Citation Nr: 1322076 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 04-16 536A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to special monthly compensation to include aid and attendance and housebound status. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active duty from September 1972 to July 1974. The appeal comes before the Board of Veterans' Appeals (Board) from a March 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Veteran was scheduled for a Travel Board hearing in August 2007, but cancelled the hearing the day before. The Board remanded the case in December 2007 and September 2009, including to afford an additional opportunity for a Travel Board hearing. The Veteran indicated he would not be able to attended such a hearing scheduled for April 2010, and failed to reply to an offer to reschedule the hearing. Because there is no indication that he requested that the hearing be rescheduled, his hearing request is deemed withdrawn. 38 C.F.R. § 20.704 (2012). The Board accordingly will proceed with the appeal based on the evidence of record. The Board remanded the case again in October 2010 for development, and it now returns for further review. FINDINGS OF FACT 1. The Veteran is not blind, in a nursing home, or so helpless as to require the regular aid and attendance of another person to perform personal care functions of everyday living or to protect himself from the hazards and dangers incident to the daily environment. 2. The Veteran does not have permanent and total disability. CONCLUSIONS OF LAW 1. The criteria for the award of special monthly pension based on the need for regular aid and attendance or due to housebound status are not met. 38 U.S.C.A. §§ 1502(b) , 1521(d), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.351, 3.352 (2012). 2. The criteria for the award of special monthly pension based on housebound criteria have not been met. 38 U.S.C.A. §§ 1513, 1521, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.351 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and 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/her representative, if applicable, 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. This notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that the VCAA duty to notify was satisfied by a letter sent to the Veteran in January 2003 addressing his pension benefit claim. The letter addressed all of the notice elements and was sent prior to the initial unfavorable decision by the RO in March 2003. Therefore, the Board finds that VA has fulfilled its duty to notify under the VCAA. VA has also satisfied its duty to assist the Veteran at every stage of this case with regard to the claim. All available service treatment records as well as all identified VA and private records were sought with the Veteran's assistance, and obtained records were reviewed by both the RO and the Board in connection with the Veteran's claim. As discussed below, VA examinations were afforded addressing need for aid and attendance or housebound status, including the most recent examinations in February 2011 and September 2012. These examinations, taken together with the balance of the evidence of record, adequately addressed the implicated medical issues and afforded sufficient reasons for opinions expressed, informed by the balance of the record, to allow for an informed decision by the Board, weighing this evidence against contrary evidence. The Board is satisfied that the examinations, taken as a whole, are adequate for the Board's adjudication of the appealed claim. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). There is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion addressing the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4) . VA has also assisted the Veteran and his representative throughout the course of this appeal by providing them with a statement of the case (SOC) and supplemental statements of the case (SSOC), including most recently in October 2012. For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. The development required by the Board's prior remands in December 2007, September 2009, and October 2010 have also been substantially fulfilled, including affording the Veteran the opportunity to address the claim including by hearing testimony, affording an adequate examination addressing the medical issues underlying the special monthly pension claim, and thereafter having the claim reviewed by the RO with issuance of a SSOC prior to return of the claim to the Board. Only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998). D'Aries v. Peake, 22 Vet. App. 97 (2008). II. Entitlement to Special Monthly Pension (SMP) Based on Aid and Attendance (A&A) or Housebound Status Increased pension benefits are payable to a veteran who needs the regular aid and attendance of another or by reason of being housebound. 38 U.S.C.A. § 1521(d) and (e) ; 38 C.F.R. § 3.351(a)(1). Entitlement to increased pension for reason of need for aid and attendance is based on a showing that the claimant is (1) blind, or (2) a patient in a nursing home, or (3) establishes a factual need for aid and attendance under 38 C.F.R. § 3.352(a). 38 C.F.R. § 3.351(c). Factors considered to determine whether regular aid and attendance is needed include: inability to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need to adjust special prosthetic or orthopedic appliances which by reason of the particular disability requires aid (this does not include adjustment of appliances that persons without any such disability would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect a claimant from the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a) (2012). It is not required that all of the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found to exist before a favorable decision is permissible. Particular personal functions which the veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that he is so helpless as to need regular aid and attendance, not that there is a constant need. 38 C.F.R. § 3.352(a) (2011); Turco v. Brown, 9 Vet. App. 222 (1996). It is logical to infer, however, a threshold requirement that at least one of the enumerated factors be present. Turco, 9 Vet. App. 222. Bedridden is that condition which, by virtue of its essential character, actually requires that the claimant remain in bed. The fact that a claimant has voluntarily taken to bed or that a doctor has prescribed rest in bed for a greater or lesser part of the day to promote convalescence or cure is insufficient. 38 C.F.R. § 3.352(a) (2012). The record does not establish that the Veteran is blind or resides in a nursing home. The Board will consider whether the factual need for aid and attendance has been met. In relevant part, 38 U.S.C. § 1154(a) requires that the VA give 'due consideration' to 'all pertinent medical and lay evidence' in evaluating a claim to disability benefits. It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in doing so, the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998). The Board cannot make its own independent medical determination, and it must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Evans; Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994), distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Additionally, a medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (footnote omitted). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1) . Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2) . The Veteran was afforded a VA general examination in May 2001. That examiner noted a history of the Veteran having been in a motor vehicle accident in 1999 which reportedly crushed three vertebrae, but having fairly well afterwards until December 2000 when he tripped at work and experienced increased disability including lower back pain and pain radiating down both lower extremities with numbness, and numb pain in the neck and down both upper extremities. Despite treatment the Veteran reported having ongoing pain in the back and legs with his legs feeling like they would start to give out. He reported the pain as 8/10 severity, with exacerbations about 12 times per day with pain then 10/10 in severity, and the exacerbations lasting 30 to 45 minutes. The Veteran asserted that if at home during an exacerbation he would try to lie down, and if not at home he would sit or stand until the pain was sufficiently resolved to allow him to return to minimal activity. Upon examination, there was guarding and slow movement apparently due to pain, and significant limitation of motion of the cervical and lumbar spine. Straight leg raising was also limited, though with lesser findings when tested while seated. An MRI showed old compression deformities at T11 and L1, with the balance of the scan normal, without evidence of disc bulge or herniation or neural compression. The examiner assessed mechanical low back pain without evidence of neurologic compromise. Upon a VA physical therapy treatment in January 2003, the Veteran reported significant difficulty sleeping due to pain including electrical pain in his arms when lying down, asserting that at home he slept in a recliner for this reason. He reported ambulating at home with a cane, and going up 15 stairs with a railing in his home to get to his bedroom, going up and down stairs twice daily, with his wife following behind. Use of a wheelchair and walker were reported for outside the home. The therapist found 4-/5 strength in the lower extremities, but noted minimal effort. The Veteran reported inability to use his arms for support in bed due to pain. The purpose of the visit was approval for a hospital bed for home use. Upon a February 2003 VA Form 21-2680, completed by a medical professional and addressing need of aid and attendance or housebound status, the Veteran reported being able to bathe independently but with his wife available because he had fallen several times getting into and out of the tub. He reported being able to dress himself on good days, but receiving help from his wife when he felt pain was severe or he had difficulties. He reported that he fed himself, and that he ambulated with a cane at home, with a walker outside the home, or used a wheelchair. The Veteran further asserted that he could not support himself with his arms due to pain. The report indicates 4 out of 5 strength in the lower extremities with ability to bear weight, but incapacity to walk long distances due to back pain. Additionally, the Veteran complained of some numbness in the lower extremities, but without sensory loss. The Veteran reported that very painful spine, neck, and back pain limited his movements. Also indicated were memory difficulties, with a history of his wife catching him taking repeated mediations due to forgetfulness. The Veteran also asserted that he did not leave home very often due to pain, and spent at least three days weekly in bed. Upon a November 2003 private neuropsychological evaluation, the Veteran presented in a wheelchair, but reported using a cane to ambulate at home and a walker to go out to the street. The Veteran reported having significantly impairing severe pain and numbness, which the examiner noted were asserted to be essentially throughout his body. The Veteran attributed his disabling condition to an automobile accident in 1999. The examiner noted the Veteran's sporadic work history since separation from service in 1974, with work including as a bar tender and a tree trimmer. While the Veteran completed a computer aided graphics associates degree in December 1998, he worked as a computer-aided drafter for only two months prior to having his automobile accident in 1999 and ceasing work. During the November 2003 evaluation, the Veteran demonstrated considerable moaning and shifting of position due to pain. However, the examiner noted that the Veteran denied having strategies to moderate his pain, and he conceded that he used moaning to distract himself from his pain. At the evaluation, the Veteran's wife demonstrated considerable protectiveness and performed physical tasks for the Veteran such as getting drinks for him, wheeling him to the bathroom, and helping him shift position. The Veteran's wife also expressed concern about the Veteran doing too much and hurting himself, both physically and in mental tasks such as prescribed guided imagery sessions to attempt to gain control over the Veteran's pain. The examiner noted that the Veteran suffered from self-perceived helplessness to control or manage his pain condition. At the November 2003 evaluation, the Veteran and his wife asserted that the Veteran suffered from cognitive declines over several years, and his wife asserted that he had marked declines recently, particularly with short-term memory. At the evaluation the Veteran was alert and oriented with thoughts logical, coherent, relevant, and goal-directed. However, upon testing the examiner found the results to be invalid due to variable and insufficient effort, noting that the Veteran's performance simply did not correspond to the Veteran's level of functioning. Recognition testing results did not correspond to a person with moderate dementia; forced choice testing results were "implausible" because they were no better than chance; and upon a "very easy 50-item visual recognition task" the Veteran's score indicated random responding. The November 2003 examiner noted that prior records reflected previously diagnosed pre-diabetic state, depressive disorder, the noted 1999 motor vehicle accident (which preceded most of his pain complaints), deep vein thrombosis, and several fractures. The Veteran had a body mass index of 31. Clinical imaging and blood tests revealed no clinically significant abnormalities. The examiner suggested possible differential diagnoses of reflex sympathetic dystrophy (complex regional pain syndrome) and sensory neuropathy. The examiner accepted for purposes of the evaluation the Veteran's reports of pain and associated dysfunction. The examiner concluded that the Veteran was "clearly currently disabled, dysfunctional, and suffering as a result of his pain and pain sequelae." The examiner did note psychological factors impacting the condition. The examiner further concluded that the evaluation did not result in a reliable assessment of the Veteran's cognitive abilities because results reflected insufficient and variable effort. The examiner added that the Veteran exhibited a cooperative demeanor, and thus he might not be deliberately exaggerating. The examiner rather conjectured that learned behavior attitudes and effects of depressive disorder, possibly secondary to his chronic pain, may also play a role. The examiner diagnosed pain disorder associated with both psychological factors and a general medical condition, and chronic adjustment disorder with depressed mood. At an April 2006 VA physical therapy evaluation, the Veteran complained of persistent pain in his back and neck which he rated at 9 out of 10 severity. He then reported that he could not sit for long and needed to stand, and required a cane for ambulation. He reported that he did not drive because he could not turn his neck, he had spasms, and he took pain medication that made him drowsy. However, he asserted that he wanted to get a scooter so he could get around, expressing that he felt stuck at home. He reported that he used his manual wheelchair to go to the mall and stores and to visit family. The therapist assessed that the Veteran could walk a functional distance with a walker, and noted that the same concerns the Veteran had with driving a car may apply to use of a scooter. A July 2008 private hospitalization record reflects the Veteran's "somewhat vague" report of having fallen while reportedly mowing his lawn in small spurts, pushing his lawnmower while using a cane. He reportedly was lightheaded and fell in the yard. He then reportedly went in the house and began vacuuming the kitchen, and fell again in the kitchen, falling backwards and hitting his head. His wife had brought him to the emergency room reporting that he had an altered mental state and had been very difficult to arouse. The examining physician emphasized that the Veteran was "really very vague" in describing the nature of his condition, and the examiner speculated that the Veteran might have had a seizure in his kitchen. However, no area of trauma was detected on the head which was reportedly struck when he fell in the kitchen. The Veteran also had some involuntary jerking of his hands, which he reported he had for some time and for which he was taking gabapentin four times daily. The examiner did not identify any specific condition, but did provide a fentanyl patch for the Veteran's back due to the Veteran's expressed worries about pain. The emergency room visit record from the day prior in July 2008, which led to the hospitalization, reflects conflicting reports of the incidents leading to the visit. Specifically, at the ER there was no mention of lawn mowing, or of a fall backward while vacuuming or of striking his head while vacuuming. Instead, the Veteran was reported to have fallen in the garage earlier in the day, and later when he was vacuuming he seemed to be asleep while vacuuming, and in a third incident he fell backward hitting his head while entering the house. Examination and testing revealed no findings identified as explaining the reported incidents. A head CT revealed no evidence of intracranial hemorrhage or skull fracture. Diagnoses were assigned apparently based on the reported incidents: syncopal episode and mental status changes. An EKG performed three days following the hospitalization revealed "nothing to indicated acute or chronic ischemia." Unfortunately, there is no indication that the examiners from the ER and the hospitalization the following day compared notes of the Veteran's and his wife's reports, and hence no effort to explain the discrepancies is of record. Upon a VA aid and attendance examination conducted in February 2011, the Veteran reported inability to come to the examination, and hence the examiner based his report on review of the record. (Upon contacting the Veteran, he provided multiple reasons for not attending the examination: he simply did not want to come in, he could not or would not find transportation, and he was simply too weak and was bedridden.) Based on his review of the record, the examiner concluded that the Veteran was not bedridden, was not currently hospitalized, and was able to go to VA appointments by VA delivery van unaccompanied. He was noted to have imbalance affecting ability to ambulate and used a walker, with inability to walk faster than with use of a walker. However, the Veteran was noted to awaken, go downstairs, eat meals, watch television, perform computer work, read, and take his medications. The Veteran was not able to drive. He was also reportedly unable to dress or undress or bathe unassisted. He was able to walk a few hundred yards unassisted by another . The Veteran reported leaving home once every two weeks and walking around the store with a walker while his wife shopped. Measurements obtained reflected moderate limitation of motion of the cervical and thoracolumbar spine, including some pain and weakness in each. The examiner noted an absence of disability interfering with breathing, and the presence of normal functioning in the upper and lower extremities. Regarding mental competency, the examiner noted that the Veteran knew the amount of his benefit payment, that he handled his payment prudently, that he knew the amounts of his monthly bills, that he personally handled money and paid his bills, and that he was, in the view of the examiner, capable of handling his own financial affairs. The examiner diagnosed hypertension, asthma, chronic back pain with a history of lumbar fracture in 1999, anxiety/depression, a stable scrotal cyst, allergic rhinitis, myoclonus, and multiple somatic complaints. Upon a VA examination in September 2012 also to address aid and attendance and housebound issues, the Veteran was noted to have taken a VA van to his appointment because he did not drive, but to have done so unattended. He also walked the halls of the facility to attend the examination without the assistance of another. The Veteran was noted to be neither bedridden nor currently hospitalized. He also traveled beyond the confines of his home. The examiner noted that the Veteran currently lived alone in a second-floor apartment, and that he ascended the 15 stairs himself to his home using the handrail, leaving his walker downstairs. He only used a cane in his home. He reported being able to shower and dress himself, cook for himself, enjoy the company of a cat which he owns, do his own grocery shopping, and do crossword puzzles and watch television as leisure pursuits. He also reported having to go up and down his stairs repeatedly to carry up his groceries. He reported going to a bar approximately every three weeks for drinks. For assistance, he noted that his daughter occasionally helped with cooking, laundry, and vacuuming, adding that he had difficulty with vacuuming. At the examination, the Veteran noted that he was doing better than he had been with his fentanyl patch to control pain, and only reported some short term memory difficulty as a side effect. He denied dizziness. However, he did not drive due to narcotics that he has taken since his motor vehicle accident. The September 2012 examiner noted that the Veteran walked with a slow but non-antalgic gait, and was able to walk without a walker a few steps without difficulty. He was also able to climb the examination table without difficulty. He did not report any difficulty climbing stairs with use of a handrail. With use of a cane or walker and without the assistance of another he could walk a few hundred yards. The Veteran did not have a visual impairment of 5/200 or worse in both eyes. While the Veteran had cervical limitation of motion, with pain at ends of ranges, the examiner noted that this appeared to be primarily soft tissue pain. The Veteran had no abnormality interfering with breathing, and functioning of the upper and lower extremities was normal. The Veteran reported that he could not lift anything over 20 pounds. The September 2012 examiner noted that the Veteran did not meet the diagnostic criteria for diabetes mellitus, with no prescribed treatment and no restriction of activities. The Veteran reported that while in the past he had some nocturnal incontinence, the cause was not identified and it had not been a problem for at least two years. The examiner noted a medical record of evaluation for nocturnal incontinence in October 2002, but with the problem already resolved by November 2002. Neurological examination revealed no abnormalities of the upper or lower extremities. The Veteran also did not have intervertebral disc syndrome or associated incapacitating episodes. The examiner noted that the Veteran did have degenerative arthritis of the thoracolumbar spine as supported by x-rays, and the Veteran reported pain symptoms since his 1999 motor vehicle accident, with pain more severe in the past. The Veteran reported still having back pain when standing or walking too long, and having to shift positions frequently. Regarding mental functioning, findings were essentially unchanged from that assessed by the February 2011 examiner. The September 2012 examiner noted that the Veteran knew the amount of his benefit payment, that he handled his payment prudently, that he knew the amounts of his monthly bills, that he personally handled money and paid his bills, and that he was, in the view of the examiner, capable of handling his own financial affairs. It appears from the weight of the evidence of record that the Veteran has suffered from some cervical or back pain and/or other bodily pain of an indeterminate degree over the course of the claim period, with a significant psychological component overlay which served to magnify this experienced pain or at least limit the Veteran's ability to manage his pain. The Veteran's sole coping mechanism noted upon evaluation in November 2003 was moaning to distract himself from the pain. The Veteran was accompanied by his wife at that time and at multiple subsequent treatments and evaluations including the July 2008 emergency room visit and hospitalization. At the November 2003 evaluation the Veteran's wife was noted to be highly attentive to the Veteran's physical needs, and to be protective of the Veteran by seeking to limit both his physical activity and his mental exertion. The Veteran was then noted to exhibit helplessness in the face of his reported chronic pain. Nevertheless, the Veteran's actual mental and physical functioning were not objectively shown to be so disabling as to require the aid and attendance of another or to render the Veteran housebound. Rather, the evidence over the interval prior to the Veteran's September 2012 VA examination appears to reflect overprotectiveness by the Veteran's spouse, and a helplessness demonstrated by the Veteran that was not supported by either neuropsychological testing, with such testing invalid due to scores reflecting false or invalid test taking, or by physical examinations, with examinations positively identifying no disability or combination of disabilities to explain the degree of impairment complained of or exhibited. Despite the November 2003 examiner's conclusion that the Veteran was "clearly currently disabled, dysfunctional, and suffering as a result of his pain and pain sequelae," that examiner also recognized that this was significantly due to psychological factors and self-perceived helplessness. The February 2011 VA examiner's review of the clinical findings of recent years supports the conclusion that physical impairments were not present to the disabling degree demonstrated or described by the Veteran. That examiner noted that movements upon distraction demonstrated symptom magnification. A significant change in the Veteran's presentation occurred at his September 2012 VA examination. This corresponds with his report of now living alone. His separation from his wife thus precedes his having indicated that he is not incapable of attending to his own everyday needs, including cooking, cleaning, protecting himself from harm, and doing his own grocery shopping. The Veteran has now demonstrated no need for her attending to his personal needs. The Veteran reportedly still suffers from soft tissue pains, but manages to function despite them, demonstrating that he neither requires the aid and attendance of another nor is of a housebound status. Because there was not previously objective evidence upon examinations supportive of incapacity requiring aid and attendance of another or housebound status, but rather invalid testing due to neuropsychiatric dysfunction and over-reporting of physical incapacities, consistent with a degree of passive helplessness, the Board concludes that the weight of the evidence is against the need for aid and attendance or housebound status for the entire rating period. The Veteran's self-perceived helplessness was noted by the neuropsychological examiner in November 2003 as not representing any validly identified neurological dysfunction (with neurocognitive testing results invalid, as previously discussed). The Veteran may have honestly believed during some interval over the rating period that he was in need of his wife's or another's assistance to manage his activities of daily living or to protect himself from harm, or that he was effectively confined to his home by his disabilities. However, the weight of the evidence, including extensive evaluation findings, are to the effect that this self-perception was at variance with reality, and that the Veteran was in fact capable of such necessary tasks and not in need of aid and attendance of anther, and not housebound. The Board accordingly concludes that for the entire claim period the weight of the evidence is against the Veteran being so incapacitated due to mental or physical impairments, or any combination of the two, as to require the regular aid of another to attend to his needs of daily living or to protect him from harm. Thus, the weight of the evidence is against entitlement to special monthly pension based on the need for regular aid and attendance for the entire rating period, with the weight of the evidence also against such entitlement for any lesser interval during the rating period. 38 U.S.C.A. § 1502(b); 38 C.F.R. §§ 3.351, 3.352 . Regarding special monthly pension based on housebound status, generally, under 38 U.S.C.A. § 1521(e) , an award of special monthly pension is warranted where the evidence shows that the veteran has a permanent and total disability, and (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 pension at the aid and attendance rate provided at 38 U.S.C.A. § 1521(d). The Board finds the preponderance of the evidence against the Veteran's entitlement to SMP on the basis of being housebound, under either set of criteria. 38 U.S.C.A. § 1521. Both criteria require permanent and total disability rating. While the record reflects that the Veteran has some psychiatric disorder inclusive of components of depression and anxiety, these appear to be most nearly approximating the level of disability reflective of a 50 percent disability evaluation, with occupational and social impairment and reduced reliability and productivity due to some panic attacks, impairment in short and long-term memory, and disturbances of motivation and mood. The weight of the evidence is against the Veteran suffering from psychiatric disability resulting in social and occupational impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood. Rather, the Veteran's psychiatric condition appears mostly one of depression and impaired mood with some anxiety, mostly as associated with chronic pain and difficulty coping with impairment. Upon psychiatric interviews the Veteran's thinking and judgment do not appear appreciably impaired. Past neuropsychological testing has been found invalid due to responses representing an implausible level of impairment, with such over-reporting thus not supporting the claim. While the Veteran has also reported severe pain in his back and pain and numbness in his extremities, once again the degree of reported disability and demonstrated functional capacity is unreliable due to over-reporting. As the most recent examination illustrates, the Veteran is not shown to be substantially mentally impaired, and physical impairments appear limited to cervical and lumbosacral limitation of motion and pain, as well as some limitation in ambulation. These physical and mental disabilities do not constitute a total disability in combination, and are not shown to be permanent, as both the physical and mental impairments have varied over the appeal period, with both physical disabilities and mental impairment appearing to have improved, as reflected by the September 2012 examination findings. The weight of the evidence does not support permanent and total disability to support SMP at the housebound rate. 38 U.S.C.A. § 1521(d). ORDER Entitlement to special monthly pension (SMP) based on need for aid and attendance (A&A) is denied. Entitlement to special monthly pension (SMP) based on being housebound is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs