Citation Nr: 1752008 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 09-37 364A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to special monthly pension. 2. Entitlement to nonservice-connected pension, from September 8, 2016. ATTORNEY FOR THE BOARD M. Tang, Associate Counsel INTRODUCTION 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). The Veteran served on active duty from November 1962 to October 1964. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The Board previously remanded the appeal for further development in September 2012. FINDINGS OF FACT 1. Prior to September 8, 2016, the Veteran was not blind, or nearly blind, institutionalized, or in a nursing home on account of physical or mental incapacity, and did not need or rely on the assistance of another person to perform the routine activities of daily living. 2. From September 8, 2016, the Veteran's disabilities resulted in his inability to care for most of his daily personal needs without regular personal assistance from others, and an inability to protect himself from the hazards and dangers of his daily environment. 3. Prior to September 8, 2016, the Veteran's countable income exceeded the maximum limit for nonservice-connected pension benefits. 4. From September 8, 2016, the Veteran's countable income does not exceed the maximum limit for nonservice-connected pension benefits. CONCLUSIONS OF LAW 1. The criteria for special monthly pension, based on either the need for aid and attendance or by reason of being housebound are met from September 8, 2016 and no earlier. 38 U.S.C.A. §§ 1521, 5107 (West 2014); 38 C.F.R. § 3.700 (2017). 2. The criteria for nonservice-connected pension benefits are met from September 8, 2016, and no earlier. 38 U.S.C.A. §§ 101(12), 1501, 1503, 1521 (West 2014); 38 C.F.R. §§ 3.3, 3.23, 3.262, 3.271, 3.272 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Special Monthly Pension (SMP) SMP is payable if the Veteran is in need of regular aid and attendance; or has a permanent disability rated at 100 percent and has either an additional disability or disabilities independently ratable at 60 percent or more; or is permanently housebound. 38 U.S.C.A. § 1521 (d)(1), (e) (West 2014); 38 C.F.R. § 3.351 (a)-(d) (2017). The evidence shows that the Veteran does not receive VA benefits or compensation for any service-connected disability. Thus, the Board shall focus its analysis on whether the Veteran is entitled to SMP based on the factual need of regular A&A or permanently housebound status. Being permanently housebound means the 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 need for aid and attendance means helplessness or being so nearly helpless as to require the regular aid and attendance of another person. 38 C.F.R. § 3.351(b). Requiring the regular aid and attendance of another person occurs when the Veteran is blind or so nearly blind, is a patient in a nursing home because of mental or physical incapacity, or establishes a factual need for aid and attendance under § 3.352(a). 38 C.F.R. § 3.351(c). For the purposes of aid and attendance, blindness is defined as having corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less. 38 C.F.R. § 3.351(c)(1). Determinations as to the need for aid and attendance must be based on actual requirements of personal assistance from others, considering condition such as: (1) inability of the claimant to dress and undress him or herself or to keep him or herself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliance; (3) inability of the claimant to feed him or herself through loss of coordination of the upper extremities or through extreme weakness; (4) inability to tend to the wants of nature; or (5) incapacity, either physical or mental, which requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352(a) (2017). "Bedridden" will be a proper basis for the determination and is defined as that condition actually requires that the claimant remain in bed. The particular personal functions which the Veteran 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 Veteran is so helpless as to need regular aid and attendance, not that there be a constant need. 38 C.F.R. § 3.352(a) (2017). 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 Veteran's condition is such as would require him to be in bed. The Veteran is not required to demonstrate that all of the disabling conditions enumerated above be found to exist before a favorable rating may be made. See Turco v. Brown, 9 Vet. App. 222, 224 (1996). The Veteran claims that he requires the regular need of aid and attendance of another person due to multiple disabilities, including glaucoma, diabetic retinopathy, kidney and heart conditions, diabetes, gastroesophageal reflux disease, and generalized osteoarthritis. A June 2008 Aid and Assistance VA examination indicated that the Veteran arrived by car alone and without assistance. The examiner opined that the Veteran was not permanently bedridden or needed hospitalization. He had full capacity to protect himself from daily environmental hazards. The Veteran's daily living habits were not affected. The examiner found no limitations or restrictions from the Veteran's upper or lower extremities. He had normal cervical spine mobility and lumbosacral spine mobility. He was capable of walking for 30 minutes with good posture and adequate gait. The Veteran was able to leave home daily, without restrictions. The May 2007, June 2008, and July 2009 ophthalmology examination results indicated that the Veteran's left eye has significant visual impairment due to old maculopathy, measuring at 20/400. The Veteran's right eye measured at 20/20 in the May 2007 and June 2008 results, while it was measured at 20/30 in a July 2009 result. The July 2009 examiner also diagnosed the Veteran with glaucoma. An October 2008 primary care note indicated that the Veteran's range of motion was intact, without deformities. No assistive devices or distress were noted. The December 2009 and May 2010 ophthalmology examination results indicated that the Veteran's left eye vision worsened, progression to the counting fingers (CF) semiquantitative scale, measuring at 20/CF 2 feet and 20/CF 3 feet, respectively. The Veteran's right eye measured at 20/25 and 20/20. In June 2010, the Veteran attended a comprehensive blind rehabilitation program, but the medical notes did not provide any diagnostic information. A November 2010 medical record indicated the Veteran attended a computer program for his vision disability and noted that he was able to perform his daily living activities without assistance. The ophthalmology examination results during that time measured 20/20 for the right eye and 20/CF 3 feet in the left eye. The May 2011, November 2011, March 2012 ophthalmology examination results yielded 20/30, 20/20, and 20/30 for the Veteran's right eye, respectively. His left eyes measured at 20/CF 3 feet and 20/400 for the latter two test dates. An April 2014 ophthalmology examination report indicated that the Veteran reported dizziness and lightheadedness. His right eye still measured at 20/30 and his left eye measured on the CF scale. A February 2016 ophthalmology examiner diagnosed the Veteran with senile cataracts in both eyes, but did not address how that affected the Veteran's daily living activities. Pursuant to the Board remand, the Veteran was afforded a VA examination for his vision disorder in September 2016. The examiner noted his right eye measured at 20/50 or better corrected distant vision and 20/40 best corrected near. His left eye was able to recognize letters at one foot or closer. Using the Goldmann Visual Field test, the examiner opined that the Veteran's visual field is contracted and he lost the nasal half of his visual field in the right eye. The examiner noted that the Veteran has a loss of visual acuity in the left eye due to maculopathy and constriction of the right eye visual field. The examiner also opined that the Veteran would require assistance in his daily needs, including driving, climbing stairs, crossing a street and ambulating, but would not be housebound. The rationale provided was that the visual constrictions affected the Veteran's depth perception and binocularity. A September 2016 Aid and Assistance VA examination indicated that the Veteran arrived by car with assistance from a family member. The Veteran reported that he needed constant direct supervision from a caregiver due to weakness in his legs, joint pain, frequent imbalances, and frequent or near-frequent falls from when he does grooming, toileting, dressing, undressing, and bathing. He had limited capacity to protect himself from daily environmental hazards, as the examiner found that the Veteran had decreased vision, unstable gait, a slow pace, and assisted devices to ambulate. The examiner found that he was constantly imbalanced, frail, with painful range of motion. The Veteran was able to leave home daily, but always needed to be accompanied by an attendant, as he could only walk up to a few hundred yards unassisted. The examiner opined that the Veteran is housebound and in need of aid and attendance, as his poor vision, arthritis, frequent imbalances and falls interfere with adequate ambulation, and will more likely than not continue throughout his lifetime. The examiner opined that the Veteran was not permanently bedridden or in need of hospitalization. The Veteran was afforded another ophthalmology VA examination in June 2017. The ophthalmology examination results were 20/60 corrected in his right eye and 5/200 or worse in his left eye. The examiner noted he had left eye blindness and that his cataracts were affecting vision in both eyes. The examiner opined that the Veteran cannot perform tasks that require binocular vision or depth perception, such as driving, climbing stairs or walking in unknown territory, due to his left eye blindness and poor right eye vision. The examiner further opined that the Veteran's daily living habits do not need aid and assistance, as his functional right eye allowed him to groom, dress, and wash himself. The Veteran was not considered housebound, as he can be assisted to attend appointments and social functions. After a review of the evidence of record, the Board finds that a preponderance of the evidence is against the award of SMP based upon the need for regular aid and attendance of another person at any time prior to September 8, 2016. The Board notes that during the appeals period, the Veteran was not blind or nearly blind in both eyes, was not admitted to a nursing home due to mental or physical incapacity, or permanently housebound. While the objective findings from May 2007 to September 8, 2016 demonstrated impaired vision, the evidence did not show that the Veteran's vision was 5/200 or worse in either eye or that concentric contraction of the visual field was to 5 degrees or less at any time. Additionally, prior to September 8, 2016, the evidence of record consistently showed that he was capable of leaving his home unassisted and performing daily life without assistance. As blindness or nearly blindness in one eye does not satisfy the criteria, and the evidence of record does not demonstrate the regular need of aid and assistance, the Board cannot resolve doubt in the Veteran's favor, prior to September 8, 2016. However, resolving doubt in the Veteran's favor, the Board finds that since September 8, 2016, the Veteran's multiple disabilities, including his vision disorders, have affected his daily living activities, requiring assistance to ambulate, perform basic tasks, and attend appointments. Accordingly, the Board finds that prior to September 8, 2016, SMP benefits based on the need for the aid and attendance of another or housebound status is not warranted, but is warranted thereafter. See 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Nonservice-connected Pension Nonservice-connected disability pension may only be awarded to a Veteran of a war who has qualifying service and is permanently and totally disabled from a nonservice-connected disability not the result of the Veteran's willful misconduct. See 38 U.S.C.A. §§ 1502, 1521 (West 2014). A Veteran is defined as a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C.A. § 101(2) (West 2014). Basic entitlement for nonservice-connected pension exists if, among other criteria, the Veteran met the net worth requirements under 38 C.F.R. §§ 3.274 and 3.275 and has an income not exceeding the specified maximum annual pension rate (MAPR). See 38 U.S.C.A. §§ 1502, 1521, 1522 (West 2014); 38 C.F.R. §§ 3.3, 3.23 (2017). The Veteran satisfies the other two nonservice-connected pension criteria, which will not warrant further discussion. The Veteran's appeal arises from the determination that his income exceeds the maximum annual disability pension limit. The maximum annual rates of pension and death pension payable are published in Appendix B of VA Manual M21-1MR and are to be given the same force and effect as if published in VA regulations. 38 C.F.R. § 3.21. Effective December 1, 2006, the maximum annual rate of improved pension for permanent and total disability for a Veteran with one dependent was $14,313. The maximum annual rate was increased to $14,643, effective December 1, 2007; $15,493, effective December 1, 2008; $16,051.00, effective December 1, 2011; $16,324.00, effective December 1, 2012; $16,569.00, effective December 1, 2013; $16,851.00, effective December 1, 2014; and $16,902.00, effective December 1, 2016. 38 C.F.R. § 3.23; see VA Benefits Administration Manual M21-1, Part I, Appendix B. Under the aid and attendance rate, a Veteran with one dependent must have had yearly income of less than: $24,239.00, effective December 1, 2011; $24,652.00 effective December 1, 2012; $25,022.00 effective December 1, 2013; $25,448.00 effective December 1, 2014; and $25,525.00 effective December 1, 2016. Id. For purposes of calculating pension benefits, total income includes all payments of any kind or from any source during a 12-month annualization period, unless specifically excluded under 38 C.F.R. § 3.272. Recurring income, received or anticipated in equal amounts and at regular intervals such as weekly, monthly, quarterly and which will continue throughout an entire 12-month annualization period, will be counted as income during the 12-month annualization period in which it is received or anticipated. 38 C.F.R. § 3.271(a)(1) (2017). Nonrecurring income, received or anticipated on a one-time basis during a 12-month annualization period, will be counted as income for a full 12-month annualization period following receipt of the income. 38 C.F.R. § 3.271(a)(1)-(3) (2017). The amount of any nonrecurring countable income received by a beneficiary shall be added to the beneficiary's annual rate of income for a 12-month annualization period commencing on the effective date on which the nonrecurring income is countable. 38 C.F.R. § 3.273(c) (2017). The Veteran's annual income includes the annual income of the Veteran, his dependent spouse, and children in the Veteran's custody or to whose support the Veteran is reasonably contributing. 38 C.F.R. § 3.23(d)(4) (2017). The following shall be excluded from countable income for the purpose of determining entitlement to improved pension: welfare; maintenance; VA pension benefits, payments under Chapter 15, including accrued pension benefits; reimbursement for casualty loss; profit from sale of property; joint accounts (accounts in joint accounts in banks and similar institutions acquired by reason of death of the other joint owner); and medical expenses which have been paid in excess of five percent of the MAPR. 38 C.F.R. § 3.272 (2017). Income from Social Security Administration (SSA) disability benefits is not specifically excluded and therefore is included as countable income. 38 C.F.R. § 3.272 (2017). Exclusions from countable income include unreimbursed medical expenses that are in excess of five percent of the applicable maximum annual pension rate and that have been paid within the 12-month annualization period regardless of when the indebtedness was incurred. 38 C.F.R. § 3.272(g) (2017). At the time of his initial claim filing, the Veteran indicated that he would be submitting unreimbursed medical expenses in excess of five percent of the applicable maximum annual pension rate for 2006 and 2007. See February 2008 VA Form 21-526, Veteran's Application for Compensation and/or Pension. However, the Veteran has not submitted any expenses to date. While VA has a duty to assist a veteran in the development of a claim, claimants have a duty to cooperate with VA. See Wood v. Derwinski, 1 Vet. App. 190 (1991). Therefore, the Board is unable to exclude from countable income any unreimbursed medical expenses. The Veteran has not submitted any other evidence to show that further amounts should be excluded from his countable income. The evidence shows that the Veteran and his dependent spouse have been receiving SSA benefits since December 2004. Therefore, the Board must consider the monthly SSA payments when calculating the Veteran's countable annual income. Pursuant to the September 2012 Board remand, SSA income from December 2008 to the present has now been attached to the claims folder. The Veteran's income, based on SSA benefits for the years 2008 to 2016 were $8,016.00 (2008); $8,013.60 (2009); $8,016.00 (2010); $8,302.80 (2011); $8,440.80 (2012); $8,572.80 (2013); $8,716.80 (2014); $8,713.20 (2015); and $8,740.80 (2016). His spouse's SSA income for those years was $10,552.80 (2008); $10,552.80 (2009); $10,552.80 (2010); $10,930.80 (2011); $11,110.80 (2012); $11,278.80 (2013); $11,470.80 (2014); $11,470.80 (2015); and $11,490.00 (2016). This equates to a combined annual income of $18,568.80 in 2008; $18,566.40 in 2009; $18,568.80 in 2010; $19,233.60 in 2011; $19,551.60 in 2012; $19,851.60 in 2013; $20,187.60 in 2014; $20,184.00 in 2015; and $20,236.80 in 2016. Prior to September 8, 2016, all of these figures exceed the corresponding MAPRs. However, as noted herein, the Board has determined that the Veteran qualified for aid and assistance as of September 8, 2016. As the Veteran and his spouse's annual income of $20,236.80 in 2016 is less than the $25, 525.00 MAPR for aid and assistance for 2016, entitlement to nonservice-connected pension benefits is warranted as of September 8, 2016. See 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2017); Gilbert, 1 Vet. App. at 55-56. ORDER From September 8, 2016, and no earlier, basic eligibility for special monthly pension on the basis of need for aid and attendance of another or housebound status, is granted subject to the requirements of 38 U.S.C.A. § 5503 (West 2014); 38 C.F.R. § 3.551(i),. From September 8, 2016, and no earlier, nonservice-connected pension benefit is granted. ____________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs