Citation Nr: 0022151 Decision Date: 08/21/00 Archive Date: 08/25/00 DOCKET NO. 96-18 132 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to special monthly pension based on the need for the regular aid and attendance of another person or upon housebound status. ATTORNEY FOR THE BOARD Carole R. Kammel, Associate Counsel INTRODUCTION. The veteran served on active duty from February 1951 to January 1953. The appellant is the surviving spouse of the deceased veteran. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1995 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In May 1997, the Board remanded the appellant's claim to the RO for additional development, to include a VA examination. That development has been accomplished and the case is ready for final appellate review. FINDINGS OF FACT 1. All available, relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the RO. 2. The appellant has no impairment which prevents her from leaving her home. 3. The appellant is not blind or a patient in a nursing home; she is able to care for herself and to protect herself from the hazards incident to her daily environment. CONCLUSION OF LAW The criteria for special monthly pension based on the need for regular aid and attendance of another person or upon housebound status have not been met. 38 U.S.C.A. §§ 1502, 1541 (West 1991); 38 C.F.R. §§ 3.351, 3.352 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially the Board finds that the appellant's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, she has presented a claim that is plausible. She has not alleged that there are any records of probative value which have not already been associated with the claims file and which are available and may be obtained. Pursuant to a May 1997 Board remand, VA examinations were conducted to document the nature and severity of the appellant's disabilities, and the impact that these disabilities have on her personal functioning. In addition, in a January 1999 letter to the RO, the Social Security Administration (SSA) indicated that the appellant's claim for benefits, to include her pertinent medical evidence could not be located. Nonetheless, SSA computer records showed that the appellant received disabled widow's benefits commencing on November 1, 1996 because of diabetes mellitus. The Board accordingly finds that the duty to assist the appellant as mandated by 38 U.S.C.A. § 5107 is satisfied. A surviving spouse, entitled to pension benefits pursuant to the provisions of 38 U.S.C.A. §1541(a), is entitled to special monthly pension if she is shown to be in need of the regular aid and attendance of another person, or is shown to be housebound. 38 C.F.R. § 3.351(a)(5). A person shall be considered in need of regular aid and attendance if she (1) is blind or 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; (2) is a patient in a nursing home because of mental or physical incapacity; or (3) establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). 38 C.F.R. § 3.351(b)(c). Determinations as to the need for aid and attendance are factual in nature and must be based upon the actual requirements for personal assistance from others. In making such determinations, consideration is given to such conditions as: the inability of the claimant to dress or undress herself or to keep herself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without assistance; inability of the claimant to feed herself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, either physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to her daily environment. It is not required that all of the disabling conditions enumerated be present before a favorable rating may be made. The particular personal functions which the claimant is unable to perform should be considered in connection with her condition as a whole, and the need for aid and attendance must be regular, not constant. 38 C.F.R. § 3.352(a). An individual who is bedridden shall also be considered to require regular aid and attendance. "Bedridden" constitutes a condition which through its essential character actually requires that an individual remain in bed. The fact that a claimant has voluntarily taken to bed or that a physician has prescribed bed rest for a lesser or greater portion of the day will not suffice. 38 C.F.R. § 3.352. Where a surviving spouse does not meet the criteria for special monthly pension based on the need for regular aid and attendance of another person, increased pension will nonetheless be awarded if the surviving spouse is permanently housebound by reason of disability. 38 U.S.C.A. §1541(e). This requirement is met when the surviving spouse is substantially confined to her home or immediate premises (or ward or clinical area, if institutionalized), by reason of disabilities which are reasonably certain to remain throughout the surviving spouse's lifetime. 38 C.F.R. § 3.351(f). In an October 1994 statement to the RO, the appellant indicated that she was disabled because of her thrombosis, decreased vision and diabetes mellitus. She related that she had undergone cataract surgery on both eyes in 1994. A June 1995 report, submitted by Susan S. Thomas, M.D., reflects that she had treated the appellant since 1986 for chronic open angle glaucoma. Dr. Thomas indicated that the appellant's visual acuity on her last visit in June 1994 was 20/25 in each eye. Dr. Thomas reported that the appellant had marked loss of visual field in the superior half of the right eye and very little visual field in the left eye. A September 1995 VA aid and attendance examination report reflects that the appellant had a history of thrombophlebitis of the right leg in 1979, cataract surgery in 1994, a total abdominal hysterectomy with bilateral salpingo-oophorectomy in 1985, and a C-section in 1975. An examination of the appellant's systems and extremities was normal with the exception of a scar on the abdomen from her C-section. It was noted that the appellant was well developed, obese and not in acute distress. The examiner indicated that the appellant ambulated without the aid of a walker, cane or wheelchair. The appellant stated that she needed someone to help her at home with household chores. Diagnoses of Type II diabetes mellitus, hypertension, history of glaucoma in both eyes and cardiomegaly by chest X-ray were entered by the examining physician. A September 1995 VA visual examination report reflects that the appellant had glaucoma surgery in both eyes in 1994, was a non-insulin dependent diabetic and had hypertension. An examination of the eyes showed that the right best corrected visual acuity of 20/30 and 20/50 for distant and near vision, respectively. The left eye had best corrected visual acuity of 20/40 at both distant and near vision. There was no evidence of any diplopia. The muscle function was smooth, accurate, full and extensive. The patient had visual field defects with 3, 4, E. The right eye had a superior field loss, then a nasal step that was related to her glaucoma. The appellant's left eye also had a slight nasal step. Upon slit lamp examination, the appellant had blebs that were elevated and filtering well. There were grade II nuclear sclerotic cataracts in both eyes. Upon dilated examination, the cup-to-disc ration was .8 in both eyes, the maculae and background were clear. A diagnosis of glaucoma was entered. The examiner further noted that the appellant had undergone trabeculotomies in both eyes with good results, and had slight cataracts which had decreased her vision slightly. A September 1995 VA general medical examination report reflects findings similar to those noted in the September 1995 aid and attendance examination report. However, the examiner noted that the appellant was not able to ambulate without the aid of a walker, cane or wheelchair. A VA psychological assessment report, dated in September 1995, is also of record. The appellant indicated that she was diabetic, had pain in her thighs which made it difficult for her to ambulate and had surgery on both eyes in 1994. The appellant related that she rented a room in a private home, bought her own food, and had received her certification as a nurse's aide three years previously. The appellant indicated that she had been employed at a nursing center, but that she had to stop because she suffered from blood clots in her left leg. The appellant indicated that she spent most of her time helping her mother with grocery shopping, visiting her daughter and baby sitting for her grandchildren. She indicated that while she attended church on a weekly basis, she did not engage in any other socialization. The impression of the examiner was that the appellant's current medical problems adversely affected her ability to maintain gainful employment, and that she appeared to have been moderately to severely impaired. During an April 1996 hearing at the Detroit, Michigan RO, the appellant related that she was entitled to aid and attendance benefits because of her two eye surgeries, arthritis of her joints, diabetes and thrombophlebitis. She related that her disabilities did not confine her to her residence and that she was able to walk around her home if she held onto things. The appellant testified that although she could cook, feed and bathe herself, she needed some assistance in dressing herself. A private X-ray report, received by the RO in May 1996, reflects that the appellant had osteoarthritis of the knees. A June 1996 VA aid and attendance examination report reflects that the appellant was driven to the examination by her daughter. The examiner indicated that the appellant had good posture, a normal gait and was obese. The appellant reported having pain in her knees for the previous three years, and that she had been told that she had arthritis. She indicated that she had had diabetes and hypertension since 1975, and that she had never been in a diabetic coma or had an insulin reaction. She related that she did not have any cardiac symptoms other than occasional palpitations which shook her whole body once or twice a month and lasted for a couple of seconds. The appellant stated that she had difficulty climbing stairs and that she had stiff knees in the morning because of arthritis. She related that she could walk 50 feet or less and had to go one step at a time. The examination showed mild bony deformities of the knees. The right knee flexed to 90 degrees and extended to 0 degrees. The left knee flexed to 85 degrees and extended to 0 degrees. There was no evidence of any anterior-posterior or lateral instability, effusion, heat or redness in either knee. The examination was otherwise unremarkable. The examiner indicated that the appellant appeared fully capable of performing the activities of daily living and protecting herself from environmental hazards. During an ordinary day, the appellant was reported to work around her home and to go wherever she desired as long as she had transportation. The appellant had no difficulty with ambulation other than limitations imposed by the pain in her knees. The examiner related that the appellant's abnormalities would be permanent and would increase in severity. An X-ray of the chest revealed borderline to mild cardiomegaly, which was unchanged from a previous examination in September 1995. X-rays of the right knee revealed mild degenerative changes with several patellar spurs and narrowing of the patellofemoral joint space. X-rays of the left knee showed minimal to mild degenerative changes with lipping of the articular surfaces and a suggestion of loose bodies within the joint space. Impressions of hypertension well-controlled with medication, uncontrolled diabetes mellitus; probable arteriosclerotic heart disease; osteoarthritis of the knees; probable diabetic nephropathy; bacteria; hematuria and borderline to mild cardiomegaly by chest X-ray were recorded by the VA examiner. A June 1996 VA eye examination report reflects that the appellant complained of having blurred near and distant vision. It was noted that the appellant had undergone cataract surgery in 1984 in both eyes and had had trabeculae. A history of non-Insulin dependent diabetes, periphlebitis and osteoarthritis was recorded by the examiner. Right eye best corrected visual acuity was 20/25 for distant and near vision. Left eye best corrected visual acuity was 20/30 and 20/25 for distant and near vision, respectively. There was no diplopia. Muscle function was smooth, accurate, full and extensive. The appellant had visual field defects with 34E test object. Right and left eyes had a complete Bjerrum's scotoma with a constricted field to 360 degrees. Upon slit lamp examination, all findings were relatively normal except there was slight posterior subcapsular cataracts in both eyes, which caused a decrease in vision. Upon dilated examination, the cup to disc ration was .9 in both eyes. The macula was clear, and the background had a few dot and blotch hemorrhages. Diagnoses of decrease vision secondary to cataracts in both eyes, glaucoma in both eyes and minimal diabetic retinopathy were recorded by the VA examiner. Medical reports, submitted by the Michigan Health Care Corporation, dating from September to October 1994, were received by the RO in June 1996. These reports reflect that the appellant was found to have open angle glaucoma in both eyes, and that she underwent a trabeculectomy in each eye. An August 1999 VA eye examination report reflects that the appellant complained of seeing spots in her eyes for the previous three months. The examiner indicated that the appellant had a history of insulin dependent diabetes and that she had been "lasered" in the past. The appellant related that her eyes were "bleeding," that she had cataracts, glaucoma and diabetic retinopathy. The appellant related that she took medication for her eyes two times a day. An examination of the eyes revealed corrected visual acuity in the right eye of 20/40 for both near and distant vision. Left eye corrected visual acuity was 20/40 and 20/30 for distant and near vision, respectively. There was no evidence of any diplopia, and muscle function was smooth, accurate, full and extensive. During a Goldmann visual field object III/4-e, both eyes had a pterygium scotoma superiorly. Upon slit examination, both eyes showed evidence of peripheral iridotomies and nuclear and posterior Grade II subcapsular cataracts. Upon dilated examination, the cup of disc ration was .95 and .8 in the right and left eyes, respectively. The maculae in the eyes showed some hemorrhages. The left eye also showed some neovascularization and both eyes had pan- retinal photocoagulation. A diagnosis of decreased visual acuity secondary to bullous diabetic retinopathy in both eyes was rendered. The examiner also indicated that the appellant had a vitreous hemorrhage in the right eye, an active neovascularization in the left eye and it was suggested that she undergo laser treatment. The examiner also noted that the appellant had unstable glaucoma with pressures of 28 and 27 and cataracts. It was the overall opinion of the examiner that the appellant's eye disabilities should not have an affect on her ability to take care of herself or leave her home without an attendant. During an August 1999 VA aid and attendance examination, the examiner noted that he had reviewed the claims file. The appellant's medical history was noted, to include her non- insulin-dependent diabetes mellitus and thrombophlebitis. She related that she would get tired if she walked 100 feet and climbed the stairs. The appellant denied having any chest pain, dyspnea on exertion and paroxysmal nocturnal dyspnea. She sated that she had orthopnea and that "sleep propped up." The examiner noted that the appellant lived alone and arrived to the examination alone. The appellant related that she did not drive, but that a friend had provided her with transportation. The appellant denied having any dizziness, bowel or bladder incontinence, loss of memory or poor balance affecting her ability to ambulate. On a typical day, the appellant indicated that she stayed at home, went out with her family or watched television. She indicated that she was able to perform the activities of daily living independently, such as cooking for herself. She related that sometimes her daughter would bring her hot food. The appellant did not have any amputation, limitations to walking or difficulties of weight bearing, balancing or propulsion. A physical examination of the appellant was normal. In this regard, range of motion of the joints was intact on active and passive movements. There was no evidence of any joint effusion, tenderness, swelling, muscle spasm, joint laxity or muscle atrophy. There was no evidence of any neurological deficits. Diagnoses of insulin-requiring diabetes mellitus, fair blood sugar control; hypertension, suboptimal control of blood pressure on hypertensive therapy; left ventricular hypertrophy by echocardiogram; history of thrombophlebitis; mild superficial venous insufficiency, bilaterally; hypercholesterolemia; mild hypoalbuminemia; proteinuria; mild to moderate mitral regurgitation and significant pulmonic regurgitation were recorded. It was the opinion of the VA examiner that the appellant was capable of performing activities of daily living independently. It was noted that she required assistance in transportation. In the Board's opinion, the foregoing evidence demonstrates that the appellant does not meet the criteria for special monthly pension based on the need for the regular aid and attendance of another person. It is not contended or shown that the appellant is blind or a patient in a nursing home. Although the medical evidence of record reflects that the appellant has impaired central visual acuity and some defect in the visual field, she had corrected central visual acuity of 20/40 in the right eye for both near and distant vision, and corrected central visual acuity in the left eye of 20/40 and 20/30 for near and distant vision, during an August 1999 VA eye examination. There is no medical evidence of concentric contraction of the visual field to five degrees or less. Each of the examiners assessing whether the appellant is able to perform functions of self care and to protect herself from the hazards incident to her daily environment has conclude that she is. Although she has a number of significant disabilities which entitle her to death pension benefits, she has no significant impairment of function of her trunk or extremities, no significant mental impairment and no other impairment which would prevent her from performing functions of self care or protecting herself from the hazards of her daily environment. Moreover, it is clear from the evidence that the appellant is not housebound. In this regard, the Board notes that the medical evidence shows that the appellant has no impairment which would prevent her from leaving her home and that the information reported by the appellant at her VA examinations confirms that she is not housebound. Accordingly, the appeal must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to special monthly pension based upon the need for the regular aid and attendance of another person or upon housebound status is denied. SHANE A. DURKIN Member, Board of Veterans' Appeals