Citation Nr: 1001561	
Decision Date: 01/11/10    Archive Date: 01/22/10

DOCKET NO.  08-07 986	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, 
the Commonwealth of Puerto Rico


THE ISSUE

Entitlement to special monthly pension (SMP) based on the 
need for regular aid and attendance or by reason of being 
housebound for the Veteran's surviving spouse.


ATTORNEY FOR THE BOARD

M. Purdum, Associate Counsel






INTRODUCTION

The Veteran served on active duty from February 19, 1954 to 
July 22, 1954.  The appellant seeks benefits as the Veteran's 
surviving spouse.

This matter comes before the Board of Veterans' Appeals 
(Board) from an October 2007 rating decision of a Department 
of Veteran's Affairs (VA) Regional Office (RO) that denied 
the appellant's claim of entitlement to SMP based on the need 
for regular aid and attendance or by reason of being 
housebound.


FINDING OF FACT

The competent medical evidence indicates that while the 
appellant is not blind in both eyes, a patient in a nursing 
home because of mental or physical incapacity, or 
substantially confined to her home or immediate premises; she 
is so helpless as to be in need of the regular aid and 
attendance of another person on a regular basis.


CONCLUSION OF LAW

The criteria for SMP based upon the appellant's need for the 
regular aid and attendance of another person have been met.  
38 U.S.C.A. §§ 1502, 1521 (West 2002 & Supp. 2009); 38 C.F.R. 
§§ 3.102, 3.351, 3.352(a) (2009).




REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist the Appellant

In light of the favorable disposition, the Board finds that a 
discussion as to whether VA's duties to notify and assist the 
appellant have been satisfied is not required.  The Board 
finds that no further notification or assistance is 
necessary, and that deciding the appeal at this time is not 
prejudicial to the appellant.

SMP

For purposes of SMP, a person is considered to be in need of 
regular aid and attendance if such person is a patient in a 
nursing home due to mental or physical incapacity, is 
helpless or blind, or is so nearly helpless or blind as to 
need or require the regular aid and attendance of another 
person.  38 U.S.C.A. § 1502(b) (West 2002 & Supp. 2009); 38 
C.F.R. § 3.351(b)(c)(1)(2) (2009).  The latter criterion is 
met if a claimant 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.  38 C.F.R. § 3.351(c)(1).

Increased pension is also payable if the surviving spouse 
otherwise establishes a factual need for aid and attendance.  
38 C.F.R. § 3.351(c)(3).  The basic criteria for such a need 
include:  an inability to dress or undress herself; to keep 
herself ordinarily clean and presentable; an inability to 
feed herself through loss of coordination of upper 
extremities or through extreme weakness; inability to attend 
to the wants of nature; a frequent need of adjustment of any 
special prosthetic or orthopedic appliances which by reason 
of the particular disability cannot be done without aid; 
physical or mental incapacity that requires care or 
assistance on a regular basis to protect the claimant from 
hazards or dangers incident to her daily environment; or the 
claimant is bedridden, e.g., the claimant is actually 
required to remain in bed.  38 C.F.R. § 3.352(a) (2009).  
See, e.g., Turco v. Brown, 9 Vet. App. 222, 224 (1996) 
(eligibility for special monthly compensation by reason of 
regular need for aid and attendance requires that at least 
one of the factors set forth in VA regulation is met).  The 
evidence must show that the claimant is so helpless as to 
need regular and attendance; constant need for aid and 
attendance is not required. 38 C.F.R. § 3.352(a).

In addition, a determination that the claimant is so helpless 
as to be in need of regular aid and attendance will not be 
based solely upon an opinion that the claimant's condition is 
such as would require him or her to be in bed, but must be 
based on the actual requirement of personal assistance from 
others.  See Turco, supra.

SMP may be awarded if a surviving spouse is permanently 
housebound by reason of disability.  The "permanently 
housebound" requirement is met when the surviving spouse is 
substantially confined to his or her home (ward or clinical 
areas, if institutionalized) or immediate premises by reason 
of disability or disabilities which it is reasonably certain 
will remain throughout the surviving spouse's lifetime.  38 
U.S.C.A. § 1541 (West 2002); 38 C.F.R. § 3.351(f) (2009).

Private treatment records dated in February 2005 indicate 
that the appellant was treated for hypertension, cardiac 
insuffiency, and depression.  

It appears that a private treatment provider completed a 
Medical Statement for Consideration of Aid and Attendance.  
The form is undated by the provider, but was received by the 
RO in August 2007.  The examiner diagnosed the appellant with 
major depressive disorder, severe, with melancholia.  The 
examiner reported that the appellant was able to walk 
unaided, but also reported that she can't walk much because 
of her vertigo.  The examiner reported that the appellant had 
no feeding difficulties, was able to sit up, was not blind, 
and was not confined to her bed.  The examiner reported that 
the appellant needed assistance in bathing and tending to 
other hygiene needs and was not able to care for the needs of 
nature.  The examiner reported that the appellant had a 
depressed mood and was not motivated to care for her own 
hygiene, and needs supervision.  The examiner reported that 
the appellant was able to travel with somebody, but that she 
can't leave home without assistance due to her vertigo.  The 
examiner reported that the appellant did not require nursing 
home care, but that she requires assistance and supervision 
by her son and daughter while living in her own home.  

On VA psychiatric evaluation in September 2007, the appellant 
reported that she had been treated for nerves and 
hospitalized for trouble sleeping in the past.  The appellant 
reported that she was currently taking prescription 
medication for her mental illness, but that such was not 
helping her.  The appellant complained of daily, severe, 
depressed mood with crying bouts, beginning four years prior, 
and nightly, severe, trouble sleeping, beginning a long time 
ago. 

Mental status examination in September 2007 revealed 
orientation in all three spheres, disheveled clothes, 
spontaneous speech, constricted affect, depressed mood, 
cooperative attitude, and unremarkable psychomotor activity 
and thought processes and content.  The appellant 
demonstrated intact attention, but was unable to complete 
serial 7's or spell a word forward and backward.  The 
appellant presented without delusions or hallucinations, 
inappropriate behavior, episodes of violence, obsessive or 
ritualistic behavior, homicidal or suicidal thoughts, and 
panic attacks.  The appellant presented with average 
intelligence, the ability to interpret proverbs, good impulse 
control, and demonstrated adequate insight and judgment.  The 
examiner reported that the appellant had sleep impairment 
that interferes with her daily activities as she feels tired.  
The examiner reported that the appellant was able to maintain 
minimum personal hygiene, and that the appellant did not have 
a problem with the activities of daily living.  

In September 2007, the examiner diagnosed the appellant with 
depressive disorder, not otherwise specified, without total 
occupational or social impairment.  The examiner opined that 
the symptoms of the appellant's mental disorder were 
controlled by medication.  The examiner opined that, 
subsequent to review of the appellant's psychiatric history 
and completion of a mental status examination, the 
appellant's psychiatric condition did not require care and 
assistance on a regular daily basis, and that she is not 
housebound.  

Greater weight may be placed on one physician's opinion over 
another depending on factors such as reasoning employed by 
the physicians and whether or not and the extent to which 
they reviewed prior clinical records and other evidence.  
Gabrielson v. Brown, 7 Vet. App. 36 (1994).  The probative 
value of a medical opinion is generally based on the scope of 
the examination or review, as well as the relative merits of 
the expert's qualifications and analytical findings, and the 
probative weight of a medical opinion may be reduced if the 
examiner fails to explain the basis for an opinion.  Sklar v. 
Brown, 5 Vet. App. 140 (1993).

In this regard, the Board notes that the private treatment 
provider, at the time of the August 2007 Medical Statement 
for Consideration of Aid and Attendance, opined that the 
appellant needed assistance in bathing and tending to other 
hygiene needs and was not able to care for the needs of 
nature.  The examiner reported that the appellant had a 
depressed mood and was not motivated to care for her own 
hygiene, and needs supervision.  The examiner reported that 
the appellant requires assistance and supervision by her son 
and daughter while living in her own home.  Thus, the private 
treatment provider described the appellant's inabilities and 
reasons for such.  

While the VA examiner, in September 2007, conducted a 
thorough mental status examination, she only responded in the 
affirmative that the appellant was able to maintain minimum 
personal hygiene, and in the negative that the appellant did 
not have a problem with the activities of daily living.  
Significantly, the VA examiner noted that the appellant 
presented at the examination with disheveled clothes.  

The Board finds that the opinion of the private treatment 
provider, rendered in August 2007, provides the most 
probative evidence as to the issue of whether the appellant 
is able to keep herself ordinarily clean and presentable or 
attend to the wants of nature.  As discussed above, the 
appellant is not required to meet all enumerated criteria to 
establish a factual need for aid and attendance.  See, e.g., 
Turco v. Brown, 9 Vet. App. 222, 224 (1996).

The Board finds that the appellant is not housebound, or 
substantially confined to her home.  The private treatment 
provider, in August 2007, reported that the appellant is able 
to leave her home, with the assistance of another person, due 
to her vertigo.  The VA examiner, in September 2007, also 
opined that the appellant was not housebound.  However, while 
there is no probative medical evidence of record indicating 
that the appellant is housebound, there is probative medical 
evidence indicating that the appellant requires regular aid 
and attendance.  Under the circumstances, and with resolution 
of reasonable doubt in the appellant's favor, the Board 
concludes that SMP based on the need for regular aid and 
attendance is warranted.  Gilbert v. Derwinski, 1 Vet. App. 
49 (1990).


ORDER

SMP based on the need for regular aid and attendance is 
granted, subject to the laws and regulations governing 
monetary awards.



____________________________________________
C. TRUEBA
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs