Citation Nr: 1321089	
Decision Date: 07/01/13    Archive Date: 07/12/13

DOCKET NO.  13-01 017	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to increased Dependency and Indemnity Compensation (DIC) for the Veteran's surviving spouse based on the need for aid and attendance or being housebound.


REPRESENTATION

Appellant represented by:	Florida Department of Veterans Affairs


ATTORNEY FOR THE BOARD

A.E.H. Gibson, Associate Counsel



INTRODUCTION

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The Veteran served on active duty from January 1943 to May 1945.  He died in July 2008, and the Appellant is his surviving spouse.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  In that decision, the RO granted the Appellant's claim to service connect the Veteran's cause of death pursuant to 38 U.S.C.A. § 1310, but denied entitlement to special monthly compensation for aid and attendance.  A December 2010 rating decision also denied entitlement to housebound benefits.  The Appellant perfected an appeal of those issues.


FINDING OF FACT

The Appellant requires care or assistance on a regular basis to protect herself from hazards or dangers incident to her daily environment.


CONCLUSION OF LAW

The criteria for the assignment of an increased award of DIC based on the Veteran's surviving spouse's need for regular aid and attendance have been met.  38 U.S.C.A. §§ 1310, 1311, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159, 3.351, 3.352 (2012).  




REASONS AND BASES FOR FINDING AND CONCLUSION

As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating claims 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).  Here, though, the Board need not discuss whether there has been VCAA compliance because the claim is being granted.  See, e.g., 38 C.F.R. § 20.1102 (2012) (harmless error). See also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (indicating that, as the pleading party, the claimant, not VA, has the evidentiary burden of proof of showing there is a VCAA notice error in either timing or content and, moreover, that the error is unduly prejudicial, meaning outcome determinative of the claim).

The Appellant, the Veteran's surviving spouse, is seeking an increase in Dependency and Indemnity Compensation (DIC) benefits based on her need for regular aid and attendance of another person.  She has already qualified for entitlement to DIC benefits based on her late husband's death pursuant to 38 U.S.C.A. § 1310, and is in receipt of the basic rate, as set forth in 38 U.S.C.A. § 1311(a)(1).  Under 38 U.S.C.A. § 1311(c), she would be entitled to an increased payment if she was a patient in a nursing home, or blind, or so nearly blind or significantly disabled as to need or require the regular aid and attendance of another person.  

Need for aid and attendance means helplessness or being so nearly helpless as to require the regular aid and attendance of another person. An award of aid and 


attendance requires that the appellant 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; or, be a patient in a nursing home because of mental or physical incapacity; or generally to be so helpless as to be in need of the regular aid and attendance of another person.  38 C.F.R. § 3.351(b), (c) (2012).

The following will be accorded consideration in determining the need for regular aid and attendance: inability of a claimant to dress or undress herself, or to keep herself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustments of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of a claimant to feed herself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or, incapacity, either physical or mental, which 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 that all of the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made.  The particular personal functions which a claimant is unable to perform should be considered in connection with his or her 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.  Determinations that a claimant 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 or her to be in bed.  They must be based on the actual requirement of personal assistance from others.  38 C.F.R. § 3.352(a).



The Appellant is 85 years old.  Her physician completed a VA Form 21-2680 (Examination for Housebound Status or Permanent Need for Regular Aid and Attendance) in December 2012.  In it, he noted that she is able to feed herself, prepare frozen meals, bathe herself, and manage her own medication.  She is not blind and she does not need to be placed in a nursing home.  He noted that she has severe diffuse osteoarthritis and has difficulty with mobility.  Her gait is unsteady and she uses a cane.  She has spinal conditions that affect balance.  She does not leave her house unless accompanied by a family member.  He also said that she has shortness of breath, and no energy.  He indicated that she has fallen and had to call emergency services for assistance.  In one fall, she injured her arm badly enough to necessitate a home health nurse for a month.

The Appellant's substantive appeal (VA Form 9), filed in November 2012, contains similar information.  She indicated that she has episodes of syncope, which cause her to fall, and that she cannot get up without calling emergency services or her family for help.  She said she is very limited in her ability to ambulate, and has to use a cane or walker at all times.

The Board finds that the Appellant's difficulty with ambulating, severe osteoarthritis, unsteady gait, balance problems and frequent falls, which have been shown to result in significant injury, all demonstrate a need for aid and attendance.  While she does not need constant care, this is not a requirement for a finding that she needs aid and attendance.  It is only necessary that she meet some of the criteria, including an inability to protect herself from hazards or dangers incident to her daily environment.  The medical evidence shows that she has a predisposition to falling for a number of reasons, and because of that, she is in need of the aid and attendance of another.  Accordingly, the claim for entitlement to increased DIC for the Veteran's surviving spouse based on the need for aid and attendance is granted.  



Because the Board is awarding special monthly compensation based on aid and attendance, the claim for special monthly compensation at the housebound rate is moot as special monthly compensation at the aid and attendance rate set forth at 38 U.S.C.A. § 1311(c) is greater than the rate set forth at 38 U.S.C.A. § 1311(d) based on being housebound.

 
ORDER

Entitlement to increased Dependency and Indemnity Compensation for the Veteran's surviving spouse based on the need for regular aid and attendance of another person is granted, subject to the laws and regulations governing the payments of monetary benefits.



____________________________________________
P.M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs