Citation Nr: 1702376	
Decision Date: 01/27/17    Archive Date: 02/09/17

DOCKET NO.  12-03 817	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1.  Propriety of the reduction of the evaluation for service-connected bilateral hearing loss from 90 percent to 30 percent, effective February 1, 2012.

2.  Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU).

3.  Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance for the Veteran's spouse.


REPRESENTATION

Veteran represented by:	Robert Brown, Jr., Attorney at Law


WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

Joshua Castillo, Associate Counsel


INTRODUCTION

The Veteran served on active duty from March 1960 to April 1961.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in August 2011 and November 2011 by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.

In July 2013, the Veteran testified at a Board video-conference hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is associated with the record on appeal.  In July 2014, the Board remanded the case for additional development and it now returns for further appellate review.

The Board observes that the Veteran has also perfected an appeal as to the issues of entitlement to service connection for scars and psoriatic arthritis, to include psoriasis; however, as he has requested a Board video-conference hearing before a Veterans Law Judge in connection with such appeal, those issues will be the subject of a separate Board decision issued at a later date.
 
This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems.  Additionally, as the Veteran is over 75 years of age, the Board grants a motion raised by the record to advance the case on the docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The issues regarding the propriety of the reduction of the evaluation for service-connected bilateral hearing loss and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDING OF FACT

The Veteran's spouse 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 a patient in a nursing home because of mental or physical incapacity; or demonstrates a factual need for aid and attendance.


CONCLUSION OF LAW

The criteria for an award of SMC based on the need for regular aid and attendance of the Veteran's spouse have not been met.  38 U.S.C.A. §§ 1114, 1115, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.350, 3.351, 3.352 (2016).
	

REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Due Process Considerations

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016).

In the instant case, VA's duty to notify was satisfied September 2011 letter, sent prior to the issuance of the rating decision on appeal.  See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A; 38 C.F.R. §§§ 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4).

In the instant case, the Board finds that all relevant facts have been properly developed and that all evidence necessary for equitable resolution of the issue decided herein has been obtained.  The Veteran's spouse's Social Security Administration (SSA) records, which include her relevant treatment records, as well as an October 2011 medical statement completed by her physician, have been obtained and considered.  The Veteran has not identified any additional, outstanding records that have not been requested or obtained.

The Veteran's spouse was also provided a VA examination in August 2014.  The examination is sufficient evidence for deciding the claim.  The report is adequate as it is based upon consideration of the Veteran's spouse's prior medical history and describes her disabilities in sufficient detail so that the Board's evaluation is a fully informed one, and contain reasoned explanation.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and/or opinion regarding the issue of entitlement to SMC based on the need for regular aid and attendance for the Veteran's spouse has been met.

The Veteran offered testimony before the undersigned Veterans Law Judge at a Board hearing in July 2013.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  

During the July 2013 hearing, the undersigned Veterans Law Judge noted the issues on appeal, which, in pertinent part, included the issue of entitlement to SMC based on the need for regular aid and attendance for the Veteran's spouse.  Additionally, testimony regarding the nature and severity of his spouse's disabilities was solicited, to include the type and frequency of the symptoms she experiences as well as the resulting limitations.  Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained.  See Bryant, 23 Vet. App. at 497.  Moreover, as a result of the Veteran's testimony, the Board determined that further evidentiary development was necessary, to include obtaining identified records from the SSA and affording her a VA examination so as to assess the nature and severity of her disabilities, to include their resulting limitations.  Under these circumstances, nothing gives rise to the possibility that evidence had been overlooked with regard to the Veteran's claim.  As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record.

Furthermore, Board finds there has been substantial compliance with the Board's July 2014 remand directives and no further action in this regard is necessary.  See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268, 271 (1998)).  In this regard, in July 2014, the issue of entitlement to SMC based on the need for regular aid and attendance for the Veteran's spouse was remanded in order to obtain the Veteran's spouse's SSA records and, thereafter, afford her a VA examination as to assess the nature and severity of her disabilities, to include their resulting limitations.  Subsequently, her SSA records were obtained in December 2014 and she was afforded a VA examination in August 2015.  Therefore, the Board finds that there has been substantial compliance with the Board's July 2014 remand directives, and no further action in this regard is necessary.

In light of the foregoing, the Board finds that VA's duties to notify and assist have been satisfied.  Thus, appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).

II.  Analysis

The Veteran seeks entitlement to SMC based on the need for regular aid and attendance for his spouse.

Under 38 C.F.R. § 3.351(a)(2), SMC is payable to a Veteran by reason of the Veteran's spouse being in need of aid and attendance.  38 U.S.C.A. §§ 1114, 1115.  The need for aid and attendance means helplessness as to require the regular aid and attendance of another person.  38 C.F.R. § 3.351(b).  In this regard, the Veteran's spouse will be considered in need of regular aid and attendance if he or she (1) 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 (2) is a patient in a nursing home because of mental or physical incapacity; or (3) establishes a factual need for aid and attendance under the criteria set forth in § 3.352(a).  38 C.F.R. § 3.351(c).

Pursuant to 38 C.F.R. § 3.352(a), the following will be accorded consideration in determining the need for regular aid and attendance: inability of the claimant to dress or undress himself/herself or to keep himself/herself 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; inability of the claimant to feed himself/herself 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 the hazards or dangers inherent in his/her daily environment.   

"Bedridden" will be a proper basis for the determination, and is defined as 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. 

It is not required that all of the disabling conditions enumerated above be found to exist 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/her condition as a whole.  It is only necessary that the evidence establish that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need.  Determinations that the [claimant] 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 [or her] to be in bed.  They must be based on the actual requirement of personal assistance from others.    

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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

SSA records show that since January 2005, the Veteran's spouse has been disabled primarily due to fibromyalgia and ischemic heart disease, noting that she also suffers from mental health and respiratory problems.  See, e.g., SSA, Disability Determination and Transmittal (May 30, 2008).  SSA records also show that the Veteran's brother and sister reported that his spouse has difficulty with certain physical activities, such as standing from the sitting position and zipping her pants, but that she can prepare simple foods, such as cereal, sandwiches, oatmeal, and spaghetti; drive alone; perform light house work; and that she occasionally helps a friend at the friend's place of employment.  See SSA, Function reports (August 8, 2006; February 22, 2007).  The Veteran's spouse reported similar impairments, noting that she only drives alone when she feels that it is safe and that she cannot walk longer than 15 to 30 minutes without taking a break.  See SSA, Function report (July 28, 2006).

In October 2011, the Veteran's spouse's physician completed a medical statement in which he reported that she had known coronary artery disease with a stent placement in 1999.  It was observed that she gets short of breath on exertion and did nebulizer treatments at least four times a day.  He indicated that the Veteran's spouse can dress and use lavatory without assistance, can feed herself without assistance, and is incontinent, ambulant, and mentally competent.  The physician indicated that she could not ascend and descend stairs.  It was further reported that she had myalgia of the upper extremities with chronic pain and myalgia of the lower extremities, which resulted in an unsteady gait and she could only ambulate a short distance.  It was also indicated that she was short of breath.  The Veteran's spouse's physician stated that there was no evidence of spine problems and that she used a cane when her lower extremities were causing pain.  With regard to the Veteran's spouse's ability to leave the home or immediate premises, her physician indicated that she can leave the home under the supervision by another person and could not drive due to her unsteady gait, pain, and shortness of breath.  The physician further indicated that the Veteran's spouse was well-developed, moderately obese, and coherent, and her generalized appearance was good. 

At the July 2013 hearing, the Veteran testified that he is his wife's caregiver and that her disabilities include fibromyalgia, rheumatoid arthritis, chronic obstructive pulmonary disease (COPD), obstructive sleep apnea, and declining vision, and such disabilities are made worse by her medication.  He testified that his spouse can feed herself and use the restroom by herself, but she occasionally needs help standing up from a seated position and always needs assistance with dressing.  He testified that she is occasionally unable to walk across the room and uses a cane or walking stick most times, as she cannot stand up for long periods.  He further testified that he does all of the cooking and cleaning, brings meals to her, and helps clean her.

During an August 2015 VA examination, the examiner noted that the Veteran's spouse has current diagnoses of osteoarthritis of the low back, hands, knees, shoulders, elbows, feet, hips, and neck; coronary artery disease; fibromyalgia; peripheral vascular disease; COPD; internal hemorrhoids, and depression.  It was noted that the she was not permanently bedridden or currently hospitalized, and could travel beyond her current domicile.  It was further observed that the Veteran's spouse was able to drive alone.  She reported that her usual day includes assisting her husband, cooking, and buying groceries, and indicated that she can drive alone.  She used a cane while grocery shopping and moving around the house during hip flare ups.  
 
With regard to her ability to protect herself from daily hazards/dangers, it was noted that she experienced dizziness less than weekly and no memory loss.  Further, the examiner stated that imbalance never affected her ability to ambulate.  However, he also stated that, sometimes with weather changes, she cannot move quickly because of joint pain in her hips and knees, which would impact her ability to get out of the house quickly.  Even so, the examiner found that the Veteran's spouse did not need another individual for protection of herself from the daily environment because she is fully ambulatory and is of sound mind.  He also determined that she could perform all self-care skills.  

During a physical examination, the examiner noted that the Veteran's spouse could walk without the assistance of another person and was able to walk up to a few hundred years.  It was observed that she used a cane for ambulation.  Her ability to leave the home was unrestricted.  The examiner stated that she has normal function in her upper and lower extremities and that her best correction vision is better than 5/200 in both eyes.

Based on the foregoing, the Board notes that the Veteran assists his spouse with activities of daily living, such as fastening zippers, standing from the sitting position, and even preparing meals, but finds that she does not require personal assistance from others.  The evidence affirmatively shows that she can prepare and consume food, use the restroom, and drive alone.  Moreover, while she occasionally requires a cane for ambulation, she is able to ambulate several hundred yards and perform her own grocery shopping.  Indeed, she suffers from numerous disabilities; however, her functional capacity is far greater than that of one requiring personal assistance.  To that end, the lay and medical evidence of record affirmatively shows that she does not require care or assistance on a regular basis in order to dress/undress herself;, attend to the wants of nature, feed herself, keep herself clean and presentable, or protect her from the hazards or dangers inherent in her daily environment.          

Moreover, there is no evidence that the Veteran's spouse 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, is a patient in a nursing home because of mental or physical incapacity, or is bedridden.

Accordingly, SMC based on the need for regular aid and attendance for the Veteran's spouse is not warranted.  In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine.  The preponderance of the evidence is against the Veteran's claim regarding SMC for his spouse.  As such, that doctrine is not applicable in the instant appeal, and his claim must be denied.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra.


ORDER

SMC based on the need for regular aid and attendance for the Veteran's spouse is denied.


REMAND

Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's remaining claims so he is afforded every possible consideration.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  Additionally, where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance.  Stegall, supra.

Reduction Claim 

By way of background, a March 2011 rating decision granted service connection for bilateral hearing loss, for which a 90 percent disability evaluation was assigned, effective December 20, 2010.  The 90 percent rating was awarded based upon audiometric findings from a February 2011 VA audiological examination.  In May 2011, the Veteran filed a claim seeking TDIU based upon his service-connected bilateral hearing loss and, in support of his claim, he submitted a May 2011 audiological examination conducted by S.C.

An August 2011 rating decision proposed to reduce the 90 percent rating to 30 percent based on the May 2011 audiometric findings from S.C.  The Veteran was subsequently afforded another VA audiological examination in July 2011, after which the proposed rating reduction was effectuated by an November 2011 rating decision and a 30 percent rating was made effective February 1, 2012, the first day of the third month following notice of the reduction.

The Veteran has disagreed with the reduction of his disability rating for service-connected bilateral hearing loss on that basis that (1) his hearing loss did not improve following his first VA examination in February 2011 and (2) VA did not adequately consider the benefit-of-the-doubt doctrine, given that there were three audiometric findings of record which showed different results and VA did not use the findings which supported the highest rating.

As noted, in August 2011, the RO proposed to reduce the 90 percent rating to 30 percent based on the May 2011 audiometric findings from S.C.  In proposing such action, the RO informed the Veteran that he could submit medical or other evidence to show that the rating should not be reduced and that he had 60 days to submit such evidence.  The Veteran did not submit any additional medical or other evidence within 60 days of the August 2011 rating decision to show that his rating should not be reduced.

In July 2014, the Board remanded the Veteran's claim to obtain VA treatment records (dated from August 2011 to February 2014) that were noted in a February 2014 rating decision but had not been associated with the Veteran's claims file.  Thereafter, the AOJ was instructed to readjudicate the Veteran's claim and, if it remained denied, to issue a supplemental statement of the case.  Upon remand, the AOJ uploaded the requested records in August 2015.  Thereafter, in November 2015, the AOJ issued a supplemental statement of the case regarding the issue of entitlement to a rating in excess of 30 percent for bilateral hearing loss.

Significantly, the November 2015 supplemental statement of the case did not address the issue on appeal, that is, the propriety of the reduction of the evaluation for service-connected bilateral hearing loss from 90 percent to 30 percent, effective February 1, 2012.  In this regard, the matter on appeal is NOT an increased rating claim; rather, it is a claim for the restoration of the previously assigned 90 percent rating.  As such, the issue must be remanded and readjudicated, and a supplemental statement of the case regarding the propriety of the reduction must be issued if the claim remains denied.  See 38 C.F.R. § 19.31.

TDIU Claim

The Board notes that the Veteran has claimed entitlement to a TDIU based on his service-connected bilateral hearing loss, evaluated as 90 percent disabling as of December 20, 2010, and as 30 percent disabling as of February 1, 2012, and tinnitus, evaluated as 10 percent disabling as of December 2010.  Such results in a combined disability rating of 90 percent from December 20, 2010, and 40 percent as of February 1, 2012.  The Board also observes that a February 2014 rating decision awarded service connection for acne with a noncompensable rating as of July 12, 2013; however, service connection for such disability was subsequently severed.  See C.F.R. § 3.400(o) (a retroactive increase or additional benefit will not be awarded after basic entitlement has been terminated, such as by severance of service connection).  However, as noted in the Introduction, the Veteran also has a pending appeal for service connection for scars and psoriatic arthritis, to include psoriasis.

Therefore, as the Veteran's TDIU claim is based, in part, on his service-connected bilateral hearing loss, such issue is contingent on a decision regarding the propriety of the reduction of the Veteran's disability rating for his hearing loss, and is considered inextricably intertwined with the rating reduction issue.  Further, in December 2015, the Veteran's attorney argued that the TDIU claim is also inextricably intertwined with his pending service connection claims.  Therefore, adjudication of a TDIU must be deferred pending the outcome of such issues.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation).

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

The Veteran's claims for entitlement to a TDIU and the propriety of the reduction of the evaluation for service-connected bilateral hearing loss from 90 percent to 30 percent, effective February 1, 2012,  should be readjudicated based on the entirety of the evidence.  If the claims remain denied, the Veteran and his attorney should be issued a supplemental statement of the case.  An appropriate period of time should be allowed for response.

Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order.  The Board intimates no opinion as to the outcome of this case.  The Veteran need take no action until so informed.  The purpose of this REMAND is to ensure compliance with due process considerations.

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 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).



_________________________________________________
A. JAEGER
 Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2016).


Department of Veterans Affairs