Citation Nr: 1307909 Decision Date: 03/08/13 Archive Date: 03/11/13 DOCKET NO. 09-16 997 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to special monthly pension by reason of being in need of regular aid and attendance or on account of being housebound. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1966 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. By way of history, the Board remanded this matter for further development in July 2012. A review of the Virtual VA paperless claims processing system reveals documents that are either duplicative of the evidence of record or are not pertinent to the present appeal. FINDINGS OF FACT 1. The Veteran was born in April 1947 and has reached the age of 65. 2. The Veteran is not blind nor does he have uncorrectable vision; he is not a patient in a nursing home, and does not have a single disability rated as 100 percent disabling. 3. The Veteran does not have a factual need for aid and attendance at any time during the appeal period. 4. The Veteran was not substantially confined to his home at any time during the appeal period. CONCLUSION OF LAW The criteria for special monthly pension for aid and attendance and housebound status have not been met. 38 U.S.C.A. §§ 1513, 1521; 38 C.F.R. §§ 3.3, 3.23, 3.351, 3.352 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Duty to Assist VA has a 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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. See 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Further, VA must review the information and the evidence presented with the claim and provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In May 2007, the RO provided notice of the criteria for a special monthly pension and VA's and the Veteran's respective responsibilities to obtain relevant evidence. The Board concludes that the notice requirements have been satisfied. In addition, VA has obtained all relevant, identified, and available evidence and has notified the Veteran of any evidence that could not be obtained. In a July 2012 Board remand, the Board sought further development of the case by asking the RO to obtain Social Security Administration (SSA) records as well as copies of all medical records underlying the SSA determination of benefits. In August 2012, SSA confirmed that such medical records do not exist as they have been destroyed. A December 2012 formal finding of unavailability notes that the SSA records are unavailable for VA's review, and all procedures to obtain the SSA records for the Veteran have been correctly followed and have been exhausted. VA has also obtained a medical examination in connection with this appeal in March 2009. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of his claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Special Monthly Pension In order to demonstrate entitlement to increased special monthly pension benefits, the Veteran must meet certain criteria to establish his need for regular aid and attendance or his status for housebound benefits. 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" shall receive VA pension. 38 U.S.C.A. § 1521(a). Section 1521 further provides for an increased rate of pension, in the form of a special monthly pension, when an otherwise eligible veteran is in need of regular aid and attendance or has a disability rated as permanent and total and (1) has an additional disability or disabilities ratable at 60 percent, or (2) is permanently housebound. 38 U.S.C.A. §§ 1521(d), (e); see also 38 C.F.R. §§ 3. 351(b), (c), (d). A veteran will be considered in need of regular aid and attendance if he or 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; or (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(c). Determinations as to the need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to such conditions as: inability of the claimant to dress and undress himself or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliance; inability of the claimant to feed himself through loss of coordination of the upper extremities or through extreme weakness; inability to tend to the wants of nature; or incapacity, physical or mental, which requires care and 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 is not required that all of the disabling conditions enumerated above be found to exist 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 condition as a whole. It is only necessary that the evidence establish 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). In addition, any determination that the veteran 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 to be in bed. They must be based on the actual requirement of personal assistance from others. See Turco v. Brown, 9 Vet. App. 222, 224 (1996). Housebound benefits are warranted if, in addition to having a single permanent disability rated 100 percent disabling under the VA's Schedule for Rating Disabilities (not including ratings based upon unemployability under 38 C.F.R. § 4.17 of this chapter), the veteran: (1) has additional disability or disabilities independently ratable at 60 percent or more, separate and distinct from the permanent disability rated as 100 percent disabling and involving different anatomical segments or bodily systems, or, (2) is "permanently housebound" by reason of disability or disabilities. This requirement is met when the veteran is substantially confined to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical area, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 C.F.R. § 3.351(d). Analysis Service personnel records showed that the Veteran had greater than 90 days service during a period of war. In October 2000, the RO granted a nonservice-connected pension based on the finding that the Veteran was unable to secure and follow a substantially gainful occupation due to disability (chronic back pain with loss of function and lumbar radiculopathy). The RO received the Veteran's claim for aid and attendance in March 2007. The Veteran contends that due to the severity of his condition, he is in need of aid and attendance. The Veteran does not have any service-connected disabilities. He has the following nonservice-connected disabilities rated for pension purposes: lumbar radiculopathy (60 percent), compression fracture C5-6 and degenerative disc C5-6 and C6-7 (30 percent), chronic sinusitis, gastroesophageal reflux disease (GERD), and actinic keratosis. The total combined rating for pension purposes is 80 percent. The Veteran was born in April 1947 and has reached the age of 65. He does not have a single permanent disability rated as 100 percent disabling. March 2007 VA treatment records reveal that the Veteran presented himself for an optometry consultation. Objective tests measuring visual acuity showed that with correction, the Veteran was 20/20 for both distance and near (OD) and 20/50 and 20/30 for distance and near, respectively (OS). A primary care physician note revealed that the Veteran had the following diagnoses: nicotine dependence, muscle spasms, actinic keratosis, GERD, and chronic sinusitis. The clinical records are negative for any comments regarding a need for aid and attendance or inability to leave the home. VA treatment records dating from October 2007 to November 2008 show that the Veteran was able to be present for routine examinations, and one time, he was present with his daughter. Although the Veteran complained of neuropathic type of pain up and down his body and in both of his legs, and muscle spasms, the Veteran never indicated that he would be unable to return for any follow-up visit nor did he make any comments regarding needing aid and attendance or being housebound. The Veteran was afforded a VA examination in March 2009 for an aid and attendance or housebound examination. The examiner reviewed relevant medical records and medical history. The examiner observed that the Veteran lives alone, drove himself to the examination, and walked into the examination room unassisted (without his cane). The Veteran was not currently bedridden. He wore glasses for reading and his visual acuity for his left eye was 20/25, right eye 20/25, and both eyes 20/20. He had hearing aids which he indicated that he has worn since his 20s. The examiner observed that the Veteran's nutrition was normal. He complained of pain (level 7 out of 10) in the back, knees, legs, and the right arm. He manages financial matters himself. The Veteran indicated that he has a girlfriend, but does not live with her. He mentioned that sometimes he uses a cane but can walk unassisted. He sometimes cooks his meals, utilizes the microwave, and his girlfriend at times comes to cook for him at home. The Veteran reported that sometimes he has difficulty feeding himself with his right hand, and he is able to use his left hand to bathe. He is able to use the restroom, bathe, shave, dress, and undress by himself. The Veteran has not been confined to the bed or the home. He drives himself places and there are no restrictions for him to leave the home. The Veteran mentioned that he had back problems, however, he mentioned that he is independent, takes care of himself, and walks about one to one and a half miles per day. He also manages a small garden and grows vegetables. The examiner's report indicated that the Veteran does not have any restrictions to leave the house and he is able to protect himself from the hazards or dangers of daily environment. In conclusion, the examiner opined that the Veteran did not need the assistance of another person and he is not confined to his immediate premises. Based on the foregoing, the Board concludes that special monthly pension for aid and attendance or housebound status is not warranted at any time during the period covered by this appeal. Although he sometimes utilizes a cane to walk, the Veteran walked into the VA examination unassisted. The Veteran has no vision deficits other than the need for corrective lenses and is able to operate a motor vehicle. He is not a patient in a nursing home because of mental or physical incapacity. The Veteran has not described any loss of function that warrants a factual need for aid and attendance. Clinicians have evaluated his mental and physical disabilities and note that he lives alone and that he is able to perform his own household chores and all activities of daily living, to include cooking, bathing, and dressing. He is able to travel alone and walk up to one and a half miles. There is no lay or medical evidence of the nature of that assistance or extent of convalescence to substantiate a status of helplessness or confinement to the home required for special monthly compensation for even a limited period of recovery. As the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not for application, and the Board must deny the claim. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A special monthly pension for aid and attendance or housebound status is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs