Submission of Documents toDepartment Of Veterans Affairs

Board Of Veterans AppealsLitigation & Support DivisionP.O. Box 27063Washington,D.C 20038

FAX: (844) 678-8979 or (202) 6324628

Veteran: Donald VSC: VBA PHOE345

C-File or SSN:

Street Address:

City, State, Zip:

Date: 11/12/2019 ATTN: BVA Litigation & Support Team

From: Gordon A. Graham Exclusive Contact Requested

Title: NonattorneyPractitioner VA #39029 POA Code E1P

Address 14910 125* Street KP North

City, State Gig Harbor, WA 98329

Tel: (253)-313- 5377 Fax (253) 590-0265

Email: gagraham51@gmail.com

Type of Document Submitted:0 Request for Board Hearing at VA Central Office in D.C.O Request for Advancement of the Docket (Rule 900)O Request for Copy of Hearing TranscriptO Submission of New and Relevant Evidence associated with the instant AppealO VAF 10182 NOTICE OF DISAGREEMENT (BVA Review)O Motion for Reconsideration (MFR)U Other Submission of evidence subsequent to BVA videoconference before VU

Michael Lane at the Phoenix Regional Office 11/08/2019.

Number of Pages Submitted (NOT including this cover sheet): Nineteen (19) pages.

VA Directive 6609, NOVEMBER9, 2007: NOTICEIAccess to Veterans records is limited to Authorized PersonnelOnly. Information may not be disclosed unless permittedpursuant to 38 CFR 1.500-1.599. The Privacy Actcontains provisions for criminal penalties for knowinglyand willingly disclosing information from the RIe unlessproperly author

NODINC

Gordon A. Graham #3902914910 125th St. NW

Gig Harbor, WA 98329(253) 313-5377

Dept. Of Veterans Affairs 11/08/2019Board of Veterans AppealsLitigation and Support GroupP.O. Box 27063Washington DC 20038

Attn: VLJ Michael Lane

Re: , Donald

Submission of New Evidence

Per BVA pre-hearing colloquy before VLJ Michaael Lane on November 6th, 2019,appellant, through counsel, now submits his amended brief and new evidenceneeded to support entitlement to Special Monthly Compensation at the (r) (2)rate.

Page 1

In addition, Mr. hereby waives his right to a 90-day stay in the appealproceedings. Please adjudicate his de novo appeal at the earliest datefeasible.

Respectfullysubmitted,

Gordon A. Graham VA #39029 POA E1PCounsel for appellant

Page 2

ASKNODINC

Gordon A. Graham #3902914910 125th St. NW

Gig Harbor, WA 98329(253) 313-5377

Dept. Of Veterans Affairs 11/06/2019Board of Veterans AppealsLitigation and Support GroupP.O. Box 27063Washington DC 20038

Re: , Donald

Amended Brief for VAF 10182

Appellant, through counsel, wishes to rebut the findings of fact and conclusionsof law in the Statement of the Case dated 2/19/2019.

The Secretary, on pages 22- 23 of the aforementioned SOC, clearly andunequivocally states:

"VA medical Center treatment also showed vou were in need of higher level ofcare as your symptomsdeemedyou could no longer attendAdult Daycare in May2017. Your private physician noted iou would be institutionalized if it were

not for pour spouse. You physician noted your condition was progressiveandincurable and would continue to worsen." (Emphasis added)

Page 1

Paragraph six on page 23 explicitly explains the denial rationale:

"The evidenceof record showsyou are in need of aid and attendanceand theassistanceyou need is provided by your spouse. You noted vour scouse is

regularls supervised bv vour phs sicians and licensed health care

professionals. However, the evidence does not show an ongoing need for skilledpersonal care. Although Dr. opined that without aid and attendanceyouwould have to be institutionalized, the medical evidencedoes not show you meet

the criteria for entitlement to SMC R2 as the need for higher level of care is not

shown. The medical evidencedoes not show an ongoing need for skilled personalcare, and that in the absence of such care, you would require hospitalization,nursing home care, or other residential institutional care."

Legal Standard of Review

Congressclearly and unambiguously created two_ tiers of aid and attendance(excluding A&A for pension/NSC). One important provisoclearly andunmistakably delineates the two. §3.352(a) specifically states that "It is onlynecessary that the evidence establish that the veteran is so helplessas to needregular aid and attendance, not that there be a constant need."

38 CFR §3.350 (h) also explains the compensation entitlement when "regular"aid and attendance (as opposed to the higher level) is awarded for maximumcompensation cases- i.e. SMC at the (o) rate. The entire criteria for thisentitlement is covered in 38 CFR §3.352(a).The requirements are identical to thecriteria awarding aid and attendance of another under SMC at the (I) rate. See38 CFR §3.350(b)(3).See also 38 USC §1114(I)

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38 CFR §3.352 Criteria for determining need for aid and attendance and"permanently housebound" has two (2) subsections. Subsection (b), entitled§3.352(b)discusses the basic criteria for the high_er level aid and attendanceallowance. This subsection specifies the three preliminary criteria that must bemet in order to be awarded the higher level of aid and attendance as opposedto the "regular" level.

Specifically, The Secretary requires the following:

(1) A veteran is entitled to the higher level aid and attendanceallowanceauthorizedby § 3.350(h) in lieu of the regular aid and attendanceallowance whenall of the following conditions are met:

(i) The veteran is entitled to the compensationauthorizedunder 38 U.S.C. 1114(o),or the maximum rate of compensationauthorizedunder 38 U.S.C. 1114(p).

(ii) The veteran meets the requirementsfor entitlement to the regular aid andattendanceallowance in paragraph(a) of this section.

(iii) The veteran needs a "higher level of care" (as defined in paragraph(b)(3) ofthis section) than is required to establishentitlement to the regular aid andattendanceallowance, and in the absence of the provision of such higher levelof care the veteran would require hospitalization, nursinghome care, or otherresidential institutional care. (38 CFR §3.352(b)(1) 2019). (emphasisadded)

Further, the Secretary illuminates the requirement for the "highg level of aid andattendance" (as opposed to the re u_lar level of aid and attendance) in

subsection §3.352(b)(3):

(3) Need for a higher level of care shall be consideredto be need for personalhealth-careservicesprovided on a daily basis in the veteran'shome by a personwho is licensed to provide such servicesor who provides such servicesunder the

Page 3

regular supervisionof a licensed health-careprofessional. Personalhealth-careservicesinclude (but are not limited to) such servicesas physical therapy,administration of injections, placementof indwelling catheters,and the changingof sterile dressings, or like functions which require professional health-caretraining or the regular supervision of a trained health-careprofessional to perform.A licensedhealth-careprofessional includes (but is not limited to) a doctor ofmedicine or osteopathy,a registerednurse, a licensedpractical nurse, or a physicaltherapist licensed to practice by a State or political subdivision thereof.

Mr. treating neurologist, Dr. composed a letter for the Boardon 7/14/2019. His medical observations merely mirror what he has been sayingfor over seven years. His diagnoses are unequivocal in several important findingsof fact which are indisputable. See also Exhibit A

1)The appellant is currently regularly visited by a nurse as part of palliative care

at least once per month.

2) The appellant is under the regular care of Dr. and Nurseon an ongoing basis and both superviseMrs. in the care andmedication of her husband. Recently, appellant's wife switched toHome Care and Hospice to prepare for his hospice needs as her husbandqualifies in all areas except one.

3) The appellant would be hospitalized without the 24 hour per day care hecurrently receives from his spouse and the visiting nurse.

4) The appellant is very seriously ill and his condition continues to decline.

At the moment, Mr. s receiving "regular" aid and attendance as to bedistinguished from the hicher level of aid and attendance described in

§3.352(b) as being required in Dr. letter. Thus, it has been demonstratedthere is a constant need for the aid and attendance of another full time.

Page 4

Application of McWhorter

The Secretary baldly concludes that appellant "does not show on ongoinaneed for skilled personal care. and that in the absence of such care, you wouldreguire hospitalization, nursina home care. or other residential institutional care."This is the incorrect legal standard of review. In point of fact, Mr. Fargnoli'ssymptoms match exactly the Secretary's specific requirements to qualify forSpecial Monthly Compensation at the (r) (2) rate. To wit, appellant qualifies for§3.352(b)(1) (i) as he is currently rated at SMC(o). Likewise, appellant meets thecriteria of (b) (1) (ii) as he is currently awarded SMC at the (I) rate under§3.350(b)(2) (reoular aid and attendance of another). Lastly, he qualifies for(b)(1)(iii) because, as Doctor and the Secretary both agree, that in theabsence of the higher level of care currently afforded the appellant, he would,of necessity, have to be institutionalized.

The 2/19/2019 Statement of the Case is unequivocal. The Secretary freelyconcedes appellant is receiving "a higher level of care". Further, the Secretaryalso concedes appellant, but for this higher level of care, would need to behospitalized. See McWhorter v. Derwinski,2 Vet. App. 133,136 (1991) ("Yet,[w]here [an] appellant has presented a legally plausible position . . . and theSecretary has failed to respond appropriately, the Court deems itself free toassume . . . the points raised by [the] appellant, and ignored by [VA], to beconceded."

The Secretary alleges appellant is not in need of a higher level of care butconcedes he needs constant aid and attendance. The appellant has, for manyyears, and continues to receive currently, personal health care services on a

daily basis by his wife in their home under the regular supervisionof a licensedhealth care professional.Mrs. provides these services around the clockand is visited in-home at least once a month at a minimum. In addition, Mrs.

Page 5

also transports him to regularly scheduled appointments with his treatingneurologist.

While the VA doesn't subscribe to the treating physician rule and grant more

probative weight to the private physician's medical findings of fact, in theinstant case there is no material dispute about the appellant's circumstances.He receives daily cognitive and physical therapy under the supervisionof notone, but two different doctors. At least once a week he is transported to thelocal swimming pool for several hours of supervised aquatic physical therapy.Short of the intense 24-hour-a-day care he has received since his heart attackwith anoxic brain encephalopathy, he would have been hospitalized or

institutionalized 8 years ago.

Based on the proper legal standard of review, and giving the Veteran thebenefit of the doubt, appellant is entitled to Special Monthly Compensation atthe (r) (2) rate. See AB v. Brown, 6 Vet. App. 35 (1993) (applicable law mandatesthat when a veteran seeks an original or increased rating, it will generally bepresumed that the maximum benefit allowed by law and regulation is sought,and it follows that such a claim remains in controversy where less than themaximum benefit available is awarded.) See also §3.103(a) ("[i]t is theobligation of VA to assist a claimant in developing the facts pertinent to theclaim and to render a decision which grants every benefit that can besupported in law while protecting the interests of the Government."

Counsel invites Chevron deference in this appeal as the Secretary's very own

promulgated regulations and requirements are met in every respect. SeeChevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837(1984). Nowhere in the four corners of the Statement of the Case can appellantfind any medical evidence or a medical professional's opinion that rebuts anyof these criteria. See Colvin v. Derwinski, 1 Vet. App. 171 (1991) (holding that theBoard may only consider independent medical evidence and may notsubstitute its own medical opinion). See also Manio v. Derwinski, 1 Vet.App. 140,145-46 (1991); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In point of fact, the

Page 6

SOC contains nothing more than conjecture and conclusions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) ) (stating that a medicalexamination report must contain not only clear conclusions with supportingdata, but also a reasoned medical explanation connecting the two).

While the Court does not give undue deference to the treating physician rule,per se, they are allowed to take judicial note of this fact when making a

decision on weighing the significance to attach to the evidence. See White v.

Principi, 243 F.3d 1378 (Fed. Cir. 2001); Van Slack v. Brown, 5 Vet. App. 499, 502

(1993); and Chisem v. Brown, 4 Vet. App. 169 (1993) (noting that there is no

"treating physician rule" requiring the Board to give additional evidentiary weightto opinions of doctors who have evaluated or treated the Veteran over time,but it is permissiblefor the Board to bear this length of treatment in mind whenconsidering just how familiar with the Veteran's condition the clinician may be).

Dr. has been appellant's sole neurologist since his anoxic braininjury in 2011. Nurse was the physical therapist of record from 2011

to 2016 and again through 2018 after appellant was deemed too disruptive toattend his adult day care until the transition over to Home Care andHospice' Advanced Illness Resources (AIR) Program (this spring (2019).

Nurse has provided appellant's wife a letter stating Mrs. was

personally trained by her in physical and cognitive therapy in 2011 at the outsetwhen Mr. suffered his present injuries. She still retains that training andcertification and has been continuously supervised by competent medicalpersonnel ever since. Counsel can find no regulation that requires a new

certification each time appellant changes the supplier of home health care

supervisionand services. Counsel is even more mystified as to how reasonableminds can conclude he doesn't need continuous, supervised medical care. See

Exhibit B.

Page 7

Further, Mrs. submits bills today from certified caregivershowingsupplemental personalizedhealthcare to permit her to go shopping, tochurch and attend to household errands. If the Trier of Fact still is in doubt,appellant's wife can submit further proof of same. See Exhibit C.

Mr. 'scurrent medical posture, as described by the medicalprofessionalsat Home Care and Hospice, is "watchful waiting". In theevent appellant's appetite begins to decline, will commence theHospiceprogram. When this occurs, the level of personalhome health care

services will vastlyexpand to comprehend the added needs associated withdying.

Currently, in addition to the personal home health care services rendered byMr. i'sspouse, he is now attending Adult Daycare (St, Phoenix, AZ 85016) five days a week from 9 AM to 3 PM with a daily emphasison cognitive therapy. Mr. and others there are supervisedat all times bya RegisteredNurse and other licenced healthcare workers under the nurse'simmediate supervision.

In sum, appellant currentlymeets all established criteria required by theSecretary'sown regulationsto qualify for Special MonthlyCompensation at the(r) (2) rate. (Chevronsupra) In point of fact, appellant has clearly met theserequirementssince the professionaltraining of his wife in 2011. Were there anydoubt, the additional finding of fact of loss of use of his lower extremitiescompleted the requirementsfor entitlement (SMC (o).

SMC doesn't require the filing of a formal claim. It is due and owing at the timemedical evidence unequivocally shows entitlement. That certain date was thefinding of fact that appellant had lost the use of his lower extremities and was

awarded SMC at the (o) rate on 3/23/2016. See Bradley v. Peake, 22 Vet. App.280 (2008); see also Buie v. Shinseki, 24 Vet.App. 242 (2011).

Page 8

ApplÎCafÎOn Of Comer v. Peake

Sadly, appellant's wife sought legal representation from the Vietnam Veteransof America (VVA), a Veterans Service Organization untrained in the legal arena.

The VSO filed the claim as one for SMC at the (t) rate based on the incorrectassumption Mr. anoxic brain encephalopathy more nearlyapproximated traumatic brain injury (TBI). By operation of law, Mr.could never qualify under this subsection as he served prior to September 11th,

2001. (See Comer v. Peake, 552 F. 3d 1362, 1367 (Fed. Cir 2009) ("Although we

have held that the duty to construe a veteran's filings sympathetically does notnecessarilyapply when a veteran is represented by an attorney, the assistanceprovided by the DAV aide is not the equivalent of legal representation." Thus it

can be said appellant was in a pro se posture at the time of his filing for SMC (t).As such, the duty to sympathetically develop the claim never occurred. See

Moody v. Principi, 360 F.3d 1306, 1310 (Fed.Cir.2004). The compensation rate forSMC (t) is identical to SMC (r) (2). An error in legal semantics has provoked thecurrent appeal. Mr. Fargnoli, through his fiduciary wife, has always averred hewas entitled to compensation at the (r)(2) rate-identical to the SMC (t) rate.

Lastly, counsel would ask the trier of fact to consider the following. The Secretaryconcedes appellant would, but for the aid and attendance of his wife, have tobe institutionalized due to his condition. The Secretary concedes this importantfinding of fact. Nevertheless, were he institutionalized he would s_M require thepersonal health care services of another on a daily basis by a person who is

licensed to provide such services. That his spouse is trained to do so, andactually performs these selfsame services on a daily basis renders the essence ofSecretary's very argument inapposite. It is inconceivable that the appellantwould merely sit all day in his wheelchair whilst exercising or doing crosswordpuzzles. He is incapable of self-actualization of any physical or cognitivetherapy without a higher level of aid and assistance of another who is trained in

these medical arts. Absent these daily services,his condition would progress andatrophy even more rapidly than it is currently.

Page 9

Giving the Veteran the benefit of the doubt, SMC (r)(2) is for application. See§3.102; See also Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990). Certainly, theappellant, or, in the instant case, the appellant's spouse, bears the burden ofproof showing he is entitled to the aforementioned higher level ofcompensation.

As the evidence for and against is in relative equipoise, the appellant shouldprevail by operation of law. Appellant is unable to discern any medical opinionauthored by a VA medical professional to date that rebuts the evidence ofrecord in the electronic claims file.

Resgectfull,ysubmined,

Gordon A. Graham VA #39029 POA E1PCounsel for appellant

Attached:Exhibit A: Dr. Letter (duplicate in VBMS electronic record)

Exhibit B: Letter from , FNPC attesting to certification to performpersonalized home health care (physical and cognitive therapy).

Exhibit C: 2019 bills from certified caregiver for home healthcare(two pages).

Page 10

Exhibit

ADr. , attending

Neurologist, on Appellant's condition

7/14/2019

Duplicate may exist in VBMS

c

iftaug21"CENTURYNEUROLAssistantProfessorofNeurologyAdivisionofXenoscience

UniversityofArizona2601NorthThirdStreetSuite125PhoenixArizona85004

(602)265-6500fax(602)265-6586

July14,2019

MEDICALOPINION

RE:FARGNOLI,DonaldDOB:01/20/46ACCT:12532

Towhomitmayconcern:

Mr.Fargnolihasbeenundermycaresince2012foranoxicencephalopathy,post-anoxicAlzheimer'sdisease,

parkinsonism,compulsivespeechandmovementsresultingfromfrontallobeinjury,andnoctunalmyocionus.These

iconditionsindependentlyandcombinedmakeitclearthatheisveryseriouslyill.Notethatheisregularlyvisitedbya

nurseaspartofpalliativecareatleastoncepermonth.Becauseofthecomplexityofhiscare,hewouldbehospitalized

withoutthe24hoursperday,7daysperweekcarehecurrentlyreceives.Andintheabsenceoftheprovisionofsuch

;higherlevelofcare,thisveteranwouldrequirehospitalization,nursinghomecaremorotherresidentialinstitutionalcare.

Sincerely,

StephenS.Flitman,M.D.

7\419

Exhibit

BLetter from

attesting to certification to performpersonalized home health care

(physical and cognitive therapy)under the supervision of a licensed

healthcare provider dated10/03/2019

Valley Physical Me

.

Date: 03 Oct 2019

Regarding:

To whom it may concern,

My patient, Donald , was under my care in 2011 with Anoxic Brain Injury. Hiswife performedpersonal healthcare services on a daily basis that included physical andcognitivetherapyafter family training was completed with therapies.

If you have any questions please do not hesitate to contact me.

Exhibit

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