Citation Nr: 1801777 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 13-31 430A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for a neurological disorder, diagnosed as primary progressive aphasia and frontal temporal dementia, to include as secondary to herbicide exposure in Vietnam. 2. Entitlement to special monthly compensation (SMC) based on aid and attendance and/or housebound. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Sorathia, Counsel INTRODUCTION The Veteran served on active duty from June 1967 to January 1969, with service in the Republic of Vietnam. The Veteran died in September 2014. The appellant, the Veteran's surviving spouse, received notification in June 2015 that she was accepted as a valid substitute for her husband's pending claim. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. On his November 2013 VA Form 9, the Veteran stated that he wanted a videoconference hearing. In August 2014, the Veteran withdrew his request for a Board hearing. 38 C.F.R. § 20.704(e). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam. 2. The medical evidence reveals that the Veteran's primary progressive aphasia with frontal temporal dementia is caused by exposure to herbicide agents in the Republic of Vietnam. 3. The Veteran's primary progressive aphasia with frontal temporal dementia rendered him unable to care for his daily needs without requiring the regular aid and attendance of another person. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for primary progressive aphasia with frontal temporal dementia are met. 38 U.S.C. §§ 1110, 1154(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for SMC based on the need for the regular aid and attendance of another person have been met. 38 U.S.C.A. §§ 1114 (l), 1154(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.350(b), 3.351, 3.352 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection for Primary Progressive Aphasia The Veteran, prior to his death, contended that his primary progressive aphasia and dementia were caused by his conceded exposure to herbicide agents in the Republic of Vietnam. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Service connection for certain diseases may be granted based on presumed exposure to certain herbicide agents, even though there is no record of such disease during service. 38 C.F.R. § 3.309(e). Presumed exposure to an herbicide agent applies to Veterans who served in the Republic of Vietnam between January 9, 1962 and May 7, 1975, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). In Combee v. Brown, the United States Court of Appeals for the Federal Circuit held that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994), reversing in part Combee v. Principi, 4 Vet. App. 78 (1993). In the instant case, a VA medical opinion has not been obtained as to whether the Veteran's primary progressive aphasia and dementia are related to herbicide exposure. A September 2014 private medical opinion from the Veteran's doctor is associated with the claims file. The opinion states that the Veteran had frontal temporal dementia and primary progressive aphasia. The doctor states that primary progressive aphasia is a neurological disorder with a risk factor of certain gene mutations. Constituents of Agent Orange are capable of producing gene mutations and therefore, it is more likely than not that the Veteran's condition is a result of gene mutations from herbicide exposure in Vietnam. The Board finds this medical opinion to be probative as the doctor considered the Veteran's medical history and cited to medical evidence to support his conclusions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In light of the probative September 2014 medical opinion, along with the medical evidence showing a history of "primary progressive aphasia with frontal temporal dementia," the Board finds that service connection for primary progressive aphasia with frontal temporal dementia, is warranted in the instance case. Entitlement to SMC Here, the Veteran, prior to his death, contended that he was entitled to SMC based on the aid and attendance of another person due to his primary progressive aphasia with frontal temporal dementia. Under 38 U.S.C.A. § 1114 (l), SMC for aid and attendance is payable if, as the result of service-connected disability(ies), the Veteran has an anatomical loss or loss of use of both feet, or of one hand and one foot; has blindness in both eyes with visual acuity of 5/200 or less; 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); 38 C.F.R. § 3.350 (b). 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)(3). The following will be accorded consideration in determining the need for regular aid and attendance: inability of 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 aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of 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, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. It is not required that all of the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made. Turco v. Brown, 9 Vet. App. 222, 224 (1996). The particular personal functions that the Veteran is unable to perform should be considered in connection with his or her 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 be a constant need. A Veteran will be found to be bedridden if the condition actually requires that he remain in bed, but not if he voluntarily stays in bed or if a physician merely recommends bed rest. Determinations that the Veteran 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. In light of the above decision, the Veteran is service-connected for primary progressive aphasia with frontal temporal dementia. A September 2014 medical opinion states that the Veteran was unable to express himself and that he was dependent for all activities of daily living. The Veteran was admitted into hospice care for dementia in September 2013. An October 2013 medical statement revealed that the Veteran required assistance with all activities of daily living and that he was no longer able to speak or follow commands. He choked on solid and liquid foods. A July 2013 treatment record notes that the Veteran required "full assistance" for hygiene issues, such as showing and brushing his teeth. A July 2013 letter from the Veteran's doctor also states that the condition impacted "all aspects" of his life and that he was unable to express his needs. He could not manage his activities of daily living, to include eating, bathing, or dressing. An August 2012 examination noted that the Veteran required assistance in bathing and tending to other hygiene needs due to his dementia and primary progressive aphasia. Prior to his death, it was noted that he "would not be able to survive without" twenty-four hour care. See August 2012 examination report. In light of this medical evidence, the Veteran, prior to his death, was unable to keep himself clean and presentable and to attend to the wants of nature such that he required the aid and attendance of another person. 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. Moreover, the need is not required to be constant. Turco. In this case, more than one of the enumerated factors was present and aid and attendance was regularly needed prior to the Veteran's death. Accordingly, the Board finds that prior to his death the Veteran required the aid of another person on a regular basis. Thus, SMC based on the need for regular aid and attendance of another person is warranted. 38 C.F.R. § 3.351(a)(1) provides that SMC is payable to a Veteran by reason of need for aid and attendance or by reason of being housebound. SMC based on housebound status is a lesser benefit than SMC at the aid and attendance rate. 38 U.S.C. § 1114(l), (s); 38 C.F.R. § 3.350. Hence, the grant of SMC at the aid and attendance rate renders the issue of entitlement to SMC at the housebound rate moot. ORDER Service connection for primary progressive aphasia with frontal temporal dementia is granted. Special monthly compensation based on the need for aid and attendance of another person is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND In the above decision, the Board granted service connection for primary progressive aphasia with frontal temporal dementia. This is the only disability for which the Veteran is service-connected. As such, the issue of entitlement to TDIU cannot be addressed until the AOJ has assigned a disability rating for primary progressive aphasia with frontal temporal dementia. Accordingly, the issue of entitlement to TDIU is remanded. Upon remand, the appellant should be afforded the opportunity to submit additional evidence, to include the Veteran's employment history. 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.) 1. Send the appellant VA Form 21-8940. 2. Invite the appellant to submit any lay or medical evidence from herself and/or from other individuals who have first-hand knowledge of the impact of the Veteran's service-connected disability on his ability to secure or follow substantially gainful occupation prior to his death. 3. Then readjudicate the appeal. If claim remains denied, issue a supplemental statement of the case. Then, return the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs