Citation Nr: 1609927 Decision Date: 03/11/16 Archive Date: 03/22/16 DOCKET NO. 09-48 234 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to special monthly pension based on the need for aid and attendance or based on being housebound. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Zobrist, Associate Counsel INTRODUCTION The Veteran had active duty service from December 1988 to March 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs. This matter was previously before the Board in August 2013, when it was remanded by another Veterans Law Judge for additional development; the matter has been reassigned to the undersigned. FINDING OF FACT Through the period on appeal, the Veteran's disabilities were not so disabling as to cause him to be blind or nearly blind in both eyes; to require that he be institutionalized in or confined to a nursing home or other facility due to physical or mental incapacity; to render him unable to care for his daily personal needs or protect himself from the hazards and dangers of daily living, without care or assistance on a regular basis; or to require that he remain in bed; additionally, he does not have a disability rated as permanent and total. CONCLUSION OF LAW The criteria for establishing entitlement to special monthly pension based on the need for regular aid and attendance of another person or on being housebound are not met. 38 U.S.C.A. §§ 1502, 1521, 5107 (West 2014); 38 C.F.R. §§ 3.23, 3.102, 3.342, 3.351, 3.352 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A (West 2014) have been met. By correspondence dated in February 2009, VA notified the Veteran of the information needed to substantiate his claim, to include notice of the information that he was responsible for providing and of the evidence that VA would attempt to obtain, as well as how VA assigns disability ratings and effective dates of awards. The matter was readjudicated in a September 2009 statement of the case after the appellant had opportunity to respond and provide additional evidence. It is not alleged that notice in this case was less than adequate. The Veteran's service treatment records (STRs) and pertinent postservice treatment records have been secured. Social Security Administration (SSA) records were sought, with a negative response provided. (See February 2009 correspondence from SSA, noting that the Veteran is not entitled to disability benefits and that they have no medical records on file.) As noted in the Board's August 2013 decision (which also adjudicated another issue no longer before the Board), medical records have been identified that are in the possession of Medical Records Archives for the Florida Department of Corrections. However, the Veteran has declined to provide the necessary release for VA to obtain these records. The duty to assist is not always a one-way street; the Veteran cannot passively wait for assistance in those circumstances where he "may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Consequently, the Board finds that all records identified by the Veteran have been obtained, to the extent possible. In the August 2013 decision, the Board remanded the issue of entitlement to special monthly pension so that a VA examination could be provided. The Veteran received a VA examination in April 2014. The examiner considered Veteran's lay statements and his claims file, performed a physical examination, and provided a rationale to support the conclusions reached. See Stefl v. Nicholson, 21 Vet. App. 12, 123-24 (2007). As is discussed in more detail below, the VA examiner's conclusions are consistent with the contemporaneous VA treatment records (also obtained as directed in the August 2014 Board remand.) The Board finds that the April 2014 examination is adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). As such, the Board finds that there has been substantial compliance with the August 2013 Board remand. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 377 (2002). The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis Initially, the Board notes that it has reviewed all of the evidence in the Veteran's record with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claim. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran claims that he is entitled to special monthly pension based on the need for aid and attendance or by reason of being housebound. The evidence shows that the Veteran's claim for non-service-connected disability pension was granted in September 2009. In order to demonstrate entitlement to increased special monthly pension benefits, the Veteran must meet certain criteria to establish his need for regular aid and attendance or his status for housebound benefits. Under 38 U.S.C.A. § 1521, an increased rate of pension is available, in the form of a special monthly pension, when an otherwise eligible veteran is in need of regular aid and attendance or has a disability rated as permanent and total and (1) has an additional disability or disabilities ratable at 60 percent, or (2) is permanently housebound. 38 U.S.C.A. §§ 1521(d), (e); see also 38 C.F.R. §§ 3.351(b), (c), (d). In this case, the Veteran does not have a single disability rated permanent and total. 38 C.F.R. § 3.351(d); Bradley v. Peake, 22 Vet. App. 280 (2008). Accordingly, he does not qualify for the special monthly pension based on being housebound. Therefore, the Board evaluates whether special monthly pension by reason of the need for aid and attendance is warranted. A veteran will be considered in need of regular aid and attendance if he or she: (1) 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 (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). Determinations as to the need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to such conditions as: inability of the claimant to dress and undress himself or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliance; inability of the claimant to feed himself through loss of coordination of the upper extremities or through extreme weakness; inability to tend to the wants of nature; or incapacity, physical or mental, which requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his daily environment. "Bedridden" will be a proper basis for the determination and is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. It is not required that all of the disabling conditions enumerated above be found to exist before a favorable rating may be made. The particular personal functions which the claimant is unable to perform should be considered in connection with his 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. 38 C.F.R. § 3.352(a). In addition, any determination that the veteran 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 to be in bed. It must be based on the actual requirement of personal assistance from others. See Turco v. Brown, 9 Vet. App. 222, 224 (1996). In his August 2006 claim for, inter alia, non-service-connected pension, the Veteran claimed total blindness in the right eye and noted treatment for vision loss in the left eye. An April 1998 private treatment record notes that the Veteran had proliferative retinopathy in the left eye, treated with laser, and total retinal detachment in the right eye, with failed prior surgical treatment. October 2007 and November 2007 VA treatment records note that the Veteran was legally blind in the right eye, able to manage his medications independently, looking for work, and considering attending graduate school. He was living in transitional housing and appropriately groomed and dressed. In his November 2008 notice of disagreement, the Veteran stated that he was nearly blind in his left eye. He included correspondence regarding the visual disabilities with which he had been diagnosed, and his belief that such disabilities had resulted from his active service. He stated that he had lost one eye (his right) to retinal detachment, that his left eye had begun to bother him, and that 25 percent of spontaneous retinal detachments are ultimately bilateral. In his November 2009 substantive appeal, he stated that he had lost over 50 percent of his total vision. In his July 2013 appellant's brief, the Veteran reiterated his assertion that he was completely blind in his right eye and nearly blind in his left eye. He stated that he believed that he was housebound. On April 2014 VA examination, the examiner noted that the Veteran was neither hospitalized nor bedridden and came alone by city bus to his appointment. [The Board notes that the examiner answered "no" to the question as to whether the Veteran could travel beyond his current domicile and "accompanied public transportation" as to mode of travel to the exam. The Board notes that these responses are inconsistent with the narrative portions of the examination, and reflect error in selecting the correct response on the examination form to the question as to whether the Veteran could travel beyond his current domicile. The Board further notes that, as is discussed in more detail below, the narrative responses (noting unaccompanied travel) are consistent with the contemporaneous medical records of record, indicating that the Veteran is not confined to his domicile and can travel without accompaniment.] The examiner noted that the Veteran lives alone in an apartment and does some gardening. He did not use any orthopedic or prosthetic appliances. He has dizziness once or more per day that weekly affects his ability to ambulate and moderate memory loss, but is able to perform all self-care functions. On examination, his gait was normal, and he had good nutritional status. He could walk up to a few hundred yards without the assistance of another person, and does not need aid for ambulation. The circumstances under which he can leave his home are unrestricted. He had no spinal or extremity impairment. He was blind in the right eye, but his corrected vision was not worse than 5/200 in both eyes. As a result, the examiner opined that the Veteran did not meet the criteria for aid and attendance based on physical disability. On remand, additional VA treatment records were obtained. A November 2009 VA social work note indicates that the Veteran was forced to move from his previous housing situation where he had been performing maintenance and lawn care in lieu of rent; a paying tenant had been found. He had recently applied for several fast food jobs. He was alert and oriented and casually groomed. A May 2010 VA treatment record indicates that the Veteran used bus transportation to visit the clinic. A June 2010 primary care note indicates that the Veteran was alert and oriented and required no ambulatory assistance devices. There were no symptoms of abuse or neglect noted or reported. There were no physical or sensory limitations that would affect learning. He was counseled on the benefits of regular exercise and nutrition, seat belt use, and sun protection with good understanding. He reported problems with dizziness, with two or more falls in the previous six months, but no injuries requiring medical attention. An ambulatory care note from the same day notes a history of alcohol dependence and sickle cell disease, as well as right eye blindness. He reported symptoms of posttraumatic stress disorder, including fear, impaired sleep, memory loss, and anxiety. He reported headaches, ringing and hearing loss in the right ear, chest cough/wheezing (due to pollen), and urinating three or four times nightly; left eye vision problems were not reported. In July 2010, the Veteran sought treatment for leg pain. He was alert and oriented, with no signs of neglect or abuse. A September 2010 VA treatment note indicates that the Veteran was hospitalized in a private facility for hip and abdominal pain diagnosed as avascular necrosis and acute appendicitis; an appendectomy was performed and the Veteran was discharged. In February 2011, the Veteran sought assistance from social work for clothing. He stated that he resided in transitional housing in Orlando, but visits multiple states. Psychiatric history and symptomatology was noted; however, the Veteran was alert and oriented, with appropriate grooming and normal hygiene. On follow-up appointment later than month, it was noted that the Veteran had previously been homeless and incarcerated, and would be assigned to sober living and on-going case management. March 2011 VA social work notes indicate continued participation in social work programs. He was alert and oriented, with appropriate grooming and hygiene. There were no signs of abuse or neglect. He was seeking to be moved to a bottom bunk in his housing environment due to his frequent need to urinate during the night and difficulty getting in and out of the top bunk due to hip pain. A March 2011 ambulatory care notes indicates that the Veteran was seen for respiratory symptoms. Right eye blindness and left eye decreased vision were noted. April 2011 VA social work notes indicate that the Veteran left transition housing to live with his sister. He was alert and oriented, with appropriate grooming and hygiene. On ophthalmology consultation that month, it was noted that the Veteran was blind in the right eye and had refractive error in the left eye. His corrected vision in the left eye was measured at 20/20-1. Other than temporary pinguecula and prior pan retinal photocoagulation treatment, no other left eye issues were noted. The Veteran was advised that his left retina should be monitored based on his history of right eye retinal detachment. August 2011 treatment notes indicate that the Veteran was sleeping on the streets and accompanied to appointments by his nephew, who the Veteran did not allow to speak. He was alert and oriented, but with disheveled grooming, body odor, and inappropriate behavior. The Veteran was uncooperative and did not respond to direct questions. October 2011 treatment notes indicate that the Veteran participated in a homeless program "stand down" in September 2011. He sought assistance with housing, but would not participate in an interview. November 2011 treatment notes indicate that the Veteran admitted to a drinking problem and homelessness. He was alert and oriented, with appropriate attire and adequate hygiene. His memory was grossly intact. In December 2011, the Veteran began treatment for substance use disorder. Treatment continued until January 2012. He was trying to regain his driver's license. In June 2012, he sought social work assistance; he was alert and oriented, with normal hygiene and appropriate grooming. August 2012 ophthalmology notes indicate complaints of increased floaters, reduced flashes of light, no distance vision, difficulty reading (due to lost glasses), and headache. On examination, corrected vision in the left eye was 20/20-1. Posterior vitreous detachment was noted. No other significant changes were noted from prior examination. On October 2012 mental health treatment, the Veteran was adequately dressed and ambulated without assistance. In November 2012, the Veteran admitted to continued/accelerated substance abuse. He was intoxicated and disheveled, but ambulated independently. February 2013 treatment records indicate that the Veteran continued to be alert and oriented, with appropriate/adequate grooming and hygiene. It was noted that his right eye had been removed, and he attributed memory loss to alcohol use. He described audio hallucinations, nocturia, leg pain, poor memory, and impaired balance, particularly on stairs. Although additional VA treatment records indicate that the Veteran was frequently uncooperative with treatments or interventions, but are silent for any indication that the Veteran was in a nursing home for mental or physical incapacity; blind or so nearly blind as to have corrected visual acuity of 5/200 or less in both eyes, or a concentric contraction of the visual field to 5 degrees of less; unable to dress and keep himself clean (other than due to intoxication or homelessness); use of orthopedic/prosthetic appliances; inability to feed himself due to incoordination of the upper extremities; inability to attend to the wants of nature; or incapacity requiring regular care or assistance to protect the claimant from hazards or dangers incident to his daily environment. For example, in August 2013, the Veteran reported that he traveled weekly to a church for breakfast, works out and showers at a rec center daily, and brings his clothes to a dry cleaners monthly, and he reported at that time that he was in great health. Most additional ophthalmology/optometry records note corrected left eye vision to 20/20, with no significant changes. In September 2013, testing indicated left eye visual field constricted to a 20 degree diameter, but that test result was believed to be unreliable based on lack of cooperation during testing. In October 2013, visual field impairment was measured at 40 percent. On November follow-up testing, visual acuity was measured at 20/25-1 in the left eye. His visual field was severely constricted to 20 degrees diameter, and he was noted to not be capable of driving legally. He was to follow up with visual field testing in August 2014. On December 2013 ophthalmology treatment, visual acuity was 20/25, with floaters, milky sensation, and cloudy vision reported. In December 2013, the Veteran obtained housing through a housing first program. Treatment records from that same month indicated that he did not require assistance with bathing, dressing, toileting, transferring, continence, or feeding. Subsequent records of regular visits from the Veteran's social worker indicate that he was living alone, without daily assistance. In January 2014, the Veteran was instructed in disaster preparation, to include a plan to evacuate to a local shelter in case of emergency. It was noted that transportation would not be required, and there was no indication that the Veteran would need assistance in evacuation. In February 2014, the Veteran refused assistance with online job applications, stating that he was able to complete the task independently. He had recently travelled to a local agency to acquire clothing. The freezer and pantry were well stocked, and he reported that utility bills were paid. He indicated his intent to begin looking for work. In April 2014, the Veteran was outside his apartment eating and raking/maintaining the lawn area. He obtained information on how to obtain a driver's license. In June 2014, the Veteran's social worker transported him to the doctor and to the grocery store. He reported that he had filled out a job application and been interviewed by a cleaners down the street from his residence. In July 2014, the Veteran was cooking breakfast at the time of his social worker's visit. In August 2014, the Veteran reported to his social worker that he was sleeping and eating well and did not need to see his primary care physician. He had not had any ER treatment or hospitalizations. In September 2014, the Veteran told his social worker that he would travel independently to the DMV and Walmart and did not require assistance. He declined assistance in getting his bicycle fixed due to finances. He denied ER visits and hospitalizations and was obtaining additional funds through panhandling. Obtaining his driver's license was officially listed as a goal being tracked by the social worker, second only to maintaining stable housing. On this record, the Board finds that the Veteran's disabilities do not render him so helpless as to be in need of regular aid and attendance. There is no evidence that he is a patient in a nursing home. While the record documents a few instances of poor grooming or hygiene, associated with homelessness or intoxication, there is otherwise no indication that the Veteran is unable to dress himself or keep himself ordinarily clean and presentable as a result of his physiological or psychiatric disabilities. (See, e.g., August 2013 VA treatment record, noting daily showers at a rec center.) There is no indication that the Veteran uses any orthopedic appliances or prosthetics. There is no indication that the Veteran is unable to feed himself or unable to attend to the wants of nature. While the Veteran experiences dizziness and memory loss, he lives alone, with regular visits from a social worker, and there is no indication that he is unable to protect himself from hazards or dangers incident to his daily environment. (See, e.g., January 2014 VA treatment record, noting that the Veteran was advised on evacuation plans (with indication that he planned to evacuate himself, without reference to needing assistance, in case of emergency.)) The Board finds it reasonable that, if the Veteran's condition was such that he was unable to protect himself from his environment, his social worker would have documented such limitations; no such limitations are noted. There is no indication that the Veteran is, or has been, bedridden. (See, e.g., August 2013 VA treatment record (noting daily workouts) and April 2014 VA treatment record (noting that he was engaged in yard maintenance)). The record does confirm the Veteran's assertion that he has significant visual impairment. His right eye was apparently removed due to disease, and VA treatment records document a constricted visual field in the left eye. However, under 38 C.F.R. § 3.152(c)(1), the concentric contraction of the visual field must be to 5 degrees or less; VA treatment records document contracture of the left eye visual field to 20 degrees. While the level of visual impairment has been clinically described as significant, it does not rise to the level of near blindness necessary for additional compensation on the gounds that aid and attendance is necessary. The April 2014 VA examination, while terse and containing some typographical errors, is consistent with the VA treatment and social work records and found that the Veteran did not require aid and attendance and that his visual impairment does not rise to the level required in § 3.151(c)(1). The Board has considered the recent correspondence from the Veteran's representative, asserting that his vision loss renders him unable to independently protect himself from the daily hazards of his environment and suggesting that remand is required for an additional examination to resolve the question as to whether the Veteran is able to independently feed and dress himself, keep himself ordinarily clean, or assist himself to the wants of nature without the assistance of a skilled provider. As noted above, there is no indication in the record that the Veteran's disabilities impair his ability to feed and dress himself, keep himself clean, or attend to the wants of nature. As to the effects of visual impairment on his personal safety, the Veteran's social worker included obtaining a license as one of the Veteran's goals, for which progress is routinely measured. The Board finds it reasonable that progress toward this goal would not be tracked if it were manifestly unattainable, e.g., if the Veteran's vision was so impaired that he could not independently protect himself from his environment as contemplated in 38 C.F.R. § 3.152(a). [While the clinical measurement of visual impairment requires specialized medical expertise, the Board finds that the effects of visual impairment of capable of lay observation.] Simply put, there is no indication that the Veteran has any actual requirement of personal assistance from others, or that remand is necessary for an additional examination in the matter. As the preponderance of the evidence is against the Veteran's claim for special monthly pension based on the need for the regular aid and attendance of another person or being housebound, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b). ORDER Entitlement to special monthly pension based on the need for aid and attendance or being housebound is denied. ____________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs