Citation Nr: 0810195 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 00-22 120 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to special monthly pension (SMP) based on being housebound or the need for the aid and attendance of another. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L.J. Bakke, Counsel INTRODUCTION The veteran served on active duty from November 1972 to March 1974. This appeal arises before the Board of Veterans' Appeals (Board) from a rating decision rendered in August 2002 by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, in which entitlement to SMP was denied. In February 2006, the Board entered a decision in this case denying entitlement to service connection for hemorrhoids, a bilateral leg disability, and an eye disability, and determining that the reduction in the evaluation for bilateral hearing loss form 20 to 10 percent effective in September 2000 was proper. The issues of entitlement to an increased evaluation for bilateral hearing loss, right ankle sprain, and headaches, and to entitlement for SMC were remanded. In January 2007, the Board entered a decision denying entitlement to an increased evaluation for bilateral hearing loss beginning in July 2003, and for headaches and tinnitus, and granting an evaluation of 30 percent and no greater for bilateral hearing loss prior to July 2003, of 10 percent for the right ankle sprain prior to September 2004, and of 20 percent for the right ankle sprain beginning September 2004. The issue of entitlement to SMP on the basis of being housebound and needing the aid and attendance of another was remanded. The January 2007 Board decision was effectuated in a March 2007 rating decision. The veteran has not appealed the February 2006 and January 2007 Board decisions to the U.S. Court of Appeals for Veterans' Claims, and has not filed a notice of disagreement to the March 2007 RO decision. The requested development for the issue on appeal has been completed. FINDING OF FACT The veteran is not blind or nearly blind or a patient in a nursing home; his disabilities do not render him so helpless as to need regular aid and attendance in the activities of daily living; he is not incapacitated physically or mentally such that he needs aid and attendance in order to protect him from the hazards or dangers of his daily environment; he is not bedridden or permanently housebound. He does not have a disability rated 100 percent disabling. CONCLUSION OF LAW The criteria for special monthly pension by reason of being housebound or needing the aid and attendance of another have not been met. 38 U.S.C.A. §§ 1541, 5107(b) (West 2002); 38 C.F.R. §§ 3.3.351, 3.352(a) (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159. The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided notice of the laws and regulation governing nonservice-connected pension in April 2002. The notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004), requesting the claimant to provide evidence in his or her possession that pertains to the claims. In addition, subsequent additional notice was provided concerning the degrees of disability and effective dates for any grant in February 2007. However, neither letter provided the required evidence necessary to substantiate the veteran's claim for SMP on the basis of being housebound or needing the aid and attendance of another, specifically. In addition, the notice did not discuss the criteria for increased evaluations for the veteran's service-connected disabilities, which provide a means to obtain schedular SMP under the criteria. See Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008). In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the U.S. Court of Appeals for the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial and require reversal unless VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Although not specifically discussed by the court, some other possible circumstances that could demonstrate that VA error did not prejudice the claimant include where the claimant has stated that he or she has no further evidence to submit, or where the record reflects that VA has obtained all relevant evidence. VA has obtained all relevant evidence and the documents of record demonstrate the veteran and his representative had actual knowledge of the evidence needed to meet the criteria. In a communication from the veteran dated in August 2002, he discussed the requirements of the criteria in part, and his arguments as to why he believed he still met the criteria. Moreover, actions by the veteran and his representative following the December 2002 statement of the case and in pursuit of the veteran's other multiple claims for service connection and increased evaluations for service-connected disabilities show actual knowledge of the right to submit additional evidence and of the availability of additional process, in addition to the evidence needed to prevail under the specific criteria for these other claims. VA has obtained service medical records, assisted the veteran in obtaining evidence including private medical records, has accorded the veteran VA examinations, and has afforded the veteran the opportunity to give testimony before the Board, which he declined. All known and available records relevant to the issue of service connection for hypertension have been obtained and associated with the veteran's claims file; and the veteran has not contended otherwise. In September 2007, the veteran stated he had no further information or evidence to submit. VA has substantially complied with the notice and assistance requirements and the veteran is not prejudiced by a decision on the claim at this time. II. SMP The veteran seeks SMP based on need of regular aid and attendance of another person, and/or by reason of being housebound. The veteran service-connected disabilities are rated as following: headaches, 30 percent disabling; bilateral hearing loss, 10 percent prior to July 2001, 20 percent beginning in July 2001, 30 percent beginning in May 2003; right ankle sprain, noncompensable prior to May 2003, 10 percent beginning in May 2003, 20 percent beginning in September 2004; and bilateral tinnitus, 10 percent disabling. His combined evaluation was 50 percent prior to July 2001, 60 percent beginning in May 2003, and 70 percent beginning in July 2004. His nonservice connected disabilities are rated as follows: neck condition, 60 percent disabling; hypertension, 10 percent disabling; right little toe callous, zero percent disabling; hemorrhoids, zero percent disabling; eye condition, zero percent disabling; back condition, zero percent disabling; and leg condition, zero percent disabling. The veteran is in receipt of nonservice connected pension effective in January 2000 and has been found to be 90 percent disabled for nonservice connected pension purposes. Under 38 U.S.C.A. § 1521, "each veteran of a period of war who meets the service requirements of this section and who is permanently and totally disabled from nonservice-connected disability not the result of the veteran's willful misconduct" is entitled to VA pension benefits. See 38 U.S.C.A. § 1521(a) (West 2002 & Supp. 2007). A veteran entitled to receive non-service-connected pension may receive pension at a higher, special monthly rate if he needs regular aid and attendance of another individual to conduct routine activities necessary for daily life. 38 U.S.C.A. § 1521(d). A person is considered to need regular aid and attendance if he is a patient in a nursing home due to mental or physical incapacity; or helpless or blind, or so nearly helpless or blind as to need or require the regular aid and attendance of another individual; or establishes a factual need of aid and attendance under 38 C.F.R. § 3.352(a) criteria. A determination as to factual need of aid and attendance must be based on actual requirements of personal assistance from others. Consideration is given to an inability of a claimant to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of prosthetic or orthopedic appliances without aid; inability to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from the hazards or dangers incident to his 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 claimant remain in bed. It does not require that all of the above disabling conditions be found to exist before a favorable rating may be made. The particular personal functions which a claimant is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establishes that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. 38 C.F.R. § 3.352(a) (2007). There is no competent medical evidence establishing that the veteran is a patient in a nursing home, nor does the veteran claim this. And, although the veteran apparently has some difficulty with visual acuity, the medical evidence does not establish that the veteran is blind or so nearly blind as to require the aid and attendance of another individual. The veteran has stated that he needs the help of another person to wash, clean house, help him up and down, and that his body is just not what it used to be. He stated the pain is such that sometimes he doesn't want to get out of bed. However, the medical evidence does not establish, nor does the veteran aver, that he is bedridden, or unable to dress or undress himself, or keep himself ordinarily clean and presentable, or feed himself, or attend to the wants of nature, or to protect himself from the dangers incident to his daily environment. VA examination conducted in May 2007 reflected that the examiner, after complete review of the veteran's claims file, found no evidence that the veteran was at any point permanently bedridden or confined to his domicile and the immediate area. Rather, the veteran was able to drive himself to his appointment, which was over 200 miles from his home. He had no attendant with him. He was found to be able to walk without the assistance of another person for unlimited distance, did not need a wheelchair and, while he reported that he sometimes used a cane, he did not have it with him on the day of examination-nor did he present as needing it to ambulate. The examiner found no conditions that rendered the veteran unable to protect himself from daily hazards and dangers, and no self-care skills that the veteran was unable to perform. His best corrected visual acuity was greater than 5/200 and he was able to drive appropriately. His hearing disabilities were considered to be stable. His hearing aids were adjusted appropriately and the examiner noted that the veteran was able to hear and respond to normal conversation and required no questions to be repeated. Rather, he was found to be able to perform all activities of daily life including grooming, bathing, toileting, dressing, and driving himself around town or for long distances. He was found, in essence, to be able to independently care for himself. The medical evidence thus clearly demonstrates that the veteran is not so helpless as to need regular aid and attendance. As for housebound status, a veteran receiving non-service- connected pension may receive housebound-rate SMP if he has a disability rated as permanent and total (but not including total rating based upon unemployability under 38 C.F.R. § 4.17) and (1) has additional disability or disabilities independently ratable at 60 percent or more, or (2) by reason of disability or disabilities, is permanently housebound but does not qualify for SMP at the "aid and attendance" rate. 38 U.S.C.A. § 1521(e); 38 C.F.R. § 3.351(d)(1) and (2). The requirement of "permanently housebound" status will be considered to have been met when the veteran is substantially confined to his house (or ward or clinical areas, if institutionalized) or immediate premises due to disability or disabilities which it is reasonably certain will remain throughout his lifetime. See 38 U.S.C.A. § 1502(c); 38 C.F.R. § 3.351(d)(2). After a thorough review of the record, it is clear that the veteran does not meet the SMP requirements for housebound benefits. First, no disability is rated as totally disabling. Diagnostic Codes 8100 for headaches, 5271 for right ankle sprain (rated as limitation of ankle motion), 6260 for tinnitus, 5290 for a neck condition (rated as limitation of cervical spine motion, now 5237), 7101 for hypertension, 7819 for right little toe callous (rated as a new benign skin growth under scars, or 7801 through 7805 or impairment of function or 5276 through 5284), 7336 for hemorrhoids, 6079 for eye condition, 5295 for back condition (rated as lumbosacral strain, now 5237), and 5257 for leg condition (rated as other impairment of the knee) do not provide a 100 percent rating. 38 C.F.R. §§ 4.71a, 4.84, 4.118, 4.104, 4.114, 4.124a. A 100 percent rating for bilateral hearing loss requires that the veteran have a level XI hearing loss in each ear. 38 C.F.R. § 4..85. Here, the medical evidence establishes that the veteran has level VI hearing loss in each ear. Second, the evidence does not show, nor does the veteran aver, that he is substantially confined to his dwelling or home due to the severity of his health problems. The evidence does not show he is hospitalized or bedridden. Rather, the medical evidence shows the veteran is able get out, walk without the assistance of another person for unlimited distance, and drive himself around town or for long distances. He can, and does, leave his house and immediate premises to attend medical appointments, including his recent VA examination, which was over 200 miles away from home. He arrived without an attendant. The preponderance of the evidence is against the claim, whether based upon housebound status or upon need of regular aid and attendance. Therefore, the reasonable doubt rule does not apply. 38 U.S.C.A. § 5107(b). ORDER Special monthly pension based on being housebound or on the need of aid and attendance of another is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs