BVA9506253 DOCKET NO. 92-12 353 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to additional compensation based on the need of regular aid and attendance of the veteran's spouse. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Ehrman, Associate Counsel INTRODUCTION The veteran had honorable active service from July 1940 to February 1947. The appeal comes before the Board of Veterans' Appeals (Board) from a November 1991 rating decision of the St. Louis, Missouri, Regional Office (RO) of the Department of Veterans Affairs (VA). In February 1993, the Board remanded the appeal for additional development of the record. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he is entitled to increased compensation by reason of his spouse being in permanent need of regular aid and attendance from others. He indicates that as a result of a stroke years ago, his spouse has an unstable gait and station, a permanent limp, very limited use of her right upper extremity, arthritis, and chronic depression. The veteran's representative indicates that the veteran's spouse is so severely disabled as to have difficulty dressing and undressing, and she is unable to protect herself from the hazards of her daily environment. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence of record is in relative equipoise with respect to the claim for additional compensation. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran has multiple service-connected disabilities which have been rated in combination as 80 percent disabling since October 1947. 3. The evidence of record shows that the veteran's spouse's disabilities are of such severity as to just as likely as not render her unable to care for most of her daily personal needs or protect herself from the hazards and dangers of daily living without the regular assistance of others. CONCLUSION OF LAW By extending the benefit of the doubt with regard to the veteran's claim, the criteria for additional compensation for a dependent spouse based on a need for regular aid and attendance of another person are met. 38 U.S.C.A. §§ 1115(1)(e), 5107, 7104 (West 1991); 38 C.F.R. §§ 3.102, 3.351, 3.352(a) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Historical. In support of his October 1991 claim for entitlement to additional compensation for a dependent spouse based on a need for regular aid and attendance, the veteran submitted the August 1991 medical statement of Dr. B. R. Carnett. This examiner noted that the veteran's spouse was 61 years of age, and had suffered a right cerebral vascular accident "several years ago," with prominent upper and lower extremity residuals. The examiner noted her blood pressure as 150/84, and he found that she had an unstable gait and station, a prominent limp, and very limited use of the right upper extremity. The examiner diagnosed moderate arthritis, chronic anxiety and depression, with the notation that she fell occasionally and took mild tranquilizers on occasion. The examiner certified that the veteran's spouse required the daily personal health care services of a skilled provider without which she would require hospital, nursing home, or other institutional care. In July 1994, the veteran's spouse was provided several VA examinations, including examinations for general medical condition, mental disorders, diseases of the arteries and veins, peripheral nerves, joints, and clinical laboratory testing, as well as a special aid and attendance examination. Throughout the examination, the examiner noted a medical history to include residuals of a stroke, which occurred 36 years ago due to a ruptured congenital cerebral aneurysm (CVA), status post ligation of the left carotid artery. The CVA initially resulted in right side paralysis and loss of speech. However, over the years, her speech returned and the veteran's spouse had learned to use her left hand primarily. She had been right hemiparetic ever since, with residual limited use of her right upper extremity. Upon general medical examination, she complained of a throbbing sensation in her head, neck pain and weakness, a buzzing sound in her left ear, tinnitus and bilateral decreased hearing acuity. She reported experiencing a pain in her ankles over the past 15 years, which radiated up to her knees, an aching and needle sensation of both of her feet and painful and tingling legs that kept her awake at night. She reported having arthritis, suffering from depression and anxiety and experiencing a couple seizures since 1992. With regard to her eyes, she reported seeing "a few black things" bilaterally out of both sides of her field of vision, and she reported having tachycardia which was controlled by medication. The general medical examination report indicates that the veteran's spouse was pale, with no abnormalities noted with regard to her skin, lymphatic and hemic systems, nose, throat, mouth and sinuses, respiratory system, endocrine system and digestive system. Her blood sugar was normal, as were her urinalysis studies. She passed the "Color Vision" test, and her vision was noted as 20/70 in the right eye, 20/25 in the left eye and 20/25 for both eyes with glasses. Although the examiner noted a normal sinus rate and rhythm, left atrial enlargement was indicated and a borderline electrocardiogram (EKG) revealed inverted T-waves in V-1. Upon physical examination, the examiner noted the veteran's spouse to be of fair build, state of nutrition, carriage and posture. She had a limp and weakness on the right side for which she used a 4-prong cane. She had a severe internal deviation of her right foot, almost to 90 degrees, less on the left. She couldn't extend her right thumb, or hold the thumb to her fingers very well, and she was noted to hold her right thumb in a flexed position. She had a good grip and pretty good power and muscle strength generally, with some subtle weakness of the right side, mild right facial weakness and she displayed severe limitation of motion laterally on bending of the neck. Her feet were flat and very small. The neurological testing indicated that her toe-and- heel walking was fair, tandem walking was poor, and finger-to- nose testing showed some mild intention tremor. She had no supination of the right upper extremity, and she could bend forward fairly well with her low back. A good effort was noted, and deep tendon reflexes were hyperactive. Upon examination of her joints, the examiner noted minimal scoliosis, weakness and atrophy of the right hand, and she could not supinate the right upper extremity. The examiner again observed "very poor" movement of the lateral flexion of the neck. The examiner noted no subluxation or lateral instability of her knees, and no loose motion, malunion or atrophy. The examiner found that the veteran's spouse had good abduction of her shoulder with good effort, although she could no longer write with her right hand. The diagnoses were: Probable osteoarthritis, generalized; stroke causing paralysis to the right side; difficulty with supination of the right upper extremity and some loss of motion of the neck, with fair backwards bending, rotation moderately limited and lateral bending fairly limited; and fair to good motion of the hips, knees and ankles. The report of examination of peripheral nerves indicated that the veteran's spouse had right arm flexion at the elbow to about 90 degrees and hand holding, when in the fist pattern, was very difficult to release. Her right shoulder was quite stiff on the right side and unremarkable on the left side. In the lower extremities, the veteran's spouse had a stiff leg pattern throughout, with muscle tone increased equally to the upper extremities. Her inverted right foot was noted as making walking clumsy, difficult and slow, and the examiner noted that she could not bend the knee quite readily. Diagnosis was right hemiparesis of ligation of left common carotid artery due to ruptured aneurysm 28 years ago. The cardiovascular examination report noted a normal sinus rate and rhythm, with no murmur, rub, gallop, click, or heave detected. There was no edema upon examination, and the examiner noted fair pedal pulses, a pulse of 72, blood pressure of 120/72 and respirations of 20. She had weak peripheral pulses, and her skin appearance and temperature were slightly cool. She had moderate cardiomegaly noted on X-ray studies, unchanged and otherwise unremarkable. The examiner diagnosed hypertension. The VA mental disorders examination report indicated objective findings to include the notation that she appeared awake, alert, oriented, pleasant, and cooperative. She displayed good rapport and good eye contact and normal psychomotor behavior on psychiatric examination. The general medical examination report indicated that she could identify the presidents from Clinton, Bush, Reagan, Carter, and Nixon, but she could not spell "world" backwards. Diagnoses were mixed anxiety and depression with no overt psychosis, no suicidal assaultive or homicidal ideation or thoughts. The veteran's spouse was also provided a VA aid and attendance examination. The examiner noted that the veteran's spouse arrived with her grand-daughter, and she was alternately using a cane and a wheelchair. She had difficulty using her right hand, with fair strength. She had learned to use her left hand since the stroke, and she could fasten her clothes "not very well." With regard to her capacity to protect herself from the hazards and dangers of a daily environment, the examiner noted that she reported dizziness, seizures, poor hearing, disorientation and loss of balance. She had difficulty traveling and could not travel alone. The examiner found that she was unable to do straight-line walking, was "housebound generally," and "rarely" went to the store. Although the general medical examination report indicated that the veteran's spouse was able to "occasionally" leave the house to go to the store, she accomplished this on rare occasions and usually was accompanied with someone else. Additionally, both the veteran and his spouse required some assistance with their washing, ironing and other household chores, although the examiner noted that the veteran's spouse was able to manage a meal for both herself and the veteran. With regard to ambulation, she was noted as needing help to walk and, while she used a cane, she used a wheelchair most of the time. Finally, the examiner found that she was in need of help with her affairs. II. Additional Compensation for the Aid and Attendance of a Spouse. Additional compensation is provided for a married veteran receiving service-connected disability compensation at the 30 percent rate or greater whose spouse is in need of regular aid and attendance. 38 U.S.C.A. § 1115(1)(E) (West 1991). 38 C.F.R. § 3.351 (1994) provides that for compensation purposes a person shall be considered to be in need of regular aid and attendance if such person is (1) a patient in a nursing home on account of mental or physical incapacity, or (2) helpless or blind, or so nearly helpless or blind as to need the regular aid and attendance of another person, or (3) establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a) (1994). . 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: (1) Inability of the spouse to dress or undress himself/herself or to keep himself/herself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; (3) inability of the spouse to feed himself/herself through loss of coordination of upper extremities or through extreme weakness; (4) inability to attend to the wants of nature; (5) or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the spouse from hazards or dangers incident to his/her daily environment. "Bedridden" will be a proper basis for the determination and is defined as that condition which, through its essential character, actually requires that the spouse remain in bed. It is not required that all of the disabling conditions enumerated above be found to exist before a favorable rating may be made. The particular personal functions which the spouse is unable to perform should be considered in connection with his/her condition as a whole. It is only necessary that the evidence establish that the spouse is so helpless as to need regular aid and attendance, not that there be a constant need. 38 C.F.R. § 3.352(a) (1994). If after consideration of all the evidence and material of record, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving such matter shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (1994). In carefully reviewing the evidence of record, the Board finds that the evidence in this case is in relative equipoise. While the veteran's spouse is able to dress and undress herself, she is able to do so only with significant difficulty due to the limited use of her right upper extremity. The evidence of record also shows that she is able to leave the house to go to the store only on rare occasions and usually with the company of another. The veteran's spouse experiences occasional seizures, uses a wheelchair most of the time and takes medication for anxiety and depression. Most significantly, both the July 1994 VA examination report and the August 1991 private medical report indicate that she regularly needs the assistance of others. As such, the veteran's spouse's many disabilities, in toto, are of such severity as to just as likely as not render her unable to care for most of her daily personal needs or protect herself from the hazards and dangers of daily living without the regular assistance of others. With the benefit of the doubt resolved in the veteran's favor, the Board finds that the criteria for additional compensation for a dependent spouse based on a need for regular aid and attendance of another person are met. ORDER The claim for additional compensation based on the need of regular aid and attendance of the veteran's spouse is granted, subject to the controlling regulations applicable to the payment of monetary benefits. STEPHEN L. WILKINS Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.