Citation Nr: 1422201 Decision Date: 05/16/14 Archive Date: 05/29/14 DOCKET NO. 11-24 025 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to special monthly compensation based on a need for the regular aid and attendance of another person. REPRESENTATION Veteran represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1977 to October 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran and his spouse testified at a June 2013 Board video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing associated with the claim file. In June 2013, the Veteran submitted additional medical evidence and waived review of the newly submitted evidence by the agency of original jurisdiction (AOJ). See 38 C.F.R. § 20.1304(c) (2013). Additionally, an April 2014 VA examination and a June 2013 medical letter, have been associated with the claims file and the Veteran has not waived review of this evidence; however, in light of the disposition granting the benefit sought in full, a remand for RO consideration and issuance of a supplemental statement of the case is not warranted. Id. The Board notes that the Veteran filed a notice of disagreement, based on the July 2010 rating decision for the issues of entitlement to an increased evaluation for status post discectomy L5-S1, as well as entitlement to increased ratings for radiculopathy of the bilateral lower extremities. However, as the Veteran did not perfect an appeal as to these issues, they are not before the Board. See 38 C.F.R. §§ 20.200, 20.202, 20.302(b) (2013). The issues of entitlement to service connection for depression, a sleep condition, a neck condition, an arm condition and a hand condition, all as secondary to service-connected disabilities, have been raised by the record but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2013). FINDING OF FACT Resolving the benefit of the doubt in favor of the Veteran, the Veteran is in need of the regular aid and attendance of another person due to his service-connected disabilities. CONCLUSION OF LAW The criteria for special monthly compensation based on a need of aid and attendance of another person have been met. 38 U.S.C.A. §§ 1114(l), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.350, 3.352 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board grants entitlement to special monthly compensation based on a need of aid and attendance of another person, which constitutes a complete grant of the Veteran's claim. Therefore, no discussion of VA's duty to notify or assist, including pursuant to 38 C.F.R. § 3.103(c)(2) (2013) and Bryant v. Shinseki, 23 Vet App 488 (2010), is necessary. The Veteran seeks entitlement to special monthly compensation based on the need for the regular aid and attendance of another person. Generally, with respect to claims of entitlement to special monthly compensation based on the need for the regular aid and attendance of another person, such claims will be granted when the Veteran, due to a service-connected disability, has the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to be in need of regular aid and attendance. See 38 U.S.C.A. § 1114(l) (West 2002); 38 C.F.R. § 3.350(b) (2013). The record does not reflect that the Veteran has the anatomical loss or loss of both feet or one hand and one foot or is blind in both eyes. Thus, the question is whether the Veteran is permanently bedridden or so helpless as to be in need of regular attendance due to his service-connected disabilities. Determinations as to the need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to the following: inability of the 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 the 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 veteran from the hazards or dangers inherent in his daily environment. It is not required that all of the disabling conditions enumerated in this paragraph 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 or her 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 be a constant need. Determinations that the veteran is so helpless, as to be in need of regular aid and attendance will not be based solely upon an opinion that the veteran's condition is such as would require him to be in bed. They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352(a) (2013); see Turco v. Brown, 9 Vet. App. 222, 224 (1996). At present, service connection is in effect for status post discectomy L5-S1, rated as 50 percent disabling, radiculopathy of left lower extremity, rated as 40 percent disabling; and radiculopathy of right lower extremity, rated as 40 percent disabling. The Veteran's combined disability rating is 90 percent and a total disability rating based on individual unemployability has been in effect since December 2007. As part of his claim, the Veteran submitted VA form, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, which was signed by a private physician in July 2010. This examination report indicated that the Veteran the Veteran was not able to feed himself as he drops utensils, plates and dishes and falls asleep while eating. He also needed assistance in bathing and tending to other hygiene needs such as dressing, toileting, and bathing and suffered from periodic incontinence. The examination report further indicated the Veteran has a shuffling gain, uses a cane and was unable to lift his feet over low objects. The examination report attributed these restrictions to ataxia, falling and severe pain in the back and legs. As described above, the Veteran his service-connected for bilateral lower radiculopathy and for his back. The July 2010 VA spine and peripheral nerves examination reports showed that the Veteran required assistance getting out of bed and dressing. Additionally, the Veteran's posture was stooped and fixed in a flexed position. The July 2001 spine examination found that the Veteran could not perform repetitive testing due to significant pain that limited further motion and had urinary incontinence. The July 2010 spine examination report found that the effects of the Veteran's lumbar spine condition prevented shopping, chores, driving, exercise, and sports activities due to the inability to stand or walk more than a few feet. The July 2010 spine examination report also stated that the lumbar spine condition created problems lifting and carrying, weakness and fatigue, and decreased strength. The July 2010 VA spine examiner noted that the lumbar spine condition severely affected dressing, toileting and sleeping due to pain. The July 2010 VA peripheral nerves examiner found the same affects were true of the Veteran's radiculopathy of the bilateral lower extremities. In a lay statement, received by VA in November 2010, friends of the Veteran, who have lived near the Veteran for over 20 years, stated that they had to help the Veteran when he had fallen trying to do a simple task. A lay statement from the Veteran's sister, also received by VA in November 2010, also described a time that the Veteran fell and could not call for help for over an hour before he could get to a phone and call a neighbor for help. In another November 2010 lay statement, the Veteran's daughter, J.M., stated that she had been helping the Veteran and had been late for her job because she was helping her Dad out of bed, then helped get him dressed and fed. She stated there have been days where she had fixed him breakfast and gone to work but he was not able to get around and fix himself something to eat throughout the day and had to wait until her mother or she returned home. She also stated the Veteran is unable to bath himself as he cannot bend over to wash. Another daughter of the Veteran, L. M., stated that she and her family are constantly changing the Veteran's clothes due to spills of food and drinks and that the Veteran has trouble getting up from a chair or from the bed. She described that her father falls, stumbles and walks bent over. She reported that her mother helps get the Veteran bathed and dressed. She stated socks and shoes must be put on the Veteran because he cannot bend over. Also in a November 2010 lay statement, the Veteran's spouse also reported the Veteran falls asleep while eating and has difficulty swallowing and is increasingly lethargic and confused. She described that after she returns home from work she feeds and bathes the Veteran and gets him ready for bed. In June 2013 testimony, the Veteran stated that the medication he takes for his service-connected back disability sedates him, which causes him fall asleep while eating. The Veteran also testified he soiled his wheelchair and his wife had to clean him up and that his wife helps him with bathing and dressing because he cannot bend over. The Veteran's spouse also testified that she quit her job three years ago to stay home and care from him. The Veteran's spouse also described that the Veteran falls down because he does not have control of his feet as he cannot feel his feet. A May 2013 medical letter, from the Veteran's physician, Dr. W. Michael Lewis, stated the Veteran has a history of advanced lumbar spondylitis, degenerative disc disease, post laminectomy syndrome, lumbar radiculopathy and chronic pan syndrome and is taking high dosages of multiple controlled medications for his problems. The May 2013 letter stated the Veteran required the assistance of a caregiver in dressing, bathing, toileting, cleaning after soiling himself, pushing a wheelchair, getting out of bed, shaving, transportation, preparation of foods and feeding at times. Finally, the April 2014 VA spine examination described the functional impact the Veteran's back condition as limitations of walking, sitting to standing, bending, lifting, putting on shoes and socks, needs assistance toileting, and unable to bathe. While the April 2014 spine examination described the functional impact in terms of the Veteran's ability to work, some of the limitations identified are daily activities applicable in context of this appeal such as assistance with toileting, problems bathing and dressing. In this case, evidence of record reflects that the Veteran's service-connected disabilities have rendered him dress or undress himself or to keep himself ordinarily clean and presentable; and unable to attend to the wants of nature. Thus, the Veteran's service-connected status post discectomy L5-S1, rated as 50 percent disabling, radiculopathy of left lower extremity, require the regular aid and attendance of another person. Specifically, the July 2010 peripheral nerves examination report shows that the Veteran was severely affected with respect to dressing and toileting due to his service-connected disabilities. This was echoed in reports described above the Veteran's private physician, although it was not entirely clear such were attributed solely to the Veteran's service-connected disabilities. Nonetheless, the Veteran and other family members noted that the Veteran needed help dressing, bathing, and toileting due to his service-connected disabilities, as such prevented bending and impeded walking. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Furthermore, the Board finds the lay statements of the Veteran and other family members to be credible given that they are consistent with the treatment records. While the evidence of record shows that the Veteran may experience difficulties due to nonservice-connected disorders, such as depression, and the evidence is not clear as to whether some difficulties described are in fact related to a service-connected disability, such as falling asleep while eating due to prescription mediations. However, the Board finds that the facts demonstrate the need for regular aid and attendance for the performance of certain daily activities as specifically described above. See generally Turco, supra (eligibility for special monthly compensation by reason of regular need for aid and attendance requires that at least one of the factors set forth in VA regulation is met, but not all). Thus, the Board finds that the evidence of record is at least in equipoise as to whether the Veteran requires the regular aid and attendance of the another person due to his service-connected disabilities. Accordingly, resolving the benefit of the doubt in favor of the Veteran, the Board finds that the Veteran is in need of the regular aid and attendance of another person due to his service-connected disabilities. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As such, special monthly compensation based on regular need for aid and attendance of another person is warranted. ORDER Entitlement to special monthly compensation based on the need for regular aid and attendance of another person is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs