Citation Nr: 1751330 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 13-16 480 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to special monthly compensation based on the need for aid and attendance or being housebound. 2. Entitlement to service connection for left and right shoulder acromioclavicular degenerative joint disease and arthritis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. L. Krasinski, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to June 1969, including service in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in October 2009 and August 2013 of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In December 2011, the issue of service connection for left and right shoulder disabilities was remanded to the agency of original jurisdiction (AOJ) for additional development. The AOJ was directed to issue a statement of the case to the veteran and this action was completed in May 2013. The Board notes that a 100 percent schedular rating is in effect for the service-connected posttraumatic stress disorder from May 16, 1989. Special monthly compensation under 38 U.S.C. § 1114, subsection (k) and 38 CFR § 3.350(a) on account of loss of use of a creative organ is in effect from February 13, 2006. Special monthly compensation under 38 U.S.C. § 1114, subsection (s) and 38 CFR § 3.350(i) on account of PTSD with major depressive disorder and insomnia rated 100 percent and additional service-connected disabilities ratable at 60 percent or more is in effect from March 17, 2006. The Veteran was afforded a Board videoconference hearing in April 2017. The issue of entitlement to service connection for left and right shoulder acromioclavicular degenerative joint disease and arthritis is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. VA will notify the appellant if further action is required. FINDING OF FACT The Veteran's service-connected disabilities (including PTSD, headaches, diabetes mellitus type 2, tinnitus, right lower extremity peripheral neuropathy, and left lower extremity peripheral neuropathy) precludes the Veteran from caring for some of his daily personal needs such as taking his medications, bathing, and preparing his meals without the regular assistance of another person and he needed assistance on a regular basis to protect him from the hazards and dangers in the daily environment. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for establishing entitlement to special monthly compensation based on the need for aid and attendance have been met. 38 U.S.C.A. §§ 1114, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.350, 3.352 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION 1. Duties to Notify and Assist VA provided the Veteran with 38 USCA § 5103(a)-compliant notice in June 2009, March 2013, December 2013, and February 2014. Therefore, additional notice is not required. The record also shows that VA has fulfilled its obligation to assist the Veteran in developing the claims. Neither the Veteran nor his representative has identified any deficiency in VA's notice or assistance duties. See also Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). 2. Special Monthly Compensation Based Upon Aid and Attendance. Compensation at the aid and attendance rate is payable when a Veteran's service-connected disability or disabilities cause the anatomical loss or loss of use of both feet or one hand and one foot, cause the Veteran to be blind in both eyes, or render him permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b). Determinations as to the need for regular aid and attendance are factual 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 inability of the claimant to dress or undress himself, or to keep himself 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 assistance. The inability of the claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, either physical or mental, which requires care or assistance on a regular basis to protect a claimant from hazards or dangers incident to one's daily environment. It is not required that all of the disabling conditions enumerated be present before a favorable rating is made. The particular personal functions that the claimant is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the claimant be so helpless as to be in need of regular aid and attendance, not that there is a constant need. "Bedridden" constitutes a condition which, 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 bed rest for a lesser or greater portion of the day will not suffice. 38 C.F.R. § 3.352(a). In Turco v. Brown, 9 Vet. App. 222, 224 (1996), the Court held that eligibility for special monthly compensation by reason of regular need for aid and attendance requires that at least one of the factors set forth in VA regulation is met. In addition, 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. See Turco, 9 Vet. App. at 224. The evidence must show that the claimant is so helpless as to need regular aid and attendance; constant need for aid and attendance is not required. 38 C.F.R. § 3.352(a). Review of the record shows that service connection is in effect for PTSD, rated at 100 percent; headaches, rated at 50 percent; diabetes mellitus type 2, rated at 20 percent; tinnitus, rated at 10 percent; right lower extremity peripheral neuropathy, rated at 10 percent; left lower extremity peripheral neuropathy, rated at 10 percent; erectile dysfunction rated as zero percent; and bilateral hearing loss rated as zero percent. The Board finds that affording the Veteran the benefit of doubt, it is as likely as not that special monthly compensation is warranted on the basis that the Veteran is so helpless as to need regular aid and attendance due to his service-connected disabilities. The Veteran and his spouse assert that the Veteran was in need of aid and attendance due to the service-connected PTSD. The Veteran and his spouse have stated that the Veteran's spouse assists the Veteran with bathing, taking medication, and she drives the Veteran and helps calm him. The Board acknowledges, at the outset, that the Veteran has not suffered the anatomical loss or loss of use of both feet or one hand and one foot and is not service-connected for blindness in both eyes. There is competent and credible evidence that due to the Veteran's service-connected disabilities, the Veteran requires assistance with taking his medications and preparing meals. The February 2013 VA examination for permanent need for regular aid and attendance indicates that the Veteran's diagnoses included the service-connected migraines, anxiety disorder, and type 2 diabetes. The nonservice-connected disabilities included fibromyalgia, abdominal pain, inguinal hernia, and chronic low back pain. The examiner indicated that the Veteran was able to feed himself, prepare simple meals, he needed supervision for bathing and some physical assistance, and he needed occasional supervision for medication management. The Veteran needed a caregiver to prepare his diabetes meals. He was not legally blind, and did not require nursing home care. He had the ability to manage his own financial affairs. The examiner indicated that the Veteran needed some help with lower body dressing and the Veteran had limited sensation in the lower extremities and was prone to tripping and falls. The Veteran had memory problems and required a caregiver to remind him to take his medications. His spouse provided foot care (trimming nails and monitoring for sores). The Veteran left his home three times a week or more with his spouse or caregiver in attendance. A February 2013 VA psychiatric evaluation indicates that the Veteran has a history of poor social adjustment with difficulty appropriately socializing or tolerating stress. He appears to strongly react to situations in which he feels he is wronged. The Veteran did not socialize much due to difficulty interacting with others. His activities included taking dogs for a walk, movies, sometimes going to a mall to stroll, or out to restaurants. He watches TV and used the computer. The Veteran was currently bothered by anger, irritability, poor memory, lack of tolerance for stress, neuropathy in feet and hands, chronic headaches 3-4 times per week, and severe PTSD. Currently, the Veteran's headaches occurred 3 or 4 times per week and interrupted his ability to comfortably engage in daily activities like walking or running errands with his wife. The examiner indicated that the Veteran had a very sedentary life due to medical and psychiatric problems and his wife assisted with medication management, finances, appointments, and chores. The examiner indicated that the Veteran's headaches do appear to mildly negatively affect his ability to freely engage in activities with his wife, however, the PTSD and anger appear to contribute most to the moderate to severe social impairment. In an April 2013 statement, Dr. Baily, a private physician, indicated that the Veteran would benefit from an attendant due to his many medical problems. A May 2013 VA primary care treatment record indicates that the physician indicated that the Veteran may need consistent supervision from his wife for daily life due to PTSD. A July 2013 VA neurological examination report indicates that the Veteran was experiencing approximately 3 prostrating, severe, prolonged migraines per week. The examiner stated that the migraine headaches would at least as likely as not cause "severe economic inadaptability," including the need to take substantial sick leave from work on a frequent basis, and the Veteran as likely as not does experience moderate to severe impairment of social and familial functioning as a result of his frequent migraines based on his report and collateral information from his wife. A May 2014 VA examination for permanent need for regular aid and attendance indicates that the Veteran's diagnoses included the service-connected PTSD, anxiety disorder, type 2 diabetes mellitus, and migraines. The nonservice-connected disabilities included GERD, abdominal pain, inguinal hernia, chronic low back pain, hypertension, atrial fibrillation, BPH, and fibromyalgia. The examiner indicated that the Veteran was not able to prepare his own meals and his wife prepared the diabetes meals. The Veteran needed supervision and some physical assistance with bathing. He required reminders to take medications and to re-order them. He also needed help with set up and he had trouble concentrating on the task. He was not legally blind, and did not require nursing home care. He had the ability to manage his own financial affairs. The examiner indicated that the Veteran had limited fine motor skills, difficulty buttoning clothes, and opening jars due to upper extremity restrictions. Regarding lower extremity restrictions, the Veteran had problems ambulating and poor balance due to pain and numbness in feet. Regarding restrictions of the spine and trunk, the examiner indicated that pain limited the Veteran's ability to bend over requiring assistance with shoes, socks, picking things up off the floor. The examiner indicated that the Veteran ambulated with a cane due to poor balance and numbness. He had dizziness reportedly from multiple medications/diabetes. He had memory loss and required his spouse to remind him to take medication and eat properly. The examiner stated that the spouse assists in calming the Veteran in stressful situations, particularly if they are out in public. The spouse reports that the Veteran becomes moody, anxious, paranoid, and becomes distracted by his thoughts. The examiner stated that the Veteran leaves home accompanied by his wife due to the fact that he becomes easily aroused in public. The examiner indicated that aids or the assistance of another person was required for locomotion of 1/2 mile. In a November 2014 statement, Dr. Carpenter, a private physician indicated that he was following the Veteran and asked that the Veteran be allowed to have a caregiver to help as the Veteran experienced difficulties due to severe PTSD and his quality of life has been poor due to the condition. A January 2016 VA examination for permanent need for regular aid and attendance indicates that the Veteran was able to feed himself and prepare his own meals. He needed assistance with bathing and attending to hygiene needs and he needed assistance with water temperature because of neuropathy and he needed reminders to shave and maintain hygiene. He was not legally blind, and did not require nursing home care. He required medication management and he worked collaboratively with his wife or caregiver to set up medications, he needed queuing and he used alarms as well. The Veteran struggled with short term memory loss. The Veteran had the ability to manage his own financial affairs but it was noted that the spouse provided all money management due to the Veteran's confusion and memory recall. The examiner indicated that the Veteran's grip and fine motor movement was restricted due to neuropathy and he could not grasp, open bottle, or use small tools or button clothes. Regarding lower extremity restrictions, the Veteran was slow to ambulate, and he used a cane for poor balance, pain, numbness, and neuropathy in the feet. Regarding restrictions of the spine and trunk, the examiner indicated that the Veteran had some loss of ability to bend over and tend to shoes, socks or to grab things off the floor. The examiner stated that the spouse assists in calming the Veteran in stressful situations out in public and the Veteran can easily become anxious, paranoid, and distracted by his own thoughts and worries. The examiner stated that the caregiver/wife provided assistance on a regular basis to protect the Veteran from the hazards and dangers in the daily environment and the Veteran always left home with his wife/caregiver as he easily becomes aroused and irritable out in the community. The Board finds that affording the Veteran the benefit of doubt, it is as likely as not that special monthly compensation is warranted and it is as likely as not that the Veteran's service-connected disabilities (including PTSD, headaches, diabetes mellitus type 2, tinnitus, right lower extremity peripheral neuropathy, left lower extremity peripheral neuropathy, erectile dysfunction, and bilateral hearing loss) precludes the Veteran from caring for some of his daily personal needs such as taking his medications, bathing, and preparing his meals without the regular assistance of another person and he needed assistance on a regular basis to protect him from the hazards and dangers in the daily environment. There is evidence of record which supports the finding that the Veteran meets the criteria for special monthly compensation for aid and attendance benefits and he requires the actual assistance of another due to an inability to care for his daily personal needs and an inability to take the proper medications for his service-connected disabilities. There is medical evidence which weighs against the claim for special monthly compensation due to aid and attendance including evidence which shows that the Veteran only requires some assistance with activities of daily living. However, for the foregoing reasons, the Board finds that the evidence is at least in equipoise as to whether the Veteran's service-connected PTSD, headaches, diabetes mellitus type 2, tinnitus, right lower extremity peripheral neuropathy, and left lower extremity peripheral neuropathy necessitates regular aid and attendance due to a requirement for the actual assistance of another due to an inability to activities of personal care such as bathing, preparing meals, and medication management. As such, after affording the Veteran the benefit of the doubt and considering the evidence in the light most favorable to the Veteran, the Board concludes that the criteria for special monthly compensation due to aid and attendance are met and the appeal is granted to that extent. ORDER Special monthly compensation based on the need for regular aid and attendance is granted. REMAND VA's duty to assist includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A (d) (West 2014). The Board finds that a medical examination and opinion are necessary to determine whether the Veteran has left and right shoulder disabilities that were incurred in or are related to active service. The Veteran stated that he served as a helicopter gunner in active service in Vietnam. Service personnel records show that he served in Vietnam from December 1967 to December 1968 and that his duties included serving as a door gunner on a helicopter. The Veteran asserts that he incurred a shoulder disability due to serving as a gunner. The Board finds that the Veteran is a combat veteran and is entitled to the application of 38 U.S.C.A. § 1154 (b). Section 1154 (b) addresses the combat veteran's ability to allege that an event occurred in service while engaging in combat. See Beausoleil v. Brown, 8 Vet. App. 459, 464 (1996). That section, however, does not address the questions of either current disability or nexus to service, both of which competent medical evidence is generally required. Id. citing Caluza v. Brown, 7 Vet. App. 498, 507 (1995). VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). For these reasons, the Board finds that an examination is necessary to determine if the Veteran has a current left and right shoulder disabilities to include arthritis that are related to active service. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of the current left and right shoulder disabilities to include arthritis. For each diagnosis, the examiner is requested to render an opinion as to whether it is at least as likely as not (i.e., at least a 50-50 probability) that the current disability was incurred in or is related to injury or disease or other event in military service. Attention is invited to the Veteran's lay statement that he served as a helicopter gunner in Vietnam in active service. The examiner should provide a complete rationale for each opinion rendered. 2. After completing all indicated development, readjudicate the claims remaining on appeal in light of all the evidence of record. If the benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant 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). ____________________________________________ THOMAS H. O'SHAY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs