Citation Nr: 18152417 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 18-13 903 DATE: November 21, 2018 ORDER Entitlement to Special Monthly Pension (SMP) for the Veteran’s surviving spouse based on the need for Aid and Attendance or Housebound status, is denied. FINDING OF FACT 1. The appellant is not blind, or nearly blind, is not institutionalized, or in a nursing home because physical or mental incapacity, and does not need or rely on the aid and assistance of another person to perform the routine activities of daily living. 2. The appellant is not shown to be "substantially confined" to her home, or otherwise housebound. CONCLUSION OF LAW The criteria for entitlement to SMP based on the appellant's need for Aid and Attendance, or being housebound, have not been met. 38 U.S.C. § 1541; 38 C.F.R. §§ 3.351, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1952 to September 1953. The Veteran died in September 2011. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2017 rating decision of the Department of Veterans Affairs (VA) Pension Management Center in Philadelphia, Pennsylvania. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c). Entitlement to SMP for the Veteran’s surviving spouse based on the need for Aid and Attendance or Housebound status Improved pension rates are provided for surviving spouses in need of aid and attendance. 38 U.S.C. § 1541(d); 38 C.F.R. § 3.23(a)(6). Need for aid and attendance means helplessness or being so nearly helpless as to require the regular aid and attendance of another person. 38 U.S.C. § 1502(b); 38 C.F.R. § 3.351(b). The surviving spouse will be considered in need of regular aid and attendance if he or she 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 five degrees or less; is a patient in a nursing home because of mental or physical incapacity; or 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 claimant to dress or undress himself/herself or to keep himself/herself 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; inability of the claimant to feed himself/herself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from the hazards or dangers inherent in his/her daily environment. "Bedridden" will be a proper basis for the determination, and is defined as that condition which, through its essential character, requires that the claimant remain in bed. The fact that the 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. It is not required that all the disabling conditions enumerated above be found to exist before a favorable rating may be made. The particular personal functions which the claimant is unable to perform should be considered in connection with his/her condition as a whole. 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. 38 C.F.R. § 3.352(a). 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 her to be in bed. They must be based on the actual requirement of personal assistance from others. Id. Here, the evidence of record includes September 2015 and July 2017 Examinations for Housebound Status or Permanent Need for Regular Aid and Attendance (VA Form 21-2680.) In the examination reports, the examiners diagnosed the appellant with knee and back pain, osteoarthritis, hypertension, and possibly some other conditions which could not be deciphered due to the handwriting. Both examiners noted that the appellant could feed herself, did not require assistance with bathing and tending to other hygiene needs, was able to care for the needs of nature, was not confined to bed, was able to sit up, was not blind, was able to travel, and could leave home without assistance as there were “no restrictions.” The 2017 examiner opined that the appellant did not require nursing home care, and while the 2015 examiner answered this question in the affirmative, there was no further information detailed as requested in response to a “yes” answer. In August 2017, VA requested that the appellant provide additional medical and lay evidence regarding the severity of her conditions to further support her claim. In response, the appellant provided multiple statements asserting that she paid for a caregiver, including an affidavit from the caregiver herself. See i.e. October 2015 Caregiver affidavit; September 2016 VA Form 21-4138 (“adjustment based on A/A and caregiver expenses”). To date, absent these statements regarding the use of a caregiver and associated expenses, no response has been received by the request for additional information. Upon review, the Board finds this record does not demonstrate that the appellant requires the aid and attendance of another person. In particular, neither VA Form 21-2680 report indicates that she 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 five degrees or less, or that she is a patient in a nursing home. It also does not reflect an inability to dress or undress, a frequent need of adjustment of any special prosthetic or orthopedic appliances, or an inability of the claimant to feed herself without the assistance of another. Further, such does not demonstrate that the appellant has an inability to attend to the wants of nature or required care or assistance on a regular basis to protect herself from the hazards or dangers inherent in her daily environment. Rather, the Board finds compelling that both examiners described “no restrictions” on the appellant’s ability to move about. The Board acknowledges that the appellant is competent to describe her symptoms and their effects on her daily life, and competent to report that she pays someone to help her out. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, as noted above, determinations that the claimant is so helpless as to need regular aid and attendance must be based on the actual requirement of personal assistance from others. Here, the medical evidence does not reflect an actual requirement for the aid and attendance of another person, nor does it show that the appellant is legally blind or requires nursing home care. In this respect the Board acknowledges that the 2015 report indicated the need for nursing care, but as the report provided no further explanation, this opinion is given little probative weight especially considering the more recent 2017 examination report that identified no need for nursing care. As a result, the Board finds the appellant is not entitled to SMP. The Board has considered the benefit of the doubt; however, the preponderance of the evidence is against the appellant's claim, and therefore, that doctrine is not applicable. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).] MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs