Citation Nr: 18151464 Decision Date: 11/19/18 Archive Date: 11/19/18 DOCKET NO. 18-15 300 DATE: November 19, 2018 ORDER Entitlement to special monthly pension (SMP) based on the need for aid and attendance or housebound status is denied. FINDINGS OF FACT 1. The Veteran is not blind or nearly so, or domiciled in a nursing home, and his physical and mental disorders do not render him so incapable of performing activities of daily living that he requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. 2. The Veteran does not have a single permanent disability warranting a 100 percent rating and is not substantially confined to his dwelling and immediate premises due to disability. 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; 38 C.F.R. §§ 3.351, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1963 to September 1965, with additional service in the National Guard. This matter is on appeal from a September 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The matter was previously before the Board in July 2018, when it was remanded for further development, to include obtaining any outstanding private treatment records. The Veteran was contacted in an August 2018 letter and asked to complete a medical release (VA Form 21-4142) to provide VA permission to obtain treatment records on his behalf. He responded in September 2018 reporting treatment at a VA outpatient clinic (OPC). No private facilities were identified and no VA Form 21-4142 was received; but updated VA treatment records were obtained and added to the claims file. The matter was then readjudicated in a September 2018 statement of the case. Accordingly, the Board finds that VA substantially complied with the July 2018 Board remand. 38 U.S.C. § 5103A(b); Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to SMP based on the need for aid and attendance or housebound status Increased pension benefits are payable to a veteran who needs the regular aid and attendance of another or by reason of being housebound. 38 U.S.C. § 1521(d), (e); 38 C.F.R. § 3.351. A veteran will be considered in need of regular aid and attendance if he or she: (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). 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 does not indicate that a factual need for aid and attendance has been established under 38 C.F.R. § 3.352(a). A December 2015 VA function status screen noted that the Veteran needed no assistance bathing, dressing, and toileting. He was able to move in and out of bed and a chair without assistance, and was able to control his urination and bowel movements. He could feed himself without assistance. He could perform all activities of daily living. An April 2016 VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, shows the Veteran was able to feed himself, and was able to handle his toileting needs, including bathing. He did not require medication management and was able to manage his own financial affairs. He needed no assistive devices. An October 2016 VA function status screen noted that the Veteran needed no assistance bathing, dressing, and toileting. He was able to move in and out of bed and a chair without assistance, and was able to control his urination and bowel movements. He could feed himself without assistance. He could perform all activities of daily living. During an April 2017 aid and attendance examination, it was noted that the Veteran was not permanently bedridden, not hospitalized, and could travel beyond his current domicile. He traveled to the examination alone. A typical day consisted of waking up around 7:30 in the morning, toileting, drinking coffee prepared by him, sitting and reading the newspaper or going to buy something. Lunch would be prepared by his wife, and then he would nap, go to church, have a snack, and then go to bed around 9 p.m. The Veteran did not use an orthopedic or prosthetic appliance. He could perform all self-care skills, and while he experienced dizziness less than weekly, he had no memory loss and imbalance did not affect the ability to ambulate. The Veteran could walk more than a mile without assistance, and did not need aids for ambulation. He had no limitations and functions of the extremities were normal. He also had no cognitive impairments. He was diagnosed with moderate non-obstructive coronary artery disease and left hand 2nd finger partial amputation. A June 2017 VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, shows the Veteran was able to feed himself, and was able to handle his toileting needs, including bathing. He did not require medication management and was able to manage his own financial affairs. He needed no assistive devices. It was noted that the Veteran had shoulder tendonitis. A September 2017 VA function status screen noted that the Veteran needed no assistance bathing, dressing, and toileting. He was able to move in and out of bed and a chair without assistance, and is able to control his urination and bowel movements. He could feed himself without assistance. He could perform all activities of daily living, but it was noted that the Veteran did not maintain an adequate diet. An August 2018 VA function status screen noted that the Veteran needed no assistance bathing, dressing, and toileting. He was able to move in and out of bed and a chair without assistance, and was able to control his urination and bowel movements. He could feed himself without assistance. He could perform all activities of daily living, and was noted to plan, prepare, and serve adequate meals independently. The above evidence reflects that the Veteran does not meet the aid and attendance criteria in the applicable regulations. As indicated above, there is no evidence that the Veteran is blind or nearly so or that he is a patient in a nursing home. The evidence of record reflects that the Veteran was able to dress himself, keep himself clean and presentable, feed himself, attend to the wants of nature, and did not have a prosthetic or orthopedic appliance that required frequent adjustment. The April 2017 VA examiner, along with the Veteran’s VA treating clinicians, specifically indicated that the Veteran was able to walk unaided, was able to feed himself, was able to perform all self-care skills, was not confined to bed, and could leave home without assistance. The evidence also does not reveal that the Veteran has incapacity, physical or mental, which requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. Although the April 2017 VA examiner indicated that the Veteran was occasionally affected by dizziness, the examiner also indicated that despite these episodes, the Veteran had no memory loss, and any imbalance did not affect the ability to ambulate. The evidence also indicates that the Veteran was unrestricted from leaving home, was able to go alone, and could walk greater than a mile without the assistance of another. Such findings do not indicate that the Veteran required the regular care and assistance of another to protect him from his daily environment. Therefore, a factual need for aid and attendance under 38 C.F.R. § 3.352(a) has not been established in this case. With regard to housebound status, a veteran may receive the housebound rate of SMP if he has a single permanent disability rated as 100 percent disabling under the Schedule for Rating Disabilities (but not including total rating based upon unemployability under 38 C.F.R. § 4.17) and either (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)(1) and (2). A veteran will be found 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 C.F.R. § 3.351(d)(2). The threshold requirement for special monthly pension at the housebound rate is that the Veteran have a single permanent disability rated as 100 percent disabling. The Veteran does not meet this threshold requirement. In this regard, the RO determined the evaluations that would be assigned to his nonservice-connected conditions for purposes of considering entitlement to special monthly pension. The highest rating assigned was for bilateral shoulder tendonitis at 20 percent. His other disabilities, partial amputation, left hand second finger and coronary artery disease, were assigned lower ratings of 10 percent each. His combined evaluation was 40 percent. Moreover, the evidence clearly reflects that the Veteran is not housebound. He reported at the April 2017 VA examination that he would go out daily, and arrived at the VA examination by himself. The VA clinicians have specifically noted that he had an unrestricted ability to leave his home, and required no assistance in ambulation. The Veteran has not contended, and a preponderance of the evidence is against a finding, that he is confined to his home. The Board acknowledges that the Veteran indicated on his November 2017 notice of disagreement that he was over 65 years old and had multiple disabilities rated over 60 percent disabling. However, as indicated above, the Veteran does not have a single disability that would be evaluated as 100 percent disabling or any additional disability or disabilities independently ratable at 60 percent or more. The Board 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 his ability to live independently as determined by the clinical evidence of record. 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. In conclusion, the preponderance of the competent and probative evidence is against the claim for SMP by reason of the need for regular aid and attendance of another person or by reason of being housebound and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Bonnie Yoon, Counsel