Citation Nr: 1815579	
Decision Date: 03/16/18    Archive Date: 03/23/18

DOCKET NO.  14-22 487	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance of another or at the housebound rate on an accrued benefits basis.


REPRESENTATION

Appellant represented by:	Tennessee Department of Veterans' Affairs


ATTORNEY FOR THE BOARD

C.A. Skow, Counsel



INTRODUCTION

The Veteran served on active duty from February 1951 to February 1953.  He died in February 2012.  The appellant is the Veteran's sister.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.


FINDING OF FACT

Service-connected disabilities did not render the Veteran so nearly helpless as to require the regular aid and attendance of another person, nor did they cause him to be housebound.


CONCLUSION OF LAW

The criteria for SMC based on the need for aid and attendance or at the housebound rate on an accrued benefits basis are not met.  38 U.S.C. § 1114 (2012); 38 C.F.R. §§ 3.350, 3.352 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  VA's Duties to Notify and Assist

VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).
Neither the appellant, nor her representative, has alleged prejudice or any issues with the duty to notify or the duty to assist.  The Federal Circuit 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...."  See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

II.  SMC Based on Aid & Attendance or at the Housebound Rate

The appellant contends that SMC for the deceased Veteran is warranted because she provided him with care after he was diagnosed with cancer and was no longer able to care for himself.

Legal Criteria 

SMC is payable to a veteran who, as a result of service-connected disabilities, is so helpless as to need or require the regular aid and attendance of another person.  38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b)(3).  A veteran will be considered in need of regular aid and attendance if he or she is: (1) 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 five degrees or less; (2) is a patient in a nursing home because of mental or physical incapacity; or (3) establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a).  38 C.F.R. § 3.351(c).  Factual need for aid and attendance is based on criteria set out at 38 C.F.R. § 3.352(a) although it is not required that all of the disabling conditions enumerated therein be found to exist to establish eligibility.

In addition, a veteran may receive housebound-rate special monthly compensation if he or she has a service-connected disability rated as permanent and total (but not including a total rating based upon unemployability under 38 C.F.R. § 4.17 ) and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) by reason of disability or disabilities, is permanently housebound but does not qualify for special monthly pension at the aid and attendance rate.  38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i).  A veteran will be determined to be permanently housebound when he or she is substantially confined to the house (or ward or clinical areas, if institutionalized) or immediate premises due to disability or disabilities which it is reasonably certain will remain throughout his or her lifetime.  38 U.S.C. § 1502(c); 38 C.F.R. § 3.351(d)(2).

Facts and Analysis

Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against SMC based on the need for the regular aid and attendance of another person or at the housebound rate.  38 U.S.C. § 1114; 38 C.F.R. § 3.350.

At the time of the Veteran's death, service connection was established for anxiety state (70%); residuals of frozen feet (30% - each foot); peripheral neuropathy of the lower extremities (20% - each leg); and dorsal spine arthritis (10%).  The combined disability rating was 90% from November 19, 2002-and a total disability rating based on individual unemployability was assigned from this date.  The Veteran died in February 2012.

In August 2012, following the Veteran's diagnosis with metastatic cancer, VA received a claim for SMC based on the need for the regular aid and attendance of another person or at the housebound rate.  It is uncontroverted that the Veteran required the regular aid and attendance of another person and that he was essentially housebound from the time VA received his claim until his death.  However, both the lay and medical evidence show that this was attributable to nonservice-connected cancer with its associated complications and debilitating effects.

The Board has considered VA Forms 21-2680 (Examination for Housebound Status or Permanent Need for Regular Aid and Attendance) dated on January 7, 2012, and January 25, 2012.  These evaluations indicate that the Veteran was unable to dress/undress himself, attend to wants/needs of nature, walk unassisted, keep himself clean, protect himself from hazards/dangers, and more.  It was noted that he was hospitalized.  The diagnosis was cancer with metastasis to the brain.  There was no mention of any need based on any of the Veteran's service-connected disabilities.  On the January 2012 examination report, the examiner stated that the Veteran's weakness, cancer in the brain, and seizures with falls caused the restrictions with his activities/functions.  VA treatment records show that the Veteran, then age 81, was hospitalized in January 2012 after a fall in his home-he was discovered by the Memphis Housing Authority and taken to the hospital by his sister.  History of prostate cancer in 1992 was noted and he was admitted due to findings suggestive of metastasis.  Diagnostic testing revealed metastatic lesions of the brain and malignant lung mass.  No impairments or restrictions attributable to any service-connected disability were shown.  VA treatment records show that VA provided ambulance transportation to the Veteran since this time for medical appointments and he obtained radiation treatment to kill cancer cells in the brain; however, the Veteran died in February 2012.  This evidence is competent and credible, but not probative of need for care based on service-connected disabilities or entitlement to housebound benefits because the Veteran's cancer is not a service-connected disorder.

The Board has further considered the lay evidence.  The appellant reported that she cared for her brother, the Veteran, who had lung cancer for 2 months, along with their sister.  She brought all his supplies and food.  See VA Form 21-601 (April 2012); VA Form 27-0820 (May 2016).  This evidence is competent and credible, but not probative of need for care based on service-connected disabilities or entitlement to housebound benefits because again the Veteran's cancer is not a service-connected disorder.

Here, neither the lay nor the medical evidence supports entitlement to the benefits sought because it fails to demonstrate that, due to service-connected disabilities, the Veteran (1) was 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 five degrees or less; (2) was a patient in a nursing home because of mental or physical incapacity; or (3) had factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a).  See 38 C.F.R. § 3.351(c).  Furthermore, the Veteran was not bedridden due to service-connected disability.  38 C.F.R. § 3.352(a).  Lastly, the Veteran did not have a service-connected disability rated as permanent and total (but not including total rating based upon unemployability under 38 C.F.R. § 4.17) and either additional service-connected disability independently ratable at 60% or more, or permanently housebound due to service-connected disability.  38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i).

No medical professional has provided any opinion indicating that the Veteran's service-connected disabilities required him to need regular aid and attendance or rendered him permanently bedridden.  There are no treatment records showing that the Veteran's service-connected disabilities caused him to be permanently bedridden or so helpless as to be in need of regular aid and attendance.

Accordingly, the claim is denied.  There is no doubt to resolve.  38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).






	(CONTINUED ON NEXT PAGE)


ORDER

SMC based on the need for regular aid and attendance of another or at the housebound rate on an accrued benefits basis is denied.




____________________________________________
DONNIE R. HACHEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs