Citation Nr: 18140367 Decision Date: 10/03/18 Archive Date: 10/02/18 DOCKET NO. 16-07 768 DATE: October 3, 2018 ORDER Entitlement to special monthly pension based on the need for regular aid and attendance or by reason of being housebound is denied. FINDINGS OF FACT 1. The Veteran is not 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; he is not a patient in a nursing home because of mental or physical incapacity; and he does not otherwise demonstrate a need for the regular aid and attendance of another person. 2. The Veteran is not housebound. CONCLUSION OF LAW The criteria for entitlement to special monthly pension based on the need for regular aid and attendance or by reason of being housebound are not met. 38 U.S.C. §§ 1502, 1521, 5107 (2012); 38 C.F.R. §§ 3.102, 3.351, 3.352 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1974 to September 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) and Pension Management Center in Philadelphia, Pennsylvania. Entitlement to Special Monthly Pension Based on the Need for Regular Aid and Attendance or by Reason of Being Housebound VA's governing laws and regulations direct that special monthly pension at the aid and attendance rate is payable when a veteran is helpless or so nearly helpless that he or she requires the regular aid and attendance of another person. 38 U.S.C. §§ 1502(b), 1521; 38 C.F.R. § 3.351(a), (b). To establish a need for regular aid and attendance, a veteran 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 U.S.C. § 1502(b); 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. Additionally, an individual who is bedridden, as that term is defined by regulation, meets the criteria for aid and attendance. 38 C.F.R. § 3.352(a). Bedridden is defined as a condition that, through its essential character, actually requires that the veteran remain in bed. The fact that a veteran 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). The particular personal functions which the veteran is unable to perform should be considered in connection with his condition as a whole. The evidence need only establish that the veteran is so helpless as to need regular aid and attendance, not constant need. Determinations that a veteran is so helpless as to need regular aid and attendance will not be based solely upon an opinion that the veteran's condition requires him to be in bed. They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352(a). The veteran must be unable to perform one of the enumerated disabling conditions, but his condition does not have to present all of the enumerated disabling conditions. Turco v. Brown, 9 Vet. App. 222, 224 (1996). A veteran receiving nonservice-connected pension may receive the housebound-rate of special monthly pension if he has a single 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 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. § 1521(e); 38 C.F.R. § 3.351(d). On VA aid and attendance or housebound examination in May 2015, the examiner noted that the Veteran presented with a history of hypertension, sensorineural haring loss, thyroid nodule, hurtle cell neoplasm, and left kidney calculus with hydronephrosis. He noted that the Veteran was not bedridden or hospitalized, and could travel beyond his current domicile. He travelled to the examination by private vehicle, accompanied by a family member. He drove near distances and to go to the store. The Veteran experienced dizziness once or more per day, had moderate short-term memory loss, and had occasional imbalance that affected the ability to ambulate. He could perform all self-care skills. The examiner indicated that he could walk without the assistance of another person greater than one-half a mile but less than one mile. He did not need an aid for ambulation. He was not restricted from leaving the home. Corrected vision was not 5/200 in both eyes. He had no spinal limitation of motion or deformity, and function of the upper and lower extremities was normal. The examiner also noted that the Veteran was competent. The examiner concluded by noting that the Veteran was capable of handling activities of daily living and self-care skills, and he was not housebound. An October 2015 examination for housebound status or permanent need for regular aid and attendance reflects that the Veteran had been diagnosed with thyroid cancer and hypertension. The examiner indicated that the Veteran was able to feed himself, and while he did not prepare his own meals, it was because he chose not to do so. He did not need assistance with bathing or tending to other hygiene needs. He was not legally blind and did not require nursing home care. The Veteran presented as alert and active, walked with good posture, and was well groomed. There were no restrictions of the upper or lower extremities, or of the spine, trunk, or neck indicated. The examiner indicated that there were no impairments that affects the Veteran’s ability to perform self-care, ambulate, or travel beyond the premises of his home. He was able to leave his home on a daily basis. VA treatment records, as well as medical records from the Social Security Administration reflect treatment for various medical problems including thyroid cancer, hearing loss, hypertension, ureterolithiasis, kidney stones, and neck pain, as well as psychiatric treatment for adjustment disorder with anxiety and depression and caregiver stress due to his wife’ breast cancer. A May 2016 psychiatric evaluation conducted in pursuant to the Veteran’s claim for Social Security reflects that the Veteran lived with his wife in their family house, and that he could bathe and dress himself. He drove occasionally and locally. In support of his claim, the Veteran submitted statements detailing the severity of his medical conditions, as well as his wife. He noted that his medical expenses caused financial hardship. In light of the foregoing, the criteria for special monthly pension by reason of the need for aid and attendance are not met. The Veteran is not 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, and he is not a patient in a nursing home because of mental or physical incapacity. Additionally, the evidence of record does not establish a factual need for regular aid and attendance as defined by 38 C.F.R. § 3.352(a). In this regard, the Veteran lives with his wife, performs all activities of daily living, drives, is able to feed himself, and is able to attend to his own hygiene. The evidence does not demonstrate that the Veteran is bedridden. In light of the foregoing, a factual need for aid and attendance is not demonstrated. With regard to housebound status, while the Veteran has a single permanent disability rated at 100 percent—thyroid cancer— he does not have additional disability or disabilities independently ratable at 60 percent or more. In addition, the evidence of record shows that the Veteran is not "permanently housebound," in that he is not substantially confined to his house or immediate premises due to permanent disability or disabilities. 38 U.S.C. § 1502(c); 38 C.F.R. § 3.351(d)(2). As discussed above, the record consistently shows that the Veteran is not restricted from leaving his house. Consequently, the preponderance of the evidence is against the claim for special monthly pension by reason of being housebound. 38 U.S.C. §§ 1502(c), 1521(e), 5107; 38 C.F.R. § 3.351(d). (Continued on the next page)   As preponderance of the evidence is against the Veteran's claim for entitlement to special monthly pension based on aid and attendance or housebound status, the benefit-of-the-doubt rule does not apply. Therefore, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. E. Wilkerson, Counsel