Case 22051269

Summary

The Veteran served from February 1991 to May 1991. The Veteran appealed the denial of special monthly compensation (SMC) based on the need for regular aid and attendance. The Veteran's service-connected lumbar spine disability was previously granted at 20%, with subsequent Board decisions adjusting the rating to 40% from May 2017 to November 2019, and denying higher ratings thereafter. The issue of SMC for aid and attendance was raised by the record and remanded by the Board in December 2020 for development, including a request for a VA Form 21-2680 from the Veteran or her physician. The Veteran did not respond to this initial request, leading to an RO denial in January 2021. Following a Veteran statement in February 2021 about a fall exacerbating her back condition and mentioning a home health provider, the case returned to the Board and was remanded again. The RO was instructed to obtain outstanding VA treatment records, request a completed VA Form 21-2680 from the Veteran's physician, and schedule necessary VA examinations. The Veteran was also asked to submit private treatment records. Additional VA treatment records were received in June and August 2021, and May 2022. The Veteran submitted VA Form 21-4142 in June 2021 identifying additional private treatment records for the SMC claim. The Board ultimately denied SMC for aid and attendance, finding that the evidence did not persuasively establish the need for aid and attendance due to service-connected disabilities.

Rationale

Veteran did not respond to requests for VA Form 21-2680; Evidence did not persuasively establish need for aid and attendance

Full Decision Text

Citation Nr: 22051269
Decision Date: 09/09/22	Archive Date: 09/09/22

DOCKET NO. 11-05 626
DATE: September 9, 2022

ORDER

Special monthly compensation (SMC) based on the need for regular aid and attendance under the provisions of 38 U.S.C. § 1114(l) is denied.

FINDING OF FACT

The competent and credible evidence of record does not persuasively establish a finding that the Veteran's service-connected disabilities are shown to result in the need for aid and attendance of another person.

CONCLUSION OF LAW

The criteria for SMC based on the need for regular aid and attendance of another person are not met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from February 1991 to May 1991. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) which, in pertinent part, granted service connection for a lumbar spine disability, and assigned a disability rating of 20 percent. The Veteran appealed the assigned rating to the Board, which was remanded for additional development several times. In a December 2020 Board decision, the Board denied a rating in excess of 20 percent prior to May 5, 2017, granted a 40 percent rating from May 5, 2017 to November 20, 2019, and denied a rating in excess of 40 percent thereafter.  The Veteran did not appeal this decision to the United States Court of Appeals for Veterans Claims (Court), and thus, the increased rating issue for the lumbar spine disability is no longer on appeal.  

The December 2020 Board decision also found that the evidence showed the issue of SMC based on need for aid and attendance had been raised by the record as part of the increased rating claim for the lumbar spine disability. See 38 C.F.R. § 3.350; Akles v. Derwinski, 1 Vet. App. 118 (1991) (the issue of entitlement to SMC is part and parcel of a claim for increased compensation and does not require submission of a separate claim). The Board remanded this issue to the RO to conduct all development of the SMC claim deemed necessary, to include obtaining medical examinations or opinions. In December 2020, a letter was sent to the Veteran asking that she submit a signed statement or a completed VA Form 21-2680 Examination for Housebound Status or Permanent Need for Aid and Attendance by her physician. The Veteran did not respond to this request, and in a January 2021 rating decision, the claim of entitlement to SMC based on aid and attendance was denied by the RO.

In February 2021, the Veteran submitted a statement that she had recently fallen and hit her head, causing her service-connected back to be exacerbated, and indicated that she had a home health care provider. The issue returned to the Board in May 2021 and was again remanded. The Board instructed the RO to obtain and associate with the claims file any outstanding VA treatment records, to ask the Veteran to submit a VA Form 21-2680 signed by her physician, and to schedule the Veteran for any examinations to determine the need for aid and attendance due to the service-connected disabilities.

A letter was sent to the Veteran in May 2021 asking that she identify and authorize for release any additional private treatment records (PTRs), and to submit a completed VA Form 21-2680. Additional VA treatment records were successfully added to the claims file in June and August 2021, and May 2022. Also in June 2021, the Veteran submitted additional evidence regarding their SMC claim, including VA Form 21-4142 identifying additional PTRs, but did not submit VA Form 21-2680. These PTRs were successfully added to the claims file in July 2021. 

An October 2021 report of general information indicates that the Veteran called asking to withdraw and cancel this claim. Subsequently, the examination request was canceled. Shortly after, a letter was sent to the Veteran explaining that if she wished to withdraw her claim, she needed to submit a signed statement specifying which claim she wished to withdraw, but if no response was received, VA would proceed with continued development of the claim. The Veteran did not submit a signed statement withdrawing the claim.

In January 2022, the RO attempted to schedule a new examination, but canceled it after they had been unable to contact the Veteran.
 not submit VA Form 21-2680. These PTRs were successfully added to the claims file in July 2021. 

An October 2021 report of general information indicates that the Veteran called asking to withdraw and cancel this claim. Subsequently, the examination request was canceled. Shortly after, a letter was sent to the Veteran explaining that if she wished to withdraw her claim, she needed to submit a signed statement specifying which claim she wished to withdraw, but if no response was received, VA would proceed with continued development of the claim. The Veteran did not submit a signed statement withdrawing the claim.

In January 2022, the RO attempted to schedule a new examination, but canceled it after they had been unable to contact the Veteran. Examinations were scheduled for March 2022, but the Veteran did not appear for them. A letter was sent that month to the Veteran asking if she would like to reschedule the appointments. The Veteran did not respond to this letter. An April 2021 report of general information indicates that the RO called the Veteran, and that the call was answered; however, when the caller identified themself and asked for the Veteran, the call was abruptly ended. They called a second time and left a voicemail informing the Veteran that they would follow up with a letter. A letter was subsequently sent to the Veteran, asking whether she would like to reschedule the examinations, or if she would like to withdraw the appeal. The Veteran did not respond to this letter.

The Board is obligated by law to ensure that the RO complies with its directives.  Stegall v. West, 11 Vet. App. 268, 271 (1998). The duty to assist a claimant is not a one-way street, and in the instant case, the Veteran must cooperate to the full extent in the development of the claim. See Wood v. Derwinski, 1 Vet. App. 406 (1991) (noting that VA's duty to assist is a two-way street, and the Veteran cannot wait passively in those situations where their assistance to VA is necessary). As the Veteran has refused to cooperate with the development of this claim, the Board finds there was substantial compliance with the May 2021 remand directives.

However, the Board finds that the Veteran's request by telephone does not meet the requirements for a withdrawal of this appeal. A withdrawal must be unambiguous, in writing, and include the name of the Veteran, and a statement that the appeal is withdrawn. See Hembree v. Wilkie, 33 Vet. App. 1 (2020). As the Veteran neglected to submit a signed written statement, this matter is still before the Board for appellate review.

The Board notes that the claim of a total disability rating based on individual unemployability (TDIU) had previously been found raised by the record in an October 2016 Board remand; however, the Veteran requested to withdraw this claim in an April 2020 statement, and the December 2020 Board decision held that it was withdrawn.

Finally, the December 2020 Board decision accepted the Veteran's attorney's request to withdraw representation and proceeded with adjudication of this matter with the Veteran unrepresented. To date, the Veteran has not assigned any new representation.  In addition, in August 2012, the Veteran provided testimony at an August 2012 hearing before a Veterans Law Judge who has since retired; she was provided the opportunity for a new Board hearing via letter sent in August 2022 and advised that if she did not respond within 30 days, the Board would proceed with appellate review.  As no response has been received, the Board will proceed.  A transcript of the August 2012 hearing is associated with the claims folder and has been considered by the Board.

Entitlement to SMC based on aid and attendance

SMC based on the need for aid and attendance is payable if, as the result of service-connected disability, the Veteran has suffered anatomical loss or loss of use of both feet, of one hand and one foot, is blind in both eyes with 5/200 visual acuity or less, or is permanently bedridden, with such significant disabilities as to be in need of regular aid and attendance or is established on a factual need for aid and attendance pursuant to the criteria in 38 C.F.R. § 3.352(a). 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b).

Factors considered to determine whether regular aid and attendance is needed include: inability to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need to adjust special prosthetic or orthopedic appliances which by reason of the particular disability requires aid (this does not include adjustment of appliances that persons without any such disability would be unable to adjust without aid, such as
 or is permanently bedridden, with such significant disabilities as to be in need of regular aid and attendance or is established on a factual need for aid and attendance pursuant to the criteria in 38 C.F.R. § 3.352(a). 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b).

Factors considered to determine whether regular aid and attendance is needed include: inability to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need to adjust special prosthetic or orthopedic appliances which by reason of the particular disability requires aid (this does not include adjustment of appliances that persons without any such disability would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect a claimant from the hazards or dangers incident to her daily environment. 38 C.F.R. § 3.352(a). All of the above criteria need not be met in order for it to be determined that a Veteran requires aid and attendance. Turco v. Brown, 9 Vet. App. 222, 225 (1996). Instead, the functions which the Veteran is unable to perform should be considered in connection with his or her condition as a whole. Id.

Throughout the appeal period, service connection has been in effect for the following disabilities: 1) posttraumatic stress disorder (PTSD) with a 50 percent evaluation from May 20, 2013, and a 70 percent evaluation from November 29, 2016; 2) bilateral flat feet with a 50 percent evaluation from November 29, 2016; 3) migraine headaches with a 10 percent evaluation from June 10, 2009, a 30 percent evaluation from May 2, 2017, and a 50 percent evaluation from May 15, 2020; 4) lumbar spine intervertebral disc bulge and degenerative joint disease with a 20 percent evaluation from June 10, 2009, and a 40 percent evaluation from May 5, 2017; 5) degenerative joint and disc disease of the cervical spine with a 20 percent evaluation from June 10, 2009; 6) right lower sciatic neuropathy with a 10 percent from June 10, 2009, and a 20 percent evaluation from October 1, 2012; 7) left lower sciatic radiculopathy with a 10 percent evaluation from June 10, 2009; 8) right trochanteric pain syndrome with a 20 percent evaluation from November 29, 2016; 9) left arm scarring with a 10 percent evaluation from November 24, 2009; 10) left trochanteric pain syndrome with a 10 percent evaluation from November 29, 2016; 11) and traumatic brain injury (TBI), right hip limitation of flexion, and right leg scarring, each with noncompensable evaluations. 

Evidence

August 2010 VA treatment records indicate that pain affected the Veteran's activities of daily living, including the ability to sleep and work. September 2012 VA treatment records note acute pain with a fall 4 days prior.

In October 2012, the Veteran and her now ex-husband submitted statements to the Social Security Administration (SSA). The Veteran reported that pain prevented her from going to work, and that she was on bed rest for as long as a month. She explained that she required assistance to get out of bed, and that she used a walker and a cane. The Veteran explained that her husband took care of the house, and helped to bathe, shave, and dress her. She stated that her sister and daughters did her hair. The Veteran stated that she could feed herself, make sandwiches, warm up frozen food, and that she cooked once per week with the help of her husband. She indicated that she could do no chores or yardwork, and that she only went outside once per week. With the accompaniment of her husband or her children, she could go grocery shopping once every two weeks, or go to doctor's appointments. She asserted that she had trouble with all movement, and that she could only walk 10 or 20 feet before resting. The Veteran noted that she used a walker, a wheelchair, a cane, and a back brace. Her now ex-husband corroborated these assertions in his own statement. 

March 2013 VA treatment records indicate no falls in the previous 12 months.

Two of the Veteran's daughters submitted separate
 and that she cooked once per week with the help of her husband. She indicated that she could do no chores or yardwork, and that she only went outside once per week. With the accompaniment of her husband or her children, she could go grocery shopping once every two weeks, or go to doctor's appointments. She asserted that she had trouble with all movement, and that she could only walk 10 or 20 feet before resting. The Veteran noted that she used a walker, a wheelchair, a cane, and a back brace. Her now ex-husband corroborated these assertions in his own statement. 

March 2013 VA treatment records indicate no falls in the previous 12 months.

Two of the Veteran's daughters submitted separate statements in January 2015. They reported that they had to stay home to help their mother to bathe, dress, tie her shoes, cook, push her wheelchair, and retrieve objects from closets or the refrigerator. They indicated that the Veteran used a walker or a cane.

A January 2015 VA TBI examination indicated that the TBI caused difficulty concentrating. During a February 2015 VA cervical spine examination, the examiner noted IVDS of the cervical spine with at least 6 weeks of bed rest in the previous 12 months. The Veteran reported that she was off work for up to 8 months in the previous year due to severe neck and back pain. The examiner opined that functional impact included limited ability to lift and carry loads, limited sitting and driving, limited activities of daily living. They noted that the Veteran worked from home 2 days per week. The Veteran also attended a VA lumbar spine examination at that time and reported that she used a cane to ambulate most of the time, and that she used a walker during flare ups. Similarly, at a VA shoulder examination, the Veteran reported difficulties with their activities of daily living, including dressing and bathing because she was unable to lift her arms over her head without pain, and that she avoided lifting and carrying loads.

In April 2015, the Veteran attended a VA PTSD examination where she reported that she had worked for the Department of Labor for 18 months, and that she then transferred to the Department of Agriculture, working at home scanning documents. A September 2015 VA foot examination noted that the bilateral flat foot prevented prolonged walking without discomfort. Similarly, a VA hip examination indicated that the right hip limited the ability to perform repetitive squatting or climbing, or prolonged walking. 

At a March 2017 VA lumbar spine examination, the examiner noted that the Veteran ambulated with the aid of a bench walker without difficulty. The Veteran reported the regular use of a cane, and the occasional use of a walker. The examiner opined that the functional impact limited prolonged sitting, standing, or heavy lifting. May 2017 VA treatment records indicate that the Veteran reported that they were independent in their activities of daily living. At a November 2019 VA shoulder examination, the Veteran reported that her daughters took care of her, by driving, bathing, dressing, and cooking for her. The Veteran reported the same at a VA lumbar spine examination. The examiner opined that the functional impact included difficulty with forward flexion, heavy lifting, and prolonged sitting, walking, and standing.

In a May 2020 statement, the Veteran reported that her headaches caused memory issues, and that her daughters helped with her memory and reminding her where things are and to take the dog outside. She asserted that she would be unable to function without their help, and that she had daily balance issues. May 2020 VA treatment records indicate no changes in her activities of daily living.

August 2020 VA treatment records indicate that the Veteran had breast cancer, required 36 hours of home health care to help with all activities of daily living, and that at the time her niece provided care. The Board notes that the Veteran has previously filed a claim of entitlement to service connection for breast cancer, which was denied in a January 2021 rating decision. 

Also in August 2020, the Veteran submitted a VA form 21-2680 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance which indicated that the Veteran was confined to bed 16 hours per day. It also noted that she was able to feed herself, although with limited ability to prepare meals, and that she needed assistance with bathing. The form also endorsed that the Veteran did not require nursing home care or medication management, and that she was able to manage her financial affairs. Finally, it was noted that the Veteran was unable to elevate her arms, stand straight up, or walk more than one block. 

The same day, the Veteran submitted a separate VA Form 21-2680. This one indicated that she was confined to her bed 8 hours per day, was able to feed herself, but was unable to prepare her own meals and to bathe due to
 which indicated that the Veteran was confined to bed 16 hours per day. It also noted that she was able to feed herself, although with limited ability to prepare meals, and that she needed assistance with bathing. The form also endorsed that the Veteran did not require nursing home care or medication management, and that she was able to manage her financial affairs. Finally, it was noted that the Veteran was unable to elevate her arms, stand straight up, or walk more than one block. 

The same day, the Veteran submitted a separate VA Form 21-2680. This one indicated that she was confined to her bed 8 hours per day, was able to feed herself, but was unable to prepare her own meals and to bathe due to limited mobility due to surgeries. This form also endorsed that the Veteran did not require nursing home care or medication management, and that she was able to manage her financial affairs. 

However, the Board notes that both copies of this form are substantially incomplete, with sections left blank regarding nutrition, weight, gait, blood pressure, pulse rate, respiratory rate, and what disabilities restrict the listed activities and function. It is also unclear who completed the forms. They merely listed, "See attach," for the printed name of the physician, with no accompanying signature, and the Veteran's home address as the address of medical facility. Accompanying these forms are numerous records pertaining to her cancer treatment, none of which reference these forms. As noted in the introduction to this decision, the Board has twice asked the Veteran to submit supplemental opinions from the physician who completed these forms, or asked her to participate in examinations conducted by VA. To date, the Veteran has not complied with these requests.

October 2020 PTRs indicated that the Veteran was homebound and confined because of illnesses. They noted that the Veteran needed the aid of supportive devices such as crutches, canes, wheelchairs, walkers, the use of special transportation, or the assistance of another person to leave home, which required a considerable and taxing effort for the patient. It also noted that the Veteran was a fall risk. They noted relevant medical history as breast cancer and a double mastectomy reconstruction, however, they did not indicate which disabilities caused the Veteran to be homebound.

The Veteran underwent a VA PTSD examination in December 2020 where she reported that she lived alone, and that her daughters came home for summer vacation. She asserted that she had two dogs, one working as a therapeutic dog, the other a service dog. She stated that she had home care aide for 36 hours per week. The Veteran endorsed that she had intermittent inability to perform her activities of daily living, including the maintenance of minimal personal hygiene. December 2020 VA treatment records note that the Veteran continued to need 36 hours of home health care for the next year as her daughters were in college.

In a January 2021 statement, the Veteran stated that a registered nurse came to her home twice per week, and a home health care provider came 36 hours per week to assist with driving to appointments, showering, dressing, grooming, housekeeping, meal preparation, personal care, and grocery shopping. She asserted that she had recently fallen and hit her head with nobody around. April 2021 VA treatment records confirmed the home health care. At an April 2021 VA PTSD examination, the Veteran endorsed an intermittent inability to perform her activities of daily living, including the maintenance of minimal personal hygiene. And in June 2021, the Veteran submitted numerous records pertaining to her home health care, including billing receipts.

Analysis

Based on the aforementioned, the Board finds that entitlement to SMC based on aid and attendance is not warranted at this time.

Throughout the appeal period, the Veteran has consistently reported the need of assistance with her activities of daily living, initially provided by her ex-husband, then provided by her daughters, and now by professionals. The Board finds these statements competent as they are capable of lay observation. 38 U.S.C. § 1154(a); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge). The Board finds these statements to be credible as they are corroborated by the treatment records. Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996).

However, as indicated in the introduction to this decision, the Veteran has not participated in the development of this claim. At present, the Board affords the August 2020 VA Forms 21-2680 low probative value as they
 to factual matters of which he or she has first-hand knowledge). The Board finds these statements to be credible as they are corroborated by the treatment records. Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996).

However, as indicated in the introduction to this decision, the Veteran has not participated in the development of this claim. At present, the Board affords the August 2020 VA Forms 21-2680 low probative value as they are incomplete, do not actually address which disabilities cause the need of aid and attendance, and it is unclear if they were completed by a medical professional. Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The Veteran did not respond to efforts to obtain any supplemental medical opinions from the examiner who completed these forms and did not attend any scheduled VA examinations to evaluate the need for aid and attendance. The Veteran was last asked to provide this information in May 2021. While the Veteran did provide additional PTRs, they did not directly address the matter at hand. The Board also affords the October 2020 private medical opinion low probative value as it also did not indicate which disabilities affected the Veteran's ability to perform her activities of daily living.

Complicating matters is that the need for professional home care arose due to treatment for the non-service-connected breast cancer. It is unclear at this time how and to what degree the service-connected disabilities still affect her activities of daily living. Also notable is that the Veteran attempted, although unsuccessfully, to withdraw this claim.

When evidence is requested in connection with an original claim or a claim for increases not furnished within a year of the request, the claim will be considered abandoned 38 C.F.R. § 3.158. The Board is presented with a less-than-complete evidentiary picture, made so by the Veteran's failure to cooperate. In such circumstances, proper adjudication on the merits is not possible. The governing regulation in this situation, 38 C.F.R. § 3.158(a), is clear and unambiguous, and mandates that the claim will be considered abandoned.  See Hurd v. West, 13 Vet. App. 449, 452 (2000) (when the RO requests additional evidence and the appellant does not respond within one year, the claim is considered abandoned under 38 C.F.R. § 3.158; Wamhoff v. Brown, 8 Vet. App. 517, 521-22 (1996) (when an appellant does not furnish the requested evidence within the specified one year of the request, the RO is required, by VA regulations, to consider the claim abandoned). Notably, the Court has held that even if an appellate is ignorant of the abandonment provisions of 38 C.F.R. § 3.158(a), VA regulations are "binding on all who seek to come within their sphere," regardless of whether an appellant has actual knowledge of what is in the regulations. See Jernigan v. Shinseki, 25 Vet. App. 220, 229-30 (2012).

In making the above determination, the Board acknowledges that the Veteran has submitted statements describing problems related to her ability to perform her activities of daily living due to her service-connected disabilities but does not include all the information noted above from the VA Form 21-2680. A grant of a SMC cannot be made without the completion of this form. As such, the Board cannot make a finding of entitlement to a SMC solely due to her service-connected disabilities.

In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the evidence is persuasively against the claim and the positive and negative evidence is not in approximate balance, the doctrine is not for application. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

  

 

T. SHERRARD

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Rogos

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.