Citation Nr: 1315012 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 07-06 439 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to special monthly pension based on the need for regular aid and attendance of another person, or at the housebound rate. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from June 1970 to July 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In November 2011, the Board remanded the claim for additional development. FINDINGS OF FACT 1. The Veteran has a combined disability rating of 70 percent; he was awarded VA nonservice-connected disability pension benefits by action of the RO in March 2004. 2. The Veteran is not blind, or nearly blind, is not institutionalized in a nursing home on account of physical or mental incapacity, and does not need the aid and assistance of another person to perform the routine activities of daily living. 3. The Veteran does not have a single disability rated at 100 percent and an additional disability independently rated at 60 percent or more. 4. The Veteran is not confined to his home or its immediate premises. CONCLUSION OF LAW The requirements for special monthly pension based on the need for regular aid and attendance, or due to housebound status, have not been met. 38 U.S.C.A. §§ 1521, 5103, 5103A; 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.351, 3.352 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Special Monthly Pension The Veteran asserts that he is entitled to special monthly pension based on the need for regular aid and attendance of another person, and/or by reason of being housebound. He argues that he has many medical problems, the worst of which involve the residual effects of a stroke, to include falling. He asserts that he also has difficulty using his right hand. See Veteran's appeal (VA Form 9), received in January 2007. 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 (38 U.S.C.A. § 1521(d)), or has a disability rated as permanent and total and (1) has an additional disability or disabilities ratable at 60%, or (2) is permanently housebound (38 U.S.C.A. § 1521(e)). See also 38 C.F.R. § 3.351(b), (c), and (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, determinations 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). In September 2005, the Veteran filed his claim. In January 2006, the RO denied the claim. The Veteran has appealed. The Veteran's only service-connected disabilities are a perirectal abscess (previously diagnosed as a cyst on right buttock), evaluated as 10 percent disabling, and gunshot wound to the left hand, evaluated as noncompensable (0 percent disabling). The Veteran has a combined disability rating for service-connected conditions of 10 percent. With regard to his nonservice-connected disabilities, they are as follows: depression, evaluated as 30 percent disabling, weakness in the left upper (minor) extremity (due to a stroke), evaluated as 30 percent disabling, weakness in the left lower extremity (due to a stroke), evaluated as 20 percent disabling, left facial droop, evaluated as 10 percent disabling, and a shoulder condition, flat feet, a back condition, cyst on right buttock, diabetes, gastroesophageal reflux disease, acute kidney failure and hypertension, chronic obstructive pulmonary disease, and fracture of the right hand, all evaluated as noncompensable (0 percent disabling). The Veteran has a combined disability rating for nonservice-connected conditions of 70 percent. In March 2004, the RO awarded the Veteran VA nonservice-connected disability pension benefits, effective in February 2004. The relevant medical evidence is summarized as follows: Reports from the Social Security Administration (SSA) show that the Veteran's claim for disability benefits was denied in July 2003. The SSA determined that, "[The Veteran's] statements concerning his impairments and the impact on the ability to work are not entirely credible in light of the history of medical treatment, reports of treating and examining sources, and findings made on examination." An associated "vocational analysis worksheet" indicates that the Veteran was found not to have any postural, manipulative, visual, or communicative limitations. A "functional capacity assessment" indicates that the Veteran was found to be able to stand and/or walk (with normal breaks) for at least two hours in an eight-hour day, and to sit (with normal breaks) for about six hours in an eight-hour day, with unlimited pushing and pulling. This report notes occasional postural limitations, and that he did not have any manipulative, visual, communicative, or environmental limitations. Overall, VA progress notes show that the Veteran received a large number of treatments for a wide variety of symptoms. He was repeatedly noted to ride to VA for treatment in a van or a bus, and he was often provided with a nearby hotel room. With regard to more specific entries, in May 2005, the Veteran reported that he had last worked in 1998. He was admitted into a VA domiciliary at that time, with a previous stay between 2000 and 2001. He was medically cleared for work therapy for a sedentary desk position, but declined interest. In June 2005, he stated that he wanted to leave the domiciliary and to move back to his apartment in Knoxville. In 2006, he complained of vision loss, and was found to have cataracts OU (both eyes). In March 2007, he underwent a planned extracapsular cataract extraction and placement of IOL (intraocular lens) for his right eye. In April 2007, he underwent the same procedures for his left eye. An August 2008 report shows treatment for a left eye injury following an altercation the month before, and that his vision was 20/20, bilaterally. A May 2009 report shows that the Veteran requested transportation assistance after he reported that he was able to drive, but that he could not afford to fix his car. A December 2009 report shows that the Veteran reported that he shared an apartment with his girlfriend, but that he was unsatisfied with the arrangement. A January 2010 report notes that he was evaluated for a HUD-VASH (Department of Housing and Urban Development- Veterans Affairs Supportive Housing) program, and that he stated he planned to live alone. A May 2010 report notes that he had signed a new lease, however, a June 2010 report states that he had failed to make his $17/month payments. An August 2010 report shows that the Veteran reported that he was staying with an uncle. Other reports dated in August 2010 show that the Veteran underwent right shoulder surgery; the postoperative diagnoses were right shoulder calcific tendonitis, labral tear, type 1, SLAP (superior labrum anterior and posterior ) lesion, impingement syndrome, and AC (acromioclavicular) arthritis. A September 2010 report notes that the Veteran's vision was 20/25, bilaterally. A January 2011 report notes that the Veteran reported that he lived alone, outside the city, that he was pleased with his home environment and the decreased stress associated with moving from the inner city, and that he had gained a few pounds. A February 2011 report notes a history of CVA (cerebrovascular accident) with minimal left residual. A November 2011 report notes that he lives alone, is capable of providing self-care, and that he rides a bus or a van to VA for his care. See also May 2012 report. A June 2012 report shows that he has 20/20 vision in the right eye, and 20/25 vision in the left eye. A VA "aid and attendance or housebound" examination report, dated in February 2011, shows that the examiner stated that the Veteran's claims file had been reviewed. The report states the following: the Veteran is not bedridden, or currently hospitalized. He can travel beyond his current domicile. He came alone to the examination. He can walk for a short distance. He does his laundry in a group laundry area at his living area. He does not use an orthopedic or prosthetic appliance. He never has dizziness. He has no memory loss. He reported occasional imbalance affecting his ability to ambulate. There are no other body parts or system impairments that affect his ability to protect himself from the daily environment. He can perform all functions related to self-care skills. He can walk without assistance of another person, up to a few hundred yards. He does not need aid for ambulation. He is unrestricted in leaving his home. He did not have 5/200 vision or worse in both eyes. The cervical spine, and the thoracolumbar spine, did not have any limitation of motion or deformity. The left upper extremity had mild or moderate impairment. The right upper extremity was normal. The Veteran has a normal ability for self-feeding, to dress and undress, bathe, self-groom, and toilet. There are no upper or lower extremity amputations. The left lower extremity has muscle weakness. The right lower extremity has no functional limitation. Weight-bearing is normal. Propulsion is normal. The Veteran is capable of managing his own financial affairs. The diagnosis notes service-connected conditions of residuals of GSW (gunshot wound) left hand with sensory loss, left hand, as well as scar, history of perirectal fistulae with residual impairment of sphincter control and no requirement for absorptive garments, and residuals, right CVA with minimal weakness, left side and lower extremities. In the Board's view, the evidence is insufficient to show that the Veteran is in need of regular aid and attendance. The previously discussed VA progress notes and examination report indicate that the Veteran is not in need of aid and attendance of another person. These reports indicate that the Veteran lives alone, is capable of providing self-care, and that he rides a bus or a van to VA for his care. The evidence shows that he is not bedridden, or currently hospitalized, and that he can travel beyond his current domicile, he can walk up to a few hundred yards without assistance of another person, he is unrestricted in leaving his home, that he can perform all functions related to self-care skills, and that he has a normal ability for self-feeding, to dress and undress, bathe, self-groom, and toilet. The evidence also shows that he does not have 5/200 vision or worse in both eyes. Therefore, the Board finds that the Veteran is not so nearly helpless as to require the regular aid and attendance of another person. In other words, the criteria for entitlement to special monthly pension on account of the need for the regular aid and attendance of another person have not been met. 38 U.S.C.A. § 1521; 38 C.F.R. § 3.352(a). With respect to the Veteran's claim for special monthly pension at the housebound rate, the Board notes that, despite the Veteran's multiple disabilities, the evidence shows that he is not housebound, and that he does not have a single permanent disability that is evaluated as 100 percent disabling. Since having a single disability which is evaluated as 100 percent disabling is a threshold requirement for an increased pension benefit based on housebound status, 38 U.S.C.A. § 1521(e) and 38 C.F.R. § 3.351(d), it is apparent that the basic requirements for special monthly pension on the account of being housebound have not been met, and that the RO was correct in denying housebound benefits. The preponderance of the evidence is against a finding that the criteria for special monthly pension by reason of the need for aid and attendance of another person, or by reason of being housebound, have been met at this time. It follows that there is not such a state of equipoise of the positive evidence with the negative evidence to otherwise permit favorable action on the veteran's claim. 38 U.S.C.A. § 5107(b). II. The Veterans Claims Assistance Act of 2000 The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). The notification obligation in this case was accomplished by way of a letter from the RO to the appellant dated in October 2005. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available post-service records relevant to the issue on appeal have been obtained and are associated with the appellant's claims file. The RO has obtained the appellant's available VA and non-VA medical records, and SSA records. The appellant has been afforded an examination. The Board concludes, therefore, that a decision on the merits at this time does not violate the VCAA, nor prejudice the appellant under Bernard v. Brown, 4 Vet. App. 384 (1993). The Board notes that in November 2010, the Board remanded the claim and directed that any outstanding VA records since 2005 be obtained, including 2006 records pertaining to domiciliary care, and 2007 cataracts surgery, and that the Veteran's SSA records be obtained. Thereafter, three volumes of VA treatment records from the Mountain Home VA Medical Center, dated between 2005 and 2010, including 2006 records pertaining to domiciliary care, and 2007 cataracts surgery, were obtained. The Veteran's SSA records were also obtained. Under the circumstances, the Board finds that there has been substantial compliance with its November 2010 remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to an appellant are to be avoided). Based on the foregoing, the Board finds that the appellant has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER The appeal is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs