Citation Nr: 18146878 Decision Date: 11/01/18 Archive Date: 11/01/18 DOCKET NO. 10-34 282 DATE: November 1, 2018 ORDER Entitlement to special monthly pension based on the need for aid and attendance or on housebound status 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 does not have a single permanent disability rated as 100 percent disabling, and he is not permanently housebound. CONCLUSION OF LAW The criteria for entitlement to special monthly pension based on the need for aid and attendance or on housebound status have not been met. 38 U.S.C. §§ 1502, 1521, 5107; 38 C.F.R. §§ 3.351, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1971 to February 1974. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A hearing was held before the undersigned Veterans Law Judge in June 2017. A transcript of the hearing is of record. In January 2018, the case was remanded for additional development. That development was completed, and the case has since been returned to the Board for appellate review. Entitlement to special monthly pension based on the need for aid and attendance or on housebound status. Veterans who are currently receiving nonservice-connected pension benefits can receive additional pension based on the need for aid and attendance or on housebound status. 38 U.S.C. § 1521; 38 C.F.R. §§ 3.351, 3.352. A veteran will be considered 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; 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 veteran 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 veteran 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 veteran from the hazards or dangers incident to his daily environment. A determination that a veteran is “bedridden” is one basis for determining that aid and attendance is required and is defined as that condition which, through its essential character, actually requires that the veteran remain in bed. The fact that the 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. All of the above conditions need not be found in order to warrant aid and attendance, and there need not be a constant need for aid and attendance, as opposed to the veteran being so helpless as to need regular aid and attendance. 38 C.F.R. § 3.352(a). A veteran may receive the housebound rate of special monthly pension if he does not qualify for special monthly pension at the aid and attendance rate and 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 (i.e., he is substantially confined to his dwelling and the immediate premises, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his lifetime). 38 U.S.C. § 1521(e); 38 C.F.R. § 3.351(d). At an August 2012 VA aid and attendance/housebound examination, the Veteran was diagnosed with arthritis in the knees, low back pain, diabetes, hepatitis C, hypertension, and depression. It was noted that his best corrected vision was not 5/200 or worse in both eyes, and no blindness was reported or alleged. It was also noted that he was not currently hospitalized. The VA examiner opined that the Veteran was not in need of aid and attendance and that he should have the ability to attend to all activities of daily living. Although it was noted that the Veteran used a walker for ambulation and that he had difficulty walking long distances due to his knee disabilities, the VA examiner opined that it was unlikely that this would affect the Veteran’s ability to care for himself (given that three days prior he was observed ambulating without assistance or difficulty into the emergency room and pharmacy). It was further noted that the Veteran was not bedridden and that he was able to travel beyond his current domicile. The VA examiner additionally opined that the Veteran was not housebound. While a June 2013 inquiry revealed that the Veteran was receiving disability benefits from the Social Security Administration (SSA), the SSA informed VA in December 2014 that his medical records had been destroyed and that any further attempts to obtain such records would be futile. The Veteran was notified of this situation in a December 2014 letter, and he did not respond to this letter or submit any SSA records himself. At his June 2017 hearing, the Veteran testified that his knee, hand, shoulder, ankle, back, and psychiatric disabilities affected his independence and caused him difficulty in doing his everyday activities. Specifically, he testified that he was unable to prepare his own meals or cook for himself and that instead he went to a soup kitchen to eat, but he did not indicate that he was unable to feed himself due to loss of coordination of the upper extremities or extreme weakness. He also testified that he had difficulty taking showers and maintaining his personal hygiene, but thereafter he stated that he was able to shower on his own by using a chair in his shower. He further testified that he lived alone in an apartment and that he did do some cleaning, shopping, and driving, as well as dressing himself. He noted that his girlfriend came to help two to three times per week, but that he did not have an aide. He affirmed that his disabilities caused him to be “essentially bedridden”; however, he concurrently described how he was able to move around his home and leave his home, thereby contradicting the notion that his disabilities required him to remain in bed. He additionally argued that he was not really able to leave his house because he was not ambulatory without his walker or knee braces; however, his testimony with regard to leaving his home (including to eat at the soup kitchen) demonstrated that he was not substantially confined to his dwelling due to his disabilities. Thereafter, it was noted in a July 2017 VA treatment record that the Veteran was independent in his activities of daily living (ADLs). At an April 2018 VA aid and attendance/housebound examination, the Veteran was diagnosed with obstructive sleep apnea, hypertension, chronic hepatitis C, gout arthropathy, type 2 diabetes mellitus with peripheral neuropathy, benign prostatic hyperplasia, osteoarthritis, and probable chronic obstructive pulmonary disease. It was noted that his best corrected vision was not 5/200 or worse in both eyes, and no blindness was reported or alleged. It was also noted that he was not currently hospitalized and that he lived by himself in an apartment. The VA examiner opined that the Veteran was able to do most of his “self cares,” as his abilities for self-feeding, dressing/undressing, self-bathing, self-grooming, and toileting were noted to be normal, and his left and right upper extremity strength and coordination were noted to have only mild or moderate impairment. The Veteran’s description of his typical daily activities included volunteering at a soup kitchen unless he was having too much pain (where he would serve food to people and sometimes help with other tasks), resting and doing some cleaning at home, and eating at the soup kitchen (so he did not have to cook). He also reported that he dressed/undressed himself, took showers, handled his own toileting, did his laundry about four blocks away from his residence, administered his own medications, and went to church as well as “occasional visiting and other things.” Although it was noted that the Veteran used a walker for ambulation and that his inability to move very quickly did put him at some risk of danger in his neighborhood, this was noted to be due to the nature of the neighborhood itself (“filled with taverns, abandoned buildings, and liquor stores”) and him being unable to financially afford to move out of his neighborhood. He did not report or allege being bedridden. It was further noted that he was able to travel beyond his current domicile. The VA examiner additionally opined that the Veteran was not substantially confined to his dwelling. In a September 2018 brief, the Veteran’s representative reiterated that the Veteran lived alone, that he was absent from work when he had too much pain, and that he required a walker for mobility. Regarding entitlement to special monthly pension based on the need for aid and attendance, the Board finds that the evidence of record (as outlined in detail above) reflects that 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; that he is not a patient in a nursing home because of mental or physical incapacity; and that he does not otherwise demonstrate a need for the regular aid and attendance of another person, as he was shown to be able to dress/undress himself, keep himself clean and presentable, physically feed himself, and tend to his toileting needs by himself. In addition, as indicated above, the Board finds that he does not require care or assistance from another person on a regular basis to protect him from the hazards or dangers incident to his daily environment, as shown by his ability to successfully live alone in his current apartment despite the impact of his disabilities and any potential social and economic dangers of his neighborhood. Furthermore, the evidence of record does not show that he has been bedridden (i.e., required to remain in bed due to the essential character of his disabilities) at any time during the appeal period. Absent these conditions, the basic requirements for special monthly pension based on the need for aid and attendance have not been met. See 38 U.S.C. § 1521; see also 38 C.F.R. §§ 3.351, 3.352. Regarding entitlement to special monthly pension based on housebound status, the Board finds that the Veteran does not have a single permanent disability rated as 100 percent disabling, based upon the most recent rating decision of record issued in October 2018. Absent a single disability rated as 100 percent disabling, the basic requirements for special monthly pension based on housebound status have not been met. See 38 U.S.C. § 1521(e); see also 38 C.F.R. § 3.351(d). Moreover, the evidence of record shows that the Veteran is not “permanently housebound,” as he is not substantially confined to his dwelling and the immediate premises due to his disabilities for the duration of his lifetime. Given the foregoing, the Board finds that the preponderance of the evidence is against the claim for special monthly pension based on the need for aid and attendance or on housebound status. Accordingly, the claim is denied. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. B. Yantz, Counsel