Citation Nr: 1339166 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 07-37 771 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to special monthly compensation based on the need for the regular aid and attendance of another person or at the housebound rate. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from June 1971 to April 1979. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision by Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. In June 2011, the Board remanded this matter for additional evidentiary development. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. FINDINGS OF FACT 1. The Veteran is service connected for dysthymic disorder, rated 100 percent disabling; and hemorrhoids, rated noncompensably disabling. 2. The Veteran's service-connected disabilities do not prevent him from attending to the needs of nature, caring for himself, or protecting himself from the hazards of his environment; and he is not permanently housebound by reason of his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to special monthly compensation based on the need for the regular aid and attendance of another person or at the housebound rate are not met. 38 U.S.C.A. § 1114 (West 2002); 38 C.F.R. § 3.350 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The United States Court of Appeals for Veterans Claims (Court) has also held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The record reflects that the Veteran was provided all required notice in a November 2006 letter, prior to the rating decision on appeal. The duty to assist the Veteran has also been satisfied. The originating agency has obtained all of the Veteran's available service treatment records, and obtained the Veteran's identified VA and private medical treatment records. The originating agency scheduled the Veteran for an October 2008 VA examination for aid and attendance, as well as a September 2011 VA examination for mental disorders. For each examination, the examiner reviewed the Veteran's claims files, discussed with the Veteran his pertinent medical history, examined the Veteran, and properly supported the opinions provided. The Board finds these examination reports to be adequate for adjudicating the issue on appeal. In June 2011, the Board remanded this matter to obtain an updated psychiatric examination to determine the severity of the Veteran's service-connected dysthymic disorder. The Appeals Management Center subsequently arranged for the aforementioned VA examination for mental disorders in September 2011. Accordingly, the Appeals Management Center has complied with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). In support of his claim, the Veteran recently submitted a March 2013 "Housebound Status or Permanent Need for Regular Aid and Attendance" examination report. The Veteran's representative waived consideration of this additional evidence by the agency of original jurisdiction in its October 2013 Appellant's Post Remand Brief. Neither the Veteran nor his representative has identified any additional evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the Veteran's claim. II. Legal Criteria Special monthly compensation is payable if, as the result of service-connected disability, the Veteran is so helpless as to be in need of regular aid and attendance of another person. 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b). Under 38 C.F.R. § 3.352(a), the following factors will be accorded consideration in determining whether a veteran is in need of regular aid and attendance of another person: (1) the 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; and (4) 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 veteran from the hazards or dangers incident to his daily environment. It is not required that all 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. 38 C.F.R. § 3.352(a); see also Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in section 3.352(a) must be present for a grant of SMC based on 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). Special monthly compensation also is payable if the Veteran has a single service- connected disability rated as 100 percent and - (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the Veteran is substantially confined as a direct result of service-connected disabilities to his dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his lifetime. 38 U.S.C. 1114(s); 38 C.F.R. § 3.350(i)(2). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. III. Analysis After a longitudinal review of the record, the Board finds that the preponderance of the evidence is against the claim. Throughout the period of this claim, the Veteran has been service-connected for dysthymic disorder, rated 100 percent disabling; and hemorrhoids, rated noncompensably disabling. The Board accepts that the evidence establishes the Veteran's need for regular aid and attendance. However, this need for regular aid and attendance is not shown to be the result of the Veteran's service-connected disabilities, but rather the result of a host of nonservice-connected physical ailments. For example, the report of an August 2006 "Housebound Status or Permanent Need for Regular Aid and Attendance" examination indicates that the Veteran required assisted living and could not live on his own as a result of his nonservice-connected Binswanger's disease. There is no indication in the Veteran's post service treatment records that his service-connected hemorrhoids interfere with his daily activities or his ability to ambulate. A February 2007 VA treatment report notes that the Veteran's social worker had called stating that the Veteran had struggled living on his own in the past; and that his dysthymic disorder could have a negative impact on his cognitive status as he tends to isolate and not take care of his basic activities of daily living like eating and grooming. The report of an October 2008 VA examination for aid and attendance or housebound status notes the VA examiner's opinion that the Veteran requires the regular assistance of another person in attending to the ordinary habits of daily living. The VA examiner noted that the Veteran had dementia and Binswanger's disease which affected his ability to ambulate for self care. The diagnoses included dementia; diabetes mellitus, type II; central nerve damage; varied depression; and Binswanger's disease. In June 2011, the Board remanded this matter for an examination which ascertains the severity of the Veteran's service-connected dysthymic disorder and its effects on the Veteran. In September 2011, the Veteran underwent a VA examination for mental disorders. The VA examiner noted that the Veteran's claims files and electronic records were reviewed. The examination report lists diagnoses of depressive disorder, not otherwise specified; generalized anxiety disorder; and dementia, not otherwise specified. The VA examiner noted that a review of the Veteran's treatment records indicated that his depressive disorder had worsened somewhat over the past two to three years. The VA examiner also noted that the Veteran met the criteria for vascular dementia, not otherwise specified, secondary to Binswanger's disease. In discussing his daily activities, the examiner noted that the Veteran denied being bedridden and stated that he goes to the mall across the street every day, and typically 5 to 8 times per day, including in the winter. He also reported travelling 8 miles per day on his electric wheelchair. The report notes that the Veteran had a wheelchair accessible van, and that he does his own grocery and clothes shopping at the mall. Based upon this examination of the Veteran, the VA examiner opined that the Veteran is not bedridden due to his psychiatric symptoms and that he does not require aid and attendance secondary to them. The VA examiner stated, "[h]e maintains a significant amount of independence through use of his electric wheelchair and engages in a number of activities on a daily basis. There is no evidence that the Veteran is helpless due to his psychiatric symptoms." A March 2013 "Housebound Status or Permanent Need for Regular Aid and Attendance" examination report reflects diagnoses of sleep apnea; vascular dementia; urinary and fecal incontinence; insomnia; diabetes mellitus, type II; colonic polyps; hypertension; peripheral neuropathy; muscle spasm; chronic airway obstruction; and migraine. It also indicates that the Veteran's dysthymic disorder restricts his activities. The examiner noted that the Veteran was able to feed himself and prepare his own meals. The examiner also indicated that the Veteran requires assistance in bathing and tending to other hygiene needs, medication management, and handling his own affairs. The examiner noted that the Veteran was able to leave his home or immediate premises on an "AD LIB" basis, and that the Veteran required aids such as canes, braces, crutches, or the assistance of another person for locomotion more than 10 feet. In summary, the evidence of record clearly demonstrates that the Veteran's service-connected dysthymic disorder and hemorrhoids are not the cause of his loss of ambulatory power or motor function that impairs his ability to ambulate. Moreover, his service-connected disabilities do not result in the requirement of the regular aid and attendance of another person or the Veteran being housebound. VA treatment records do not show any significant findings concerning the Veteran's service-connected hemorrhoids, nor have any been alleged. Moreover, the VA examiner in September 2011, the only examiner that limited his findings to the Veteran's service-connected dysthymic disorder, opined that the Veteran was not bedridden due to his psychiatric symptoms and that he does not require aid and attendance secondary to them. On this issue, the VA examiner stated, "[h]e maintains a significant amount of independence through use of his electric wheelchair and engages in a number of activities on a daily basis. There is no evidence that the Veteran is helpless due to his psychiatric symptoms." None of the other physicians identified the Veteran's service-connected disabilities as the cause of the need for aid and attendance of another. Rather, as noted above, they listed the Veteran's numerous nonservice-connected disabilities when discussing his need for help. The Board finds that there is no indication that the Veteran is bedridden. The record shows that the Veteran lives independently with visiting care providers due to disabilities that are not service-connected. Accordingly, this claim must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. ORDER Entitlement to special monthly compensation based on the need for the regular aid and attendance of another person or at the housebound rate is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs