Citation Nr: 1325820 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 10-02 570 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to special monthly pension (SMP) based on the need for aid and attendance of another person or by being permanently housebound. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from March 1971 to July 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran requested and was scheduled for a Travel Board hearing before a Veterans Law Judge, but did not appear for the hearing. Accordingly, the Board considers the Veteran's request for a hearing to be withdrawn and will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704 (d), (e) (2012). FINDINGS OF FACT 1. The Veteran is not blind or nearly blind in both eyes; is not institutionalized in, or confined to, a nursing home or other facility due to physical or mental incapacity; and does not need regular aid and assistance to perform activities necessary for daily living. 2. The Veteran was born in 1952 and is not over the age of 65. His nonservice-connected disabilities considered for pension purposes only are evaluated as 60 percent, 20 percent and 10 percent disabling, for a combined rating of 90 percent. CONCLUSIONS OF LAW 1. The criteria for entitlement to special monthly pension benefits based on aid and attendance have not been met. 38 U.S.C.A. §§ 1502, 1513, 1521, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.351, 3.352 (2012). 2. The criteria for entitlement to special monthly pension benefits by reason of being housebound have not been met. 38 U.S.C.A. §§ 1502, 1513, 1521, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.351, 3.352 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist VA has duties 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided in a letter dated in February 2009. Regarding VA's duty to assist, VA obtained the Veteran's service treatment records (STRs) and post-service medical records in furtherance of his claim. No examination was provided; however, the medical evidence of record is sufficient to resolve this appeal. Therefore, an examination or medical opinion is not necessary. 38 C.F.R. §§ 3.159(c)(4), 3.326 (2012). VA has no duty to inform or assist that was unmet. The Veteran has not identified any additional pertinent medical records that have not been obtained and associated with the claims folder. II. Analysis The need for aid and attendance is defined as helplessness or being so nearly helpless as to require the regular aid and attendance of another person. 38 C.F.R. § 3.351(b). A veteran will be considered in need of aid and attendance if he or she is (1) 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; (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). Under 38 C.F.R. § 3.352(a), the following criteria will be accorded consideration in determining the need for regular aid and attendance: the inability of a claimant to dress or undress himself, or to keep himself 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 adjustment of appliances which normal persons would be unable to adjust without such aid, such as supports, belts, lacing at the back, etc.); the inability of a claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. It is not required that all of the disabling conditions enumerated be found to exist before a favorable ruling may be made. The particular personal functions which a veteran 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 a veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that a veteran is so helpless, as to be in need of regular aid and attendance will not be based solely on an opinion that a veteran's condition is such that it would require him or her to be in bed. They must be based on the actual requirements of personal assistance from others. 38 C.F.R. § 3.352(a); Turco v. Brown, 9 Vet. App. 222, 224 (1996). On the other hand, where a veteran does not meet the qualifications for pension at the aid and attendance rate, housebound benefits may be applicable. Housebound benefits are warranted if, in addition to having a single permanent disability rated at 100 percent disabling under the VA Schedule for Rating Disabilities (not including ratings based upon unemployability under 38 C.F.R. § 4.17 of this chapter), a 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 a 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). The United States Court of Appeals for Veterans Claims (Court) has held that a veteran is entitled to SMP 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). Hartness v. Nicholson, 20 Vet. App. 216, 220 (2006). In this respect, for housebound benefits, the requirement under § 1521(e) that a 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. On a separate note, the Court added that in order to be considered "permanently housebound," the requirement that the veteran be "substantially confined" to the home or its immediate premises is broadly construed and met when the veteran is simply unable to leave the home to earn a living, as opposed to requiring that the veteran be unable to leave the house at all. Id. at 222. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's nonservice-connected disabilities considered for pension purposes only are chronic obstructive pulmonary disease (COPD), evaluated for pension purposes as 60 percent disabling; chronic low back pain, evaluated for pension purposes as 20 percent disabling; and left-sided numbness, evaluated for pension purposes as 10 percent disabling. In August 2002, the RO granted entitlement to nonservice-connected pension, finding that he is unable to obtain and maintain gainful employment. The Veteran was born in 1952; he is currently 60 years of age. 1. Aid and Attendance The evidence of record shows that the Veteran is not blind or so nearly blind as to have corrected visual acuity of 5/200 or less on both eyes, and that he is not a patient in a nursing home due to mental or physical incapacity. Moreover, the evidence does not establish that he is in factual need of aid and attendance. In this regard, the evidence does not indicate that his disabilities render him so helpless as to be unable to attend to the needs of daily living without the regular aid and assistance of another person. The record includes a Statement of Attending Physician received in November 2008. According to this statement, completed by the Veteran's treating VA physician, the Veteran is not bedridden or blind; and does not have complete loss of anal and bladder sphincter control. The Veteran can sometimes walk and get around unassisted; can undress and dress himself unassisted; can attend to the needs of nature unassisted; can wash and keep himself ordinarily clean and presentable; is sometimes physically or mentally able to protect himself from the everyday hazards of life; and is not confined to a nursing home. The Veteran was not indicated as being confined to a hospital. A VA treatment record in March 2010 reveals that the Veteran's daughter and grandchildren lived with him and that he took care of his grandchildren. A VA psychiatric examination in December 2010 in connection with a different claim shows that the Veteran lived alone at that time. A VA examination for a service-connected thoracolumbar spine disability in February 2012 shows that no assistive devices were used. None of the Veteran's treatment records during this appeal have shown that he 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 that he is a patient in a nursing home because of mental or physical incapacity. The records also do not establish a factual need for aid and attendance due to such criteria as the inability to dress or undress himself, or to keep himself ordinarily clean and presentable; the frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; an inability to feed himself through loss of coordination of upper extremities or through extreme weakness; or an inability to attend to the wants of nature. Although the records show treatment for psychiatric illnesses, including being hospitalized in January 2011 after a suicide attempt, the totality of the evidence does not show that the Veteran has the mental incapacity which requires the care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. To the extent that the Veteran's relatives do check up on him, the evidence does not establish that he is so helpless as to need regular aid and attendance. His pertinent records do not suggest that there is an actual requirement of personal assistance from others. Turco at 224. Indeed, during this appeal, the Veteran was shown to be caring for others, namely his grandchildren, instead of needing personal assistance from others. Although the Veteran's treating physician opined that the Veteran could only sometimes protect himself from the hazards and dangers incident to his daily environment, the physician did not indicate that the Veteran required care or assistance on a regular basis. The overall evidence of record does not indicate that the Veteran requires regular aid and attendance to protect himself. While there is no question that the Veteran receives some assistance from his family, the evidence establishes that he is independent and can manage his own affairs. The records show that he is capable of dressing himself, keeping himself ordinarily clean and presentable, and feeding himself. He can leave his house without restriction, can provide for his own needs of daily living, and can attend to the wants and needs of nature and protect himself from the hazards and dangers incident to his daily environment. Despite the records also showing exacerbations of his COPD, the pertinent evidence does not show that such exacerbations cause the Veteran to require regular and attendance. For these reasons, the criteria set out for the need for regular aid and attendance in 38 C.F.R. § 3.352(a) have not been met. Accordingly, the Board concludes that the requirements for special monthly pension based upon the need for regular aid and attendance of another person have not been met and the appeal is denied. 2. Housebound Status The Board has also considered whether SMP is warranted at the housebound rate. However, after reviewing the evidence of record, the Board finds that entitlement to SMP at the housebound rate is not warranted in the instant case. In order to be entitled to SMP at the housebound rate, in addition to certain service requirements, the Veteran must have: (1) either a single disability rated as 100 percent disabling (not including ratings based on unemployability) or be 65 years of age or older; and (2) have an additional disability or disabilities independently ratable at 60 percent or more or be "permanently housebound" by reason of disability or disabilities. While the Veteran's nonservice-connected disability of COPD is evaluated for pension purposes as 60 percent disabling, he does not have a single disability independently rated at 100 percent in addition to his COPD. Further, the Board notes the Veteran is 60 years old. Therefore, the requirement of a disability rated at 100 percent may not be excluded. See Hartness at 221. As such, entitlement to SMP at the housebound rate is not warranted, and the Veteran's claim must be denied. CONTINUED ON NEXT PAGE ORDER Special monthly pension by reason of being in need of aid and attendance of another person is denied. Special monthly pension by reason of being housebound is denied. ____________________________________________ M.E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs