Citation Nr: 1646715	
Decision Date: 12/13/16    Archive Date: 12/21/16

DOCKET NO.  15-09 927	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUE

Entitlement to special monthly compensation (SMC) based upon the need for regular aid and attendance prior to May 20, 2016.  


ATTORNEY FOR THE BOARD

G. Fraser, Associate Counsel


INTRODUCTION

The Veteran served on active duty from April 1957 to January 1958, and October 1961 to August 1962.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C.A. § 7107(a)(2) (West 2014).

FINDING OF FACT

The evidence shows the Veteran's service-connected lumbar spine disability has resulted in functional impairments that necessitated the regular aid and attendance of another person to bath, feed, and ambulate throughout the entire period of the claim.


CONCLUSION OF LAW

The criteria for special monthly compensation on the basis of the need for regular aid and attendance of another person have been met.  38 U.S.C.A. §§ 1114 (l), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.350(b), 3.352(a) (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

As explained below, the Board has determined that the evidence currently of record is sufficient to substantiate the Veteran's claim for entitlement to SMC based upon the need for aid and attendance.  Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2014) or 38 C.F.R. § 3.159 (2016).

Legal Criteria

Special monthly compensation is payable under 38 U.S.C.A. § 1114(l) if, as the result of service-connected disability, the Veteran is permanently bedridden or is so helpless as to be in need of regular aid and attendance of another person.  38 U.S.C.A. § 1114(l) (West 2014); 38 C.F.R. § 3.350(b) (2016). 

Need for aid and attendance means being so helpless as to require the regular aid and attendance of another person.  38 C.F.R. § 3.350(b).  As it pertains to the present case, criteria for establishing such need include whether the Veteran is permanently bedridden or is so helpless as to be in need of regular aid and attendance as determined under criteria enumerated under 38 C.F.R. § 3.352(a).  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:  (1) inability of the Veteran to dress or undress himself, or to keep himself 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 such aid; (3) inability of the Veteran to feed himself because of the loss of coordination of upper extremities or because of extreme weakness; (4) inability to attend to the wants of nature; or (5) physical or mental incapacity 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) (2016).

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 is a constant need for aid and attendance.  38 C.F.R. § 3.352(a); see Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in § 3.352(a) must be present to grant special monthly compensation based on the need for aid and attendance).

Burden of Proof

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  

To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Factual Background and Analysis

The Veteran asserts he is entitled to SMC because he requires the regular aid and attendance of his spouse.  He specifically contends the functional impairments caused by his service-connected lumbar spine disability render him unable to dress, feed, and bathe himself, as well as perform other essential activities of daily living without his wife's assistance.  

In the instant case, service connection is in effect for intervertebral disc syndrome, status post laminectomy and discectomy, rated as 60 percent disabling; as well as hemorrhoids, a low back scar, and bilateral hearing loss, each noncompensably rated.  The Veteran has been in receipt of a total evaluation based on individual unemployability resulting from his service-connected low back disability since March 1992.  In a June 2016 rating decision, the Appeal Management Center (AMC) in Washington, D.C. established entitlement to SMC at the "l" rate based on the Veteran's need of regular aid and attendance as a result of his service-connected lumbar spine disability.  Entitlement to this benefit was established from May 20, 2016, which was the date of a VA medical opinion; however, the Board finds the evidence supports a grant of SMC based on the need for aid and attendance of another person throughout the entire period of the claim.  

In support of this claim, the Veteran has submitted a VA Form 21-2680 (Examination for Housebound Status or Permanent Need for Regular Aid and Attendance) completed by his VA primary care physician at the Loma Linda VAMC.  In sum, the Veteran's treating physician indicated his low back disability rendered him unable to prepare his own meals, independently bathe, and administer self-hygiene.  The clinician stated the Veteran was unable to bend, stand, or ambulate sufficiently to tend to these basic functions of daily living because of his low back pain. 

In October 2011 the Veteran submitted a self-completed questionnaire, wherein he chronicled many of his functional impairments.  Specifically, the Veteran indicated he needed assistance to travel beyond his immediate vicinity, as well as daily assistance showering.  He reported difficulty with balancing and standing.  In addition, the Veteran stated his wife cooked all meals, and reported his spine disability resulted in stiffness, fatigue, spasms, and weakness.  The Board finds the Veteran competent to report such manifestations and impairments.  

In addition, the Veteran underwent a VA aid and attendance examination in November 2011.  In the course of this examination, the examiner found the Veteran exhibited poor balance and difficulty standing.  He noted the Veteran's inability to independently shower, cook, or walk.  On examination, the examiner described the Veteran displayed a stooped posture, and inability to walk unrestricted as a result of his back disability.  The Veteran was also noted to have difficulty with weight bearing, with generalized muscle atrophy noted.  

The Board does note a November 2013 advisory determination by the Director of Compensation Service, which in sum found the Veteran's non-service connected disabilities could also impact upon his ability to perform activities of daily living.  In addition, the Director of Compensation Service found the evidence did not show the service-connected disabilities alone cause the need for aid and attendance.  However, the Director wholly failed to discuss how or why he discounted the above-noted evidence clearly indicating the Veteran's low back disability alone rendered him in need of the aid and attendance of another.  As such, the Board has afforded this determination only slight probative value.  In addition, the Board also notes a VA Form 21-0820 (Report of Contact) between a member of the AMC and the clinician that performed the Veteran's May 20, 2016 examination.  In this report, the clinician was purportedly asked whether the Veteran required aid and attendance from the date he submitted his claim, or only since the date of his May 2016 examination.  The examiner reportedly stated "just the date of the exam."  The Board also affords this remark slight probative value, as there is no indication the examiner reviewed the file prior to answering this question, and the examiner provided no explanation for this answer.  

The Board has reviewed the complete record and concludes that the most probative evidence supports the Veteran's assertions.  Specifically, the Board observes that both the November 2011 VA examiner and the Veteran's primary care physician at VAMC Loma Linda have indicated his difficulties with bathing, walking, standing, bending, dressing, undressing, and cooking result from his low back disability.  In addition, these examiner's both indicated the Veteran required the aid and attendance of another to perform these activities of daily living.  The Board does observe and appreciate the Veteran's numerous non-service connected maladies; nonetheless, the Board finds the evidence is, at the very least, in equipoise as to whether the Veteran has needed of the regular aid and attendance of another person due to his service-connected lumbar spine disability throughout the period of the claim.  

Accordingly, after resolving all reasonable doubt in favor of the Veteran, the Board finds an equal weight of the evidence demonstrates he has required aid and attendance of another due to his service-connected disabilities throughout the period of the claim.  38 C.F.R. §§ 3.102 (2016); see also Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990).


ORDER

Entitlement to special monthly compensation on the basis of the need for regular aid and attendance is granted throughout the entire claim period.



____________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs