BVA9421553 BOARD OF VETERANS' APPEALS DEPARTMENT OF VETERANS AFFAIRS WASHINGTON, DC 20420 DOCKET NO. 92-17 039 DATE AUG 26 1994 On appeal from the decision of the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to special monthly pension based on the need for regular aid and attendance or by reason of being housebound. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD P. B. Werdal, Associate Counsel INTRODUCTION The veteran served on active duty from May 1943 to October 1943. This matter came before the Board of Veterans' Appeals (hereinafter Board) of the Department of Veterans Affairs (hereinafter VA) on appeal from a decision dated January 30, 1992, from the Chicago, Illinois, Regional Office (hereinafter RO). The notice of disagreement was received in June 1992. The statement of the case was sent to the veteran in June 1992. The substantive appeal was received in July 1992. This matter was previously before the Board, and was remanded in January 1993. CONTENTIONS The appellant contends that he is entitled to special monthly pension based on the need for regular aid and attendance or by reason of being housebound because his various nonservice-connected disabilities render him unable to care for himself. He asks that he be afforded the benefit of the doubt. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. 7104 (West 1991), following review and consideration of all evidence and material of record and for the following reasons and bases, it is the decision of the Board that the veteran is entitled to special monthly pension based on the need for regular aid and attendance. As aid and attendance is the greater benefit the issue of entitlement to housebound benefits is rendered moot. FINDINGS OF FACT 1. The veteran has been deemed permanently and totally disabled due to nonservice-connected disabilities since June 17, 1966. 2. The veteran has one service-connected disability, chip fracture of the right first metacarpal joint, assigned a noncompensable disability rating. 3. The veterans nonservice-connected diabetes mellitus is pronounced and has severe complications. In addition, he has arteriosclerotic heart disease 60 percent disability. 4. The veteran's disabilities render him unable to protect himself from the hazards of everyday living. CONCLUSION OF LAW The veteran is entitled to special monthly pension based on the need for regular aid and attendance. 38 U.S.C.A. 1521 (West 1991); 38 C.F.R. 3.351, 3.352 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran served on active duty from May 1943 to October 1943, when he received a Certificate of Disability for Discharge on account of psychoneurosis, anxiety state, moderate, which the service department concluded existed prior to service. The veteran has been deemed permanently and totally disabled due to nonservice- connected disabilities since suffering a heart attack in June 1966. The veteran has one service-connected disability, chip fracture of the right first metacarpal joint assigned a noncompensable disability rating under the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4 (1993). He has several nonservice-connected disabilities: arteriosclerotic heart disease, diabetes mellitus, right below the knee amputation, bilateral pseudophakia with glaucoma, amputations of the left second toe and the fourth and fifth toes, psychoneurosis, paranoid, competent, sensorineural hearing loss, excision of right medial meniscus, and residuals of fracture of the left tibia and fibula. Increased pension benefits are payable to a veteran who needs regular aid and attendance. 38 U.S.C.A. 1521(d) (West 1991); 38 C.F.R. 3.351(a)(1) (1993). The veteran is in need of regular aid and attendance if he is helpless or is so nearly helpless as to require the regular aid and attendance of another person. The criteria for establishing the need for aid and attendance include consideration of whether the veteran is blind or is so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; or if the veteran is a patent in a nursing home because of incapacity; or if the veteran establishes a factual need for aid and attendance. 38 U.S.C.A. 1502(b) (West 1991); 38 C.F.R. 3.351(b)(c) (1993). Under the provisions of 38 C.F.R. 3.352(a) (1993), the criteria to establish a factual need include consideration of the inability of the veteran to dress or undress himself, to keep himself ordinarily clean; whether he requires frequent adjustment of any special prosthetic or orthopedic appliances; inability to feed himself, inability to attend to the wants of nature; or incapacity that requires assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. In this case, the veteran does not contend he is blind or nearly blind although it is clear that he suffers visual impairment. There is no evidence that the veteran is a patent in a nursing home due to incapacity. With regard to a factual determination that the veteran is in need of regular aid and attendance, the Board notes that in February 1993 the veteran was admitted to a VA hospital with gangrene of his left foot. The attending physicians wanted to amputate his left leg below the knee, but the veteran insisted they remove only two toes. On February 24, 1993, his left fourth and fifth toes were amputated. In VA's March 1993 aid and attendance examination it is noted that the veteran's diagnoses are diabetes mellitus, decreased hearing, decreased vision, and right below the knee amputation. The examiner reports that the veteran's sister lives with the veteran. He reported that the veteran is able to feed, dress and bathe himself, although his sister does the shopping and cooking, and helps him bathe when he needs to keep his legs dry. His sister reports that she picks up large print library books for the veteran to read, and reads the newspaper to him because he cannot. The examiner identified as the veteran's primary limitations his hearing and vision deficits, and his right below the knee amputation. On June 8, 1993, the same examiner stated that the veteran has an impaired ability to ambulate, and needs a walker to ambulate due to his amputations. He added: "This in combination with decreased hearing and vision renders him with diminished capacity to protect himself from falling during daily activity, travel, etc." The examiner added that his examination of the veteran on that date revealed his third left toe was gangrenous, with a gaping, draining wound five inches long and one inch wide. When the examiner dressed the wound and suggested a whirlpool, the veteran became very belligerent, insisting he did not want to be hospitalized. The examiner noted that the veteran needs 24 hour care, and that he cannot ambulate because of his right below the knee amputation, left toe amputations, and left foot drainage. In the examiner's opinion the veteran required hospitalization at that time for care of his wound. A statement from the veteran received by the RO September 23, 1993, reports that he was still attended daily by a nurse, who assisted him in changing his wound dressing, and in his daily activities. He added that he still uses the Chicago Transit Authority Special Services transport to get to his VA appointments. With regard to the veteran's service-connected arteriosclerotic heart disease, a disability rated under Diagnostic Code 7005, the evidence does not show that the veteran has had acute illness from coronary occlusion or thrombosis, with circulatory shock, within the last six months, as required for a 100 percent rating. Furthermore, the evidence does not support a finding that the veteran suffers from chronic residuals of congestive heart failure or angina on moderate exertion or more than sedentary employment is precluded due to his arteriosclerotic heart disease, requiring a 100 percent rating. The schedule also provides that a 60 percent disability rating is appropriate for a disability resulting following typical history of acute coronary occlusion or thrombosis as for a 100 percent rating, or with history of substantiated repeated anginal attacks when more than light manual labor not feasible. There is no support for a finding that the level of disability resulting from the veteran's arteriosclerotic heart disease is more than that represented by the 60 percent rating assigned by the RO. 38 C.F.R. 4.104 (1993). The veteran has insulin dependent diabetes mellitus, rated under Diagnostic Code 7913 of VA's rating schedule. A 100 percent rating is warranted when the veteran has pronounced diabetes that is uncontrolled, with repeated episodes of ketoacidosis or hypoglycemic reactions, restricted diet and regulation of activities; with progressive loss of weight and strength, or severe complications. A 60 percent scheduler raring is warranted when the veteran has severe diabetes, with episodes of ketoacidosis or hypoglycemic reactions, but with considerable loss of weight and strength and with mild complications, such as pruritus ani, mild vascular deficiencies, or beginning diabetic ocular disturbances. The rating schedule suggests a 40 percent raring for symptoms comparable with moderately severe diabetes, requiring large insulin dosage, restricted diet, and careful regulation of activities, i.e., avoidance of strenuous occupational and recreational activities. Although the record does not contain an assessment of the frequency of the veteran's episodes of ketoacidosis or hypoglycemia, the evidence reflects that as of early 1993 the veteran had one below the knee amputation, and had three toes amputated on the remaining leg. The Board finds that the veteran suffers severe complications of his diabetes mellitus. Accordingly, a 100 percent scheduler rating is warranted. 38 C.F.R. 4.119, Diagnostic Code 7913 (1993). When all the evidence is taken into account the Board finds that the veteran has established a factual need for regular aid and attendance, as his disabilities impair his ability to protect himself from the hazards of everyday living. 38 U.S.C.A. 1502(b) (West 1991); 38 C.F.R. 3.351(b)(c) (1993). ORDER The appeal for special monthly pension by reason of need for aid and attendance is granted. EUGENE A. O'NEILL 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.