Citation Nr: 1307922 Decision Date: 03/08/13 Archive Date: 03/11/13 DOCKET NO. 10-06 499 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to special monthly pension based on a need for aid and attendance, or on housebound status. (The issue of entitlement to a waiver of an overpayment of VA pension benefits in the amount of $4,859.00 is addressed in a separate action by the Board.) REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A.G. Alderman, Counsel INTRODUCTION The appellant had active military service from January to November 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office and Insurance Center (RO) in Philadelphia, Pennsylvania. FINDINGS OF FACT 1. The Veteran 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 5 degrees or less; is not a patient in a nursing home because of mental or physical incapacity; and is not bedridden. 2. The Veteran is not substantially confined to his home or the immediate premises. 3. The Veteran does not have a disability that is rated at 100 percent. 4. The Veteran had a factual need for aid and attendance of another person demonstrated by an inability to care for most of his daily personal needs only for the period following his March 23, 2009 shoulder surgery until July 14, 2009, but for no other period. CONCLUSION OF LAW The criteria for special monthly pension based on the need of regular aid and attendance or by reason of being housebound are met only from March 23, 2009 to July 14, 2009. 38 U.S.C.A. §§ 1502, 1521, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.351, 3.352 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Duty to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information and 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). In accordance with 38 C.F.R. § 3.159(b)(1), proper 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. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Here, the duty to notify was satisfied by way of a letter sent to the Veteran in July 2009 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA treatment records and private treatment records and attempted to obtain records from the Social Security Administration (SSA). SSA responded that no records were available. The Board has reviewed the Veteran's physical claims file and file on the "Virtual VA" system to insure a total review of the evidence. The Veteran submitted statements and treatment records and was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge. The Veteran was afforded a VA medical examination in July 2012. 38 C.F.R. § 3.159(c) (4) (2012). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA opinion obtained in this case is adequate, as it is predicated on a full reading of the private and VA medical records in the Veteran's claims file. It considers all of the pertinent evidence of record and the statements of the appellant, and the examiner provided a complete rationale for the opinion stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. II. Analysis The Veteran seeks a special monthly pension based upon the need for regular aid and attendance or housebound status. Special monthly pension at the aid and attendance rate is payable when a veteran is helpless or so nearly helpless that he requires the regular aid and attendance of another person. To establish a need for regular aid and attendance, a veteran must be 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; a patient in a nursing home because of mental or physical incapacity; bedridden; or show a factual need for aid and attendance. 38 C.F.R. §§ 3.351, 3.352 (2012). A factual need for aid and attendance includes the inability to dress, undress, keep ordinarily clean and presentable, feed oneself, or attend to the wants of nature. It also includes the frequent need of adjustment of any special prosthetic or orthopedic appliances or either physical or mental incapacity that requires care or assistance on a regular basis to protect against the hazards or dangers incident to a claimant's daily environment. Also, an individual who is bedridden, as that term is defined by regulation, meets the criteria for aid and attendance. 38 C.F.R. § 3.352(a). The particular personal functions which a veteran is unable to perform should be considered in connection with the claimant's condition as a whole. The evidence need only establish that a veteran is so helpless as to need regular aid and attendance, not constant need. Determinations that a veteran is so helpless as to need regular aid and attendance will not be based solely upon an opinion that a veteran's condition requires a veteran to be in bed. Determinations must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352(a). A veteran must be unable to perform one of the enumerated disabling conditions, but a veteran's condition does not have to present all of the enumerated disabling conditions. Turco v. Brown, 9 Vet. App. 222, 224 (1996). The criteria for determining whether a veteran is in need of the aid and attendance of another person may be met if he is bedridden. "Bedridden" is defined as a condition that, through its essential character, actually requires that a veteran remain in bed. The fact that a veteran has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. The performance of the necessary aid and attendance service by a relative of the beneficiary or other member of his or her household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352. A veteran receiving nonservice-connected pension may receive housebound-rate special monthly pension if he has a single permanent disability rated as 100 percent disabling under the Schedule for Rating Disabilities (but not including total rating based upon unemployability under 38 C.F.R. § 4.17 (2012)) and a veteran either (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 special monthly pension at the "aid and attendance" rate. 38 U.S.C.A. § 1521(e) (West 2002); 38 C.F.R. § 3.351(d)(1) and (2) (2012). A veteran will be found to be "permanently housebound" when he 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. 38 C.F.R. § 3.351(d)(2). A veteran is also entitled to special monthly pension based on housebound status if he or she is 65 years of age or older, meets the service criteria of 38 U.S.C.A. § 1521(e) (i.e., has 90 days of wartime service), and possesses a minimum disability rating of 60 percent or is considered permanently housebound as defined under 38 U.S.C.A. § 1502(c). 38 U.S.C.A. § 1513 (West 2002); Hartness v. Nicholson, 20 Vet. App. 216, 220 (2006). In this respect, for housebound benefits, the requirement under section 1521(e) that the veteran have a disability rated as permanent and total (100 percent) is excluded if he or she is 65 or older. Hartness, 20 Vet. App. at 221. Here, the record shows that the Veteran was born in January 1951, and at the time of this decision, he is only 62 years old. Thus, entitlement to special monthly pension based on housebound is not warranted based on age. See 38 U.S.C.A. § 1513 (West 2002). The Veteran claims entitlement to special monthly pension based on either aid and attendance or housebound status. He is in receipt of a nonservice-connected pension. He has no service-connected disabilities. When he was originally granted nonservice-connected pension in 1997, the Veteran's nonservice-connected disabilities for pension purposes included the following: schizoaffective disorder, 70 percent; carpal tunnel syndrome, right, 20 percent; and hypertension, 10 percent. The combined evaluation for pension was 80 percent. As of September 2009, the Veteran's nonservice-connected disabilities for pension purposes included rotator cuff tear, left at 20 percent; degenerative joint disease at 10 percent; lumbar disc disease at 10 percent; and hypertension at 10 percent. The combined evaluation for pension was 40 percent. Prior to release from incarceration, the Veteran had medical check-up. The document is not legible. In his claim for aid and attendance, the Veteran reported surgery on his left rotator cuff and said he needed aid and attendance. The Veteran had shoulder surgery March 23, 2009. In April 2009, his physician, Dr. M.W.S., said the Veteran needed help with hygiene and bathing as well as assistance around the house. The Veteran was ordered to see a physical therapist two to three times per week and to continue using a sling. In April 2009, the Veteran submitted a medical statement for aid and attendance. The form was completed by Dr. M.W.S. and indicates that the Veteran suffered a left rotator cuff tear and that he was not able to walk unaided. An explanation was not provided. He was able to feed, bathe and groom himself; however, it was noted that he might need assistance using the toilet. He was not bedridden and was able to sit up. He was not blind. The physician said the Veteran was unable to leave his home unaided or travel because he could not drive and said he needed nursing home care. The physician said the Veteran would likely need someone to help with hygiene, dressing changes, and wound care maintenance. In May 2009, the Veteran continued to have pain when engaging in activities of daily living. On July 14, 2009, the Veteran had a VA examination for aid and attendance. The claims file was not available for review, however because special monthly pension based on aid and attendance considers the severity current symptoms, the Board finds that the Veteran has not been prejudiced by the oversight. The examination report indicates a long history of hypertension, a massive rotator cuff tear with effusion, back pain, and osteoarthritis. The examiner noted that subsequent to the rotator cuff repair, the Veteran continued to have difficulties with abduction, adduction, and internal and external rotation of the shoulder. He was unable to use his left hand or arm to do heavy duty jobs. The examiner also suspected glaucoma as he had bilateral cataracts and poor vision. The Veteran said he was independent in his activities of daily living as he could dress and undress himself, shower, and bathe. His difficulty was with the left arm. He reported difficulty driving. He was not bedridden. Diagnoses included massive rotator cuff tear with subacromial and subdeltoid effusion; fluid in the biceps tendon; degenerative arthritis of multiple joints; and chronic low back pain and lumbar disc disease. He continued to have pain and restrictions of all the movements in the left shoulder. In his February 2010 substantive appeal, the Veteran said he was still under the care of a physician due to his shoulder disability and that he needed aid. In July 2010, the Veteran denied having difficulties with his activities of daily living. Evidence dated subsequent to this record fails to show further need of regular aid and attendance. Specifically, VA treatment records in the Virtual VA file show that in September 2011, the Veteran lived alone in a senior citizens apartment. December 2011 VA treatment records show that he regularly exercised by walking. In July 2012, the Veteran had a VA examination. The examiner reviewed the claims file and examined the Veteran. The Veteran was not bedridden or hospitalized and could travel beyond his domicile. He was able to travel to the examination by van service without an attendant. When not hurting, he walks and performs some chores. When aching, he may enlist friends to help clean. He was able to perform all self-care functions. The Veteran said he could walk up to one-half mile and does not need aid for ambulation. He could leave his home without restrictions. Vision was not limited to 5/200 in both eyes. The examiner found that upper and lower extremities were not normal but had no impact on activities of daily living. As for the prior diagnosis of schizoaffective disorder and carpal tunnel syndrome, the examiner found no active diagnosis of either condition. The examiner noted a 1996 treatment record indicating wrist sprain versus carpal tunnel but that carpal tunnel syndrome was never confirmed. Regarding psychiatric disorders, the examiner found treatment for alcohol abuse. Depressive disorder was indicated in November 2009 treatment records but in September 2011, the Veteran denied depression. History shows treatment for an organic mental disorder and an antisocial personality disorder in the early 1990s and treatment for schizoaffective disorder in the mid-1990s. A June 1995 record stated that no medication was indicated at that time. VA records are silent for these diagnosis and treatment. The VA examiner said she observed normal behavior, normal comprehension, and normal emotional reactions. While she indicated there is psychiatric reason for aid and attendance, clearly by her prior explanation of the Veteran's mental health history, she meant to say that there is no psychiatric reason for aid and attendance. The examiner also opined that the Veteran does not qualify for aid and attendance as he is able to live alone and care for his activities of daily living and household chores. He is not housebound and spends a good bit of his day walking. Specifically, he said the Veteran lived alone but presented dressed appropriately, clean, and presentable, and denied needing help with dressing or bathing. He did not require a special prosthetic or orthopedic appliance. He is able to feed himself and attend to toileting. The right shoulder has normal range of motion and the left shoulder had adequate range of motion to aid in food cutting. Manual dexterity and grip were normal bilaterally. The Veteran denied needing help with feeding, and toileting but expressed concern with this if he has right shoulder surgery. The examiner found no indication that he would be having right shoulder surgery. The examiner also found no incapacity, physical or mental, that required care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. The examiner said the Veteran lived alone and was able to do so safely. The examiner found no indication in the record that any medical provider, friends or family had concerns regarding his safety at home. He is able to awaken and catch the local bus on time and able to meet the van service at the appropriate location and time. He has no disability requiring bedrest, shown by his ability to present to his appointment independently, well kempt, and with knowledge of the van service times to get back home. Finally, the Board considered testimony provided at the December 2012 hearing. During his hearing, the Veteran said he lived alone. He occasionally needed assistance cooking and cleaning. He needs people to take him to the grocery store. He does not go out much and walks with a cane. He seeks assistance for his care so that he can pay people to help with his needs. He testified that he was supposed to have a back procedure in December 2012 and in January 2013. In this case, the preponderance of the evidence shows the Veteran had a factual need for aid and attendance of another person demonstrated by an inability to care for daily personal needs during recovery from his shoulder surgery on March 23, 2009. His doctor submitted opinions indicating that he was unable to perform substantial activities of daily living without aid and suggested that the Veteran be admitted to a nursing home. The evidence shows that the Veteran was able to perform activities of daily living without difficulty as of July 14, 2009. Therefore, the Board finds that aid and attendance is warranted for the period of March 23, 2009 until July 14, 2009. Unfortunately, evidence dated prior to March 23, 2009 and after July 14, 2009, does not support the award of compensation for aid and attendance. During these periods the Veteran did not have one disability rated 100 percent and he was not bedridden, housebound, or in a nursing home. As noted above he lived alone, frequently walked outside, and traveled to doctor appointments and grocery stores. None of the medical records show that he has ever been blind or nearly blind, and at most, he has been suspect for glaucoma. While he argues factual need for aid and attendance, except as otherwise noted, evidence shows he has been able to perform all activities of daily living including dressing, grooming, feeding himself, and attending to the wants of nature. He has not had any special prosthetics or orthopedic appliances or physical or mental incapacities that have required care or assistance on a regular basis to protect against the hazards or dangers incident to his daily environment. At most, he has required occasional help with household chores due to aches and pains and requires outside transportation. The Board has considered the Veteran's testimony, but finds that pain and the cost of hiring a driver or persons to help clean his house when friends and family are unavailable are not sufficient for a finding of factual need for aid and attendance prior to March 23, 2009 or beyond July 14, 2009. Simply, the Veteran has not been shown to be so helpless as to require the regular aid and attendance of another person during these periods. 38 U.S.C.A. § 1521; 38 C.F.R. § 3.352(a). With respect to the question of entitlement to SMP at the housebound rate, the benefit is only available contingent upon a showing that a disability is ratable at 100 percent. The Veteran does not have a single disability that is so rated, and he thus lacks the basic requirement for entitlement. The medical evidence of record clearly demonstrates that the Veteran has not been and is not permanently bedridden. Rather, he appears to be capable of leaving his home or the immediate premises as needed; clearly, then, he is not housebound. Since the prerequisites for benefits at the housebound rate have not been met, an award of SMP based on that rate is not warranted. Accordingly, on this record, the criteria for special monthly pension benefit at the housebound rate has been met only for the period of March 23, 2009 to July 14, 2009. To this extent, the appeal is granted. ORDER The claim for special monthly pension based on the need for regular aid and attendance or at the housebound rated is granted for the period of March 23, 2009 to July 14, 2009. ______________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs