Citation Nr: 18140075 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 17-46 590 DATE: October 2, 2018 ORDER Entitlement to special monthly pension (SMP) based on the need for regular aid and attendance or by reason of being housebound is denied. FINDING OF FACT 1. The Veteran does not require the assistance of another person in meeting his daily needs such as dressing, feeding himself, attending to the wants of nature, adjusting any special prosthetic or orthopedic appliances, and keeping himself ordinarily clean, nor is he unable to protect himself from the hazards and dangers of his daily environment. 2. While the Veteran is considered permanently and totally disabled for his nonservice-connected pension, his additional disabilities are not independently ratable at 60 percent or more; he is not so limited in his ability to function that he is housebound for purposes of VA regulations. CONCLUSION OF LAW The criteria for SMP based on the need for regular aid and attendance or on account of being housebound have not been met. 38 U.S.C. §§ 1502, 1521, 5107 (2012); 38 C.F.R. §§ 3.351, 3.352 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1964 to July 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2016 rating decision. Entitlement to SMP benefits based on the need for regular aid and attendance or by reason of being housebound The Veteran contends that he is entitled to SMP. Specifically, he asserts that he needs aid and attendance as a result of his prostate cancer, which prevents him from performing many of his daily chores without the help of someone. See notice of disagreement dated in November 2016. The Board finds that the preponderance of the evidence of record is against finding that the Veteran requires the aid and attendance of another person or is housebound. SMP benefits are payable to veterans of a period of war who need regular aid and attendance. 38 U.S.C. § 1521(d); 38 C.F.R. § 3.351(a)(1). Requiring aid and attendance means that a person is helplessness or so nearly helpless as to require the regular aid and attendance of another person. A Veteran will be considered to be in need of regular aid and attendance if he: (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; (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 38 C.F.R. § 3.352(a). 38 C.F.R. § 3.351(b), (c). The following factors will be accorded consideration in determining whether a Veteran is in need of regular aid and attendance of another person: (1) his inability to dress or undress himself or to keep himself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without such aid; (3) his inability to feed himself because of the loss of coordination of upper extremities or because of extreme weakness; (4) his inability to attend to the wants of nature; or incapacity, physical or mental, requiring care or assistance on a regular basis to protect him from the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). It is not required that all the disabling conditions enumerated be found to exist before a favorable rating may be made. At least one factor listed must be present for a grant of SMP based on the need for aid and attendance. The particular personal functions which the Veteran is unable to perform should be considered in connection with his condition as a whole. 38 C.F.R. § 3.352(a); Turco v. Brown, 9 Vet. App. 222 (1996). Moreover, 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. However, the finding must be based on the actual requirement of personal assistance from others. Bedridden will be a proper basis for the determination of whether the Veteran is in need of regular aid and attendance of another person. Bedridden is that condition which, through its essential character, actually requires that the claimant remain in bed. That a claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. 38 C.F.R. § 3.352(a). Initially, the Board finds that there is no evidence to suggest, nor allegations from the Veteran, that he is either blind (or nearly blind), a patient in a nursing home, or bedridden. Further, the evidence, to include VA medical records and examination reports, does not indicate that a factual need for aid and attendance has been established under 38 C.F.R. § 3.352(a). Specifically, an examination for housebound status or permanent need for regular aid and attendance dated in March 2016 shows the Veteran was not confined to bed and was able to feed himself and prepare his own meals. He was not legally blind and did not require nursing home care. He could manage his own finances and did not require medication management. He did not use any assistive device for ambulation. A May 2017 aid and attendance examination revealed the Veteran lived alone and was not bedridden or hospitalized. He could travel beyond his domicile. He could dress and toilet himself upon waking. While he did pay someone to prepare his lunch and dinner it was not because of an inability to feed himself due to the loss of coordination of upper extremities or because of extreme weakness. He did not use an orthopedic or prosthetic appliance. He could walk one mile. His ability to leave the house was unrestricted. He was able to protect himself from daily hazards and dangers. He could perform all functions of self-care. His best corrected vision was not 5/200 or worse. He did not have limitation of the spine and function of the upper and lower extremities were normal. He could manage his own finances and had no cognitive impairments. VA treatment records dated in 2015 and 2017 do not show he was unable to dress or undress himself or to keep himself ordinarily clean and presentable. There was no evidence he used any special prosthetic or orthopedic appliances. There was no indication that he could not feed himself because of the loss of coordination of upper extremities or because of extreme weakness. There was also no evidence that he was unable to attend to the wants of nature or was so incapacitated either physically or mentally, such that he required care or assistance on a regular basis to protect him from the hazards or dangers incident to his daily environment. While the Board acknowledges statements of the Veteran’s that he required assistance, the objective medical evidence does not establish a factual need for aid and attendance under 38 C.F.R. § 3.352(a). Although SMP has not been established based on the need for aid and attendance, the Board has also considered whether SMP may be warranted on the basis of being housebound. A Veteran may receive the housebound rate of special monthly pension if he has a service-connected disability rated as permanent and total, but not including total rating based upon unemployability under 38 C.F.R. § 4.17, and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) by reason of disability or disabilities, is permanently housebound but does not qualify for special monthly pension at the aid and attendance rate. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). A Veteran will be determined to be permanently housebound when he is substantially confined to his house, or ward or clinical areas, if institutionalized, or immediate premises due to disability or disabilities which it is reasonably certain will remain throughout his lifetime. 38 U.S.C. § 1502(c); 38 C.F.R. § 3.351(d)(2). A preliminary requirement for special monthly pension, that the Veteran have a disability considered as permanent and total other than those considered as such under 38 C.F.R. § 4.17 on the basis of unemployability. Here, the Veteran was granted a nonservice-connected pension in November 2006 effective from November 1, 2005. He is considered permanently and totally disabled for his nonservice-connected pension. His disabilities considered for pension purposes only are: prostate cancer (100 percent rating); myasthenia gravis (30 percent rating); spinal stenosis with chronic low back pain (10 percent rating); cataract with nystagmus (10 percent); and hypertension (10 percent rating). His combined rating for pension purposes is 100 percent. However, the Veteran’s additional disabilities (myasthenia gravis, spinal stenosis, cataracts, and hypertension) are not independently ratable at 60 percent or more. 38 C.F.R. § 4.25. Service connection has not been established for any disease or illness. As noted above, aid and attendance examinations do not show he was unable to dress or undress himself or to keep himself ordinarily clean and presentable. There was no evidence he used any special prosthetic or orthopedic appliances. There was no indication that he could not feed himself because of the loss of coordination of upper extremities or because of extreme weakness. There was also no evidence that he was unable to attend to the wants of nature or was so incapacitated either physically or mentally, such that he required care or assistance on a regular basis to protect him from the hazards or dangers incident to his daily environment. VA treatment records dated between 2015 and 2017 show the same. In fact records dated in October 2015 indicate the Veteran had stopped taking medications for his back problems and he had no new symptoms. In February 2016, he was not taking any medications for his myasthenia gravis, his hypertension was at goal, and there was adequate control of his low back pain. An entry dated in October 2016 indicated the Veteran finished his prostate radiation. There were no residual symptoms such as dysuria, frequency, hesitancy, urinary incontinence, discharge, or hematuria. Thus, he is not entitled to SMP benefits based on housebound status. In addition, the weight of the evidence demonstrates that the Veteran is not considered “permanently housebound” as defined by 38 C.F.R. § 3.351. A veteran is “permanently housebound” if he is substantially confined to his dwelling and the immediate premises, and it is reasonably certain that the disability and resultant confinement will continue throughout his lifetime. 38 C.F.R. § 3.351(d)(2). In this regard, the evidence clearly shows that the Veteran could travel outside of his house. Similarly, the treatment records do not suggest that the Veteran is substantially confined to his dwelling or immediate premises. The Board once again acknowledges the Veteran’s belief that his symptoms are of such severity as to warrant SMP for aid and attendance or based on housebound status. However, SMP is based on the ability to live independently as determined by the clinical evidence of record. Therefore, the Board finds that the medical evidence, which directly addresses the criteria under which SMP is evaluated, is more probative than the Veteran’s own assessment. CONTINUED ON NEXT PAGE   In conclusion, the evidence does not support the Veteran’s claim for SMP by reason of the need for regular aid and attendance of another person or by reason of being housebound. The Board finds that the preponderance of the evidence is against the claim for entitlement to SMP and the claim must be denied. 38 U.S.C. § 5107(b). E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. L. Wallin, Counsel