Citation Nr: 19119751 Decision Date: 03/19/19 Archive Date: 03/19/19 DOCKET NO. 15 41-591 DATE: March 19, 2019 ORDER Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance is granted. The application to reopen the claim for service connection for an eye disability is granted. REMANDED Entitlement to service connection for an eye disability is remanded. FINDING OF FACT 1. The Veteran’s service-connected disabilities render him so incapable of performing the activities of daily living that he requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. 2. In a September 2005 rating decision, the RO denied service connection for an eye disability; the Veteran did not appeal this decision or submit new and material evidence within the one-year appeal period. 3. Evidence received since the September 2005 rating decision, relates to an unestablished fact necessary to substantiate the claim for entitlement to service connection for an eye disability. CONCLUSION OF LAW 1. The criteria for SMC based on the need for regular air and attendance have been met. 38 U.S.C. §§ 1114, 5107(b) (2012); 38 C.F.R. §§ 3.350, 3.352 (2018). 2. The September 2005 rating decision denying service connection for an eye disability is final. 38 U.S.C. §§ 5108, 7105(2012); 38 C.F.R. §§ 3.156, 19.129, 19.192 (2018). 3. New and material evidence has been received regarding the claim for service connection for an eye disability, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from July 1980 to September 1980, November 1990 to May 1991, November 2001 to September 2002, and February 2003 to June 2004. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision of the Nashville, Tennessee, Department of Veterans Affairs (VA) Regional Office (RO). In April 2018 a Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran’s claims file. 1. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance of another person or housebound status The Veteran seeks entitlement to SMC based on the need for regular aid and attendance of another person or at the housebound rate. Special monthly compensation is payable if, as the result of service-connected disabilities, the Veteran is so helpless as to be in need of regular aid and attendance of another person. 38 U.S.C § 1114(l); 38 C.F.R. § 3.350(b). Under 38 C.F.R. § 3.352(a), the following factors will be accorded consideration in determining whether a veteran is in need of regular aid and attendance of another person: (1) the inability of the veteran to dress or undress himself, or to keep himself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without such aid; (3) inability of the veteran to feed himself because of the loss of coordination of upper extremities or because of extreme weakness; and (4) 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 veteran from the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a) (2018). It is not required that all the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found to exist before a favorable rating may be made. The particular personal functions which a 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 a veteran is so helpless as to need regular aid and attendance, not that there is a constant need. 38 C.F.R. § 3.352(a); see Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in § 3.352(a) must be present to grant special monthly compensation based on the need for aid and attendance). After a review of the record, the Board finds that the criteria for SMC based on the need for aid and attendance have been met. Service connection has been established for spondylolisthesis and degenerative disc disease of the lumbar spine with a 40 percent evaluation, neuropathy of the left lower extremity with a 10 percent evaluation, neuropathy of the right lower extremity with a 10 percent evaluation, arthritis of the left shoulder with a 10 percent evaluation, degenerative changes of the cervical spine with a 10 percent evaluation, and hypertension with a noncompensable evaluation, with a combined evaluation of 60 percent from March 2008. He is also in receipt of individual unemployability from October 2005. The Veteran has asserted that he needs assistance in daily routines, to include bathing, cooking cleaning, and transportation. He reported having difficulty griping or lifting small objects. He noted someone assists him daily in bathing, cooking, cleaning, driving, and managing his finances. At the Board hearing the Veteran reported his niece lives with him and administers his medications and prepares his meals. She helps the Veteran get in and out of the bathtub. Approximately 2 or 3 days per week, he does not get out of bed. He also reported his neuropathy impacts his ability to grasp objects. In January 2012 the Veteran underwent an examination. His chronic back pain is the disability that restricts his activities. He was deemed able to feed himself and bathe himself; however, he was unable to prepare his meals. He reported needing medication management. He endorsed weakness and numbness in his left arm, that affects his ability to grip, and get dressed, but he can feed himself. He has numbness in both legs and was using a cane. He cannot pick up anything over 5 pounds. Either his niece or nephew transports him for errands. In December 2012, he underwent another examination. He was unable to prepare his own meals, but able to feed himself sometimes. He needed assistance in and out of the bath tub. He needed assistance getting dressed and attending to the needs of nature. In February 2013 the Veteran underwent an examination. He reported needing help with bathing, and needs assistance getting dressed. His friend helps him put on socks and shoes and put his pants on. He reported his friend prepares his breakfast and lunch. His nephew then prepares and assists him with dinner. He receives assistance from his sister with putting on pajamas. His friend does all the cooking, cleaning, and shopping. In January 2014 he underwent an examination. He reported his niece lives with him and helps him with bathing, meal preparation, and finance management. He has difficulty with buttons and needs assistance. He is unable to drive and walks with the assistance of a cane. He was issued a wheelchair in June 2018. He uses a back brace, knee brace, and hand brace. In a December 2012 statement from G. B., she noted she prepares the Veteran’s breakfast each day, gives him a bath each day, administers his medications, and assists him in getting in and out of bed. She indicated her daughter prepares his lunch each day. The evidence detailed above indicates that the Veteran requires assistance with cooking, dressing, and he requires regular assistance with mobility in his house to prevent falls. He is now using a wheel chair. He is also unable to groom or bathe without assistance. He has relied on his niece to take care of his grooming, bathing, preparation of foods, ordering and caring for his medications. As such, the Veteran requires assistance in his activities of daily living. He requires care and assistance of another, on a daily basis, to protect him from hazards or dangers incident to his daily environment. The Board has also considered whether the Veteran is entitled to SMC based on the housebound rate. SMC at the aid and attendance rate is a greater monetary benefit than at the housebound rate. Compare 38 U.S.C.§ 1114(l), with 38 U.S.C. § 1114(s). The grant of SMC at the aid and attendance rate thus renders the question of entitlement to SMC on account of being housebound moot, unless the Veteran’s disabilities that would qualify him for SMC at the housebound rate are separate and distinct disabilities that entitle him to SMC at the aid and attendance rate. The Veteran does not have separate and distinct disabilities from those that SMC aid and attendance are based on that would qualify him for SMC housebound. The Veteran is not in a receipt of a service-connected disability rated as total, with an additional service connected disability independently rated as 60 percent or more, nor is there evidence the Veteran is permanently housebound. Therefore, SMC at the housebound rate is not warranted. Based on the foregoing, the Board finds that the weight of the evidence indicates that the Veteran requires aid and attendance due to his service-connected disabilities. See 38 C.F.R. § 3.352(a). Therefore, resolving all reasonable doubt in his favor, the claim for SMC is granted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). 2. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for an eye disability. In September 2005 the RO denied the Veteran’s claim for entitlement to service connection for an eye disability. The Veteran was notified of this denial, but did not appeal, and did not submit new and material evidence within the one-year appeal period. Therefore, this denial became final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. In its September 2005 denial, the RO indicated during service there was no diagnosis or treatment for an eye disability, and there was no current evidence of an eye disability. The evidence reviewed consisted of STRs and VA treatment records. The Veteran submitted a request to reopen the previously denied claim of service connection for an eye disability. In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. The threshold for determining whether new and material evidence raise a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The evidence received since the September 2005 denial includes statements in support of service connection, VA treatment records, and testimony at a Board hearing. The Veteran has reported having watery irritated eyes as a result of exposure to oil fields during service. The Veteran’s military personnel records indicate the Veteran served in Saudi Arabia in 1991. VA treatment records document a history of dry eyes and treatment. The Veteran also provided testimony at the Board hearing that ever since service he has experienced burning and watery eyes. These statements of continuity of an eye disability, and indications of current treatment for watery eyes, as well as reports of burning eyes, could reasonably substantiate the claim. Thus, the claim is reopened. REASONS FOR REMAND 1. Entitlement to service connection for an eye disability is remanded. The Veteran has asserted that he suffers from burning and watery eyes, specifically as a result of exposure to oil fields while deployed in Southwest Asia. The Board notes the Veteran’s military personnel records note the Veteran served in Southwest Asia, in Saudi Arabia from January to May 1991. VA treatment records document treatment for blurry vision and watery and dry eyes. There is also reference to permanent punctual plugs in December 2007. As he has not been afforded a VA examination, a remand is needed. The matter is REMANDED for the following action: 1. Schedule the Veteran for an appropriate examination for the Veteran’s claimed eye disability. The claims file should be made available to the examiner. Following a review of the claims file, the reviewing examiner should provide an opinion for the following question: (a) Whether the Veteran has an eye disability (other than a refractive error), during or in proximity to the appeal period (b) If so, is it at least as likely as not that the eye disability is otherwise related to an event, injury, or disease in active duty? (c) If the Veteran does not have a diagnosed eye disability, whether it is at least as likely as not the eye symptoms, to include reported burning eyes and watery eyes, are due to an undiagnosed illness or medically unexplained chronic multi-symptom illness resulting from service in Southwest Asia. If so, the examiner should also comment on the severity of the symptomatology and report all signs and symptoms necessary for evaluating the illness under the rating criteria. (Continued on the next page) The examiner is asked to provide a detailed rationale for any opinions rendered. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Skiouris, Associate Counsel