BVA9501768 DOCKET NO. 93-09 243 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to special monthly compensation by reason of being in need of regular aid and attendance. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Ronald R. Bosch, Counsel INTRODUCTION The veteran served on active duty from September 1943 to January 1951. This appeal arose from an April 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The RO denied entitlement to special monthly compensation by reason of being in need of regular aid and attendance. The case has been forwarded to the Board of Veterans' Appeals (Board) for appellate review. On consideration of the record, the Board directs the RO to address whether special monthly pension or the veteran's current receipt of compensation would be the greater benefit. If appropriate, the RO should then adjudicate the veteran's possible entitlement to special monthly pension benefits. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that VA physicians have advised him that he is totally disabled, needs a wheelchair, and should have aid and attendance due to his disability. 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 claim for special monthly compensation by reason of being need of regular aid and attendance is not well grounded. FINDING OF FACT The claim for special monthly compensation by reason of being in need of regular aid and attendance is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. CONCLUSION OF LAW The claim for special monthly compensation by reason of being in need of regular aid and attendance is not well grounded. 38 U.S.C.A. §§ 1114(l), 5107 (West 1991); 38 C.F.R. §§ 3.350, 3.352(a) (1993). REASONS AND BASES FOR FINDING AND CONCLUSION Section 5107 of Title 38, United States Code unequivocally places an initial burden upon the claimant to produce evidence that a claim is well grounded, that is, that the claim is plausible. Grivois v. Brown, 6 Vet.App. 136, 139 (1994); Grottveit v. Brown, 5 Vet.App. 91 (1993). Because the veteran has failed to meet this burden, the Board finds that his claim is not well grounded, and his appeal must be dismissed. Service connection has been granted for schizophrenic reaction, schizo-affective type, evaluated as 50 percent disabling. This is the veteran's only service-connected disability. The claims file contains a report of a VA hospitalization of the appellant from September to October 1986. The report shows that he presented with a one week history of weakness of his left arm and leg. Diagnostic studies disclosed he had suffered a cerebral vascular accident with left hemiparesis. VA conducted an aid and attendance examination of the veteran in November 1991. He complained of incontinence of bowels and bladder, back pain, and weakness of his legs. On examination he was found to have slight weakness of the upper extremities, slight impairment of range of motion for full extension, slight impairment in fine motor movement, and inability to touch finger to nose with eyes shut. He required moderate assistance to sit or stand, and to ambulate. The appellant demonstrated a shuffling gait. He was unable to stand erect. The examiner noted that the appellant was unable to walk without the assistance of another person. The VA examiner noted that the veteran stated that he was unable to leave his home unless he was carried. He required a straight cane and moderate contact assistance to ambulate 30 to 50 feet. Additional remarks recorded for clinical purposes shows the claimant had slight dyspnea at rest which increased to moderate with the least exertion. The examiner noted the veteran required the daily personal health care services of a skilled provider without which he would require hospital, nursing home or other institutional care. An April 1992 VA progress note shows that appellant had a history of an old cerebrovascular accident with left hemiparesis, diabetes mellitus, memory deficit, urinary and bowel incontinence, and inability to help himself except for feeding. He was unable to walk around his house without assistance. He needed a walker. The appellant was unable to sit for longer than 3 hours. The Board observes that if a veteran, as the result of service- connected disability, is permanently bedridden or so helpless as to be in need of regular aid and attendance, he shall be entitled to a higher rate of special monthly compensation. 38 U.S.C.A. §§ 1114 (l), 5107; 38 C.F.R. § 3.352(a). The evidence of record, as noted above, clearly shows that the veteran has been found to be in need of regular aid and attendance. Nonetheless, it has neither been contended nor has it been shown that the service- connected schizophrenic reaction, schizo-affective type, has rendered the veteran unable to independently perform daily functions of self-care or to protect himself from the hazards and dangers incident to his daily environment. Rather, the medical record shows that the veteran suffered a cerebral vascular accident in 1986, which, as noted in medical documentation from VA health care professionals, accounts for his disablement, thereby warranting the aid and attendance of another individual. The record does not contain competent medical evidence to show that the veteran's claim for special monthly compensation by reason of being in need of regular aid and attendance is possible or plausible. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). The record contains no cognizable evidence which is necessary for well grounded claims. Tirpak v. Derwinski, 2 Vet.App. 609,611 (1992). The absence of cognizable evidence has rendered the veteran's claim not well grounded. As there is no cognizable evidence that the appellant's service-connected psychiatric disability has caused him to require the regular aid and attendance of the another person, his claim must be dismissed. Pursuant to 38 U.S.C.A. § 5103, the Board informs the appellant that his claim would be well grounded if he presented competent medical evidence from a health care professional, VA or non-VA, or authoritative medical text plausibly demonstrating that his service-connected psychiatric disability has rendered him unable to independently perform daily functions of self-care or to protect himself from the hazards incident to his daily environment, thereby warranting the aid and attendance of another person. Finally, the Board recognizes that the veteran's claim is being disposed of in a manner different from that utilized by the RO. The Board must therefore consider whether the appellant has been given adequate notice to respond, and if not, whether he has been prejudiced thereby. Bernard v. Brown, 4 Vet.App. 384 (1993). In light of the implausibility of the appellant's claim and his failure to meet his initial burden in the adjudication process, the Board concludes that he has not been prejudiced by the decision herein. The Board observes that the RO disposed of the veteran's claim on the merits. In assuming that the claim was well grounded, the RO accorded him greater consideration than his claim in fact warranted under the circumstances. To remand this case to the RO for consideration of the issue of whether the appellant's claim is well grounded would be pointless and, in light of the law cited above, would not result in a determination favorable to the appellant. VA O.G.C. Prec. Op. 16-92, 57 Fed.Reg. 49-747 (1992). The Board furthermore observes that by the action of dismissing the veteran's claim, he is not burdened by a prior final adjudication on the merits. Thus, if he is able to submit a well grounded claim in the future, he will not be faced with the higher hurdle of providing new and material evidence to reopen his claim after a prior final adjudication. 38 U.S.C.A. §§ 5108, 7104, 7105; McGinnis v. Brown, 4 Vet.App. 239, 244 (1993). ORDER The claim for entitlement to special monthly compensation by reason of being in need of regular aid and attendance is dismissed. ALBERT D. TUTERA 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.