Citation Nr: 1749101	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  08-06 027	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas



THE ISSUE

Entitlement to special monthly pension (SMP) based on the need for aid and attendance.



REPRESENTATION

Veteran represented by:	Texas Veterans Commission



ATTORNEY FOR THE BOARD

L. B. Yantz, Counsel



INTRODUCTION

The appellant is a Veteran who served on active duty from August 1966 to August 1969.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2002 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

In February 2011 and in July 2012, this matter was remanded by another Veterans Law Judge for additional development.  The case has now been assigned to the undersigned Veterans Law Judge.

The Veteran originally also initiated appeals of claims of service connection for neck nerve damage and for a left ankle disability.  However, the Veteran excluded these issues from his appeal on a February 2008 VA Form 9, Substantive Appeal, following a December 2007 Statement of the Case.  Therefore, these matters are not before the Board.


FINDINGS OF FACT

1.  The evidence of record reflects that the Veteran is not blind or nearly so, that he is not domiciled in a nursing home, and that his disabilities do not render him so incapable of performing activities of daily living that he requires care or assistance on a regular basis (including to protect him from hazards or dangers incident to his daily environment).

2.  The Veteran failed to report for a VA examination scheduled in July 2012 in connection with his claim, and good cause for his failure to appear has not been shown.



CONCLUSION OF LAW

SMP based on the need for aid and attendance is not warranted.  38 U.S.C.A. §§ 1502, 1521, 5107 (West 2014); 38 C.F.R. §§ 3.326(a), 3.351, 3.352, 3.655 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Notice and Assistance

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the [V]eteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

The Veteran failed to respond to a December 2011 letter which provided him notice of the opportunity to submit additional evidence and argument to support his claim (which was mailed pursuant to the Board's February 2011 remand instructions).  He also failed to report for a VA examination in July 2012 (which was scheduled pursuant to the Board's July 2012 remand instructions), and good cause for his failure to appear has not been shown.  The duty to assist is not a one-way street.  See Wood v. Derwinski, 1 Vet. App. 190 (1991).  Therefore, the Board finds that all of the relevant development requested by the Board's February 2011 and July 2012 remands was substantially completed.  See Stegall v. West, 11 Vet. App. 268 (1998).

Legal Criteria

Increased pension benefits are payable to a Veteran who needs the regular aid and attendance of another.  38 U.S.C.A. § 1521(d); 38 C.F.R. § 3.351.  A Veteran will be considered in need of regular aid and attendance if he or she: (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 5 degrees or less; or (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).

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 such conditions as: inability of the Veteran to dress and undress himself or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliance; inability of the Veteran to feed himself through loss of coordination of the upper extremities or through extreme weakness; inability to tend to the wants of nature; or incapacity, physical or mental, which requires care and assistance on a regular basis to protect the Veteran from the hazards or dangers incident to his daily environment.  A determination that a Veteran is "bedridden" is one basis for determining that aid and attendance is required and is defined as that condition which, through its essential character, actually requires that the Veteran remain in bed.  The fact that the Veteran 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.  All of the above conditions need not be found in order to warrant aid and attendance, and there need not be a constant need for aid and attendance, as opposed to the Veteran being so helpless as to need regular aid and attendance.  38 C.F.R. § 3.352(a).

When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or re-examination and a claimant, without good cause, fails to report for such examination, or reexamination, action shall be taken in accordance with paragraph (b) or (c) of 38 C.F.R. § 3.655 as appropriate.  Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc.  38 C.F.R. § 3.655(a).

When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record.  When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied.  38 C.F.R. § 3.655(b).

Procedural History

Initially, a November 2000 rating decision granted the Veteran entitlement to nonservice-connected pension, and also denied entitlement to SMP based on the need for aid and attendance or on housebound status.  The Veteran did not appeal the November 2000 rating decision or submit evidence within one year of receiving notice of that decision; therefore, it became final.  38 C.F.R. § 3.156(b), 3.160(d).

In June 2002, the Veteran filed the instant claim for entitlement to SMP based on the need for aid and attendance or on housebound status.  [The prior final November 2000 denial does not affect the Board's analysis of the instant claim, because claims for pension are different than claims for service connection, with only the latter requiring that new and material evidence be submitted to reopen and adjudicate the claim on its merits.  See Abernathy v. Principi, 3 Vet. App. 461, 464 (1992).]

During the pendency of the instant appeal, a November 2004 rating decision granted the Veteran entitlement to SMP based on housebound status.  However, the claim for SMP based on the need for aid and attendance remained on appeal, and is the only matter before the Board at this time.

Analysis

The Board notes that it has reviewed all of the evidence in the record, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim being decided.

In a private treatment record submitted in June 2002, the Veteran's private physician noted that the Veteran "needs private care provider to assist [with] housekeeping, cooking, etc. due to disability."

At an October 2003 VA aid and attendance examination, the Veteran reported having numbness in the left side of his body (including the left arm and left leg), as well as severe pain in his left hip and left knee which increased on standing and on walking for a short distance.  It was noted that he lived by himself in an apartment on the ground floor.  He reported that he tried to cook for himself, drove sometimes to the grocery store (usually every 14 days), and had friends come over sometimes to help with the cleaning of his apartment.  He also reported that he did laundry in the apartment laundry room, that he could take a bath by himself (and had a shower chair in the bathtub), and that he could put his clothes on (though it took him awhile to do so).  The examiner noted that the Veteran had an antalgic gait and walked with a walking cane very slowly, leaning on the cane heavily.  His eyes were evaluated as normal, and it was noted that he wore glasses as needed.  During the examination, he was able to take his clothes off and put them back on without assistance, and he was also able to transfer slowly to the scale and examining table.  While the presence of an attendant during the examination was offered to the Veteran, it was noted that he declined this offer.  The examiner opined that the Veteran's conditions (including hypertension and musculoskeletal problems) were "permanent, and gradual worsening can be expected."

At an October 2003 VA orthopedic examination (which took place on the same date as his VA aid and attendance examination), the Veteran was diagnosed with the following: cervical degenerative disc disease (moderately symptomatic); left hemiparesis, status post spinal surgery (significantly symptomatic); left knee pain, with a note to rule out lateral meniscal tear (moderately symptomatic); and degenerative joint disease of the left hip (severely symptomatic).  The examiner opined that the Veteran was "certainly limited in his activities and probably should be considered housebound.  He is unable to drive, and take care of most of his own matters.  He is certainly not employable from an orthopedic standpoint."  [The Board reiterates that the Veteran is already in receipt of SMP based on housebound status.]

Pursuant to the Board's February 2011 remand, the RO mailed the Veteran a letter in December 2011 which provided him notice of the opportunity to submit additional evidence and argument to support his claim for SMP based on the need for aid and attendance.  The record reflects that the Veteran did not respond to this letter, and he has not indicated that he has any additional evidence or argument to submit.

Pursuant to the Board's July 2012 remand, the Veteran was scheduled for an updated VA aid and attendance examination in July 2012.  While the record does not contain a copy of any letter sent to the Veteran which notified him of this examination and the consequences of failing to report, the Board finds that it has not been argued or disputed at any time (by either the Veteran or his representative) that the Veteran was not aware of this scheduled VA examination as well as the consequences of his failure to report for such examination.  Thereafter, he failed to report for that July 2012 examination, and neither he nor his representative provided any explanation for such failure.

Thereafter, a December 2012 Supplemental Statement of the Case (SSOC) denied the claim for SMP based on the need for aid and attendance, and noted that the claim was considered based on the evidence of record because of the Veteran's failure to report for the July 2012 examination.  The December 2012 SSOC further noted that the Veteran had not offered any "good cause" reason for not reporting for such examination, and that evidence expected from such examination which might have been material to the outcome of the claim could not be considered.

The record reflects that the Veteran has not received any VA treatment since the issuance of the December 2012 SSOC, as reflected by VA records documenting that the most recent VA treatment report of record is a January 2012 VA audiology examination report (which does not contain any pertinent evidence for his current SMP claim).
The above evidence reflects that the Veteran does not meet the aid and attendance criteria in the applicable regulations.  There is no evidence that the Veteran is blind or nearly so, or that he is domiciled in a nursing home.  In addition, based on the evidence outlined above, the Board finds that his disabilities do not render him so incapable of performing activities of daily living that he requires care or assistance on a regular basis (including to protect him from hazards or dangers incident to his daily environment).  While the Veteran's private physician noted in a June 2002 private treatment record that the Veteran needed assistance with housekeeping and cooking, the Veteran thereafter reported at his October 2003 VA aid and attendance examination that he did try to cook for himself and that he had friends come over only "sometimes" to help with cleaning his apartment.  In addition, while the October 2003 VA orthopedic examiner opined that the Veteran was limited in his activities and was unable to drive and take care of most of his own matters, the Board notes that this examiner's opinion was directly contradicted by the Veteran's own statements at his VA aid and attendance examination on that same date in October 2003, when he reported that he lived alone and performed multiple activities of daily living by himself (including cooking, driving to the grocery store, doing laundry, taking a bath, and putting his clothes on).  Such findings, all taken together, do not demonstrate that the Veteran required the regular care and assistance of another in order to perform his activities of daily living.

Furthermore, although the October 2003 VA aid and attendance examiner opined that the Veteran's conditions (including hypertension and musculoskeletal problems) were "permanent, and gradual worsening can be expected," the Board reiterates that the Veteran thereafter failed to report for a VA examination scheduled in connection with his claim, and no "good cause" reason has been offered for his failure to appear for that examination.  Under such circumstances, the claim must be denied based on his failure to appear.  See 38 C.F.R. § 3.655.  Notably, the Veteran has not expressed an intent to appear for an examination if one were to be rescheduled.

Given the absence of any competent evidence that the Veteran meets any of the criteria for SMP based on the need for aid and attendance, the Board finds that the preponderance of the evidence is against the claim for SMP based on the need for aid and attendance.  There is no doubt to be resolved.

Accordingly, the Board finds that SMP based on the need for aid and attendance is not warranted, and the claim is denied.


ORDER

SMP based on the need for aid and attendance is denied.




____________________________________________
M. SORISIO
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs

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