Citation Nr: 1335656 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 09-44 967 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to an increased rate of dependency and indemnity compensation based on the need for aid and attendance or on being housebound. ATTORNEY FOR THE BOARD Y. Curtis, Associate Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran served in the Philippine Commonwealth Army from November 1941 to December 1942 and from June 1945 to April 1946, and was a prisoner of war (POW) from May 1942 to December 1942. The Veteran died in December 1975. The Appellant is advancing her claim as the Veteran's surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in June 2009 of a Regional Office (RO) of the Department of Veterans Affairs (VA). In November 2011, the Board remanded the claim to request additional medical records and to afford the Appellant a VA examination. The additional medical records were secured and a VA examination was scheduled, however, the Appellant failed to report for the scheduled examination and did not offer good cause for her absence. As the requested development has been completed, no further action is necessary to comply with the Board's remand directive. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. The Appellant is not blind or nearly blind in both eyes 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; she is not in nursing home because of physical or mental incapacity; and the Appellant is not so helpless that she needs regular aid and attendance from other to care for her personal needs or to protect herself from the hazards and dangers incident to her daily environment. 2. The Appellant is not substantially confined to her dwelling or the immediate premises, and she is not institutionalized. CONCLUSION OF LAW The criteria for an increased rate of dependency and indemnity compensation based on the need for aid and attendance of another or by reason of being housebound are not met. 38 U.S.C.A. § 1541 (West 2002); 38 C.F.R. §§ 3.351, 3.352 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of information and evidence the claimant is to provide. The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided pre-adjudication VCAA notice by letter in March 2009. The Appellant was notified of the evidence needed to substantiate the claim for increased based on the need for aid and attendance or on being housebound. The Appellant was also notified that VA would obtain records from Federal agencies, and that she could submit other records not in the custody of a Federal agency, such as private medical records or with her authorization VA would obtain any non-Federal records on her behalf. As for the content and for the timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Dingess v. Nicholson, 19 Vet. App. 473 (notice of the elements of the claim); and of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (pre-adjudication VCAA notice). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Appellant submitted private medical records. The Appellant was scheduled for VA examinations in April 2011, July 2011, and July 2013. The Appellant was appropriately notified at her address of record, but failed to report for the scheduled examinations or to provide good cause for not reporting. As the Appellant has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Appellant in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSION Principles of Entitlement to Aid and Attendance or Housebound Benefits An Appellant will be considered in need of aid and attendance if 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 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 the 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, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to her daily environment. Where an Appellant does not meet the qualifications for aid and attendance, housebound benefits may be applicable. Housebound benefits are warranted if the Appellant is "permanently housebound" by reason of her disability or disabilities. The housebound requirement is met when an Appellant is substantially confined to her dwelling or 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 her lifetime. 38 C.F.R. § 3.351(d). Facts The Appellant was born November 1920 and is 93 years old. In support of her claim, the Appellant submitted medical evidence dated April 2009 from Dr. Rodrigo M. Alenton. Dr. Allenton reported that the Appellant was currently under his care for hypertension, coronary artery disease with a history of an old myocardial infarction, and dyslipidemia. Additional records from Dr. Allenton dated December 2012 provided a diagnosis of cardiac arrhythmia. In a medical certificate dated December 2012, Dr. Migel De Leon reported that the Appellant was treated for glaucoma and cataracts. The Appellant's corrected bilateral vision was 6/60. The Appellant also submitted several statements in support of her claim. In a statement dated April 2009, the Appellant stated that she required the assistance of another person to perform functions required for everyday living. She stated that she had an illness that prevented her from traveling to church and to function unassisted. The Appellant continued to express her inability to travel due to age and extreme physical weakness in statements in November 2009 and April 2011. Analysis Aid and Attendance The Appellant has impaired vision due to glaucoma and cataracts, however, the Appellant is not blind or nearly blind in both eyes as to have corrected visual acuity of 5/200 or less in both eyes. There is also no evidence and the Appellant does not argue that she is a patient in a nursing home because of mental or physical incapacity. Therefore, aid and attendance can be awarded only if the Appellant can establish a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). The Appellant's health problems are hypertension, coronary artery disease, dyslipidemia, cardiac arrhythmia, cataracts, and glaucoma. The record, however, do not show the level of functional impairment. While the Appellant stated that she requires the assistance of another person to perform functions required for everyday living, VA examinations were scheduled for the Appellant to determine the degree of her functional impairment, but she has not reported for the scheduled examinations and she has not offer good cause for not reporting. Under 38 C.F.R. § 3.352(a), it has not been established by the evidence of record, that the Appellant is unable to dress or undress herself, unable to keep herself ordinarily clean and presentable, unable to feed herself through loss of coordination of the upper extremities, unable to attend to the wants of nature, or unable to protect herself from hazards or dangers incident to her daily environment to warrant regular aid and attendance. Hence, the preponderance of the evidence of record is against the claim for aid and attendance and the benefit of the doubt standard of proof does not apply. Housebound As the evidence does not indicate and the Appellant has not argued that she is institutionalized, she may only be considered to be permanently housebound if she is substantially confined to her dwelling or the immediate premises and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout her lifetime. 38 C.F.R. § 3.351(d)(2). The evidence does not show that the Appellant is housebound as a result of her disabilities. In a statement, the Appellant stated that she travels to church and other personal functions with assistance from another person due to a temporary illness. While the Appellant indicated that she needed assistance to travel outside of her home, she also indicated that the assistance was due to a temporary illness rather than a permanent disability. In November 2009 and April 2011, the Appellant stated that she was permanently housebound due to age and extreme weakness. A VA examination was scheduled for the Appellant to determine whether she was housebound, however, she failed to report for the examination and did not offer good cause for not reporting. Under the provisions of 38 C.F.R. § § 3.351(d)(2), it has not been established by the evidence of record, that the Appellant is institutionalized or substantially confined to her dwelling or the immediate premises. Hence, the preponderance of the evidence of record is against the claim for housebound status and the benefit of the doubt standard of proof does not apply. ORDER An increased rate of dependency and indemnity compensation based on the need for aid and attendance or on being housebound is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs