Citation Nr: 1641436 Decision Date: 10/24/16 Archive Date: 11/08/16 DOCKET NO. 03-08 894 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to special monthly compensation based on the need for regular aid and attendance or for being housebound. 2. Entitlement to specially adapted housing. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Casadei, Counsel INTRODUCTION The Veteran served on active duty from May 1979 to April 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the March 2005 and March 2007 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In October 2008, the Veteran testified at the RO before a Veterans Law Judge (VLJ) who is no longer employed at the Board. A transcript of that hearing is of record. In a July 2016 letter, the Board advised the Veteran that the VLJ from the July 2014 hearing was no longer employed at the Board and offered her the opportunity for a hearing before a new VLJ. That same month, the Veteran responded that she did not want a hearing with a new VLJ. The issues on appeal were previously remanded by the Board in August 2015 to obtain a new VA examination. This was accomplished, and the claims were readjudicated in a June 2016 supplemental statement of the case. For this reason, the Board concludes that that the Board's remand orders have been substantially complied with, and it may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). This appeal was processed using the Veterans Benefits Management System (VBMS). In evaluating this case, the Board has also reviewed the "Virtual VA" system to ensure a complete assessment of the evidence. FINDINGS OF FACT 1. The Veteran is not 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; is not a patient in a nursing home because of mental or physical incapacity; is not bedridden; and does not have a factual need for aid and attendance of another person demonstrated by an inability to care for most of her daily personal needs or protect herself from the hazards and dangers of her daily environment. 2. The Veteran's service connected disabilities are totally and permanently disabling, and result in the loss of use of both lower extremities so as to preclude locomotion without the aid of a walker, crutches, or a wheelchair. CONCLUSIONS OF LAW 1. The criteria for an award of SMC based on the need for the regular aid and attendance have not been met. 38 U.S.C.A. §§ 1114, 5107 (West 2014); 38 C.F.R. §§ 3.350, 3.353(a) (2015). 2. The criteria for establishing entitlement to specially adapted housing have been met. 38 U.S.C.A. §§ 2101, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.809 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2015). The claim for entitlement to specially adapted housing has been considered with respect to VA's duties to notify and assist. Given the favorable outcome of this decision (grant of special adapted housing), no conceivable prejudice to the Veteran could result from this decision regarding that claim. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159 (b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied. The RO sent the Veteran letters in January 2005 and June 2006 that informed her of the requirements needed to establish her claims. In accordance with the requirements of VCAA, the VA letter informed the Veteran what evidence and information he was responsible for obtaining and the evidence that was considered VA's responsibility to obtain. The Board is satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes service treatment records, post-service VA treatment records, and the Veteran's statements. In addition, the Veteran has been afforded adequate examinations on the issue regarding entitlement to SMC. VA provided the Veteran with VA examinations in February 2007 and June 2016. The Board finds that the conclusions reached by the February 2007 VA examiner are inadequate for the present claim, because they do not address whether the Veteran's service-connected disabilities by themselves require aid and attendance of another. 38 C.F.R. § 3.352 (a). The Board finds that the June 2016 VA examination is adequate. The Veteran's history was taken and a complete examination was conducted. Conclusions reached and diagnoses given were consistent with the examination reports. For these reasons, the Board finds that the Veteran has been afforded an adequate examination on the issues currently on appeal. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Significantly, the Veteran and his representative have not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). SMC Laws and Analysis Special monthly compensation is payable if as the result of service connected disability, the veteran has suffered the anatomical loss or loss of use of both feet, or of one hand and one foot, or is blind in both eyes, with 5/200 visual acuity or less, 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 2014); 38 C.F.R. § 3.350 (2015). The criteria for determining that a veteran is so helpless as to be in need of regular aid and attendance are contained in 38 C.F.R. § 3.352 (a) (2015). Determinations as to the need for aid and attendance are factual in nature and must be based upon the actual requirements for personal assistance from others. In making such determinations, consideration is given to such conditions as the: (1) Inability of the claimant to dress or undress him or herself or to keep him or herself ordinarily clean and presentable; (2) Frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without assistance; (3) Inability of the claimant to feed him or herself through loss of coordination of upper extremities or through extreme weakness; (4) Inability to attend to the wants of nature; or (5) Incapacity, either physical or mental, that requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352. It is not required however that all of the disabling conditions enumerated be present before a favorable rating may be made. The particular personal functions which the claimant is unable to perform should be considered in connection with his or her condition as a whole, and the need for aid and attendance must be regular, not that there be a constant need. 38 C.F.R. § 3.352 (a) (2015). An individual who is bedridden by reasons of service connected disability shall also be considered to require regular aid and attendance. "Bedridden" constitutes a condition that through its essential character actually requires that an individual remain in bed. The fact that a claimant has voluntarily taken to bed or that a physician has prescribed bedrest for a lesser or greater portion of the day to promote convalescence or cure will not suffice. Id. Under 38 U.S.C.A. § 1114 (s) (West 2014), special monthly compensation is payable at the housebound rate if the veteran has a single service-connected disability rated as 100 percent and either of the following are met: (1) there is additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or (2) he is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C.A. 1114 (s) (West 2014); 38 C.F.R. § 3.350 (i) (2015). The Veteran contends that she is entitled to Special Monthly Compensation (SMC) based on the need of aid and attendance of another due to her service-connected disabilities. The Veteran is service-connected for the following disabilities: major depressive disorder, rated as 70 percent disabling; fibromyalgia, rated as 40 percent disabling' hypothyroidism, rated as 30 percent disabling; plantar fasciitis, rated as 10 percent disabling; and bilateral hearing loss, rated as 0 percent disabling. She was also granted a total disability based on individual unemployability (TDIU) effective August 20, 1992. The Veteran has contended that she is in need of aid and attendance due to disabilities for which she is service connected. At her October 2008 hearing, she asserted that could not care for herself, that her hygiene was poor, and that she had the help of a nurse for the last four and a half years for four or five days per week, three to four hours per day (equating to a total of 12 to 20 hours weekly), with the nurse assisting her with bathing, dressing, doing her hair, and cooking meals. She added that her husband assisted her at other times. A VA aid and attendance examination in February 2007 accepted the Veteran's reports of needed care and assessed that she was a "total care case." However, the Board finds that the conclusions of this examiner are inadequate for the present claim, because they do not address whether the Veteran's service-connected disabilities by themselves require aid and attendance of another. 38 C.F.R. § 3.352 (a). In an April 2007 kinesiotherapy treatment record related to a knee disability, the therapist noted the Veteran's report that she tried to do as little walking as possible, and that she uses a power wheelchair. The therapist noted that the Veteran wished to be fitted for a knee brace, and questioned the need for this brace if indeed the Veteran does not walk. The therapist also noted that the relative extreme girth of her upper legs would preclude appropriate fitting of knee braces. A follow up by a VA therapist in June 2007 observed that, as predicted, the Veteran's knee braces had been ineffective as a result of difficulty keeping them on due to the shape of her legs. The therapist further noted that the Veteran had not walked very much in some time and used a power wheelchair for ambulation. However, while the Veteran sough to have the braces assist her in fully straightening her legs, the therapist observed that she was already able to fully straighten her legs without the braces, and noted that the Veteran has some mental health issues that impaired her comprehension. At a VA thyroid examination for compensation purposes in June 2007, the Veteran asserted that she was unable to stand or walk. However, a June 2007 VA therapy note rated the Veteran's ambulation at 7, which corresponded to "complete independence," despite her then being fitted with Lofstrand crutches and being considered a "fall risk." In March 2006 the Veteran was seen by a VA therapist and fitted with a dolomite platform rollator walker with uni-lock brakes. The therapist then noted that the Veteran was able to ambulate with a stable gait with use of the walker. A May 2007 VA treatment record noted the Veteran's request for a replacement "reacher" to assist her with activities of daily living. The Veteran was afforded a VA examination in January 2008 to address claimed plantar fasciitis, and the Veteran then noted that she used both orthotic insoles in her shoes and night splints. At that examination the Veteran asserted that she had extreme pain on the lateral plantar aspect of the right foot when standing, and asserted that she was unable to walk. That examiner diagnosed plantar fasciitis status post plantar fascia release in the right foot. The examiner did not address whether the persistence of plantar fasciitis was consistent with the Veteran's asserted non-ambulation. A June 2008 VA treatment record for urinary incontinence noted that the Veteran had an unsteady walk. In a January 2005 VA home health aide program consultation, it was concluded that the Veteran was capable of performing activities of daily living by herself, including dressing herself if clothes were laid out, independence of bathing with use of assistive devices, independence of toileting, independence of transferring, independence of feeding, and independence of ambulation with use of a cane or walker or else requiring assistance with stairs or uneven surfaces. The Veteran was noted to have no caregiver at that time. A VA record of referral for home health services by Gentiva Health Services (Gentiva), and an October 2005 initial care plan by a registered nurse (RN) with Gentiva included a home health aide to assist with activities of daily living (ADLs) and with ambulation as needed, one hour per day five days per week, and a housekeeper once per week for four hours of light housekeeping. This home health aide and homemaker aid was to be provided up to twelve hours per week as needed by the patient. A revisited plan by a Gentiva RN in November 2005 provided for home health aide or housekeeping service for up to twelve hours per week. The claims file also contains a letter dated in December 2005 from the home health aide assigned to the Veteran. The home health aide then informed that she provided assistance with the Veteran's bath, and performs housekeeping including vacuuming and dusting, washing dishes, making beds. She also then informed that the Veteran had a stroke with left side difficulties and as a result required a lot of assistance. She noted other difficulties the Veteran had included headaches, inability to bend to wash her feet, and frequent cramping of her hands. The Board notes that the house cleaning reported by this heath aide is not in the nature of aid and attendance contemplated under 38 C.F.R. § 3.352 (a). Further, neither left side difficulties due to stroke nor headaches are service-connected disabilities, and hence may not as a basis of special monthly compensation. 38 U.S.C.A. § 1114 (s) ; 38 C.F.R. § 3.350 (i). The claims file also contains a medical record note dated in December 2005 by a VA physician informing of the disabilities from which the Veteran suffers, and informing that most of these disabilities were likely to be permanent, adding that the Veteran has a home health aide for "assistance around the house, cleaning, cooking, washing, bathing, dressing for five days a week." However, the chronic and likely permanent disabilities noted by the physician feature several significant disabilities which are not service connected: gastroesophageal reflux disease (GERD), osteoarthritis, low back pain, left shoulder impingement, pain in the left side of body, incontinence of urine, and mini stroke many times in the past. Because the Veteran's claim for SMC must turn only on service-connected disabilities, need for aid and attendance due to nonservice-connected disabilities may not be considered. In May 2014 the Veteran was afforded a VA examination, however, that examination was conducted by a clinical psychologist, who assessed the present state of her mental disorders alone. The examination did not address her physical disabilities in any way. Accordingly, the Board finds that the May 2014 VA examination lacks probative value as it did not address all of the Veteran's service connected disabilities. Pursuant to the Board's most recent remand, the Veteran was afforded a June 2016 VA aid and attendance or housebound examination. During the evaluation, it was noted that the Veteran was not bedridden or hospitalized. The Veteran was also able to travel beyond her current domicile. Although the Veteran indicated that she had been driven by her husband to the examination, after the examination, the Veteran was noted to be able to maneuver and lift her walker into the back of her vehicle. She entered the driver's seat and drove the vehicle out of the parking lot. It was unknown to the examiner if Veteran's husband was in fact with her. Regarding daily activities, the Veteran reported that she sometimes made breakfast, watched TV, and did a "little laundry." She also reported that she used to have a nurse help her, but due to administrative causes, the nurse was no longer assisting with care and duties. According to the Veteran, the nurse helped her clean, get dressed, bathe, and cooked. The Veteran reported that she now used a shower chair. She also reported that getting dressed hurt. The Veteran indicated that generally her husband would drive, but she admitted that she would occasionally drive to church and the grocery store. Based on these reasons, the examiner opined that he Veteran did not need the regular aid and attendance of another person for either service connected conditions or non-service connected conditions. Given the above, the Board finds that entitlement to SMC by reason of the need for regular aid and attendance of another person or by reason of being housebound is not warranted. All requirements for this benefit on either basis are not met. In this regard, none of the Veteran's service-connected disabilities have been assigned a total 100 percent evaluation, so the prerequisite for the disability rating requirement for SMC by reason of the need for regular aid and attendance of another person or by reason of being housebound has not been satisfied. With respect to the Veteran being permanently bedridden, the Board finds that there is no indication that the Veteran is required to remain in bed as a result of his service-connected disabilities. Indeed, the June 2016 VA examiner specifically found that the Veteran was not confined to her bed. The Board acknowledges that the Veteran does need assistance with some activities of daily living, such dressing, bathing, and cooking. However, the Veteran has herself indicated that she is able to shower (with the assistance of a shower chair), drive herself to church and the grocery store, and perform some daily tasks, such as laundry and some cooking. See June 2016 VA examination report. Moreover, although there is some evidence that the Veteran uses a wheelchair, she has also been noted to be able to ambulate with the aid of a walker. As noted by the June 2016 VA examiner, the Veteran was able to maneuver and lift her walker into the back of her vehicle. She entered the driver's seat and drove the vehicle out of the parking lot. In the March 2006 VA therapist treatment record, the Veteran was noted to be able to ambulate with a stable gait with use of the walker. In the January 2005 VA home health aide program consultation, it was concluded that the Veteran was capable of performing activities of daily living by herself, including dressing herself if clothes were laid out, independence of bathing with use of assistive devices, independence of toileting, independence of transferring, independence of feeding, and independence of ambulation with use of a cane or walker or else requiring assistance with stairs or uneven surfaces. For the reasons outlined above, the evidence does not show that the Veteran's service-connected disabilities render her in need of regular aid and attendance. In sum, the Board finds that as the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and special monthly compensation based on the need for regular aid and attendance or for being housebound must be denied. 38 U.S.C.A. § 5107 (b) (West 2014). Specially Adapted Housing Laws and Analysis Entitlement to a certificate of eligibility for assistance in acquiring specially adapted housing is established when the evidence shows permanent and total service-connected disability due to the loss, or loss of use, of both lower extremities such as to preclude locomotion without the aid of braces, crutches, canes or a wheelchair. 38 U.S.C.A. § 2101 (a) (West 2014); 38 C.F.R. § 3.809 (b) (2015). (There are additional provisions pertaining to the cause of permanent and total disability that are not relevant here.) The term "preclude locomotion" is defined as the necessity for regular and constant use of a wheelchair, braces, crutches or canes as a normal mode of locomotion although occasional locomotion by other methods may be possible. 38 C.F.R. § 3.809 (d) (2015). The Veteran has been in receipt of a total disability rating due to individual unemployability (TDIU) since 1992. She therefore has permanent and total service connected disabilities. The evidence of record shows that the Veteran has been issued a walker, crutches, and wheelchair as a result of her service-connected disabilities. In a January 2005 VA home health aide program consultation, it was noted that the Veteran used a cane or walker for ambulation. In March 2006, the Veteran was seen by a VA therapist and fitted with a dolomite platform rollator walker with uni-lock brakes. In April 2007 and June 2007 kinesiotherapy treatment records related to the service-connected knee disability, the Veteran was noted to use a power wheelchair for ambulation. In the October 2015 VA knee and feet examinations, the Veteran was noted to use a "constant" walker to assist with locomotion. Further, although the June 2016 VA examiner indicated that she did not find a need for special housing adaptation, during the evaluation, the Veteran reported that she used crutches and a walker in the house as a wheelchair did not fit through her doorway. It was specifically noted by the examiner that the Veteran needed a walker for ambulation. Upon review of all the evidence of record, lay and medical, the Board finds that the evidence is at least in equipoise as to whether the Veteran's service-connected disabilities preclude locomotion without the aid of a walker, crutches, or power wheelchair. As such, resolving reasonable doubt in the Veteran's favor, the Board finds that entitlement to assistance in acquiring specially adapted housing is also warranted, and this claim is granted. ORDER Entitlement to special monthly compensation based on the need for regular aid and attendance or for being housebound is denied. Entitlement to specially adapted housing is granted. ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs