Citation Nr: 1804116 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 16-34 393 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to special monthly compensation (SMC) based on the need for the aid and attendance of another or by reason of being housebound. 2. Entitlement to specially adapted housing. 3. Entitlement to a special home adaptation grant. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant (Veteran) and spouse ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran, who is the appellant, had active service in the U.S. Navy from August 1952 to October 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In November 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference Board hearing. A transcript of the hearing is of record. At the Board hearing, the Veteran submitted additional evidence in support of the appeal and waived his right to initial RO consideration of the additional evidence. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017) and 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The service-connected asthma and other service-connected disabilities doe not require the care or assistance of another on a regular basis. 2. Service connection is in effect for asthma, rated at 10 percent from November 5, 1996 to January 15, 2003, and 60 percent thereafter; bilateral hearing loss, rated at 10 percent from November 5, 2014; and tinnitus, rated at 10 percent from November 5, 2014. 3. A TDIU was established effective from January 15, 2003 based all service-connected disabilities. 4. The Veteran's permanent and total service-connected disability is not due to service-connected asthma or other service-connected disability. CONCLUSIONS OF LAW 1. The criteria for SMC based on the need for the regular aid and attendance of another person are not met for any period. 38 U.S.C. §§ 1114, 5107 (2012); 38 C.F.R. §§ 3.102, 3.350, 3.352 (2017). 2. The criteria for specially adapted housing are not met or approximated for the entire period. 38 U.S.C. §§ 2101 (a), 5103, 5103A, 5107, 7104 (2012); 38 C.F.R. § 3.102, 3.159, 3.809 (2017). 3. The criteria for a special home adaptation grant are not met for any period. 38 U.S.C. §§ 2101 (b), 5103, 5103A, 5107, 7104 (2012); 38 C.F.R. § 3.102, 3.159, 3.809a (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice should be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In the May 2015 notice letter sent prior to the initial denial of the claim, the RO advised the Veteran of what the evidence must show to establish entitlement to special adapted housing, and described the types of information and evidence that the Veteran needed to submit to substantiate the claim. The RO also explained what evidence VA would obtain and make reasonable efforts to obtain on the Veteran's behalf in support of the claim. The RO further informed the Veteran how VA determines the disability rating and effective date once service connection is established. In consideration of the foregoing, the Board finds that the VCAA notice requirements were fully satisfied prior to the initial denial of the claim, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who conducts a hearing (1) fully explain the issues and (2) suggest the submission of evidence that may have been overlooked. At the Board hearing, the VLJ asked several questions in order to elicit testimony regarding past and current symptoms, treatment, and functional impairment for the service-connected disabilities and why the Veteran believed that he was entitled to SMC based on the need for aid and attendance and specially adapted housing or a special home adaptation grant. No missing evidence was identified. In consideration of the foregoing, the Board finds that the duties under 38 C.F.R. § 3.103(c)(2) were met. Regarding VA's duty to assist in claims development, the record contains all available evidence pertinent to the appeal. VA has requested records identified throughout the claims process. The Veteran was given appropriate notice of the responsibility to provide VA with any treatment records pertinent to the appeal, and the record contains sufficient evidence to make a decision on the appeal. The complete service treatment records are included in the record, and post-service treatment records identified as relevant to the appeal have been obtained or otherwise submitted. The RO provided VA examinations in April 2015 and May 2016. The examination reports include all relevant findings and medical opinions needed to evaluate fairly the appeal. The VA examiners considered the history of service-connected and nonservice-connected disabilities as provided through interview of the Veteran and performed thorough examinations; therefore, the VA examiners had adequate facts and data regarding the history and condition of the disabilities when providing the medical opinion. For these reasons, the Board finds that the VA examination reports are adequate, and there is no need for further VA examination or medical opinion. The Veteran has not made the RO or the Board aware of any other evidence relevant to the appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed, and no further development is required. SMC Legal Criteria Compensation at the aid and attendance rate is payable when the veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 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; the 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) (2017). 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 regulations also provide additional compensation on the basis of being housebound where the veteran (1) has, in addition to a single, permanent service-connected disability rated 100 percent disabling, additional service-connected disability or disabilities independently evaluated as 60 percent or more disabling which are separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. A veteran will be considered housebound where the evidence shows that, as a direct result of his service-connected disability or disabilities, he is substantially confined to his dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his lifetime. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350. SMC Analysis The Veteran seeks SMC based on the need for the aid and attendance of another or housebound status. The Veteran has generally asserted that he needs assistance of another to perform various functions of daily living due to the severity of the service-connected asthma disability. Service connection is in effect for asthma, rated at 10 percent from November 5, 1996 to January 15, 2003, and 60 percent thereafter; bilateral hearing loss, rated at 10 percent from November 5, 2014; and tinnitus, rated at 10 percent from November 5, 2014. A TDIU is established from January 15, 2003 based on all service-connected disabilities. After review of the lay and medical evidence of record, the Board finds that the weight of the evidence is against a finding that the criteria for SMC based on the need for the aid and attendance of another have been met for any period. The evidence does not show that the Veteran requires the regular aid and attendance of another due to service-connected disability. At the May 2016 VA aid and attendance or housebound examination, the VA examiner noted that the Veteran had diagnoses of severe, end-stage COPD (not-service-connected) and bronchial asthma. The Veteran reported or was assessed to be unable to prepare his own meals, needed assistance in bathing and tending to other hygiene needs, required medication management, did not have the ability to manage his own financial affairs, and needed assistance for locomotion. The May 2016 VA aid and attendance examination reflects that most of the Veteran's impairments that cause the need for the aid and attendance of another are due to non-service-connected disorders. When asked to describe restrictions on the functions of daily living, the May 2016 VA examiner wrote that the activities of daily living were extremely limited due to shortness of breath, (nonservice-connected) COPD, (service-connected) asthma, (nonservice-connected) depression, (nonservice-connected) neuropathy, and (nonservice-connected) obesity. The May 2016 VA examiner noted that the Veteran used supplemental oxygen for COPD, that bilateral upper and lower extremities were weak largely due to severe COPD, muscle wasting and loss, and the Veteran had extreme dyspnea on mild exertion limiting ambulation to ten feet or less. The May 2016 VA examiner specified that severe COPD primarily restricted the listed activities and functions. Because the May 2016 VA examiner had adequate facts and data when rendering the medical opinion, and the medical opinion is supported by adequate rationale, the portion of the May 2016 VA medical opinion primarily attributing the need for aid and attendance to the severity of COPD is of significant probative value. The May 2016 VA examiner cited nonservice-connected severe COPD as the primary reason for the restricted activities and functions, and the RO denied SMC on the basis that the evidence showed that nonservice-connected and tobacco-related COPD caused the need for aid and attendance rather than the service-connected asthma. At an August 2015 VA examination, the VA examiner noted pulmonary function testing results before attributing the limitation in pulmonary function primarily to nonservice-connected COPD due to tobacco abuse and inadequacy of bronchodilator use. Both the May 2016 and the August 2015 VA examiners' opinions distinguish between non-service-connected COPD and the service-connected asthma, attributing to the non-service-connected COPD the majority of the functional impairment causing the need for aid and attendance. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (holding that when a claimant has both service-connected and non-service-connected disabilities, VA must attempt to discern the effects of each disability). A September 2015 letter a private pulmonary specialist opined that the Veteran's moderate to severe chronic airflow obstruction was likely due to a combination of service-connected chronic obstructive asthma and nonservice-connected COPD, without distinction between the respiratory symptoms and functional impairment due to the service-connected asthma and the respiratory symptoms and functional impairment due to the nonservice-connected COPD. The Board finds that the May 2016 and the August 2015 VA examiners' opinions show strong delineation of the impairments, are supported by a rationale, and are consistent with the other history and reported relative impairments between the service-connected asthma and the non-service-connected COPD. [ SMC based on housebound status ] Specially Adapted Housing Legal Criteria A certificate of eligibility for assistance in acquiring specially adapted housing may be awarded to a veteran who is receiving compensation for permanent and total service-connected disability due to (1) the loss, or loss of use, of both lower extremities, such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; (2) blindness in both eyes, having only light perception, plus, the anatomical loss or loss of use of one lower extremity; (3) the loss or loss of use of one lower extremity together with residuals of organic disease or injury which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; (4) the loss or loss of use of one lower extremity together with the loss or loss of use of one upper extremity which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; (5) the loss, or loss of use, of both upper extremities such as to preclude use of the arms at or above the elbow; and (6) full thickness or subdermal burns that have resulted in contractures with limitation of motion of two or more extremities or of at least one extremity and the trunk. 38 U.S.C. § 2101 (a); 38 C.F.R. § 3.809. To "preclude locomotion" means that the disability in question requires the need for regular and constant use of a wheelchair, braces, crutches or canes as a normal mode of locomotion although occasional locomotion by other methods may be possible. 38 C.F.R. § 3.809(c). Where entitlement to specially adapted housing is not established, an applicant may nevertheless qualify for a special home adaptation grant. This benefit requires that the evidence show permanent and total service-connected disability that either results in blindness in both eyes with 5/200 visual acuity or less, or involves the anatomical loss or loss of use of both hands, or certain deep partial and full thickness or subdermal burns, or residuals of an inhalation injury. 38 U.S.C. § 2101(b); 38 C.F.R. § 3.809a(b). Specially Adapting Housing/Special Home Adaptation Grant Analysis At the November 2017 Board hearing, the Veteran testified that he was wheelchair-bound primarily due to severe shortness of breath caused by the service-connected asthma. The Veteran also reported a history of COPD and smoking since service until he quit in the 1990s. He seeks specially adapting housing or a special home adaptation grant on the theory that his respiratory impairments are due to service-connected asthma, rather than due to non-service-connected COPD. Initially, the Board finds that the Veteran has a current permanent and total disability rating. Service connection is in effect for asthma, rated at 10 percent from November 5, 1996 to January 15, 2003, and 60 percent thereafter; bilateral hearing loss, rated at 10 percent from November 5, 2014; and tinnitus, rated at 10 percent from November 5, 2014. A TDIU was established effective from January 15, 2003 based on the severity of symptoms and functional impairment associated with all service-connected disabilities. After review of the record, the Board finds that the criteria for specially adapted housing are not met. None of the service-connected disabilities include or result in loss or loss of use of the lower extremities, blindness in both eyes, loss of loss of use of one lower extremity with residual organic disease or injury affecting balance or propulsion, loss or loss of use of one lower extremity with loss or loss of use of one upper extremity affecting balance and propulsion, loss or loss of use of both upper extremities to preclude use of arms at or above the elbow, or full thickness or subdermal burns. Although the Veteran has previously alleged that right and left lower extremity peripheral neuropathy were related to active service, service connection was denied for both disabilities in a September 2015 rating decision. Because the Veteran did not appeal the portion of the decision denying right and left lower extremity radiculopathy, that portion of the September 2015 rating decision is final. 38 U.S.C. § 7105 (b) (2012); 38 C.F.R. §§ 3.104, 20.1103 (2017). The Veteran has not alleged that any other disabilities are related to service and include loss or loss of use of any extremity, blindness, or full thickness or subdermal burns. In consideration of the foregoing, the award of assistance for specially adapted housing is not warranted for any period. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The Board next finds that the criteria for a special home adaptation grant are not met. The Veteran has permanent and total service-connected disability due to respiratory impairment, the majority of which is due to non-service-connected COPD; therefore, the criteria for a special home adaption grant are not met for any period. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER SMC based on the need for the aid and attendance of another is denied. Specially adapted housing is denied. A special home adaptation grant is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs