Citation Nr: 1342823 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 09-31 228 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to special monthly compensation (SMC) based on the need for aid and attendance or at the housebound rate for accrued benefits purposes. REPRESENTATION Appellant represented by: Jacques P. DePlois, Attorney at Law ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from August 1943 to November 1945. The appellant is the Veteran's surviving spouse. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, that, in part, denied the appellant's claim for SMC based on the need for aid and attendance or at the housebound rate for accrued benefits purposes. In her August 2009 substantive appeal, the appellant requested a hearing before a Veterans Law Judge at the RO. However, in a January 2011 correspondence, the appellant cancelled this hearing, and has not requested that a new hearing be scheduled. As such, her hearing request is deemed withdrawn. See 38 C.F.R. §§ 20.702(e); 20.704(e) (2013). FINDINGS OF FACT 1. The Veteran died in October 2007 as a result of brain cancer. 2. At the time of the Veteran's death, service connection was in effect for posttraumatic stress disorder (PTSD) with accompanying obsessive compulsive disorder (OCD) at a 70 percent disability evaluation, effective May 22, 1998 and for chronic muscle strain, lumbar spine with degenerative stiffness at a 40 percent disability rating, effective November 30, 1993. The Veteran was also granted a total disability rating based on individual unemployability (TDIU), effective May 22, 1998. 3. The Veteran's service-connected disabilities rendered him unable to care for his daily needs without requiring the regular aid and attendance of another person. CONCLUSION OF LAW The criteria for special monthly compensation based on the need for regular aid and attendance for accrued benefits purposes have been met. 38 U.S.C.A. §§ 1114(l), 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.350, 3.352 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under the Veteran's Claims Assistance Act of 2000, VA has certain duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). Nevertheless, given the favorable disposition of the claim for entitlement to SMC based on the need for aid and attendance or at the housebound rate for accrued benefits purposes; the Board finds that all notification and development actions needed to fairly adjudicate this claim has been accomplished. Laws and Regulations The appellant contends that entitlement to SMC is warranted as the Veteran was housebound prior to his death and required constant care due to service-connected disabilities. SMC is payable where a veteran suffers from service-connected disability that renders him permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b). A veteran shall be considered to be in need of regular aid and attendance if: he/she 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; or is a patient in a nursing home because of mental or physical incapacity; or establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). See also 38 C.F.R. § 3.351(c). Determinations as to the need for aid and attendance are based on the actual requirements of personal assistance from others. In determining the need for regular aid and attendance, consideration will be given to the inability of the veteran and his or her spouse to dress or undress themselves, or to keep clean; frequent need of adjustment of any prosthetic which by reason of the disability cannot be done without aid; inability of the veteran or his or her spouse to feed themselves; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect themselves from the hazards or dangers of the daily environment. Bedridden will be that condition which, through its essential character, actually requires that the claimant remain in bed. 38 C.F.R. § 3.352(a). It is mandatory for VA to consider the enumerated factors within the regulation, and at least one of the enumerated factors be present. Turco v. Brown, 9 Vet. App. 222 (1996). In order for the Veteran to prevail in the claim, the evidence must show that it is a service-connected disability that has resulted in the need for regular aid and attendance. Prejean v. West, 13 Vet. App. 444 (2000). The regulations also provide additional compensation on the basis of being housebound where a veteran has, in addition to a single, permanent service-connected disability rated 100 percent disabling, (1) additional service-connected disability or disabilities independently evaluated as 60 percent or more disabling which are 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. A veteran will be considered housebound where the evidence shows that, as a direct result of his service-connected disability or disabilities, he is substantially confined 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.A. § 1114(s); 38 C.F.R. § 3.350(i). At the time of his death in October 2007, service connection was in effect for PTSD with accompanying OCD at a 70 percent disability evaluation, effective May 22, 1998 and for chronic muscle strain, lumbar spine with degenerative stiffness at a 40 percent disability rating, effective November 30, 1993. The Veteran was also granted a TDIU, effective May 22, 1998. Notably, in an April 2013 rating decision, the RO, in part granted service connection for the Veteran's cause of death. The RO noted that the Death Certificate reflected that the Veteran's immediate cause of death was due to "presumed metastatic disease to brain, undetermined primary". The RO relied on an April 2012 VA examiner's opinion which concluded that the Veteran's death, most likely caused by metastatic brain cancer, was directly related to the Veteran's service connected PTSD by way of the PTSD being a significant contributing factor to the Veteran's long term nicotine addiction which resulted in the cancer. By virtue of the above grant for cause of death, the Veteran's symptoms from his terminal brain cancer must be considered as well for the purposes of considering his SMC claim. With respect to whether SMC on the basis of the need for aid and attendance is warranted, the evidence establishes that the Veteran was unable to care for himself and required the assistance of others. VA treatment records demonstrate that the Veteran was admitted to a VA nursing home in July 2007 after being transferred from Bay Area Hospital. He was admitted with recorded diagnoses of a parasacral backache, chronic airway obstruction, bronchitis not specified and unspecified dissential hypertension. The Nursing Home Admission Note indicated that the Veteran was initially hospitalized with vomiting and mild dyspnea. While hospitalized, he developed sacral pain at the top of his chronic low back pain. T he Admission note reported that the Veteran had "significant deconditioning from his prolonged hospitalization and was not safe to return back home where he was residing with his wife". He was to continue with his skilled nursing facility care for ongoing physical therapy until he could safely ambulate and transition. An August 2007 VA treatment note indicated that the Veteran elected hospice, comfort and care measures as a result of his brain cancer prognosis. An August 2007 VA Long Term Care Referral Consultation noted that the Veteran needed nursing home level of care as his wife could not care for him in their home anymore. Amongst his many listed problems were low back pain, PTSD, chronic airway obstruction and a tobacco use disorder. An August 2007 VA nursing home note reported that the Veteran was not capable of independent functioning and required assistance. The Veteran used a wheelchair for mobility and he was also on oxygen. The Veteran was appropriately dressed but needed shaved by an aide. It was noted that the Veteran was difficult to understand and spoke in a very low voice. At the time of the visit, he was on his bed and required 2 aides to transfer him from his bed to his wheelchair for lunch. The Veteran was then being fed by an aide in the dining room. The note indicated the continued need for nursing home care. The Veteran required complete assistance at meal time, required two person assist with transfers and required assistance with bathing and dressing as well. His mode of ambulation was not independent as his transfers required two staff members. He also needed assistance pushing his wheelchair. An August 2007 hospital note indicated that the Veteran had been previously hospitalized for back pain, hyponatremia and associated delirium. An October 2007 treatment note from a private physician indicated that the Veteran was on palliative Hospice care and had further deterioration over the course of the last week. The diagnosis was metastatic cancer of undetermined primary, chronic obstructive pulmonary disease, a history of hypertension and a history degenerative joint disease. In terms of the criteria for aid and attendance benefits, the Board recognizes that service-connected and nonservice-connected disabilities played a role in the Veteran's inability to attend to his activities of daily living. However, as noted above, as a result of the VA's determination that the Veteran's cause of death resulted from his PTSD, the Veteran's symptoms from his terminal brain cancer must be considered as well for the purposes of considering his SMC claim. Thus, when affording the appellant the benefit of the doubt, the Board finds that as a result of the brain cancer residuals, the Veteran, prior to his death, required the aid and attendance of another person on a regular basis to protect him from hazards or dangers incident to his daily environment. As noted above, VA treatment records from the nursing home specifically note that the Veteran was not capable of independent functioning and required assistance. It was also noted that he required complete assistance at meal time, required two person assist with transfers and required assistance with bathing and dressing as well. Thus, special monthly compensation based on the need for regular aid and attendance of another person was warranted and the benefit sought on appeal is granted. Having determined that special monthly compensation based on the need for regular aid and attendance of another person was warranted, the claim of entitlement to special monthly compensation at the housebound rate is moot as the aid and attendance benefit is paid at a higher rate than the housebound benefit. Indeed, the assignment of a simultaneous SMC award under both 38 U.S.C.A. §1114(l) , based on a need for aid and attendance, and 38 U.S.C.A. § 1114(s) , based on housebound status, would be impermissible at this time, as the appellant would in essence be compensated twice for the same service-connected disabilities. Such action is prohibited by the "anti-pyramiding" regulation, 38 C.F.R. § 4.14 (2013). ORDER Subject to the law and regulations governing payment of monetary benefits, entitlement to SMC based on the need for aid and attendance for the purpose of accrued benefits is granted. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs