Citation Nr: 1121007 Decision Date: 05/31/11 Archive Date: 06/06/11 DOCKET NO. 10-23 035 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to special monthly pension (SMP) based on the need for regular aid and attendance of another person or on account of housebound status. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran had active service from November 1968 to April 1970. He died in July 2009. The appellant is the Veteran's surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veterans Affairs (VA) Pension Management Center in Milwaukee, Wisconsin. This appeal is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The appellant seeks SMP due to her physical disabilities, including degenerative arthritis of her left knee, chronic osteoarthritis, and a right leg amputation. She contends that she needs assistance with transportation, grocery shopping, and housecleaning. SMP is payable to a surviving spouse by reason of need for aid and attendance of another person or, if not in need of aid and attendance, by reason of being housebound. 38 C.F.R. § 3.351(a)(5) (2010). Needing aid and attendance means that a person is helplessness or so nearly helpless as to require the regular aid and attendance of another person. The surviving spouse of a veteran will be considered to be in need of regular aid and attendance if he/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. 38 C.F.R. § 3.351(b), (c) (2010). In determining whether there is a factual need for regular aid and attendance, the following will be accorded consideration: the inability of the appellant to dress or undress himself/herself, or to keep himself/herself ordinarily clean and presentable; whether he/she requires frequent adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; inability to feed himself/herself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity that requires assistance on a regular basis to protect him/her from the hazards or dangers incident to his/her daily environment. 38 C.F.R. § 3.352(a) (2010). It is not required that all of the disabling conditions enumerated in the above paragraph be found to exist before a favorable rating may be made. The particular personal function which the appellant is unable to perform should be considered in connection with his/her condition as a whole. It is only necessary that the evidence establish that the appellant is so helpless as to need regular aid and attendance, not that there be constant need. Id. If not in need of regular aid and attendance, a surviving spouse may also be entitled to improved pension on the basis of being permanently housebound. 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. See 38 C.F.R. § 3.351(f) (2010). In support of her claim for SMP benefits, the appellant submitted outpatient treatment records dated between 2007 and 2010. One such record, dated in August 2007, shows the Veteran was having great difficulty with her prosthesis due to neurogenic pain. In addition, her left knee was becoming so painful that it was increasingly difficult for her to move about particularly given her amputated right leg. A more recent treatment record in May 2009 shows the appellant was status post patellectomy of her left knee. An entry dated in June 2009 shows that she continued to have difficulties with her prosthesis due to an improper fit despite multiple adjustments. She indicated that the prosthesis had come loose on two occasions causing her to fall. She was also unable to maneuver stairs or go down her ramp at home without putting on the brakes of her walker due to the instability of the prosthesis she was currently using. However, the June 2009 entry also shows that at that time the appellant's husband was very ill and wheelchair bound. Thus, the appellant was required, and apparently able, to do both the outside yard work (except mowing) and the housekeeping. She also transported her husband back and forth from medical appointments by car and was able to push him in the wheelchair. In January 2010, the appellant submitted a statement from Western Wisconsin Cares (WWC), indicating that they had been providing her with supportive home care and assistance consisting of cleaning three hours a week, assistance with lawn care/snow removal, and a Lifeline unit in the home due to her history of falls. It was noted that the appellant lived alone and had functional limitations and diagnoses that warrant assistance to avoid future institutionalization. It was also noted that the appellant currently uses a prosthesis or wheelchair/scooter for mobility. In addition, her left knee arthritis caused significant pain and difficulty with ambulation. A statement from the appellant's treating physician supported the request that the home care and assistance be continued. These statements do not otherwise suggest that the appellant needed help dressing or undressing, keeping herself clean, feeding herself, attending to the wants of nature, or protecting herself from the hazards or dangers incident to her daily environment. In this case, the Board finds the evidence regarding the extent to which the appellant's disabilities result in the functional deficits required for an award of aid and attendance benefits is inadequate. While outpatient treatment records show treatment of her disabilities, they do not sufficiently show whether she requires assistance with the needs of daily living. Indeed, and in this regard, no VA examination to determine her capacity to perform self-care functions has been performed in connection with her claim. Accordingly, a VA examination to determine the impact of the disabilities on her ability to function is necessary. Accordingly, the case is REMANDED for the following action: 1. Ask the appellant to provide any medical records, pertaining to treatment or evaluation received since June 2009, or to provide the identifying information and any necessary authorization to enable the AMC/RO to obtain such evidence on her behalf. Document any attempts to obtain such records. If the AMC/RO is unable to obtain any pertinent evidence identified by the appellant, so inform her and request that she obtain and submit it. If any records are unavailable, do not exist, or further attempts to obtain them would be futile, document this in the claims file. All such available records should be associated with the claims folder. See 38 U.S.C.A. § 5103A(b). 2. Thereafter, schedule the appellant for a VA examination to determine whether she is in need for regular aid and attendance of another person or is housebound for VA purposes. The examination report should include a specific medical opinion as to whether the appellant has 1) anatomical loss or loss of use of both feet; or 2) anatomical loss or loss of use one hand and one foot; or 3) is blind in both eyes, with 5/200 visual acuity or less, or 4) is permanently bedridden, or 5) has such significant disabilities as to be in need of regular aid and attendance. Specifically, the examiner should describe the extent of the appellant's mobility (and how it is accomplished), and provide an opinion as to whether she requires the regular aid and attendance of another person to perform daily self care tasks such as eating, taking medication, bathing, grooming, dressing, attending to the needs of nature, or protecting herself form the hazards of her daily environment. Also, the examiner should comment on whether the appellant is, because of her disabilities, confined to the premises of her home/dwelling. Rationale for all opinions offered should be provided. 3. The AMC/RO should then re-adjudicate the claim for SMP. If it remains denied, the RO should issue an appropriate supplemental statement of the case, and afford the appellant and her representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. No action is required of the appellant until she is notified by the RO; however, the appellant is advised that failure to report for any scheduled examination may result in the denial of her claim. 38 C.F.R. § 3.655 (2010). She has the right to submit additional evidence and argument on the matter that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).