Citation Nr: 18149524 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 18-25 365 DATE: November 9, 2018 ORDER Entitlement to special monthly pension based on the need for aid and attendance is denied. Entitlement to nonservice-connected pension is denied. FINDINGS OF FACT 1. The Veteran is not in need of regular aid and attendance of another person. 2. For the entire appeal period, the Veteran’s countable income exceeded applicable maximum annual pension rates for a Veteran with one dependent. CONCLUSIONS OF LAW 1. The criteria for special monthly pension based on the need for regular aid and attendance have not been met. 38 U.S.C. §§ 1502(b), 1503 (2012); 38 C.F.R. §§ 3.23, 3.271, 3.272, 3.351, 3.352 (2017). 2. The criteria for payment of nonservice-connected (NSC) pension for a Veteran with one dependent based on the Veteran’s countable income have not been met. 38 U.S.C. § 1521 (2012); 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272, 3.273 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1951 to October 1953. This matter comes to the Board of Veterans’ Appeals (Board) from a September 2017 rating decision. In July 2018, the Board remanded the matters for further development, to include obtaining a VA Aid and Attendance examination. 1. Entitlement to special monthly pension based on the need for aid and attendance. Special monthly pension is payable to individuals who are permanently bedridden or helpless or so nearly helpless as to be in need of the regular aid and attendance of another person under the criteria set forth in 38 C.F.R. § 3.352(a). 38 U.S.C. §§ 1502(b), 1521; 38 C.F.R. § 3.351(a), (b) (2017). 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) (2017). The following factors will be accorded consideration in determining the need for regular aid and attendance: inability of a claimant to dress or undress himself, or to keep himself ordinarily clean 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 (this will not include the adjustments of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of a claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, either physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352(a). A finding that the Veteran is “bedridden” will provide a proper basis for the determination. Bedridden will be that condition which, through its essential character, 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. It is not required that all the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made. Id. Eligibility for special monthly pension by reason of regular need for aid and attendance requires that at least one of the factors set forth in the VA regulation is met. See Turco v. Brown, 9 Vet. App. 222, 224 (1996). In addition, determinations that the claimant is so helpless as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant’s condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others. Id. In adjudicating claims for special monthly pension, VA must consider all the enumerated factors listed in the regulation and, if at least one of the factors is present, special monthly pension should be awarded. See Prejean v. West, 13 Vet. App. 444, 448 (2000). The Veteran contends that he is housebound or in need of aid and attendance due to his age and disabilities. A June 2017 Aid and Attendance examination completed by the Veteran’s private physician identified diagnoses to include chronic obstructive pulmonary disease (COPD), atrial fibrillation, pulmonary hypertension, high blood pressure, and chronic back pain. The physician indicated that the Veteran was able to feed himself, prepare his own meals, and he did not need assistance with bathing or attending to hygiene needs. He was not legally blind, did not require nursing home care, did not require medication management, and was able to manage his financial affairs. There were no restrictions in the upper or lower extremities which impaired activities of daily living and the Veteran did not use an assistive device to walk. The physician noted that the Veteran’s pulmonary hypertension could limit some of his daily activities. A September 2018 VA Aid and Attendance examination obtained on remand shows that the Veteran’s disabilities include atrial fibrillation, COPD, hypertension, and chronic low back pain. The Veteran reported that he lived with his wife, who cleaned, cooked, and washed the clothes. He reported that his son took him to buy groceries but that he still drove around his neighborhood. He reported that he stayed seated most of the time, as he would become fatigued very easily. The Veteran was not bedridden and was not hospitalized. He came to the examination with a family member. The Veteran did not walk with a cane, had dizziness less than weekly, and had no memory loss. The examiner indicated that his disabilities did not affect his ability to protect himself from the hazards of his daily environment and he was able to perform all self-care functions. The Veteran could walk up to a few hundred yards without assistance and was able to leave the home. The examiner noted that the Veteran had bilateral lower extremity muscle weakness, but weight-bearing, gait, balance, and propulsion were normal. The examiner indicated that the Veteran was not legally blind. The June 2017 private and September VA 2018 Aid and Attendance examinations do not show that the Veteran is blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes; nor does the record indicate that he is a patient in a nursing home because of mental or physical incapacity. The examinations do not show that he was bedridden. Instead, the examinations reflect that he was able to attend his VA examinations, go to the grocery store, and drive around his neighborhood. With regard to the question of whether there was a factual need for the aid and attendance of another person, the June 2017 private and September 2018 VA examinations show that the Veteran was able to dress or undress himself, to keep himself ordinarily clean, to feed himself, attend to the wants of nature, and to protect himself from hazards or dangers incident to his or her daily environment. Accordingly, the Board finds that the weight of the evidence is against the claim for special monthly pension based on the need for regular aid and attendance of another person. 2. Entitlement to nonservice-connected (NSC) pension. A veteran who meets wartime service requirements and who is permanently and totally disabled due to disability not the result of willful misconduct is entitled to a rate of pension set by law, reduced by the amount of his countable income. 38 U.S.C. § 1521 (2012); 38 C.F.R. § 3.23 (2017). Countable income consists of payments of any kind from any source received during a 12-month annualization period (e.g., a year), unless specifically excluded. 38 C.F.R. § 3.271 (2017). Basic entitlement to pension exists only if, among other things, the Veteran’s countable income is not in excess of the maximum annual pension rate specified by law. 38 U.S.C. § 1521(a). If basic entitlement is met, the monthly rate of pension shall be computed by reducing the maximum annual pension rate (MAPR) by the countable income on the effective date of entitlement and dividing the remainder by twelve. 38 C.F.R. § 3.273(a) (2017). Whenever there is a change in a beneficiary’s amount of countable income, the monthly rate of pension payable shall be computed by reducing the applicable maximum annual pension rate by the new amount of countable income on the effective date of the change in the amount of income and dividing the remainder by twelve. 38 C.F.R. § 3.273(b)(2). In determining annual income, all payments of any kind or from any source, including salary, retirement or annuity payments, or similar income, shall be included during the twelve-month annualization period in which received, except for listed exclusions. 38 U.S.C. § 1503(a); 38 C.F.R. § 3.271(a). The record shows that the Veteran has been in receipt of income from his military retirement and both he and his spouse receive income from Social Security. This income was reported by the Veteran and had been counted for the purpose of calculating pension benefits during the applicable appeal period. The Regional Office (RO) denied entitlement to NSC pension because the Veteran’s annual income exceeded the applicable MAPR for a veteran with one dependent. The applicable MAPR for a veteran with one dependent at the time the Veteran submitted his claim was $16,902.00. Effective December 1, 2017, this amount increased to $17,241.00. In his August 2017 claim, the Veteran identified receiving approximately $1554.00 a month from Military Retired Pay and Social Security and that his spouse received approximately $1150.00 a month from Social Security. The September 2017 decision shows that the RO confirmed that the Veteran and his spouse received $21434.00 annually from Social Security and the Veteran received $11,024.00 annually from his Military Retired Pay from September 1, 2017, for a total annual income of $32,458.00 effective September 1, 2017. The Board finds that the Veteran’s annual income of $32,458.00 exceeded the applicable MAPR, and is a bar to the payment of pension benefits. Non-reimbursed medical expenses can reduce income. Accordingly, the Board has considered the medical expenses reported by the Veteran. The Veteran reported that he and his spouse paid Medicare Part B premiums in the amount of $3050.00. The Board notes that the Veteran reported additional medical expenses for prescription medications incurred between January 2016 to December 2016. However, as the expenses were incurred prior to the appeal period and do not otherwise appear to be continued monthly expenses, the medical expenses will not be considered as non-reimbursed medical expenses. Thus, the non-reimbursed medical expenses are $3050.00. In 2017, the maximum annual pension rate (MAPR) for a Veteran with one dependent was $16,902.00. To be deducted, medical expenses must exceed 5% of the MAPR ($845). As detailed above, the Veteran’s medical expenses exceed 5% of the MARP. Thus, subtracting $845 from the Veteran’s total medical expenses of $3050.00 yields a total of $2,205.00 for non-reimbursed medical expenses. When non-reimbursed medical expenses are deducted from the Veteran’s total annual income of $32,458.00, the Veteran’s annual income is calculated to be $30,253. Thus, even when considering the Veteran’s non-reimbursable medical expenses, his income still exceeds the allowable income for an award of nonservice-connected pension. The Board notes that the Veteran’s August 2017 claim identified medical expenses for a caregiver. In August 2018, the RO requested that the Veteran provide specific information pertaining to payments made for a caregiver. To date, the Veteran has not provided the requested information and the Veteran indicated in an October 2018 SSOC notice response that he had no other information or evidence to submit. For these reasons, the Board finds that for the entire appeal period, the Veteran’s countable income exceeded applicable maximum annual pension rate for a Veteran with one dependent and is a bar to the receipt of pension benefits. The Veteran is advised that, if there is a change in his financial status in the future, he may reapply for pension at that time. LAURA E. COLLINS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Owen, Associate Counsel