Citation Nr: 1813232 Decision Date: 03/01/18 Archive Date: 03/13/18 DOCKET NO. 14-11 420 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to Special Monthly Pension (SMP) benefits based on the need for Aid and Attendance or Housebound Status. ATTORNEY FOR THE BOARD C. D. Simpson, Counsel INTRODUCTION The Veteran served on active duty from October 1974 to October 1976. He also served on active duty from January 1977 to May 1980; however, his character of discharge from this period of service is a bar to VA benefits. In addition, he served in the Army National Guard of Puerto Rico from April 1994 to February 2005. He died in May 2012. The appellant is the surviving spouse. These matters are before the Board of Veterans' Appeals (Board) on appeal from January 2013 and December 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In November 2015, the Board remanded the appeal for additional development. The paper claims folder has been converted in its entirety into an electronic record within the Veterans Benefits Management System (VBMS) and Legacy Content Manager (LCM). The issue of service connection for cause of death is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The most probative evidence of record demonstrates that the appellant is not currently housebound and/or in need of the regular aid and attendance of another person due to her disabilities. CONCLUSION OF LAW The criteria for entitlement to SMP benefits for the appellant based on the need for aid and attendance or housebound status have not been met. 38 U.S.C. § 1521, 1541(d), (e), 5107(b) (2012); 38 C.F.R. §§ 3.351, 3.352 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As a preliminary matter, the Board finds that VA has satisfied its duties under the Veteran's Claims Assistance Act of 2000 (VCAA) to notify and assist. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). The VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (2012), sets forth VA's duties to notify and assist claimants in substantiating claims for VA benefits. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The record reflects that the RO provided the Veteran with the requisite notice in May 2014. The appellant had an opportunity to submit evidence to the RO before readjudication in June 2014 statement of the case and most recently the January 2018 supplemental statement of the case. The appellant has not asserted prejudice from any notification deficiency. Shinseki v. Sanders, 556 U.S. 396, 414 (2009). The Board finds that VA has complied with all assistance provisions of VCAA. 38 C.F.R. § 3.159. The evidence of record contains the appellant's medical records and her statements in support of the claim. There is otherwise no indication of relevant, outstanding records that would support the appellant's claim. 38 U.S.C. § 5103A (c); 38 C.F.R. § 3.159 (c)(1)-(3). The appellant was afforded multiple VA aid and attendance examinations with the most recent taking place in June 2016. She has not reported a material change in disability since then. The decision is in substantial compliance with the November 2015 Board remand for the claim. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required). The appellant was afforded an appropriate VA examination in June 2016. The RO readjudicated the claim with consideration to the newly associated evidence in January 2018. For the above stated reasons, the Board finds that VA's duties to notify and assist have been satisfied. II. Special monthly pension at the aid and attendance rate The appellant seeks a higher rate of pension. Pursuant to 38 U.S.C. § 1541(d)(1), if a surviving spouse who is entitled to pension under subsection (b) of this section is in need of regular aid and attendance, a higher rate of death pension is available for the surviving spouse. For pension purposes, a person shall be considered in need of regular aid and attendance if the 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. § 1502(b). A person will be considered blind or so nearly blind as to need regular aid and attendance if he or she has corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less. 38 C.F.R. § 3.351(c)(1). In determining whether a person needs regular aid and attendance, consideration is accorded to the inability of the person to dress or undress herself, to keep herself ordinarily clean and presentable, to feed herself, to attend to the wants of nature, or to protect herself from hazards or dangers incident to her daily environment. It is not required that all of the listed types of incapacity be found to exist before a favorable rating may be made. 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. 38 C.F.R. § 3.352(a). Determinations as to the need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to the following: inability of a claimant to dress or undress himself/herself or to keep himself/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 aid; inability of a veteran to feed himself/herself 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 a veteran from the hazards or dangers inherent in his/her daily environment. "Bedridden" will be a proper basis for the determination, and is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. It is not required that all of the disabling conditions listed above be found to exist before a favorable rating may be made. The particular personal functions that a claimant is unable to perform should be considered in connection with his/her condition as a whole. It is only necessary that the evidence establish that a claimant is so helpless as to need regular aid and attendance, not that there be a constant need. 38 C.F.R. § 3.352(a). In Turco v. Brown, 9 Vet. App. 222, 224-25 (1996), the United States Court of Appeals for Veterans Claims (Court) held that it was 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. The Court added that the particular personal function which the claimant was unable to perform should be considered in connection with his or her condition as a whole and that it was only necessary that the evidence establish that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. Even when a surviving spouse who is entitled to pension does not qualify for pension at the aid and attendance rate, an increased rate of pension is authorized if the person is permanently housebound. 38 U.S.C. § 1541(e). A person is considered permanently housebound if she is substantially confined to her home or immediate premises by reason of disabilities that are reasonably certain to remain throughout her lifetime. 38 U.S.C. § 1502(c); 38 C.F.R. § 3.351(f). In April 2013, the appellant had a VA examination for housebound status or permanent need for regular aid and attendance. The examiner listed the pertinent diagnosis as degenerative disc disease (DDD) of the lumbar area and congenital spina bifida. He reported that the appellant was able to feed herself and prepare her own meals, but only with light pans and without prolonged standing. She did not need hygiene assistance. She was not legally blind, nor did she require nursing home care. She did not require medication management and could manage her financial affairs. The examiner described the appellant as having a good general appearance and posture. For upper extremities, he noted handling heavy objects caused arm and grip problems for the appellant. She had difficulty buttoning jeans. For lower extremities, she had fatigue, numbness, inability to stand for prolong periods and a few episodes of imbalance. The examiner described restriction of the spine and trunk as inability to bend, lift heavy objects from DDD and painful neck movement. He reported that the appellant usually stayed home the whole day. He indicated she left her house twice for personal needs or medical appointments. An April 2014 lumbar spine CT scan confirmed that the appellant had early DDD at L5-S1 and bulging annulus at L4-5 producing mild to moderate compression. An electromyogram (EMG) revealed findings deemed to be consistent with bilateral C7/8 nerve root irritability. April 2014 tomography and rest myocardial perfusion study showed normal cardiac findings. In June 2014, the appellant had another VA examination for housebound status or permanent need for regular aid and attendance. The examiner listed the appellant's disabilities as cervical neuropathy and lumbar neuropathy. He reported that the appellant was able to feed herself and prepare her own meals. However, she needed assistance with bathing and tending to other hygiene needs. She was not legally blind, nor did she require nursing home care. She needed medication management. She was able to manage her financial affairs. The posture and general appearance notes were illegible. It appeared that the examiner identified restrictions from poor bending ability and inability to lift more than 10 pounds. He reported that she should avoid brooming and mopping activities. He declined to state how often the appellant was able to leave her home. He reported that ambulatory aides were not currently required. October 2014 thyroid sonogram showed a hypoechoic lesion. June 2015 private medical records showed that the appellant had episodes of headache and dizziness, leg pain and swelling with activity, occasional palpations and burning pain while voiding. Clinical evaluation was grossly normal. The clinician assessed hypertensive heart disease with controlled hypertension, hypothyroidism, mitral valve disorders, palpitations, peripheral vascular disease, venous insufficiency, dizziness, headache and urinary tract infection. He recommended additional clinical testing. In October 2015, the appellant reported that she was severely ill and unable to work. December 2015 private medical records showed that the appellant had bilateral cataracts and open angle glaucoma. April 2016 private medical records confirmed that the appellant had hypertensive heart disease and controlled hypertension. In June 2016, the appellant had another VA examination for housebound status or permanent need for regular aid and attendance. She reported residing with her son in a single family house. She described her usual day as waking up at eight am. She performed basic hygiene and grooming and then prepared breakfast. She reported some limitation in household chores due to back pain. She managed her medication and financial affairs. She complained about dizziness on a less than weekly basis, occasional mild memory loss and occasional imbalance affecting her ability to ambulate. She was able to perform all self-care activities. Clinical examination showed normal vital signs and appearance. The appellant was able to walk up to a few hundred yards without assistance. She was able to leave her residence at will. Her vision was better than 5/200 in each eye. She had limitation of motion in her cervical and thoracolumbar spine due to pain. Upper extremities were remarkable for left sided mild or moderate impairment. The examiner characterized it as causing some difficulty in her ability to dress, bathe and groom. The lower extremities were notable for slow pace propulsion. However, weight-bearing and balance were normal. The lower extremities were also notable for mild pitting edema. The examiner reviewed the 2014 imaging studies. She noted medical conditions of hypertension with hypertensive heart disease, mitral valve prolapse, hypothyroidism, lumbar and cervical DDD and peripheral venous insufficiency. She concluded that based upon examination and interview, the appellant was not housebound or in need of aid and attendance. Based on the above evidence, the Board finds that the criteria for an award of SMC based on housebound status or the need for aid and attendance have not been met. The Board finds the June 2016 examination report to be highly probative evidence weighing against the claim. The appellant was interviewed. A VA physician clinically examined her and considered her medical history. The findings from the examination report showed that the appellant had greater self-care and movement capabilities than contemplated by the aid and attendance or permanently housebound rate for pension. In addition, the other evidence of record weighs against a finding that the appellant is in need of aid and attendance or is permanently housebound. She does not have a prosthetic, and does not require a cane, wheelchair, or the assistance of another person to move. Although glaucoma and cataracts are noted, the symptoms have not progressed to a severity as more akin to legal blindness. The evidence generally shows that the appellant is able to cook for herself, able to feed herself, and able to bathe and dress herself with accommodations for lifting and prolonged standing. She does not have any mental impairment or inability to protect herself from dangers in her environment, as evidenced by the fact that she is still capable of managing her own medications and financial affairs. The private medical records indicate that she freely reports for outpatient treatment. They do not otherwise suggest the appellant has significant difficulty leaving her house. See July 2016 private medical records submission. The Board notes the limitations on movement caused by neck, back and lower extremity pain and the general lay assertions of severe disability. The Veteran is competent to describe the effects of her disabilities on her ability to care for herself. However, the evidence as a whole does not show that the appellant's medical conditions are of a currently severity to preclude basic daily activities of self-care or generally restrict the appellant to her residence. For the foregoing reasons, the weight of the evidence does not reflect that the appellant is in a state of helplessness or near helplessness as to require the aid of another person or that she is housebound. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. §3.102. ORDER Entitlement to SMP benefits based on housebound status or the need for aid and attendance is denied. REMAND Unfortunately, another remand is required for the cause of death claim. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the appellant's claim so that she is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C. § 5103A(a) (2012); 38 C.F.R. § 3.159(c), (d) (2017). STRs from October 1974 to October 1976 are currently missing. It appears that these STRs were previously of record from a May 1993 National Personnel Records Center (NPRC) response to the New York RO. A STR envelope with a May 1993 date stamp by the New York RO includes a handwritten note apparently reflecting that the STRs from October 1974 to October 1976 were out. In November 1995, the Veteran filed a claim with the San Juan RO. He requested that his then paper claims folder be transferred from the New York RO. A January 1996 RO memorandum, presumably by the San Juan RO, showed that STRs from the first period of service were initially missing. However, in a January 1997 rating decision and as recently as the August 2006 statement of the case, the San Juan RO specifically cited STRs from October 1974 to October 1976 as evidence. The current procedures for handling STRs direct that once the RO receives STRs from the NPRC that they store them with the Veteran's claim folder. See VA Adjudication Procedure Manual, M21-1, Part III, Subpart iii, Chapter 2, Section A, para. 2.b (updated April 21, 2016). The last known record of these STRs is with the San Juan RO. Presumably, they would have maintained these STRs with the claims folder. However, it is possible that the San Juan RO or even the New York RO may have the STRs in question. See id. Given VA's obligation to exhaust all search efforts in locating Federal records, additional search efforts are needed to locate the STRs from October 1974 to October 1976 as detailed below. Accordingly, the claim remaining on appeal is REMANDED for the following action: 1. Contact the San Juan RO and request that they provide October 1974 to October 1976 STRs for the Veteran. Inform them that they specifically confirmed review of these records as recently as an August 2006 statement of the case. All efforts to obtain these records must be documented in the file. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. If unable to obtain any identified records, take action in accordance with 38 C.F.R. § 3.159(e). 2. Contact the New York RO and request that they provide October 1974 to October 1976 STRs for the Veteran. Inform them that they received STRs for the Veteran in May 1993 from the NPRC and transferred the paper claims folder to the San Juan RO in either 1995 or 1996. All efforts to obtain these records must be documented in the file. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. If unable to obtain any identified records, take action in accordance with 38 C.F.R. § 3.159(e). 3. Thereafter, conduct any additional development to include contacting additional custodians identified in responses, obtaining additional medical examinations and opinions if indicated and readjudicate the issue on appeal. If the benefits sought on appeal remain denied, provide the Veteran and his representative with a Supplemental Statement of the Case and afford them a reasonable opportunity to respond. Then return the case to the Board for further appellate review, 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). ______________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs