Citation Nr: 1751374 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 15-27 380 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to special monthly pension (SMP). REPRESENTATION The Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Grace J. Suh, Associate Counsel INTRODUCTION The Veteran served from March 1954 to March 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. By way of a November 2011 Notice of Disagreement the Veteran expressed his disagreement with the November 2013 rating decision by the RO denying his service connection claims for loss of vision and memory impairment as well as entitlement to SMP based on aid and attendance. However, he did not voice disagreement with the RO's denial of service connection for balance impairment. In response, the RO issued a June 2015 Statement of the Case addressing each of these issues. He then filed a timely VA Form 9 in July 2015 thereby perfecting his appeal with respect to these issues. However, according to a December 2015 Decision Review Officer Conference Report, he withdrew the appeal of his service connection claims for loss of vision and memory impairment during the conference and submitted a Statement in Support of Claim reiterating the same. See December 2015 Statement in Support of Claim. As such, these issues are not before the Board at this time. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.204 (2017). In a October 2017 letter the Veteran expressed his desire to continue the service connection claim for balance impairment. The Board interprets this as a petition to reopen the service connection claim for balance impairment. As such, the Board has no jurisdiction over it at this time, and it is hereby referred to the Agency of Original Jurisdiction for appropriate action. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT The evidence of record does not show the Veteran 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 is a patient in a nursing home because of mental or physical incapacity; or is unable to care for himself or protect himself from the hazards or dangers incident to his daily environment. CONCLUSION OF LAW The criteria for SMP on the basis the Veteran is housebound, in need of regular aid and attendance, or being permanently housebound have not been met. 38 U.S.C.A. §§ 1501, 1521, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.351, 3.352 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that he is entitlement to SMP based on the need for aid and attendance. See January 2012 Veteran's Application for Compensation and/or Pension. A qualified veteran may receive SMP if he requires aid and attendance as prescribed by relevant statutes and regulations. 38 U.S.C.A. § 1521; 38 C.F.R. § 3.351. A veteran is considered in need of regular aid and attendance if 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 is a patient in a nursing home because of mental or physical incapacity; or establishes a factual need for aid and attendance. 38 C.F.R. § 3.351(c). 38 C.F.R. § 3.352(a) delineates the criteria for establishing a factual need for aid and attendance. More specifically, 38 C.F.R. § 3.352(a) contemplates a veteran's inability to dress or undress himself; to keep himself ordinarily clear 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; inability to feed himself through loss of coordination of the upper extremities or through extreme weakness; inability to attend to the wants of nature; and/or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the veteran from hazards or dangers incident to his daily environment. However, a veteran is not required to meet all the conditions enumerated. Furthermore, it is only necessary that the evidence establish the veteran is so helpless as to need regular aid and attendance; not necessarily a constant need. The particular personal function(s), which the veteran is unable to perform, is to be considered in light of his condition as a whole. Alternatively, a qualified veteran may receive SMP under the housebound rate pursuant to 38 C.F.R. § 3.351(d). In order to do so, the veteran must have a single permanent disability rated at 100 percent disabling under the Rating Schedule. In addition, the veteran must have another disability(ies) independently rated at 60 percent disabling or more, or be "permanently housebound" by reason of such a disability(ies). 38 U.S.C.A. §§ 1155, 1521(e) (West 2014); 38 C.F.R. §§ 3.351(d), Part 4 (2017). The condition of being "permanently housebound" is met when the veteran is substantially confined to his dwelling and the immediate premises, and it is reasonably certain that the disability(ies) and its resulting confinement will continue throughout his lifetime. The Veteran contends that he is entitled to SMP because he is legally blind and as a result requires the assistance of someone to come cook and clean for him. See December 2013 Notice of Disagreement; September 2013 Letter from the Veteran (the Veteran also reported severe memory loss and balance impairment). In furtherance of this claim, the Veteran was afforded a VA examination to determine his housebound status or permanent need for regular aid and attendance in December 2012. See December 2012 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance. Following examination, the VA examiner determined that his corrective vision in right eye was 20/30 and left eye was 20/50. The VA examiner indicated he generally did not need assistance with his daily living activities. In support, the VA examiner found the Veteran was able to cook and feed himself. While he was unable to use the oven because he could not read the dials, he was able to prepare his own meals by using the stove and microwave. He was able to tend to needs of nature, bathe, shave, and dress himself. However, if there were buttons on his clothes, he needed assistance. He was able to manage his own financial affairs, with the exception of writing checks because he could not read small print. As a result, his brother helped him write checks. For the same reason, his brother also helped him prepare his weekly medications. The Veteran's gait was noted to be stable with a cane. He reported that he either used a cane or walker to ambulate. He explained that he fell on average twice a week because he loses balance. Although he stayed at home for the most part, he stated he does go out once a week for groceries, twice a week to go to church, once a month to go to the eye doctor, and as needed for other medical appointment. While he relied on his brother to take him to these places and appointments, he was still able to go to his mailbox and get mail on a daily basis by himself. The Veteran also underwent an eye conditions VA examination in October 2013. See October 2013 Eye Conditions VA Examination Report. At that time, the VA examiner noted diagnoses of mild non-proliferative diabetic retinopathy, bilateral macular degeneration, and bilateral psuedophakia. Upon examination, his uncorrected distance vision was 20/200 in the right eye and 20/200 in the left eye, and near vision was 20/100 in the right eye and 20/100 in the left eye. His corrected distance vision was 20/100 in the right eye and 20/200 in the left eye, and near vision was 20/70 in the right eye and 20/70 in the left eye. Even though the examination revealed that he had extremely poor vision, he did not have a visual field defect. He was able to recognize test letters at one foot or closer, and perceive objects, hand movements, or count fingers at three feet. In the end, the VA examiner concluded his diabetic retinopathy did not require aid and attendance or cause him to be housebound. Additionally, an August 2015 VA Blind Rehabilitation Note assessed the Veteran's ability to function independently before and after participating in the blind rehabilitation services. At the time of admission, he was noted to be mostly independent with respect to food preparation. By the time of discharge, he was described as always independent. He was observed to do well using the oven and stove. He appeared to be safe during the lessons provided, which included using cutting and dicing techniques. In terms of home management, at the time of admission the Veteran was noted to be mostly independent. By the time of discharge, he was assessed to be always independent. He was observed using good techniques for cleaning flat surfaces and other areas. The Veteran was determined to be rarely independent upon admission in regard to personal management. However, by the time of discharge, he was found to be mostly independent. He was able to set an alarm clock using his glasses; thread a needle using an adaptive threader and his glasses; and he relayed that he could sew on a button. With respect to financial management, the Veteran was noted to be mostly independent upon admission. At the time of discharge, he was evaluated to be always independent. He was able to perform household calculations using a low vision calculator and his glasses. In regard to personal communications, the Veteran was noted to be rarely independent upon admission. By the time of discharge, he was described to be mostly independent. He was able to learn the location of keys on a keyboard using the hunt and peck method. He received training using an iPad for e-mail, and was able to create and send short e-mails with the use of Siri, as well as create and send e-mails using a mail application. The Veteran was assessed to be independent with diabetic and medication management at home. While the Veteran was mostly independent upon admission in terms of short-term reading of items such as labels and prices, he was found to always independent at discharge. As it pertained to home long-term reading of items such as newspapers and TV guides, he was sometimes independent upon admission, but always independent at discharge. At admission, the Veteran was mostly independent upon admission in terms of distance viewing, and was always independent at discharge with respect. Even though the Veteran was determined to be rarely independent upon admission with respect to indoor travel, the Board notes this assessment contemplated the use of stairs, escalators, and refining his use of a cane. By the time he was discharged, he was found to be always independent at discharge with respect to indoor travel. Specifically, he was noted to do well with indoor travel in all areas with the exception of using an escalator, which would be dangerous for him. In contrast, upon admission, the Veteran was assessed to be sometimes independent in terms of outdoor travel, and by discharge he was categorized as always independent. Subsequent VA treatment records disclosed the Veteran maintained his ability to care for himself into 2015. See September 2015 VA Preventative Medicine Note (the Veteran was determined to be independent without need for supervision, direction, or personal assistance with respect to bathing, dressing, toileting, transferring, continence, or feeding); November 2015 VA Primary Care Note (noted the Veteran's report that he was very independent; residing alone; managed his own finances, cooking, and shopping; does not ask for help, nor feels that he needs help; takes taxi cabs; and that his brother lived 50 miles away); December 2015 VA Occupational Therapy Home Health Consult (the Veteran was noted to be "modified independent"; able to prepare his own meals and feed himself, but was receiving help cleaning). In assessing the evidence above, the Board acknowledges the Veteran is competent to provide evidence regarding the difficulties he experiences due to his decreased vision. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007), abrogated on other grounds by Walker v. Shinseki, 708 F.3d 1331 (2013), (holding that while a lay person is not competent to opine as to medical etiology or render medical opinions, they are competent to establish the presence of observable symptomatology). To that extent, the Board finds his lay statements competent. However, he is not competent to render a medical diagnosis or opinion on such a complex medical questions as visual acuity measurements and concentric contraction of the visual field. See Barr, supra; Jones v. West, 12 Vet. App. 460, 465 (1999). Therefore, as his lay statements relate to visual acuity measurements and concentric contraction of the visual field, the Board is unable to accord them any probative weight. In that regard the Board relies on the medical evidence of record. After a careful review of the record, the Board finds the preponderance of the evidence is against the Veteran's claim for SMP based on the need for aid and attendance. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (2009). As an initial matter, while the Board acknowledges the Veteran has been assessed to be legally blind, the evidence does not establish that he meets the requisite definition of "blindness" for SMP purposes, which requires visual acuity of 5/200 or less in both eyes with correction. With correction, his vision is 20/100 in the right eye and 20/200 in the left eye. See November 2013 Primary Care Note; cf. generally B.D.P. Eye Center Treatment Records; October 2013 Eye Conditions VA Examination Report. There is no evidence of record demonstrating the Veteran is residing in a nursing home, much less residing in a nursing home because of mental or physical incapacity. See December 2012 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance; November 2015 VA Primary Care Note (noted the Veteran's report that he is residing by himself). The evidence of record does not establish a factual need for aid and attendance in accordance with 38. C.F.R. § 3.352(a). The Veteran has not demonstrated an inability to dress or undress himself. See September 2015 VA Preventative Medicine Note. Although he asserts he has difficulty with buttons and requires assistance with them, he admitted that he is able to use a zipper without assistance. See December 2012 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance. He continues to be able to keep himself ordinarily clean and presentable, albeit with some adaptive devices. See December 2012 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance; September 2015 VA Preventative Medicine Note; December 2015 VA Occupational Therapy Home Health Consult (noted the Veteran refused a bed transfer handle and commode safety arms, but accepted additional hand holds for the shower and entrance to his home, as well as a hand held shower sprayer for showering). Of note, the December 2012 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance documented he was dressed appropriately for the weather. While the evidence of record reveals the Veteran utilizes a cane or a walker, there is no evidence of record suggesting a frequent need of adjustment of any special prosthetic or orthopedic appliances, which by reason of his decreased vision cannot be done without aid. Although the Veteran asserted in his December 2013 NOD that he required the assistance of someone to come cook and clean for him, the Board notes his own statements have contradicted this. For instance, during the December 2012 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance he admitted he was able to cook for himself using the stove and microwave, despite being unable to use the oven because he could not read the dials. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (recognizing the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence"); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996) (holding that credibility may be appraised by evaluating a witness' statements for interest, bias, demeanor, internal consistency, facial plausibility, or consistency with the other evidence of record). Further, the August 2015 VA Blind Rehabilitation Note recorded the Veteran did well using the oven and stove, and appeared to be safe during the lessons. Of significance, he has always been able to feed himself. See December 2012 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance; September 2015 VA Preventative Medicine Note; December 2015 VA Occupational Therapy Home Health Consult. Even though the Veteran claims that his balance is impaired to such a degree that he falls on average twice a week, there is no evidence of record indicating it requires care or assistance on a regular basis to protect the veteran from hazards or dangers incident to his daily environment. In fact, despite his claims of balance impairment and falls, the November 2015 VA Primary Care Note noted he was very independent and residing alone. Notably, he did not feel the need to ask for help. Finally, the Veteran does not qualify for SMP under the housebound rate pursuant to 38 C.F.R. § 3.351(d). 38 U.S.C.A. § 1521(e). He has neither a single permanent disability rated at 100 percent disabling or an additional disability(ies) rated at 60 percent disabling, that is separate and distinct from the disability rated at 100 percent disabling and involving different anatomical segments or bodily systems. His nonservice-connected loss of vision is rated at 60 percent disabling, nonservice-connected balance impairment and memory impairment are each rated at zero percent disabling. There are no other disabilities of record for the Board to consider. See November 2013 Rating Codesheet. Thus, even if the Board were to treat his nonservice-connected loss of vision as totally disabling, he is unable to meet the second criterion. In addition, the evidence of record contradicts a finding that he is substantially confined to his dwelling and the immediate premises as a result of his disability(ies). ORDER Entitlement to SMP is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs