Citation Nr: 21026595 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 17-40 405 DATE: May 3, 2021 ORDER Entitlement to special monthly compensation (SMC) due to the need for aid and attendance is denied. FINDING OF FACT The persuasive evidence of record does not demonstrate that the Veteran was in need of regular aid and attendance as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to SMC due to the need for aid and attendance have not been met. 38 U.S.C. § 1114; 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served with the United States Army from May 1964 to May 1984. He died in January 2019. The appellant is the surviving spouse and recognized substitute of the Veteran. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision by the Atlanta, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA). In November 2018, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. The transcript of that hearing is of record. The issue on appeal was remanded by the Board for additional development in August 2019. 1. Entitlement to SMC due to the need for aid and attendance. SMC is awarded to a Veteran who, as a result of service-connected disabilities, has the anatomical loss or loss of use of both feet, or of one hand and one foot, or is blind in both eyes, with 5/200 visual acuity or less, or is permanently bedridden or with such significant disabilities as to be in need of regular aid and attendance. 38 U.S.C. § 1114(l). The loss of use of a hand or a foot will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc., in the case of the hand, or of balance, propulsion, etc., in the case of the foot, could be accomplished equally well by an amputation stump with prosthesis; for example: (a) Extremely unfavorable complete ankylosis of the knee, or complete ankylosis of two major joints of an extremity, or shortening of the lower extremity of 312 inches or more, will constitute loss of use of the hand or foot involved; (b) Complete paralysis of the external popliteal nerve (common peroneal) and consequent footdrop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve, will be taken as loss of use of the foot. 38 C.F.R. § 3.350(a)(2). A person shall be considered to be in need of regular aid and assistance if such person (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 on account 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. § 3.350(b). The following criteria will be considered in determining whether a Veteran is in need of the regular aid and attendance of another person: the inability of the Veteran 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 such aid; the inability of the Veteran to feed himself through the loss of coordination of upper extremities or through extreme weakness; the inability to attend to the wants of nature; or an 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. "Bedridden" will be a proper basis for the determination. For the purpose of this paragraph "bedridden" will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. 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. The particular personal functions which 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. 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. 38 C.F.R. § 3.352(a). It is not required that all 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. Turco v. Brown, 9 Vet. App. 222 (1996). The particular personal function which the Veteran is unable to perform should be considered in connection with his or her condition as a whole and 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. The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). VA may favor one medical opinion over another, provided an adequate basis is provided. Owens v. Brown, 7 Vet. App. 429 (1995). The Veteran contended that SMC was warranted based upon the need for aid and attendance. In correspondence received by VA on March 14, 2013, the Veteran's private physician, B.H., M.D., stated he was in need of assistance with his colostomy bag changes due to his tremors. A March 2013 VA Form 21-2680, examination for housebound status or permanent need for regular aid and attendance signed by Dr. B.H. noted the Veteran needed assistance with his stoma bag. The examiner stated he was unable to handle it independently due to tremor and arthritis. In correspondence dated in October 2013 the Veteran reported that as a result of surgery associated with his rectal and colon cancer he had a colostomy bag that required care he was unable to do for himself. He reported he had constant hand tremors for nearly 40 years and that due to these tremors he was unable to apply the stoma glue or attach the bag to the correct area. He also stated that the task required him to bend which caused a crease in the abdomen in the same area as the stoma. In statements provided in support of the claim in November 2013 from the Veteran's spouse, family members, and E.E.M. described the assistance he received in changing his colostomy bag. A November 2013 private medical statement from J.W.D., M.D., noted the Veteran's tremor had worsened following his cancer treatment. It was noted it was impossible for him to maintain his colostomy bag himself. Private treatment records dated in June 2014 noted the Veteran reported having no problems other than noticing that he was shaking more. A review of systems was negative for neurological symptoms including paresthesias and weakness. The diagnoses included tremor. In an August 2014 statement M.E., M.D., noted a diagnosis of Parkinson's disease had been provided and that the Veteran had hand tremors requiring assistance with his colostomy bag. An August 2014 treatment report from Dr. M.E. included a diagnosis of Parkinsonism with improvement using medication, carbidopa levodopa, and a decrease in resting tremor but with a mild persistent action tremor. An April 2018 private treatment report noted the Veteran denied neurological symptoms including poor balance and numbness. VA treatment records dated in December 2015 noted reference to a January 2013 private medical record indicating that due to tremor the Veteran was unable to handle colostomy and that the appellant assisted him. Records showed he used non-VA medications including Gabapentin. A June 2016 report noted positive tremor with no motor deficit and sensitivity and deep tendon reflexes within normal limits. A July 2017 report noted the Veteran reported having no falls, near falls, nor fear of falling within the past 12 months. A functional screening noted he denied having difficulty caring for himself. An activities of daily living (ADL) assessment found he was independent in bathing, dressing, toileting, transferring, continence, and feeding. An instrumental ADL (IADL) scale noted he took care of all shopping needs independently and traveled independently on public transportation or drove his own car. A July 2018 ADL assessment included a score indicating independence in ADLs. A July 2018 examination noted he denied any difficulty ambulating and denied sensory abnormalities or focal weakness. At his November 2018 Board hearing, the Veteran testified that he had problems with falls, at least once per week and sometimes needing help to get up, and that he was unable to change his colostomy bag himself. His daughter testified that he was unable to change his stoma due to severe hand tremors. She also stated that he was sometimes unable to prepare his own meals, to carry his food and drinks without spilling, to dress himself, to perform household chores, or to stay by himself due to falls. She reported her mother kept track of his medications and helped him with his activities of daily living. Private hospital records show the Veteran was admitted in January 2019 with shortness of breath and found to have bilateral pneumonia and an underlying history of chronic obstructive pulmonary disease. His status deteriorated and he developed septic shock. Records show he was unresponsive, unable to tolerate oral nutrition, and dependent on others for all activities of daily living. The appellant reported the Veteran had needed mild assistance at home with some activities of daily living. The Veteran's death certificate show he died in January 2019 as a result of severe sepsis, shock, and pneumonia. A May 2019 statement provided in support of the Veteran's claim asserted that he had required the daily assistance of a caretaker. It was further asserted that he had been unable to drive due to Parkinson's disease, had difficult standing for prolonged periods of time, and was unable to ambulate without the assistance of a walking cane. Service connection was established for Parkinson's disease with right hand tremors (40 percent), left hand tremors associated with Parkinson's disease (30 percent), degenerative arthritis of the lumbosacral spine and lower dorsal spine (20 percent), status post left distal fibula fracture with residual deformity (10 percent), bilateral pes planus with calcaneal spur (10 percent), kidney stones (0 percent), status post nasopharyngeal cancer (0 percent), and skin cancer (0 percent). Service connection for Parkinson's disease and associated tremors was established effective from September 10, 2014, the date the claim was received by VA. Based upon the evidence of record, the Board finds that the Veteran is not shown to have been in need of regular aid and attendance as a result of his service-connected disabilities prior to his death. The evidence does not show, nor was it contended, that he was blind or is 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 5 degrees or less. Nor was he shown to be actually confined to his bed or to be a patient in a nursing home because of mental or physical incapacity as a result of a service-connected disability prior to his final illness. The overall evidence is persuasive that as a result of his service-connected disability the Veteran was not so helpless as to require the regular, though not constant, aid and attendance of others to dress or undress himself, to keep himself ordinarily clean and presentable, to adjust any special prosthetic or orthopedic appliances, to feed himself due to the loss of coordination of the upper extremities or extreme weakness, to attend to the wants of nature, or to protect himself from the hazards or dangers incident to his daily environment. The matter at issue is medically complex and the Veteran was shown to have multiple nonservice-connected injuries and illnesses that were severely disabling. His service-connected disability ratings were, themselves, indicative of some impairment in functioning. The persuasive evidence, however, does not demonstrate that as a result of his service-connected disabilities he was so helpless as to need regular aid and attendance. There is no indication that a retrospective medical opinion based upon the available evidence would assist the appellate in substantiating the claim. Consideration has been given to private medical opinions indicating the Veteran required the assistance of others with colostomy bag changes due to tremors associated with his Parkinson's disease. That evidence includes reference to a January 2013 report indicating that due to tremor the he was unable to handle his colostomy, correspondence received in March 2013 from Dr. B.H., and a March 2013 VA Form 21-2680 signed by Dr. B.H. noting he was unable to handle a stoma bag independently due to tremor and arthritis. There is also a November 2013 statement from Dr. J.W.D. noting his tremor had worsened following cancer treatment and that it was impossible for him to maintain his colostomy bag himself, and an August 2014 statement from Dr. M.E. noting he had hand tremors requiring assistance with his colostomy bag. The Board finds that these opinions warrant a lesser degree of probative weight due to inconsistency with the other evidence of record. Specifically, private treatment records dated in June 2014, August 2014, and April 2018 and VA treatment records dated in June 2016, July 2017, and July 2018 indicating an absence of complaint or medical findings of significant neurological symptoms. In fact, in his August 2014 treatment report Dr. M.E. described the Veteran's resting tremor as decreased with medication and that his remaining persistent action tremor was mild. The evidence is clear that the Veteran experienced tremors to some extent during the course of the appeal prior to his death due to his service-connected Parkinson's disease. However, the overall evidence of record is persuasive that regular aid and attendance was not required because of his service-connected disabilities. It also is significant to note that in his October 2013 statement the Veteran described not being unable to apply the stoma glue or attach the bag to the correct area because the task required him to bend in the same area as the stoma. He was not service connected for the underlying disease and disabilities associated with the need for his surgery and the required colostomy bag or its location. The Board finds that the overall medical evidence over the course of the applicable period in this case is persuasive. The lay evidence in this case includes statements describing the assistance received in changing his colostomy bag and other activities of daily living were provided by the Veteran, the appellant, other family members, and E.E.M. in October 2013. Testimony provided in November 2018 also noted he had problems with falls, was unable to change his colostomy bag himself, and was sometimes unable to prepare his own meals, to carry his food and drinks without spilling, to dress himself, to perform household chores, or to stay by himself due to falls. The Board acknowledges that lay statements are competent to report observable symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). They are not, however, shown to be competent to provide medical opinions or to assess a specific level of disability. The lay statements are also found to warrant a lesser degree of probative weight as to the degree of observed impairment due to inconsistency with the Veteran's own reports of ADL functioning upon VA and non-VA treatment. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The Board notes that competent evidence concerning the nature and extent of the Veteran's service-connected disabilities was provided by the medical professionals who have examined him. The Board accords these objective records greater weight than the subjective complaints as to any greater impairment. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). In this case, the treatment reports of record are found to be more persuasive as to the Veteran's impairments due to service-connected disabilities and an absence of a regular need for aid and attendance as a result of those disabilities. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The preponderance of the evidence in this case is against the Veteran's claim. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Douglas The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.