Citation Nr: 1622587	
Decision Date: 06/06/16    Archive Date: 06/21/16

DOCKET NO.  08-24 084	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines

THE ISSUES

1. Entitlement to special monthly compensation (SMC) on the basis of the need for regular aid and attendance (A&A) of another person or based on being permanently housebound.

2. Entitlement to automobile or other conveyance and adaptive equipment or adaptive equipment only.

3. Entitlement to specially adapted housing.

4. Propriety of the reduction of the evaluation of coronary artery disease (CAD) from 60 percent to 30 percent, effective April 27, 2015.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant
ATTORNEY FOR THE BOARD

Michael Sanford, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1974 to May 1980 and from September 1980 to May 1987.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii.  Subsequently, jurisdiction was transferred to the RO in Manila, the Republic of the Philippines.

In September 2009, the Veteran testified via live videoconference before a Veterans Law Judge.  A transcript is of record.  The law requires that the Veterans Law Judge who conducts a hearing on appeal must participate in any decision made on that appeal.  38 U.S.C.A. § 7107(c) (West 2014); 38 C.F.R. § 20.707 (2015).  In March 2016, the Board sent a letter to the Veteran which explained that the Veterans Law Judge who presided over his hearing was no longer available to participate in the appeal.  The Board offered the Veteran a hearing before a different Veterans Law Judge.  If the Veteran did not respond within 30 days, the case would be reassigned.  No response was received from the Veteran.  As such, the Board will proceed with the matter on appeal.

In May 2010, the Board remanded this matter for further evidentiary development.

The Board acknowledges the Veteran's submissions of notices of disagreement for the issues of service connection for diabetes mellitus and a right knee disability, whether the effective date for the removal of M. as a dependent was proper, and entitlement to additional allowances for H.P., P.B., and P.B.  However, as it appears the RO is developing these issues for appeal, Board action is not appropriate at this time.

The issues of entitlement to automotive adaptive equipment, specially adapted housing, and the propriety of the reduction in the evaluation for CAD are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDING OF FACT

The evidence is approximately evenly balanced as to whether the Veteran's service connected disabilities cause incapacity that requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment.


CONCLUSION OF LAW

The criteria for SMC based on the need for regular A&A have been met.  38 U.S.C.A. §§ 1114(l), 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.350, 3.352(a) (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

To the extent the actions taken herein below are favorable to the Veteran and considered a full grant of benefits requested with respect to the only issue on appeal, further discussion of the VCAA is not necessary at this time.


A&A

Under 38 U.S.C.A. § 1114(l), 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 the Veteran is in need of regular aid and attendance of another person: the 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 such aid; inability of the Veteran to feed himself because of the loss of coordination of upper extremities or because of extreme weakness; and the 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.  38 C.F.R. § 3.352(a).

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).

The Veteran is service-connected for headaches (50 percent disabling), adjustment disorder with depressed/anxious mood with memory problems (50 percent disabling), asthma (30 percent disabling), CAD (30 percent disabling), lumbar spondylosis with degenerative disc disease, L3-L4 (20 percent disabling), hypertension (10 percent disabling), recurrent left knee strain (10 percent disabling), right tibial stress fracture (10 percent disabling), left tibial stress fracture (10 percent disabling), and hypertensive retinopathy (10 percent disabling).  His current combined disability rating is 100 percent.  He has been in receipt of a total disability rating due to individual unemployability (TDIU) since June 11, 2001.

The evidence is in equipoise as to whether that the Veteran's service-connected adjustment disorder with depressed/anxious mood with memory problems renders the Veteran so helpless as to be in need of regular aid and attendance of another person.

At his September 2009 Board hearing, the Veteran testified to regularly needing an attendant to ensure that he takes his medication because of memory loss.  See Board Hearing Transcript at 12.

The Veteran was afforded a VA examination in August 2010.  There, the examiner stated stress and forgetfulness, during periods of instability, due to the Veteran's service-connected psychiatric disorder can cause the Veteran to require the assistance of another person to manage his finances and remind the Veteran to take his medication.  The examiner recommended a psychiatric evaluation to determine the extent of the Veteran's problems.

In April 2011, the Veteran was afforded another VA examination.  There, the examiner concluded that "memory problems" require the Veteran to need assistance in remembering to eat, take his medications and dress appropriately.  The examiner concluded that the Veteran would need the aid and assistance of another individual during periods of low back pain, dizziness and forgetfulness.

The Veteran was afforded a VA psychiatric examination in July 2011.  There, the examiner concluded that the Veteran's periods of extreme stress and forgetfulness were sporadic and, given the sporadic nature of the exacerbations, the Veteran did not require the regular aid and attendance of another individual.

The above reflects that the evidence is in equipoise as to whether the Veteran's service-connected adjustment disorder with depressed/anxious mood with memory problems renders the Veteran so helpless as to be in need of regular aid and attendance of another person.   At his September 2009 Board hearing, the Veteran testified to regularly needing an attendant to ensure that he takes his medication because of memory loss.  The Veteran is competent to report such and the Board finds his testimony credible.  Moreover, this testimony is consistent with the August 2010 and April 2011 VA examiners' statements indicating that the exacerbations of the Veteran's service-connected psychiatric disability required the aid and attendance of another individual to assist with his medication.  The issue in this case is whether the Veteran's need for an attendant to ensure he takes medication is "regular" under 38 C.F.R. § 3.352(a).  The Board notes that this term is not defined by the regulation.  While the July 2011 VA examiner described the Veteran's manifestations as sporadic, the other evidence of record, including the competent and credible lay evidence, indicates a regular need for aid and attendance.  The evidence is thus approximately evenly balanced on this question.  As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to SMC based on the need for A&A is therefore warranted.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

The Board need not decide whether the Veteran is entitled to SMC at the housebound rate because that matter is moot, as SMC based on the need for A&A is the greater monetary benefit and the evidence does not indicate a disability other than his service-connected psychiatric disability renders the Veteran housebound.  Compare 38 U.S.C.A. § 1114(l) with 1114(s).

ORDER

SMC based on a need for A&A of another person is granted, subject to controlling regulations governing the payment of monetary awards.

REMAND

As noted above in the introduction, the Veteran has filed a notice of disagreement with respect to the RO's denial of service connection for diabetes mellitus and a right knee disability.  As it appears the RO is developing these issues for appeal, appellate action at this time is not appropriate.

However, in a January 2016 rating decision, the RO denied entitlement to automobile or other conveyance and adaptive equipment or adaptive equipment only, specially adapted housing and reduced the disability rating for service-connected CAD.  In a February 2016 notice of disagreement, the Veteran disagreed with those determinations.  It is not apparent that the RO is developing these issues for appeal.  When a veteran files a timely notice of disagreement, and the RO has not issued a statement of the case, a remand is warranted to remedy this procedural deficiency.  See 38 C.F.R. § 19.9(c) (2015), codifying Manlincon v. West, 12 Vet. App. 238 (1999).  On remand, the Veteran will have the opportunity to file a timely substantive appeal if he wishes to complete an appeal as to this matter

Accordingly, the issues of entitlement to automotive adaptive equipment, specially adapted housing, and the propriety of the reduction in the evaluation for CAD is REMANDED for the following action:

Take appropriate action pursuant to 38 C.F.R. § 19.26 in response to the February 2016 NOD concerning the Veteran's claims for entitlement to automobile or other conveyance and adaptive equipment or adaptive equipment only, specially adapted housing, and whether the reduction of the disability rating for service-connected CAD was proper, including issuance of an SOC. Only if a timely substantive appeal is filed should these issues be returned to the Board.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



______________________________________________
Jonathan Hager
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs