Citation Nr: 1552412 Decision Date: 12/15/15 Archive Date: 12/23/15 DOCKET NO. 09-15 428 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to special monthly compensation (SMC) in excess of the M 1/2 rate prior to November 21, 2008; and in excess of the N rate beginning November 21, 2008. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. Haddock, Counsel INTRODUCTION The Veteran had active naval service from October 1977 to September 1981. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Jurisdiction over the case was subsequently transferred to the VA RO in Waco, Texas. In connection with this appeal, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in May 2012 and accepted that hearing in lieu of an in-person hearing before a member of the Board. A transcript of that hearing has been associated with the claims file. This case was previously before the Board in July 2012, at which time the Board issued a partial grant of the Veteran's SMC claim. Also, the Board remanded the matter of entitlement to SMC at the O rate in light of the Veteran's assertions that the O level was warranted, the fact that the criteria for the O rate involves an entirely different set of criteria than the set of requirements regarding the matter granted by the Board at that time, and the fact that additional evidentiary development was necessary on the matter of entitlement to SMC at the O level. The case has now been returned to the Board for further appellate action. FINDINGS OF FACT 1. Prior to November 21, 2008, the Veteran was in receipt of SMC at the M rate for blindness with no light perception (NLP) in the left eye and visual acuity of 5/200 in the right eye; and beginning November 21, 2008, he was in receipt of SMC at the M1/2 rate for blindness with NLP in the left eye and light perception only (LPO) in the right eye. 2. The Veteran was granted entitlement to service connection for a psychiatric disability, rated 70 percent disabling, effective August 2, 2007, and has required regular aid and attendance of another solely as a result of symptoms from that disability since the effective date of service connection. 3. Beginning August 2, 2007, the Veteran had separate disabilities entitling to two rates (no condition being considered twice) provided in 38 U.S.C.A. § 1114(l) through (n); and he has had a factual need for regular aid and attendance of another person for that period. CONCLUSION OF LAW The criteria for payment of SMC at the R(1) rate have been met for the period beginning August 2, 2007. 38 U.S.C.A. §§ 1114, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.350, 3.352 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist 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 assistance would aid in substantiating the claim. VA must also notify the claimant of any information, and any medical or lay evidence, not previously provided to VA that is necessary to substantiate the claim. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). As part of the notice, VA must 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. Notice to a claimant should be provided at the time or immediately after, VA receives a complete or substantially complete application for benefits. 38 U.S.C.A. § 5103(a) (West 2014); Pelegrini v. Principi, 18 Vet. App. 112, (2004). The timing requirement applies equally to the effective date element of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that the Veteran was provided adequate notice in response to his claim. The record shows that the Veteran was mailed a letter in September 2007 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. The September 2007 letter also provided the Veteran with appropriate notice with respect to the disability rating and effective date elements of his claim. The Board also finds the Veteran has been afforded adequate assistance in response to his claim. His service medical records are of record. VA Medical Center treatment notes have been obtained. The Veteran has been provided appropriate VA examinations. Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claim. The Board is also unaware of any outstanding evidence. The Board acknowledges that, in November 2015, the Veteran requested another videoconference hearing. Significantly, however, in light of the Board's decision herein to grant SMC at the R(1) rate, a level greater than the Veteran's requested O rate, the Board finds no prejudice to him in proceeding with the following award. Legal Criteria SMC based on the need for aid and attendance of another is payable when the Veteran, due to service-connected disability, is permanently bedridden or has such significant service-connected disabilities as to be in need of regular aid and attendance. 38 U.S.C.A. § 1114 (l) (West 2014). The criteria for determining when a veteran is so helpless as to be in need of regular aid and attendance, including a determination that he is permanently bedridden, are contained in 38 C.F.R. § 3.352 (a) (2015). 38 C.F.R. § 3.350 (b)(3)-(4) (2015). The following will be considered in determining the need for regular aid and attendance: inability of claimant 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 (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of claimant 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. Bedridden, will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that the 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) (2015). It is not required that all of 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 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 claimant'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) (2015). In the event that the Veteran's service-connected disabilities exceed the requirements for any of the rates, the Secretary may allow the next higher rate, or an intermediate rate. 38 U.S.C.A. § 1114(p) (West 2014). SMC provided by 38 U.S.C.A. § 1114(p) for blindness in one eye with 5/200 visual acuity or less and anatomical loss of, or blindness having NLP in the other eye, will entitle to a rate equal to 38 U.S.C.A. § 1114(m). 38 C.F.R. § 3.350(f)(2)(ii) (2015). SMC provided by 38 U.S.C.A. § 1114(p) for blindness in one eye having LPO and anatomical loss of, or blindness having NLP in the eye, will entitle to a rate between 38 U.S.C.A. § 1114(m) and (n). 38 C.F.R. § 3.350(f)(2)(iii) (2015). SMC provided by 38 U.S.C.A. § 1114(o) is payable for any of the following conditions: (i) anatomical loss of both arms so near the shoulder as to prevent use of a prosthetic appliance; (ii) conditions entitling to two or more rates (no condition being considered twice) provided in 38 U.S.C.A. § 1114(l) through (n); (iii) bilateral deafness rated at 60% or more disabling (and the hearing impairment in either one or both ears is service-connected) in combination with service-connected visual acuity 20/200 or less; and, (iv) service-connected total deafness in one ear or bilateral deafness rated 40% or more disabling (and the hearing impairment in either one or both ears is service-connected) in combination with service-connected blindness of both eyes having LPO or less. 38 C.F.R. § 3.350(e) (2015). A veteran receiving the maximum rate under 38 38 U.S.C.A. § 1114(o) or (p) who is in need of regular aid and attendance or a higher level of care is entitled to an additional allowance during periods he or she is not hospitalized at United States Government expense. Determination of this need is subject to the criteria of 38 C.F.R. § 3.352. The regular or higher level aid and attendance allowance is payable whether or not the need for regular aid and attendance or a higher level of care was a partial basis for entitlement to the maximum rate under 38 U.S.C.A. § 1114(o) or (p), or was based on an independent factual determination. 38 C.F.R. § 3.350(h)(1) (2015). When there is an approximate balance of positive and negative evidence on an issue material to a determination, VA resolves reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2015); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis The Veteran asserts that his service-connected disabilities are severe enough as to warrant SMC at the O rate. See February 2014 written statement. Further review of the record shows that the Veteran has been service-connected for legal blindness since October 1981 and that he has been in receipt of a 100 percent rating for that disability since January 1, 1986. From August 21, 2006, the Veteran was shown to have NLP in his left eye and visual acuity of 5/200 in his right eye. Beginning November 21, 2008, he has been shown to have NLP in his left eye and LPO in his right eye. Based on those findings, the Veteran has been in receipt of payment of SMC benefits at the M rate prior to November 21, 2008, and at the M1/2 rate beginning November 21, 2008, for decreased visual acuity resulting from his blindness alone. Beginning August 2, 2007, the Veteran was granted service connection for a psychiatric disability, rated as 70 percent disabling, and for migraine headaches, rated as 50 percent disabling. At an April 2011 VA psychiatric examination, the examination upon which the Veteran's 70 percent rating for his psychiatric disability was based, he was noted to have impaired impulse control, delusions and hallucinations, significant sleep impairment, and suicidal and homicidal ideations. The examiner noted that the Veteran had rather serious impairment as a result of his psychiatric disability and that he was incapable of managing his own financial affairs as a result of his poor impulse control and tendency toward self-defeating action. Further, it was noted that the Veteran relied on his wife for self-care needs as his helplessness and hopelessness caused him to perform well below his capabilities. The Board finds that the April 2011 VA psychiatric examination and findings are adequate because the examiner thoroughly reviewed the claims file and discussed the relevant evidence, considered the contentions of the Veteran, and provided a thorough supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). At a November 2012 VA psychiatric examination, the examiner opined that the Veteran did not need regular aid and attendance of another person solely as a result of his service-connected psychiatric disability. In this regard, the examiner noted that, while the Veteran reported frequent suicidal thoughts, he was not deemed to be in constant danger of hurting himself based on the examiner's assessment that the Veteran would not act upon his suicidal thoughts. Rather, it was the examiner's opinion that the Veteran required regular aid and attendance of another person based on a combination of his legal blindness and psychiatric disability. The Board finds the November 2012 VA opinion to be inadequate for adjudication purposes. Specifically, the examiner did not adequately address the contentions of the Veteran and completely failed to address the prior findings of record indicating that the Veteran was unable to engage in self-care as a result of his feelings of hopelessness and that the Veteran was unable to manage his own affairs as a result of his impaired impulse control and self-defeating actions. Therefore, the Board finds the November 2012 VA opinion to be inadequate and of little probative value. Accordingly, based on the April 2011 VA psychiatric examination report, the Board finds that the Veteran is in need of regular aid and attendance of another person solely as a result of his service-connected psychiatric disability beginning August 2, 2007. The Board acknowledges that the April 2011 psychiatric examination was conducted several years after August 2, 2007. However, the April 2011 VA psychiatric examination is the examination upon which the Veteran's 70 percent rating for his psychiatric disability is based. Further, the rating was granted effective the original date of service connection for the psychiatric disability. Therefore, the findings of that examination are representative of the symptoms experienced by the Veteran since August 2, 2007, thus warranting additional payment of SMC at the L rate since that date. 38 C.F.R. § 3.350(b) (2015). As noted above, the Veteran has been in receipt of SMC at the M rate since at least August 2, 2007, for the decreased visual acuity resulting from his service-connected blindness. Also, as discussed above, he required regular aid and attendance of another person solely as a result of his service-connected psychiatric disability since August 2, 2007, which would warrant payment of SMC at the L rate. Therefore, beginning August 2, 2007, the Veteran met the criteria for payment of SMC at the O rate as he had conditions entitling to two or more rates (no condition being considered twice) provided in 38 U.S.C.A. § 1114(l) through (n). The Board acknowledges the fact that the Veteran was granted service connection for a psychiatric disability as secondary to his service-connected blindness. However, the Board finds that the symptoms warranting SMC resulting from each disability are separate and distinct. Thus, no disability is being considered twice for purposes of determining whether the Veteran should be entitled to payment of SMC at the O rate. Finally, the Board finds that the Veteran is entitled to SMC at the R(1) rate beginning August 2, 2007, as he warranted payment of SMC at the O rate and, as discussed above, had a factual need for regular aid and attendance of another person. 38 C.F.R. § 3.350 (h)(1) (2015). The Board has considered whether the Veteran should be paid SMC at a higher rate prior to August 2, 2007. However, prior to that date, the Veteran was only service-connected for his bilateral blindness and was properly in receipt of payment of the correct level of SMC warranted for the severity of his bilateral blindness. Thus, payment of SMC at a higher rate than already awarded is not warranted prior to August 2, 2007. 38 U.S.C.A. § 1114 (West 2014); 38 C.F.R. § 3.350 (2015). ORDER Entitlement to SMC at the rate of R(1) beginning August 2, 2007, is granted. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs