On appeal from the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida
1. Entitlement to service connection for a stroke, to include as secondary to servicec01rnected posttraumatic stress disorder (PTSD) and lumbar spine degenerative disc disease.
2. Entitlement to special monthly compensation based on a higher level of aid and attendance.
Appellant represented by: Travis Taylor, Agent
WITNESSES AT HEARING ON APPEAL
Appellant, Appellant's spouse, and Appellant's grandson
ATTORNEY FOR THE BOARD
Donna D. Ebaugh, Counsel
The Veteran served on active duty from April 1968 to March 1970.
These matters comE before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision of the RO in St. Petersburg, Florida.
In January 2015, the Veteran testified at a Board hearing before the undersigned, at the regional office ("Travel Board" hearing). A transcript of the hearing is of record. Following the hearing, the Board held the record open for 30 days and the Veteran submitted additional evidence in support of his claim, with a waiver of review of the same by the agency of original jurisdiction (AOJ).
The Board notes that the Veteran's paper claims file has been scanned to the Veterans Benefits 1anagement System (VBMS) file and the entire file is now paperless. Another separate paperless claims file is also associated with the Veteran's claims - a Virtual VA file. A review of the documents in Virtual VA reveals the January 2015 hearing transcript. The remaining documents in Virtual VA are duplicative of those in VBMS.
The Board also notes that additional VA treatment records were added to the VBMS file in April 2015 and it is unclear whether they were reviewed electronically in connection with the December 2014 statement of the case. However, even if they were not reviewed, as the Board is herein granting the claims in full, the Veteran is not prejudiced by the Board proceeding to adjudicate the claims.
The issue of whether new and material evidence has been raised to reopen claims of entitlement to service connection for hypertension, as well as entitlement to automobile and adaptive equipment, entitlement to specially adapted housing, and special home adaptation have been raised by the record by virtue of the January 2015 hearing testimony and January 2015 statement from Dr. B., but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over the issues, and they ar1e referred to the AOJ for appropriate action. 38 C.F.R.
§ 19.9(b) (2014).
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) 38 U.S.C.A. § 7107(a)(2) (West 2014).
FINDINGS OF FACT
1. Resolving all doubt in favor of the Veteran, stroke residuals are related to his service-connected spine and PTSD disabilities.
2. The Veteran is entitled to SMC at the rate under subsection (o) of 38 U.S.C.A. § 1114 based on loss of use of the lower extremities, bladder and bowel incontinence, and the need for aid and attendance.
3. The Veteran receives necessary and life-sustaining daily health care with handson facilitation by hi.; wife and grandsons who perform under the direction, guidance, and supervision of a caregiver; his wife consults with licensed healthcare providers on at least a monthly basis.
CONCLUSION OF LAW
1. Service connection for a stroke is warranted. 38 U.S.C.A. § 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2014).
2. The criteria for an increased level of SMC based on the need for higher level aid and attendance as contemplated by 38 U.S.C.A. § 1114(r)(2), are met. 38 U.S.C.A. § 1114 (West 2014); 38 C.F.R. §§ 3.350, 3.352 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014). In this case, the benefits sought on appeal are granted in full. Thus, any deficiency in V A's compliance is deemed to be harmless error, and any further discussion of V A's responsibilities is not necessary.
I. Service Connection
The Veteran is service-connected for PTSD as well as a lumbar spine disability and alleges that such disabilities caused or aggravated hypertension which in tum, caused the Veteran to suffer a stroke in November 2011. The Veteran contends that therefore, service connection is warranted for the stroke and its residuals. The Board acknowledges that the Veteran has also reported at times that he has had hypertension, which led to the stroke, since service and/or that the same is a result of his herbicide exposure in service. The Board observes that the March 1970 separation examination did not note a diagnosis of hypertension and the Veteran had normal vascular system at discharge. However, the Board need not reach a conclusion regarding direct service connection of the stroke, however, as the evidence of record supports a finding that the Veteran is entitled to service connection for the stroke on a secondary basis.
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R.
§ 3.303(a). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or mJury. 38 C.F.R. § 3.3 lO(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en bane).
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
The evidence of record, including private treatment records, reflects a diagnosis of stroke in November 2011. A February 2013 VA treatment record discussed the November 2011 stroke noting that the Veteran had a history of a right cerebrovascular accident with left hemiparesis in November 2011. Another February 2013 VA treatment record noted a history of stroke with left upper extremity plegia and left lower extremity paresis. Further, during the Veteran's hearing before the Board, his private physician offered sworn testimony that the Veteran has current residuals from the stroke including bowel and bladder dysfunction. Transcript [T.] page 5. Thus, Allen element ( 1 ), a current disability, is met.
Regarding proximate cause of the current disability, the Board finds the evidence is at the very least, in equipoise.
Weighing in favor of the claim is a January 2015 opinion, as well as sworn testimony, from the: Veteran's private physician, Dr. B., that the Veteran's stroke is at least as likely as not related to his service-connected PTSD and lumbar spine disabilities. Dr. B. has submitted medical journal articles to support the opinion that it is at least as likely as not that the Veteran had hypertension that was caused or aggravated by his service-connected PTSD and/or lumbar spine disability, and that the Veteran's stroke occurred as a result of this hypertension.
With respect to the relationship between the stroke and hypertension, Dr. B. opined that hypertension is a well-known risk factor for dissection (which he also indicated was the type of stroke here) and cited an article "'Cervical Artery Dissection, Clinical Factors, Risk Factors and Therapy and Outcome in 126 Patients" found in a Neurology journal. The article notes that one of the risk factors is hypertension.
With respect to a relationship between the service-connected spine disability and the stroke, Dr. B. explained that the Veteran's lack of mobility due to his spine disease contributed to his hypertension which in tum contributed to his stroke. See January 2015 report from Dr. B. as well as Hearing Transcript. In the January 2015 report, Dr. B. cited a medical journal article, "'The Prevalence of Hypertension, Ischemic Heart disease and Diabetes in Traumatic Spinal Cord Injured Patients and Amputees," authored by Yekutiel et al. Dr. B. noted the authors' finding that there was a significant increased incidence of hypertension and ischemic heart disease among those with spinal cord injuries and among amputees.
The Board finds Dr. B.'s opinion to be probative on this point as the Veteran's lumbar spine disability is quite severe. By way of history, the Veteran's incurred a lumbar spine injury in Vietnam when his armored personnel carrier ran over a bomb. The disability has been rated as 60 percent disabling since August 1979, which is a significant disability rating for a lumbar spine disability. The evidence further supports a finding of very limited mobility for a number of years. For example, during a September 1985 VA examination, the Veteran reported that he could not sit, stand, walk, bend or squat for any length ohime. The September 1985 VA examiner noted that the Veteran had been unable to work (doing physical labor) since 1979. The Board is satisfied that the Veteran had very limited mobility for many years prior to his stroke in November 2011.
Dr. B's opinion that hypertension caused the Veteran's stroke, and that the hypertension is at least aggravated by the service-connected lumbar spine disability is also consistent with other evidence of record. In this regard, the private hospital admission report dated in November 2011 indicated that the Veteran had hypertension at the time he was admitted for the stroke. Additional private records indicate that in 1988, the Veteran was disabled from a severe low back injury and that he had borderline blood pressure which Dr. G. noted was secondary to the Veteran's discomfort and pain.
Based on the foregoing, the Board finds credible and probative, Dr. B.'s opinion that it is at least as likely as not that the Veteran's circumstances are the type of circumstances supported by medical literature in which lack of mobility leads to hypertension, which in tum leads to strokes.
With respect to the relationship between the Veteran's service-connected PTSD and hypertension, which led to the stroke, Dr. B. explained that there is a higher risk of developing hypertension among PTSD patients. Dr. B. provided a medical journal article, "Post-traumatic Stress Disorder and Cardiovascular Disease," by Steven Coughlin. The author explained that persons with PTSD have been reported to have an increased risk of hypertension, hyperlipidemia, obesity, and cardiovascular disease. The author also explained that increased activity of the sympathoadrenal axis may contribute': to cardiovascular disease through the effects of catecholamines on the heart, vasculature, and platelet function.
Further, another private physician, Dr. S., also attributed the Veteran's stroke to his PTSD. See December 2008 private opinion. Although, Dr. S. did not provide a basis for his opinion, the Board finds such an opinion is supported by medical literature as demonstrated by Dr. B.
Based on the foregoing, the Board finds credible and probative, Dr. B. 's opinion that it is at least as likely as not that the Veteran's circumstances are the type of circumstances supported by medical literature in which PTSD leads to hypertension, which in tum leads to strokes.
The Board acknowledges that Dr. B. also related the Veteran's stroke to diabetes mellitus, type II, for which a claim of service connection was recently denied by the AOJ for lack of a current disability. Without reaching the question of whether the Veteran has a current disability of diabetes mellitus, type II, the Board notes that in a situation such as this where it is not possible to distinguish symptoms attributable to service-connected and non-service connected disabilities, the Board will consider all of the symptoms as attributable to the service-connected disability. See
Mitt/eider v. West, 11 Vet. App. 181, 182 (1998) (per curiam) citing Mitchem v.
Brown, 9 Vet. App. 136, 140 (1996).
Weighing against the claim is a December 2012 VA examination report and opinion
regarding the nature and etiology of the Veteran's stroke. The VA examiner
determined that it was less likely than not that the stroke was due to or the result of
the Veteran's PTSD or lumbar spine disabilities. The examiner rationalized that
there was no evidence in the medical literature that a back condition or PTSD can
cause or aggravate a. stroke. However, the VA examiner's opinion was rendered prior to VA's receipt of the private opinion from Dr. B. which cited supportive
medical literature. Moreover, the examiner did not discuss the Veteran's theory that
his stroke may be related to the service-connected disabilities because they caused
or aggravated hype1iension which then in tum, caused the stroke. As such, the
Board finds that the: VA opinion is incomplete and of limited probative value.
The Board has weighed the evidence in favor and against the claim and finds that it
is at least in equipoise with respect to a relationship between the Veteran's stroke
and his service-connected PTSD and lumbar spine disabilities.
When, after careful consideration of all procurable and assembled data, a reasonable
doubt arises regarding service origin, the degree of disability, or any other point,
such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. See also,
38 U.S.C.A. § 5107(b); Gilbert, I Vet. App. at 53-56.
Considering the totality of the evidence and resolving all reasonable doubt in the
Veteran's favor, the Board concludes that service connection for stroke residuals is
warranted. See 38 U.S.C.A. § 5107(b).
II.Higher Special Monthly Compensation
SMC is available when, as the result of service-connected disability, a Veteran suffers additional hardships above and beyond those contemplated by V A's
schedule for rating disabilities. See 38 U.S.C.A. § 1114; 38 C.F .R. §§ 3.350 and 3.352. The rate of SMC varies according to the nature of the Veteran's serviceconnected disabilities. Basic levels of SMC are listed at 38 U.S.C.A. § l l 14(k). Higher levels of Sl\1C are provided at 38 U.S.C.A. § 1114(1), (m), (n), and (o).
SMC provided by 38 U.S.C.A. 1114(1) is payable for anatomical loss or loss of use of both feet, one hand and one foot, blindness in both eyes with visual acuity of
5/200 or less or being permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 C.F.R. § 3.350(6). The Veteran is presently in receipt of SMC at the (l) rate.
SMC provided by 38 U.S.C.A. Â§ 1114(0) is payable for any of the following conditions: (i) Anatomical loss of both arms so near the shoulder as to prevent use of a prosthetic appliance; (ii) Conditions entitling to two or more of the rates (no condition being considered twice) provided in 38 U.S.C.A. Â§ 1114(1) through (n); (iii) Bilateral deafness rated at 60 percent or more disabling (and the hearing impairment in either one or both ears is service connected) in combination with service-connected blindness with bilateral visual acuity 20/200 or less; (iv) ServiceÂconnected total deafness in one ear or bilateral deafness rated at 40 percent or more disabling (and the hearing impairment in either one of both ears is serviceÂconnected) in combination with service-connected blindness of both eyes having only light perception or less. 38 C.F.R. Â§ 3.350(e)(l).
Paralysis of both lower extremities together with loss of anal and bladder sphincter control will entitle a claimant to the maximum rate under 38 U.S.C.A. § 1114(0), through the combination of loss of use of both legs and helplessness. The requirement of loss of anal and bladder sphincter control is met even though incontinence has been overcome under a strict regimen of rehabilitation of bowel and bladder training and other auxiliary measures. 38 C.F.R. § 3.350(e)(2).
SMC at the ( o) rate is warranted for combinations. Determinations must be based upon separate and distinct disabilities. This requires, for example, that where a Veteran who had suffered the loss or loss of use of two extremities is being considered for the maximum rate on account of helplessness requiring regular aid and attendance, the latter must be based on need resulting from pathology other than that of the extremities. If the loss, or loss of use, of two extremities or being permanently bedridden leaves the person helpless, increase is not in order on account of this helplessness. Under no circumstances will the combination of "being permanently bedridden" and "being so helpless as to require regular aid and attendance" without separate and distinct anatomical loss, or loss of use, of two extremities, or blindness, be taken as entitling to the maximum benefit. The fact, however, that two separate and distinct entitling disabilities, such as anatomical loss, or loss of use of both hands and both feet, result from a common etiological agent, for example, one injury or rheumatoid arthritis, will not preclude maximum entitlement. 38 C.F.R. § 3.350(e)(3).
The maximum rate, as a result of including helplessness as one of the entitling multiple disabilitiei;, is intended to cover, in addition to obvious losses and blindness, conditions such as the loss of use of two extremities with absolute deafness and nearly total blindness or with severe multiple injuries producing total disability outside the useless extremities, these conditions being construed as loss of use of two extremities and helplessness. 38 C.F.R. § 3.350(e)(4).
There are two parts to SMC (r): there is special aid and attendance that is identified by (r)(l ), and a higher level of special aid and attendance that is discussed in (r)(2). See 38 U.S.C.A. § 1 l 14(r) (West 2014); 38 C.F.R. §§ 3.350(h), 3.352.
To be awarded SMC (r)(l), under 38 U.S.C.A. § 1114, the Veteran must be entitled to SMC at the rate authorized under subsection ( o ), the maximum rate authorized under subsection (p ), or at the intermediate rate authorized between the rates authorized under subsections (n) and (o) and at the rate authorized under subsection (k). The Veteran must also be in need of regular aid and attendance. See 38
U.S.C.A. § l 114(r) (West 2014).
For SMC (r)(2), once the aforementioned threshold is met, the Veteran must show that, in addition to the need for regular aid and attendance, he is in need a higher level of care as specified. See 38 U.S.C.A. § l l 14(r)(2) (West 2014).
The regular or higher level aid and attendance allowance is payable whether or not the need for regular aid and attendance or a higher level of care was a partial basis for entitlement to the maximum rate under 38 U.S.C.A. § 1114(0) or (p), or was based on an independent factual determination. 38 C.F.R. § 3.350(h)(l).
Determinations as to 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 the following: Inability of the claimant to dress or undress himself or to keep himself ordinarily clean and presentable; the frequent need of the adjustment of any special prosthetic or orthopedic appliance which by reason of the particular disability cannot be done without aid; the inability of the claimant to foed himself through loss of coordination of upper extremities or through extreme weakness; 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 claimant from hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). "Bedridden" will be a proper basis for the aid and attendance determination and is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that the 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.
In Turco v. Brown, 9 Vet.App. 222 ( 1996), the United States Court of Appeals for Veteran's Claims (Court) held that it was not required that all of 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, but that such eligibility required at least one of the enumerated factors be present. The Court added that the particular personal function tbat a Veteran is unable to perform should be considered in connection with his or her condition as a whole. Also, it is only necessary that the evidence establish that a Veteran is so helpless as to need regular aid and attendance, not that there be a constant need. See Turco, supra; 38 C.F.R. § 3.352.
Determinations that the Veteran is so helpless, as to be in need of regular aid and attendance will not be based solely on an opinion that the claimant's condition is such as would require him to be in bed. They must be based on the actual requirement of personal assistance from others. Id.
Need for a higher level of care shall be considered to be need for personal healthcare services provided on a daily basis in the Veteran's home by a person who is licensed to provide such services or who provides such services under the regular supervision of a licensed health-care professional. Personal health-care services include (but are not limited to) such services as physical therapy, administration of injections, placement of indwelling catheters, and the changing of sterile dressings, or like functions which require professional health-care training or the regular supervision of a trained health-care professional to perform. A licensed health-care professional includes (but is not limited to) a doctor of medicine or osteopathy, a registered nurse, a hcensed practical nurse, or a physical therapist licensed to practice by a State or political subdivision thereof. 38 C.F.R. § 3.352(b)(2).
The term "under the regular supervision of a licensed health-care professional" means that an unlicensed person performing personal health-care services is following a regimen of personal health-care services prescribed by a health-care
professional, and that the health-care professional consults with the unlicensed person providing th health-care services at least once each month to monitor the prescribed regimen. The consultation need not be in person; a telephone call will suffice. 38 C.F.R. § 3.352(b)(3).
A person performing personal health-care services who is a relative or other member of the Veteran's household is not exempted from the requirement that he or she be a licensed health-care professional or be providing such care under the regular supervision of a licensed health-care professional. 38 C.F.R. § 3.352(b)(4). Moreover, the provisions of 3 8 C.F .R. § 3 .3 52(b) are to be strictly construed. The higher level aid-and-attendance allowance is to be granted only when the need is clearly established and the amount of services required on a daily basis is substantial. 38 C.F.R. § 3.352(b)(S).
The performance of the necessary aid and attendance service by a relative of the claimant or other member of his or her household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352(c).
In this case, the Veteran is requesting an additional rate of SMC greater than that currently assigned. As the Board has herein granted service connection for the Veteran's stroke, the Board finds that his loss of use of both legs is serviceconnected. In this regard, paralysis of the right leg has been found to be due to service-connected lumbar spine disability and the Veteran is in receipt of a separate compensable rating for the same. Additionally, the Board notes that the Veteran has had loss of use of the left leg as a residual of the service-connected stroke. See e.g. January 2013 VA treatment records and March 2015 report from Dr. B. The Board also notes that the Veteran has bowel and bladder incontinence. See T. pages 18-20, see also March 2015 letter from the Veteran's wife. Because the Veteran has loss of use of both legs with bowel and bladder incontinence, the Veteran meets the criteria for a higher SMC at the "o" rate.
Having found that the Veteran meets the SMC "o" rate, and given that he is already in receipt of SMC for "regular aid and attendance," he meets the requirements for the (r)(l) rate. With respect to whether the Veteran meets the requirements for the SMC at the (r)(2) rate, the Board has considered whether the Veteran is in need of the higher level of a.id and attendance and finds that he is. In this regard, VA treatment records confirm that he has been dependent on others in all of his activities of daily living such as bathing, dressing, and feeding, since more than one year prior to the December 2011 claim. See August 2010 VA aid and attendance examination report noting that the Veteran lacks the ability to dress and undress himself and keep himself ordinarily clean and presentable. The August 2010 VA examiner also found that he required the attendance of his wife to attend to the wants of nature and that he was incapable of protecting himself from the hazards of daily living due to his service-connected disabilities. VA treatment records dated in January 2013 also noted that the Veteran is unable to accomplish transfers on his own and that he is unable to tend to daily hygiene needs such as cleaning himself after bowel movements.
Further, during the hearing before the Board in January 2015, the undersigned
personally observed that the Veteran's left arm was frozen in place. T. page 23.
When questioned about the reason for the frozen left arm, Dr. B., indicated that the inability to use the left arm is due to the now-service connected November 2011
stroke. T. page 24. The Veteran offered sworn testimony that he is left handed. T. page 25. He testiffod, consistent with other evidence of record, that he is unable to effectively feed himself or take medicine, with his right hand. Id. He reported that he is able to move his fingers on his right hand but that is about it. Id.
The Board also not,es that the Veteran's daily care is primarily provided by
unlicensed care providers -his wife and grandsons. See Hearing Transcript, aid and attendance examination reports dated in February 2013, April 2013, and September 2013, VA treatment records dated in January and February 2013 noting that he is
unable to ambulate and completely dependent on his wife's care and would
otherwise require nursing home care. The Board also finds that the Veteran's wife has received guidance and supervision from licensed professional care providers. In this regard, the Board notes that the record contains home health care notes from
caregivers dated from December 2011 to January 2012 and a January 2015 letter
from a different home health care provider who indicated that she had provided
professional home health care for the last three years (e.g., since January 2012).
Moreover, the Board finds that the higher level of care provided to the Veteran by his wife and other family members, has been monitored at least once per month, by health care professionals. In this regard, the Board notes that evidence includes
reports from home healthcare specialists who visited the Veteran approximately
every 5-10 days and checked on his progress. VA treatment records confirmed that he is in need of the higher level of care. See February 2013 VA treatment record. Additionally, the record includes statements that the Veteran's wife who served as a caregiver, was in communication with his VA and private physicians regarding his care on at least a monthly basis. See e.g. VA treatment records, home health care reports, as well as the January 2015 report from Dr. B. Accordingly, the Board finds that the requirement for care supervised by a licensed health professional has been met.
The Board finds that the Veteran clearly needs substantial care on a daily basis, and the Veteran's wife has provided this daily health care assistance with the guidance of a home healthcare provider as well as with regular monthly consultation with other licensed health care providers. Accordingly, aid and attendance under 38
U.S.C.A. § l l 14(r)(2) is warranted.
Service connection for stroke residuals is granted, subject to the laws and regulations governing payment of monetary benefits.
SMC on account of 1he need for aid and attendance at a higher level under 38
U.S.C.A. § l l 14(r)(2) is granted, subject to the laws and regulations governing payment of monetary benefits.