Citation Nr: 1746963	
Decision Date: 10/20/17    Archive Date: 10/31/17

DOCKET NO.  16-46 674	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to special monthly compensation (SMC) based upon the need for regular aid and attendance of another person or by reason of being housebound.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. L. Marcum, Associate Counsel






INTRODUCTION

The Veteran served on active duty from February 1958 to April 1964, and from June 1964 to July 1982.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied the Veteran's claim for special monthly compensation (SMC) based upon the need for regular aid and attendance of another person or by reason of being housebound.

This appeal has been advanced on the Board's docket.  38 U.S.C.A. § 7107(a)(2) (West 2014); 38 C.F.R. § 20.900(c) (2016).  


FINDING OF FACT

The evidence of record establishes that the Veteran has been in the need of the aid and attendance of another person.


CONCLUSION OF LAW

The criteria for SMC based on the need for aid and attendance have been met. 38 U.S.C.A. §§ 1114, 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. 
§§ 3.102, 3.159, 3.326, 3.350, 3.351, 3.352 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran is seeking SMC based on the need for the aid and attendance of another or housebound status.  He claims that he should receive SMC primarily because his service-connected right shoulder degenerative arthritis results in his need for regular aid and attendance of another person.

As an initial matter, the Board observes that the Veterans' Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2014), prescribes several requirements as to VA's duty to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits.  See also 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2016).  VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must inform the claimant of any information and evidence (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will seek to provide on the claimant's behalf.  See also Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004). 

Given the decision herein to award SMC, whether there was VCAA compliance need not be addressed.

Special monthly compensation based on the need for aid and attendance of another is payable when the veteran, due to service-connected disability, is so helpless as to be in need of regular aid and attendance.  See 38 U.S.C.A. § 1114(l); see also 38 C.F.R. § 3.350(b).  Pursuant to 38 C.F.R. § 3.352(a), the following criteria are to be considered for determining whether a claimant is in need of the regular aid and attendance of another person: (1) the inability of the claimant to dress himself or to keep himself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliance which, by reason of the particular disability, cannot be done without aid; (3) the inability of the claimant to feed himself through the loss of coordination of the upper extremities or through extreme weakness; (4) the inability to attend to the wants of nature; or, (5) a physical or mental incapacity that requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his or her daily environment.

A veteran need show only one of the enumerated factors identified in 38 C.F.R. 
§ 3.352(a) to establish entitlement to aid and attendance.  Turco v. Brown, 9 Vet. App. 222, 224 (1996).  Moreover, it is only necessary that the evidence establish that the veteran is so helpless as to need regular aid and attendance, not that there be a constant need.  Id.  The performance of the necessary aid and attendance service by a relative of the claimant or other member of his or her household will not prevent the granting of the additional allowance.  38 C.F.R. § 3.352(c).

In this case, service connection is currently in effect for the following disabilities: posttraumatic stress disorder, rated 50 percent disabling; traumatic arthritis of the right shoulder, rated 30 percent disabling; hypertension, rated 10 percent disabling; tinnitus, rated 10 percent disabling; and bilateral hearing loss, rated 0 percent disabling.  A total rating based on individual unemployability has been in effect since May 29, 2003.

For the reasons discussed below, the Board finds that there is a basis to award SMC for aid and attendance purposes.  While conflicting medical assessments of record are present, when reasonable doubt is resolved in manner favorable to the Veteran, the requirements for the claim are met.

The Veteran filed his present claim in November 2013.  The Board notes that a VA treatment record from March 2013 (within the year prior to the Veteran filing his claim) suggests that the Veteran had a low level of dependence requiring others to assist in performing daily activities.  However, all treatment records after the Veteran filed his claim generally reflect an increased need for the aid and attendance of another person. 

In March 2014, the Veteran was afforded a VA aid and attendance or housebound examination.  During that examination, the VA examiner noted that the Veteran was not permanently bedridden or hospitalized and that he could not travel without the assistance of a family member.  The examiner noted that the Veteran required assistance from family members getting out and bed and performing morning tasks, including help getting to the restroom, bathing, grooming, and dressing.  The examiner also indicated that the Veteran required assistance from family members to ambulate from room to room in the home and that he does not go outside much.  The examiner noted that the Veteran regularly goes out onto his back patio (requires going down one step).  The Veteran reported that he leaves the home approximately two to three times weekly for trips to the park or to see his grandchildren perform at school functions.  The examiner reported that the Veteran experienced moderate memory loss and dizziness weekly but less than daily in terms of duration.  The examiner indicated that imbalance affected the Veteran's ability to ambulate constantly or near constantly.  Additionally, the examiner noted that the Veteran could walk around the inside of his house using a cane and without the help of another and that he could leave his home one to three times per week to ride in the car for occasional shopping trips, to attend school functions for his grandchildren, and to travel to the park.

Physical evaluation of the Veteran revealed limited range of motion in the neck that the Veteran described as "very restricted."  The examiner also found limited range of motion in the thoracolumbar spine leaving the Veteran unable to straighten up.  The examiner noted that the Veteran walks "bent over" much of the time.  The examiner found bilateral upper extremity severe impairment resulting in the inability to dress/undress; self bathe; self-groom; or toilet without assistance.  Despite these limitations, the examiner indicated that the Veteran could feed himself.  The examiner found that the Veteran's lower extremities demonstrated limited joint motion, muscle weakness, and lack of coordination.  As a result, the examiner indicated that the Veteran was unable to carry any loads in his arms and that he was able to bear his own weight with the constant use of a cane.  The examiner also indicated that the Veteran walks very slowly and requires the constant use of a can and help from others at times.  Based on a thorough evaluation of the Veteran, the examiner diagnosed the Veteran as having advanced degenerative changes of the right shoulder; cervical degenerative disc disease; and left knee degenerative joint disease.  The examiner did not provide a medical opinion regarding whether the Veteran required aid and attendance due to his service-connected disabilities. 

In April 2014, the RO requested an addendum medical opinion from the same VA examiner who conducted the March 2014 aid and attendance/housebound examination.  Specifically, the RO asked the examiner to opine as to whether the Veteran's service-connected disabilities (including PTSD, right shoulder arthritis, hypertension, tinnitus, and hearing loss) resulted in his need for aid and attendance.

In a May 2014 addendum medical opinion, the VA examiner reviewed the Veteran's electronic claims file and opined that "the Veteran requires aid and attendance for his service-connected right shoulder degenerative disease."

In a July 2014 nursing education note, functional assessment of the Veteran revealed that he needed some help getting to places beyond walking distance, grocery shopping, doing housework, taking medications, and managing money.  The report noted that the Veteran receives assistance in bathing more than one part of the body; getting dressed; transferring in and out of bed.  The report also indicated that the Veteran did not need assistance toileting or feeding.  The report found that the Veteran had functional changes regarding mobility/ambulation and bathing.  Thereafter, the report indicated that the Veteran's dependence level was moderate. 

In a September 2014 rating decision, the RO denied the Veteran's claim.  Later that same month, the Veteran submitted a 2014 notice of disagreement contesting that decision.  He asserted that his wife and other family members are called upon twenty-four hours a day to take care of him and attend to his personal needs.  He noted that his wife gets him out of bed, washes and cleans him, cooks food for him, feeds him breakfast, dinner, and supper.  He also stated, "In addition to the degenerative areas . . . I would like to draw special attention to hip joints replacement.   Left hip joint replaced in November 2010, and the right joint replaced in January 2014.  Those replacements eliminated the excruciating pain I was having in the joints of my shoulders, knees, ankles, and hips."  However, he also indicated that limitation of motion, muscle weakness, and lack of coordination was still prevalent.

In a September 2016 supplemental statement of the case, the RO continued to deny the Veteran's claim.  Thereafter, the Veteran perfected a substantive appeal to the Board via a VA Form 9.  In his substantive appeal, the Veteran reiterated that his degenerative changes of the right shoulder, cervical degenerative disc disease, and degenerative joint disease of both knees were severe in nature.  He also indicated that both his right and left hip joints had been replaced and that the severity of these disabilities "certainly shows a need for aid and attendance."
Based on a longitudinal review of the record, the Board finds that SMC for aid and attendance is warranted because the evidence shows that the Veteran has severe physical incapacity that requires care and assistance on a regular basis based on the inability of the Veteran to dress/undress; self bathe; self-groom; or toilet without assistance.

The Board observes that the Veteran does not require aid and attendance for all of his service-connected disabilities and that he has several nonservice-connected disabilities that contribute to inability to carry objects or ambulate without using a cane.  Additionally, the Board notes that the Veteran is not confined to his home and goes out onto his back patio (requires going down one step) or leaves the home (with assistance) approximately two to three times weekly for trips to the park or to see his grandchildren perform at school functions.  Nevertheless, the VA examiner who provided the May 2014 addendum medical opinion concluded that "the Veteran requires aid and attendance for his service-connected right shoulder degenerative disease."  This opinion was based on a review of the Veteran's electronic claims file as well as the objective findings from the March 2014 VA aid and attendance physical examination.  As such, the Board finds that opinion to be highly probative regarding the Veteran's need for aid and attendance due to his service-connected right shoulder disability.  

Additionally, the Board observes that the Veteran's required aid and attendance currently comes from family members assisting him with getting out and bed, performing tasks, bathing, grooming, toileting, dressing, and ambulating around the house and outside of the home.  Again, as noted above, it is not required that all of the disabling conditions enumerated in the provisions of 38 C.F.R. § 3.352(a) exist to establish eligibility for aid and attendance, so long as at least one of the enumerated factors are present.  Based on the evidence presented above, and resolving all reasonable doubt in the Veteran's favor, the Board finds that SMC based on the need for regular aid and attendance is warranted.

As SMC based on aid and attendance is a greater benefit than SMC at the housebound rate, and there are no additional service-connected disabilities rated totally disabling that are separate and distinct from those forming the basis of the grant for SMC based on aid and attendance, the issue of entitlement to SMC at the housebound rate is moot.  Cf. 38 U.S.C.A. § 1114(l), 38 U.S.C.A. § 1114(s).


ORDER

Entitlement to SMC based on the need for aid and attendance is granted, subject to the controlling regulations applicable to the payment of monetary benefits.



____________________________________________
Cynthia M. Bruce
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs