that the Veteran often needed assistance when he would leave his home due to his PTSD. The physician determined that the Veteran did not need nursing care and the Veteran was competent. The Board observes that VA treatment records indicate that the Veteran was on suicide watch in July 2007. A July 2007 psychiatric evaluation reveals that the psychiatrist determined that the Veteran's presentation was consistent with the robust history provided by previous psychiatric consultations and the primary medical team. His safety had been repeatedly assessed and he did not display actions that would lead the psychiatry team to consider the Veteran an imminent threat to himself or others. It was recommended that the Veteran be discharged to his home in accordance with the medical team and the Veteran's preferences. The psychiatrist did note that the Veteran's cognition was impaired due to his medical condition. A July 2007 VA treatment record also documents that the Veteran had mental status changes to include confusion and disorientation. The physician determined that the Veteran's medication was the likely source of the mental decline in addition to hyponatremia and hepatic encephalopathy. In light of the foregoing, the preponderance of the evidence shows that the Veteran's PTSD did not result in mental incapacity which required regular aid and attendance. The Board recognizes that the Veteran's VA treatment record indicate that the Veteran had difficulty with balance and problems with tremors. See July 2007 VA treatment record. The appellant informed his physician that she was concerned about the Veteran showering on his own as he would wobble and she was worried about the Veteran falling. The Veteran also reported that he experienced chills, headaches, dizziness, nausea, and blurred vision. He also noted that he had difficulty with ambulation, but he had been ambulating without assistance. VA treatment records indicate that the Veteran's physical decline was due to cirrhosis secondary to hepatitis C and alcohol. The Veteran was not service-connected for cirrhosis of the liver at the time of his death. Based on the evidence of record, the most pertinent of which was discussed above, the Veteran did not require assistance with activities of daily living solely due to his service-connected disabilities and he was not helpless or bedridden due solely to his service-connected disabilities. Accordingly, as the pertinent criteria are not met, special monthly compensation based on the need for aid and attendance or being housebound is not warranted. ORDER Entitlement to SMC, based on a need for the regular aid and attendance of another person or on being housebound, for accrued benefit purposes is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs