Citation Nr: 1601805 Decision Date: 01/15/16 Archive Date: 01/21/16 DOCKET NO. 11-17 892 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to increased dependency and indemnity compensation 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 P. M. Johnson, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The Veteran served on active duty from January 1962 to October 1983. The appellant is the surviving spouse of the Veteran. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a rating decision issued by the Regional Office (RO) in Columbia, South Carolina. FINDINGS OF FACT 1. The appellant receives death and indemnity compensation benefits. 2. From January 18, 2010 to October 18, 2010, the appellant was unable to care for herself or protect herself from the hazards or dangers incident to the daily environment due to innocently acquired disabilities. 3. After October 18, 2010, the appellant was not a patient in a nursing home or substantially confined to her dwelling or immediate premises due to disability; she was not blind or so nearly blind as to have corrected vision acuity of 5/200 or less, or concentric contraction of the visual field to 5 degrees or less; and she was able to care for herself and protect herself from the hazards or dangers incident to the daily environment. 4. The appellant has no disability that rendered her permanently housebound at any time during the appeal period. CONCLUSIONS OF LAW 1. For the period on appeal from January 18, 2010 to October 18, 2010, the criteria for increased dependency and indemnity compensation payable at the aid and attendance rate were met. 38 U.S.C.A. §§ 1310, 1311 (West 2014); 38 C.F.R. §§ 3.102, 3.351, 3.352 (2015). 2. For the period on and after October 18, 2010, the criteria for increased dependency and indemnity compensation payable at the aid and attendance rate have not been met. 38 U.S.C.A. §§ 1310, 1311 (West 2014); 38 C.F.R. §§ 3.102, 3.351, 3.352 (2015). 3. The criteria for dependency and indemnity compensation at the housebound rate have not been legally established. 38 U.S.C.A. §§ 1310, 1311 (West 2014); 38 C.F.R. §§ 3.102, 3.351, 3.352 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. In March 2010, the appellant was provided notice of what the evidence must show to establish a claim for special monthly compensation based upon the need for regular aid and attendance, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. VA fulfilled its duty to assist the appellant in obtaining identified and available evidence needed to substantiate a claim. There is no evidence that additional records have yet to be requested, and the appellant was provided an adequate VA examination in October 2012. Entitlement to Increased DIC Based on the Need for Regular Aid and Attendance In January 2005, the appellant was granted death and indemnity compensation (DIC) benefits. In December 2009, the appellant requested an increase in her benefits based upon need of regular aid and attendance following bilateral knee replacement surgery. As the evidence of record indicates that the appellant required the need for regular aid and attendance of another person for the period on appeal prior to July 26, 2011, the appellant's claim has been granted for this period. Death and indemnity compensation benefits are payable to the surviving spouse of a veteran if the veteran died from service-connected disability. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.5 (2015). An increased rate of monthly DIC is available for a surviving spouse who is in need of regular aid and attendance or permanently housebound (the latter is at the housebound rate). 38 U.S.C.A. § 1311; 38 C.F.R. § 3.10, 3.351. Payment at the housebound rate requires a finding that the spouse is permanently housebound due to disability that is reasonably certain to last the appellant's lifetime. It is not contended or shown here that the appellant has such a permanent disability, and entitlement to housebound benefits is legally precluded. DIC is payable at the aid and attendance rate when a surviving spouse is helpless or so nearly helpless such that she is in a nursing home, blind, or so nearly blind or significantly disabled as to require the regular aid and attendance of another person. 38 U.S.C.A. § 1311; 38 C.F.R. § 3.351(a), (b). To establish a need for regular aid and attendance, the claimant must (1) 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; (2) be a patient in a nursing home because of mental or physical incapacity; or (3) show a factual need for aid and attendance. 38 C.F.R. § 3.351(c). A factual need for aid and attendance includes the inability to dress, undress, keep ordinarily clean and presentable, feed oneself through loss of coordination of the upper extremities or through extreme weakness, or attend to the wants of nature. It includes the frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid. A need for aid and attendance also includes either physical or mental incapacity that requires care or assistance on a regular basis to protect against the hazards or dangers incident to the daily environment. It is only necessary that the evidence establish that the person is so helpless as to need regular aid and attendance, not that there be a constant need. 38 C.F.R. § 3.352(a). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2015). In December 2009, the appellant submitted a medical evaluation indicating that due to her bilateral osteoarthritis of her bilateral knees and hips that she required assistance with bathing and other hygiene needs and that she could not leave her home without assistance. Records from January to October 2010 reasonably establish that the appellant needed aid and attendance benefits due to disability. In mid-January 2010 she had a knee replacement. Subsequently she developed methicillin-resistant staphylococcus aureus (MRSA) of her abdominal wall. This ultimately required surgical intervention. Later in 2010 she had the other knee replaced. Pertinent evidence on file details the problems that she had as a result of the surgery. Records reveal that for much of the period from January to October 2010 she was visited several times a week by a visiting nurse. During the initial part of the period she was unable to cook for herself or bath herself. The nurses' notes show, however that appellant continued to improve, was able to take over more self-care activities, was able to keep clean and protect herself as October 2010 approached. By mid-October medical reports show she was walking well, had good stability, and there is no evidence after October 18, 2010, that she required aid and attendance in maintaining her daily activities. There is a June 2011 note that the appellant had a setback due to deep vein thrombosis and was unable to get out of a chair unassisted due to her knee. This appears to have lasted only a very short time as records before and after reveal that she continued to have good progress with rehabilitation from the knee surgeries. There is no documentation or further rationale or findings which demonstrate the need for aid and attendance at that time. On July 26, 2011, the appellant's doctor reported that she was doing well and walking with a smooth gait. She was asked to follow up in 3 months. In October 2012, the appellant underwent a VA evaluation for aid and attendance. The examiner reported that the appellant had "an extensive surgical history from January 2010 to April 2011. The examiner noted that the appellant was currently highly-functioning and did not require assistance performing any self-care skills. The appellant was not permanently bedridden, currently hospitalized, and could travel beyond her domicile. The Board notes that the RO appears to have denied this claim in part because the evidence fails to show that the appellant's need for regular aid and attendance was permanent. Permanency, as discussed above, is pertinent to the housebound rate, but is not needed for aid and attendance benefits. The Board finds that the evidence of record supports a grant of increased dependency and indemnity compensation payable at the aid and attendance rate for the period from January 18, 2010 to October 18, 2010. The Board finds the appellant's statements concerning her difficulty performing activities of daily living due to her disabilities to be competent and credible. Accordingly, the Board finds that after resolving reasonable doubt in favor of the appellant that she was unable to care for herself or protect herself from the hazards or dangers incident to the daily environment from January 18, 2010 to October 18, 2010. ORDER For the period from January 18, 2010 to October 18, 2010, entitlement to increased dependency and indemnity compensation payable at the aid and attendance is granted. The appeal is granted to this extent subject to the law and regulations governing the award of monetary benefits. For the period on and after October 18, 2010, entitlement to increased dependency and indemnity compensation payable at the aid and attendance is not warranted. For the entire appeal period entitlement to increased dependency and indemnity compensation payable at the housebound rate is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs