14-11 243
14-11 243
| Board of Vet. App. | May 31, 2017Background
- Veteran served 1965–1971 and appealed a January 2013 RO decision denying SMC claims.
- Claim: special monthly compensation (SMC) for either housebound status or need for regular aid and attendance (A&A) due to service-connected disabilities.
- Service-connected disabilities include right leg injury with incomplete paralysis, PTSD, right knee residuals (post-TKA), cervical spine and shoulder arthritis, among others; combined rating 80% with TDIU.
- VA obtained examinations (Nov 2011, Apr 2011, Aug 2013) and the Veteran testified at an Oct 2016 hearing; nursing-home records from Silver Creek Manor (resident since Feb 2017) were also in the record.
- Board found VA satisfied VCAA/assist duties and that evidence was adequate to decide SMC claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Veteran is permanently housebound due to service-connected disabilities | Veteran: substantially confined to dwelling; needs assistance to leave home | VA: medical and exam evidence show Veteran can leave home when accompanied; not substantially confined | Denied — not housebound under 38 U.S.C. § 1114(s) / 38 C.F.R. § 3.350(i) |
| Whether Veteran needs regular aid and attendance from another person (SMC) | Veteran: needs help dressing, bathing, toileting, feeding, medication, fall protection | VA: earlier exam showed some independent function, but other exams, lay testimony, and nursing charts show need for regular assistance | Granted — criteria for SMC under 38 U.S.C. § 1114(l) / 38 C.F.R. § 3.352 met |
| Whether VA satisfied duties to notify and assist and obtained adequate exams | Veteran: no outstanding evidence identified at hearing/representation | VA: provided VCAA notice, obtained exams and records, and Board found exams adequate when read with other evidence | VA satisfied its duties; Board relied on the assembled record |
Key Cases Cited
- Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must ensure examinations/opinions are adequate when procured)
- Turco v. Brown, 9 Vet. App. 222 (1996) (SMC for A&A requires at least one regulatory factor showing need for personal assistance)
- Prejan v. West, 13 Vet. App. 444 (2000) (VA must consider all enumerated regulatory factors and award SMC if at least one is met)
- Mittleider v. West, 11 Vet. App. 181 (1998) (effects of service-connected and nonservice-connected conditions should not be improperly separated)
- Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (Board must analyze credibility and probative value of the evidence and explain rejections)