Citation Nr: 1632574 Decision Date: 08/17/16 Archive Date: 08/24/16 DOCKET NO. 13-13 032 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for low back disability with right lower extremity radiculopathy. 2. Entitlement to service connection for heart palpitations with angina. 3. Entitlement to service connection for epilepsy. 4. Entitlement to service connection for restless leg syndrome. 5. Entitlement to special monthly pension based on the need for regular aid and attendance or another person or on being housebound. REPRESENTATION Appellant represented by: Kenneth LaVan, Attorney ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active duty from August 1972 to November 1974. This appeal comes before the Board of Veterans' Appeals (Board) from a July 2010 rating decision of the Department of Veterans Affairs (VA) Atlanta Regional Office (RO), denying entitlement to service connection for a low back disability with right lower extremity radiculopathy. This appeal also comes before the Board from a May 2012 RO decision denying service connection for heart palpitations with angina, epilepsy, and restless leg syndrome, and denying entitlement to special monthly pension based on the need for aid and attendance or being housebound. The issues of entitlement to service connection for low back disability with right lower extremity radiculopathy and service connection for restless leg syndrome are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. FINDINGS OF FACT 1. In March 2016, prior to the promulgation of a decision in this appeal, the Board received notification from the Veteran's attorney that the Veteran wished to withdraw his pending appeal as to the claims for service connection for heart palpitations with angina and for epilepsy. 2. Due to physical and mental disabilities, the Veteran requires the regular aid of another to assist with activities of daily living and to protect him from ordinary hazards of his environment. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the claim for service connection for heart palpitations with angina have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015). 2. The criteria for withdrawal of the appeal of the claim for service connection for epilepsy have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015). 3. The criteria for special monthly pension benefits based on the need for aid and attendance have been met. 38 U.S.C.A. §§ 1502, 1521, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.351, 3.352 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawn Claims Under 38 U.S.C.A. § 7105 the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. An appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his authorized representative. Id. In March 2016, prior to the promulgation of a decision by the Board, the Veteran, through his attorney, submitted a statement indicating his desire to withdraw his pending appealed claims of entitlement to service connection for heart palpitations with angina and entitlement to service connection for epilepsy. There remains no allegation of error of fact or law for the Board to address as to these two claims. Accordingly, the Board does not have jurisdiction to review the appeals of these claims, and hence the appeals as to these to claims are dismissed. Special Monthly Pension The Appellant seeks special monthly pension benefits based on the need for aid and attendance. Veterans who are currently receiving a non-service-connected pension can receive an additional pension if the veteran needs the aid and attendance of another person as defined by 38 C.F.R. § 3.352. 38 C.F.R. § 3.351. Specifically, special monthly pension benefits are warranted if a veteran is in need of regular aid and attendance. 38 U.S.C.A. § 1521(d) (West 2014). The need for aid and attendance is defined as helplessness or being so nearly helpless as to require the regular aid and attendance of another person. 38 C.F.R. § 3.351(b). A veteran shall be considered to be in need of regular aid and attendance if: he 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). A factual need for aid and attendance includes the inability to dress, undress, keep ordinarily clean and presentable, feed oneself through loss of coordination of the upper extremities or through extreme weakness, or attend to the wants of nature. It includes the frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid. A need for aid and attendance also includes either physical or mental incapacity that requires care or assistance on a regular basis to protect against the hazards or dangers incident to the daily environment. Additionally, an individual who is bedridden, as that term is defined by regulation, meets the criteria for aid and attendance. 38 C.F.R. § 3.352(a). Bedridden is defined as a condition that, through its essential character, actually requires that the veteran remain in bed. The fact that a veteran 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). The particular personal functions which the veteran is unable to perform should be considered in connection with his condition as a whole. The evidence need only establish that the veteran is so helpless as to need regular aid and attendance, not constant need. Determinations that a veteran is so helpless as to need regular aid and attendance will not be based solely upon an opinion that the veteran's condition requires 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). The veteran must be unable to perform one of the enumerated essential activities of daily life. Turco v. Brown, 9 Vet. App. 222, 224 (1996). The RO by an August 2009 decision granted entitlement to non-service-connected pension based on permanent and total disability. The Veteran was afforded a VA examination in November 2011 addressing questions of need for aid and attendance of another or housebound status. Relevant medical conditions listed in the report included chronic back pain and lumbar post-laminectomy syndrome, palpitations, vision difficulty, peripheral nerve disease, anxiety, and diabetes. The Veteran reportedly needed supervision when feeding himself, which supervision his sister who lives with him provided; having all his meals prepared by his sister; and being monitored with and assisted with activities of daily living including monitoring bathing to reduce risk of falls. The Veteran was thus noted to be dependent on his sister for activities of daily living (ADLs) and instrumental activities of daily living (IADLs - such as housework and preparing meals). Some of this dependence was attributed to his having right side weakness. The Veteran reportedly tried to perform self-care needs but it took him a very long time to complete tasks. He was also noted to have issues with bowels, dizziness, some memory loss, and poor balance. The examiner noted that the Veteran is not blind and did not require nursing home care. However, the Veteran's sister was his primary caregiver and she assisted with medication management. The Veteran was observed to walk with a cane with an unsteady gait. He was also noted to have a walker, wheelchair, and braces for the leg, back, and knee. The Veteran reportedly mainly left home for medical appointments, and otherwise sat under a tree in his yard. The examiner assessed that the Veteran was able to walk one block with the use of a cane or braces or with the assistance of another. Recent treatment records reflect that prior to his sister living with him to provide assistance, the Veteran had required an in-home aid for several hours per day to assist with activities of daily living and to help protect the Veteran from hazards of daily life. VA treatment records from 2011 also reflect the Veteran being overwhelmed by the number of medications he takes. These records reflect 18 distinct medications for his varied disabilities, each with different dosing instructions. After resolving all doubt in the Veteran's favor, the Board finds the Veteran does require the aid and attendance of another person to perform the personal functions required in everyday living, or ADLs, and/or to protect him from hazards or dangers incident to daily life, due his physical and mental disabilities and the myriad difficulties associated with his multiple medical problems, including difficulties with proper care for these medical problems, which of necessity includes appropriate medication administration. Accordingly, entitlement to special monthly pension based on the need for regular aid and attendance is warranted. 38 C.F.R. § 3.102. ORDER The appeal of the claim for service connection for heart palpitations with angina is dismissed. The appeal of the claim for service connection for epilepsy is dismissed. Entitlement to special monthly pension for aid and attendance is granted, subject to the criteria governing the payment of monetary awards. REMAND Very limited records from the Veteran's service were obtained and associated with the record. Nearly all service treatment records are absent. The RO in January 2012 prepared a memorandum detailing procedures followed to attempt to obtain service treatment records, and administratively determining that no service treatment records are available other than those already obtained. Efforts to obtain the records included a VCAA request to the Veteran in April 2009, a request through PIES (Personal Information Exchange System) for service treatment records in October 2009, a follow up letter to the Veteran in January 2010, and a request through PIES for entrance and separation examinations in May 2010 with a negative response. BIRLS LOC screen was reviewed, verifying that no records were located at PIES. The RO then determined that all procedures to obtain the service treatment records were followed, and that any further efforts to obtain them would be futile. However, as the Veteran's representative points out in a June 2016 appellate brief to the Board, the Veteran served under a different name, with his first name change subsequent to service. The RO's requests for service records in April 2009, August 2009, and May 2010 only requested these records under the Veteran's current name. While the Board notes that service treatment records are generally sought through use of Veteran's Social Security number or service number rather than his or her name, there remains a possibility that service treatment records were missed and remain available because searches were not made based on the Veteran's name at the time. VA is generally required to obtain all medical records in the government's custody, not simply those which it can most conveniently locate. See, e.g., Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009). Accordingly, the case is REMANDED for the following action: 1. Additional efforts should be undertaken to obtain the Veteran's service treatment records using his legal name at the time (listed in the A.K.A. line on the title page and in the header of each page of this Board decision), rather than his current (changed) name. All efforts to obtain these records must be documented in the record. The efforts must continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. 2. After any additional required development is accomplished, the record should again be reviewed. If the claims remain denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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). ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs