Citation Nr: 1726963 Decision Date: 07/13/17 Archive Date: 07/25/17 DOCKET NO. 12-03 828 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a rating in excess of 20 percent for a lumbar spine disability. 2. Entitlement to a special home adaptation grant. 3. Entitlement to specially adapted housing. 4. Entitlement to special monthly compensation (SMC) based upon the need for aid and attendance for the Veteran's spouse. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from April 1980 to June 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Roanoke, Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA). The SMC issue on appeal arose from an April 2011 rating decision. In April 2017, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The Board notes that the Veteran executed documents establishing representation at his hearing. He also waived agency of original jurisdiction (AOJ) review of additional evidence. FINDINGS OF FACT 1. At his hearing in April 2017 the Veteran withdrew his appeal as to the issues of entitlement to a rating in excess of 20 percent for a lumbar spine disability, entitlement to a special home adaptation grant, and entitlement to specially adapted housing. 2. The evidence does not demonstrate that the Veteran's spouse is need of regular aid and attendance for VA special monthly compensation purposes. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal for entitlement to a rating in excess of 20 percent for a lumbar spine disability by the appellant have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2016). 2. The criteria for withdrawal of an appeal for entitlement a special home adaptation grant by the appellant have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2016). 3. The criteria for withdrawal of an appeal for entitlement to specially adapted housing by the appellant have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2016). 4. The criteria for entitlement to SMC based upon the need for aid and attendance for the Veteran's spouse have not been met. 38 U.S.C.A. § 1115 (West 2014); 38 C.F.R. §§ 3.351, 3.352 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2014). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2016). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the appellant has withdrawn his appeal for entitlement to a rating in excess of 20 percent for a lumbar spine disability, entitlement to a special home adaptation grant, and entitlement to specially adapted housing. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal as to these matters and they are dismissed. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). The duty to notify has been met. See VA correspondence dated in October 2010 and the April 2017 Board hearing transcript. Neither the Veteran, nor his representative, has alleged prejudice with regard to notice. The Federal Court of Appeals has held that "absent extraordinary circumstances...it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In light of the foregoing, nothing more is required. As for the duty to assist, all identified and authorized records relevant to the matter have been requested or obtained. The available record includes service treatment records, VA treatment and examination reports, non-VA (private) treatment records, and statements and testimony in support of the claim. Although records show the Veteran's spouse has been receiving Social Security Administration (SSA) disability benefits since 2008, there is no indication that the records associated with that award include any evidence pertinent to the issue on appeal. There is no evidence of any additional existing pertinent records. When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate. VA medical opinions obtained in this case are adequate as they are predicated on a substantial review of the record and medical findings and consider the nature and severity of the medical condition impacting the health of the Veteran's wife. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to adjudicate the claim would not cause any prejudice to the appellant. Special Monthly Compensation SMC is awarded when a 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 establishes a factual need for aid and attendance. See 38 U.S.C.A. § 1115(l)(E) (West 2014); 38 C.F.R. § 3.351(c)(3) (2016). A person shall be considered to be in need of regular aid and attendance if that person is (1) a patient in a nursing home or (2) blind, or so nearly blind or significantly disabled as to need or require the regular aid and attendance of another person. 38 U.S.C.A. § 1502(b) (West 2014); 38 C.F.R. § 3.350(b) (2016). The following criteria will be considered in determining whether a person is in need of the regular aid and attendance of another person: the inability of the person to dress or undress herself, or to keep 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 such aid; the inability of the person to feed himself through the loss of coordination of upper extremities or through extreme weakness; the inability to attend to the wants of nature; or an incapacity, physical or mental, which requires care or assistance on a regular basis to protect the person from the hazards or dangers incident to her daily environment. 38 C.F.R. § 3.352(a) (2016). It is not required that all of the disabling conditions enumerated in the provisions of 38 C.F.R. § 3.352(a) be found to exist to establish eligibility for aid and attendance and that such eligibility required at least one of the enumerated factors be present. Turco v. Brown, 9 Vet. App. 222 (1996). The particular personal function which the person is unable to perform should be considered in connection with his or her condition as a whole and it is only necessary that the evidence establish that the person is so helpless as to need regular aid and attendance, not that there be a constant need. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. However, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3 (2016). The Veteran asserts that his spouse requires aid and assistance due to her knee replacements and spine and shoulder disabilities. In statements and testimony the Veteran reported, in essence, that she had a home care provider to assist her with bathing and putting on shoes and pants. He stated that she was unable to cook or leave the home without assistance. An October 2010 aid and attendance examination noted diagnoses of bilateral knee replacements, left shoulder surgery, foot surgery, chronic arthritis, and chronic back pain. The disabilities that restricted the listed activities and functions were identified as degenerative joint disease of the knees and cervical herniated nucleus pulposus. It was noted the Veteran's spouse was not confined to her bed, that she was able to feed herself, was not legally blind, did not require medication management, could manage her own financial affairs, and had assisted locomotion ability to one block. She was found not to be able to prepare her own meals and required care with bathing and dressing up. The report indicated she was able to leave her home two to three days per week. A May 2012 aid and attendance examination noted diagnoses of cervical herniated nucleus pulposus, degenerative joint disease of the knee, and lumbar spondylolisthesis. It was noted that these disabilities restricted the listed activities and functions. The examiner found that the Veteran's spouse was not confined to her bed, that she was able to feed herself, that she could prepare her own meals, that she did not need assistance in bathing and tending to other hygiene needs, that she was not legally blind, that she did not require nursing home care, that she required medication management for pain and epidural shots, that she could manage her own financial affairs, and that she did not require aids or assistance for locomotion. It was noted she was able to leave the home daily as needed. VA treatment records dated in February 2016 noted the Veteran reported that he had experienced problems with completing tasks such as helping his spouse clean their home and iron clothes. He stated he had a nurse assistant to help with daily tasks, but that she only performed tasks for him so the tasks that he used to be able to do for his spouse were not completed. Private treatment records dated in December 2016 show physical examination revealed the Veteran's spouse demonstrating findings of 5/5 to the upper and lower extremities on motor exams. There was decreased sensation to the left C7 dermatome. It was noted her general appearance was active and alert. Knee and ankle jerks were 2+, Babinski's sign was plantar, and clonus and straight leg raise tests were negative. Range of motion studies were conducted to the shoulders, elbows, wrists, hands, knees, ankles, feet, cervical spine, thoracic spine, and lower lumbar spine. The diagnoses included cervical herniated disc, lumbar degenerative joint disease with facet disease, carpal tunnel syndrome, hypertension, and obesity. A February 2017 report noted she struck her head when she fell out of bed and complained of neck pain, difficulty looking up, some dizziness and loss of balance, and numbness and tingling down the right upper extremity. It was noted her general appearance was active and alert. The upper and lower extremities were 5/5 on motor exams. Knee and ankle jerks were 2+, Babinski's sign was plantar, and clonus and straight leg raise tests were negative. Range of motion studies were conducted to the shoulders, elbows, wrists, hands, knees, ankles, feet, cervical spine, thoracic spine, and lower lumbar spine. The diagnoses included grade 1 spondylolisthesis of the lumbar spine with bilateral foraminal stenosis, cervical herniated disc, right hip bursitis/hip contusion, and right knee degenerative arthritis. In March 2017, the Veteran's spouse complained of knee, neck, back, shoulder, and arm pain. She endorsed constant lower back pain with walking standing, and bending and stated her walking distance was about three blocks before she had to stop and sit. She also stated she had difficulty going up and down stairs. The nurse's comments included that she complained of cervical pain that she rated at two. It was further noted her general appearance was in no distress. Her upper and lower extremities were 5/5 on motor exams. Biceps, triceps, brachioradialis, knee jerks, and ankle jerks were 2+, Babinski's sign was plantar, and clonus and straight leg raise tests were negative. Range of motion studies were conducted to the shoulders, elbows, wrists, hands, knees, ankles, feet, cervical spine, thoracic spine, and lower lumbar spine. The diagnoses included cervical spondylosis, lumbar instability, bilateral knee tricompartmental osteoarthritis, and obesity. An April 2017 aid and attendance examination noted diagnoses of bilateral knee replacements, left shoulder surgery, right foot surgery, chronic arthritis, and chronic pain. The disabilities that restricted the listed activities and functions included degenerative joint disease of the knees and cervical herniated nucleus pulposus. It was noted the Veteran's spouse was not confined to her bed and that she was able to feed herself, was not legally blind, did not require medication management, could manage her own financial affairs, and had assisted locomotion ability to less than one block. She was found not to be able to prepare her own meals and required care with getting up, bathing, and dressing. The report indicated she was able to leave her home two to three days per week. Based upon the evidence of record, the Board finds that the Veteran's spouse is not shown to be in need of regular aid and attendance. There is evidence that she has disabling physical impairments and some difficulty with bathing, dressing, and getting out of bed. However, the overall evidence of record does not demonstrate that she is unable able to perform such activities. The findings of the May 2012 aid and attendance examination and the December 2016, February 2017, and March 2017 private treatment reports are persuasive as to her level of impairment and need for assistance. Further, while the October 2010 and April 2017 aid and attendance examination reports indicate she has difficulty with the indicated activities, there is no evidence of an actual inability to perform the activities. The criteria for the assignment of SMC based upon the need for aid and attendance under applicable VA law in this case are not met. The evidence does not show that the Veteran's spouse was a patient in a nursing home, was blind, was unable to dress or undress herself or to keep herself ordinarily clean and presentable, that she had a frequent need of adjustment of any special prosthetic or orthopedic appliances which, by reason of the particular disability, could not be done without such aid, that she was unable to feed herself through the loss of coordination of upper extremities or through extreme weakness, or that she was unable to attend to the wants of nature. There is likewise an absence of evidence that she had an incapacity, physical or mental, which required care or assistance on a regular basis to protect her from the hazards or dangers incident to her daily environment. Nor is it shown that she had blindness in both eyes, with 5/200 visual acuity or less,. Therefore, the Board finds the appeal must be denied. The Veteran is competent to report certain obvious symptoms of disability, but not to identify a specific level of disability. Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). Consideration has been given to the assertions by the Veteran that his spouse was in need for aid and attendance. However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issues in this case fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The matters at issue, such as the medical assessment of an ability to perform certain tasks, are not readily amenable to lay diagnosis or probative comment regarding etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The overall medical findings adequately address the criteria under which this claim is evaluated. The Board accords the objective medical findings greater weight than subjective reports of increased impairment. Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). In conclusion, the Board finds that additional SMC is not warranted. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The preponderance of the evidence in this case is against the claim. ORDER The appeal for entitlement to a rating in excess of 20 percent for a lumbar spine disability is dismissed. The appeal for entitlement to a special home adaptation grant is dismissed. The appeal for entitlement to specially adapted housing is dismissed. Entitlement to SMC based upon the need for aid and attendance for the Veteran's spouse is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs