Citation Nr: 1007242 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 08-34 489 ) 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 compensation (SMC) based on the need for the regular aid and attendance of another person (A&A) or at the housebound rate. ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The service member had active service in the US Army from December 1943 to March 1946. The service member passed away in September 2008; the appellant is the service member's widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of July 2008 of the Department of Veterans Affairs (VA) Regional Office (RO), in San Juan, the Commonwealth of Puerto Rico, that denied entitlement to special monthly pension benefits due to the need for regular aid and attendance or housebound benefits. FINDINGS OF FACT 1. The appellant is not 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 five degrees or less, nor is she a patient in a nursing home because of mental or physical incapacity. 2. The impairment resulting from the appellant's various disabilities, disorders, and conditions are not such that she requires the care or assistance of another on a regular basis. 3. The appellant is not housebound. CONCLUSIONS OF LAW 1. The criteria for special monthly pension based on the need for the regular aid and attendance have not been met. 38 U.S.C.A. §§ 1114, 1502(b), 1521(d), 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.23, 3.102, 3.350, 3.351, 3.352 (2009). 2. The criteria for special monthly pension as a result of being housebound have not been met. 38 U.S.C.A. §§ 1114, 1502(b), 1521(d), 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.23, 3.102, 3.351 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2008); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Prior to the initial adjudication of the appellant's claim, a VCAA letter was sent in May 2008 by the agency of original jurisdiction (AOJ) which fully satisfied the duty to notify provisions. In sum, VA has informed the appellant of which evidence she was to provide to VA and which evidence VA would attempt to obtain on her behalf. In this regard, the VA sent the appellant notice of the VCAA, which spelled out the requirements of the VCAA and what the VA would do to assist the appellant. VA informed the appellant that it would request records and other evidence, but that it was the appellant's responsibility to ensure that the VA received the records. The appellant was told that she should inform the VA of any additional records or evidence necessary to substantiate her claim. VA also fulfilled its duty to assist. VA obtained the appellant's available medical treatment records, including requesting any treatment records from the facilities where the appellant had been treated, and those other records that the VA was made aware thereof. Given the foregoing, the Board finds that the VA has substantially complied with the duty to procure the necessary medical and other records. Additionally, VA has a duty to obtain a medical examination or opinion when such examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2009). In June 2008, a comprehensive VA Aid and Attendance Examination was performed and the results of that examination have been included in the claims folder for review. The Board would further add that a review of that examination report notes that a thorough examination of the appellant was accomplished, and the opinion provided was supported by sufficient rationale. Therefore, the Board finds that the June 2008 VA examination is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Moreover, the appellant was given the opportunity to present evidence and testimony before an RO hearing officer and the Board. The appellant was given notice that the VA would help her obtain evidence but that it was the appellant's obligation to inform the VA of that evidence. During the course of this appeal, the appellant has proffered documents and statements in support of her claim. In sum, VA has given the appellant every opportunity to express her opinions with respect to the issue now before the Board and the VA has obtained all known documents that would substantiate the appellant's assertions. Therefore, in light of the foregoing, the Board will proceed to review and decide the claim. The appellant has asked that she be awarded special monthly compensation in the form of aid and attendance. Under the pertinent criteria, the law provides that special monthly compensation is payable if the surviving spouse has suffered the anatomical loss or loss of use of both feet, or of one hand and one foot, or is blind in both eyes, with 5/200 visual acuity or less, or is permanently bedridden or so helpless as to be in need of regular aid and attendance. See 38 U.S.C.A. § 1114(l) (West 2002); 38 C.F.R. § 3.350 (2009). The criteria for determining that a surviving spouse is so helpless as to be in need of regular aid and attendance are contained in 38 C.F.R. § 3.352(a) (2009). 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: (1) Inability of the claimant to dress or undress him or herself or to keep him or herself ordinarily clean and presentable; (2) Frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without assistance; (3) Inability of the claimant to feed him or herself through loss of coordination of upper extremities or through extreme weakness; (4) Inability to attend to the wants of nature; or (5) Incapacity, either physical or mental, that requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. It is not required however 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 his or her condition as a whole, and the need for aid and attendance must be regular, not that there be a constant need. 38 C.F.R. § 3.352(a) (2009). An individual who is bedridden shall also be considered to require regular aid and attendance. "Bedridden" constitutes a condition that 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 bedrest for a lesser or greater portion of the day to promote convalescence or cure will not suffice. The "permanent housebound" requisite will be considered to have been met when the surviving spouse is substantially confined to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical area due to a disability or disabilities, and it is reasonably certain that the disability or disabilities and the resultant confinement will continue throughout his or her lifetime. 38 U.S.C.A. §§ 1502(c), 1521(e) (West 2002); 38 C.F.R. § 3.351(d) (2009). The appellant has asserted that her various disabilities should entitle her to aid and attendance and/or housebound status. In considering whether the appellant is entitled to special monthly compensation benefits based on the need for regular aid and attendance or as a result of being housebound, the Board may only consider separate and distinct disabilities. 38 C.F.R § 3.350(e)(3) (2009). After a careful review of the evidence of record, it is the decision of the Board that the appellant is not entitled to special monthly pension benefits based on the need for regular aid and attendance or as a result of being housebound. The only evidence supporting the appellant's claim includes her statements. In this regard, she asserts that her disabilities are of such severity as to warrant special monthly pension. The medical treatment records indicates that she has received treatment for conditions of the back, left knee, and left leg, along with a heart disability, high blood pressure, osteoarthritis, and a high cholesterol level. Per the VA Aid and Attendance Exam of June 2008, it was discovered that she could ambulate without the use of a walker-type appliance or cane. The evidence further indicates that she was capable of going to medical appointments and leaving the house even if she chose not to do so. It was further opined that the appellant was able to protect herself from harm and that while her son might come to her home to cook or clean or do errands for the appellant, the appellant was capable of doing such chores and items herself. Nothwithstanding these points, the evidence also shows that she is capable of caring for the needs of nature, she gets out of bed and remains so all day, and she is able to feed, dress, and bathe herself. There is no indication that the assistance of another person was required in order for her to walk. Also, there is no indication in the record that the appellant's visual acuity is such that she would be considered blind or so nearly blind as to have corrected visual acuity of 5/200 or less in each eye. The clinical findings are of greater probative value than the appellant's statements regarding the severity of her disabilities. The Board concludes, accordingly, that the preponderance of the evidence is against the claim for special monthly pension based on the need for the regular aid and attendance of another person. Additionally, there is no evidence that the appellant is housebound. The medical records have indicated that she is capable of leaving her house or apartment. In sum, there is no credible evidence that the appellant is in fact confined to her home or immediate premises. Accordingly, the preponderance of the evidence is also against the claim for special monthly pension at the housebound rate. ORDER Entitlement to special monthly compensation (SMC) based on the need for the regular aid and attendance of another person (A&A) or at the housebound rate is denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs