Citation Nr: 18157320 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 13-19 187 DATE: December 12, 2018 ORDER Entitlement to special monthly pension benefits is denied. REMANDED Entitlement to nonservice-connected disability pension benefits is remanded. FINDING OF FACT The probative medical evidence of record, to include the July 2018 VA examination, does not show that the Veteran has ever required the aid and attendance of another in order to complete activities of daily living due to his disabilities throughout the period of appeal. CONCLUSION OF LAW The criteria for a grant of special monthly pension based on aid and attendance or housebound status is denied. 38 U.S.C. §§ 1502, 1521, 5107(b); 38 C.F.R. §§ 3.102, 3.351. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from February 1953 to February 1955. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2011 determination by the Department of Veterans Affairs (VA) Pension Management Center in Philadelphia, Pennsylvania. In January 2016, July 2017, and March 2018, the Board remanded the claim for further development. That development having been completed, this claim is once again before the Board. The Veteran seeks to establish basic eligibility to be awarded nonservice-connected pension benefits, to include special monthly pension. It is noted that the Veteran was incarcerated at the time of filing his claim, but was recently released in March 2018. In sum, there is no dispute as to whether his incarceration from the initiation of his claim to March 2018 would be a bar to his actual receipt of nonservice-connected pension payments; rather, the essential legal question at issue is whether the Veteran has met the underlying entitlement to nonservice-connected pension benefits regardless of the bar to receiving associated pension payments. The Veteran seeks to establish entitlement to special monthly compensation based on the need for aid and attendance or housebound status. Under 38 U.S.C. § 1521 an increased rate of pension is available, in the form of a special monthly pension, when an otherwise eligible veteran is in need of regular aid and attendance or has a disability rated as permanent and total and (1) has an additional disability or disabilities ratable at 60 percent, or (2) is permanently housebound. 38 U.S.C. §§ 1521 (d), (e); see also 38 C.F.R. §§ 3.351 (b), (c), (d). At the outset, the Board observes that special monthly pension benefits are paid in addition to VA pension benefits, and therefore cannot be paid unless the Veteran is already in receipt of pension benefits. As is addressed in the below remand, the issue of entitlement to nonservice-connected pension benefits remains on appeal. However, as the issue of entitlement to special monthly pension benefits based on either housebound or aid and attendance needs may affect the applicable maximum annual pension rate (MAPR) in that matter, the Board may adjudicate the issue at this time. In short, a finding of need for aid and attendance or housebound status must occur prior to adjudicating entitlement to nonservice-connected pension benefits, not the other way around, and the Board may proceed. 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). 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 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 claimant 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 claimant from the hazards or dangers incident to his daily environment. 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. Permanently housebound means substantial confinement to the Veteran’s home and immediate premises. 38 U.S.C. § 1521 (e); 38 C.F.R. § 3.351 (d). Based on the evidence of record, the Board finds that the claim should be denied. At the outset, the Board notes that, although the Veteran has testified that he is blind in the left eye due to open angle glaucoma and such has been confirmed by the medical evidence of record, to include the July 2018 VA examination, that does not affect both eyes as required by statute, and the Veteran’s visual acuity has not been shown to be 5/200 or less or have concentric contraction of the visual field to 5 degrees or less. There is no evidence that he is a patient in a nursing home for either physical or mental disability. The Board finds that the evidence does not show that he is otherwise substantially confined to his home and immediate premises. For example, VA examination report from July 2018 shows that he requires the use of a wheelchair for ambulation outside of his home, but is not prevented entirely from ambulation, as he is able to ambulate independently inside of his home, and only limits long-distance walking. Left eye blindness was found to only impair tasks requiring binocular vision. Hearing loss merely results in difficulty following conversations, but has not resulted in total deafness as he uses hearing aids. The Veteran has hypertension, but it is not even severe enough to require medication and the Veteran was not even aware that he had such condition. The examiner found this had no effect on even sedentary or physical work. Although the Veteran was noted to have unconfirmed coronary artery disease, he was again not even aware that he had such a condition and denied any prior cardiac issues. The examiner found this had no effect on even sedentary or physical work. Although he has claimed prior aphthous ulcers, there were none shown in the medical evidence of record for the period on appeal. The examiner found this had no effect on even sedentary or physical work. Tardive dyskinesia, (lip smacking and tongue thrusting) was also diagnosed, but the examiner found this had no effect on even sedentary or physical work. The Veteran’s lumbar spine disability may impact strenuous work, but not sedentary or other activities of daily living. The Veteran’s diagnosed cerebrovascular disease would render the Veteran able to complete simple tasks of every-day living and occupational settings, but he would need the assistance of others for more complicated tasks, such as manage others or use high powered tools. The Veteran was noted to have vitamin B12 deficiency which was currently controlled with replacement therapy and had no effect on even sedentary or physical work. The Veteran’s bilateral peripheral neuropathy of the lower extremities was found to slow down the Veteran’s performance of daily activities and occupational functioning, but not prevent such. Although the Veteran had previously been diagnosed with esophagitis due to dysmotility, such condition had resolved and the examiner found this had no effect on even sedentary or physical work. Last, although the Veteran had previously been diagnosed with a left inguinal hernia, such condition had been repaired and the examiner found this had no effect on even sedentary or physical work. Furthermore, there is no indication that the Veteran possesses the inability to dress and undress himself; he does not require the use of prosthetic or orthopedic equipment which would require adjustment; he is able to feed himself and there is no indication that he has loss of coordination of the upper extremities or extreme weakness thereof; he has not alleged that he is unable to tend to the wants of nature; he has not testified that he requires care and assistance on a regular basis to protect himself from the hazards or dangers incident to his daily environment. In short, the Board finds that the criteria for a finding of housebound status or need for aid and attendance have not been met. As such, the claim for additional special monthly pension is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102. REASONS FOR REMAND The Board finds that further development should be afforded the Veteran in his claim for entitlement to nonservice-connected disability pension benefits. In this regard, it is noted as above that the Veteran was previously incarcerated during a portion of the period of appeal. Review of the Veteran’s Social Security Administration (SSA) records show that he had been in receipt of SSA disability benefits prior to his incarceration. In accordance with SSA policy, the Veteran’s payments were suspended during his incarceration. However, SSA policy also allows for the re-initiation of payments upon release from incarceration, with such normally set up within 90 days prior to release. See Social Security, Benefits After Incarceration: What You Need to Know, https://www.ssa.gov/reentry/benefits.htm (last accessed November 29, 2018). As the Veteran was released in March 2018 and he was previously in receipt of SSA benefits, it is reasonable to presume that he has resumed such income upon release. Payments of any kind and from any source are counted in a veteran’s countable income, unless specifically listed in 38 U.S.C. § 3.271. The listed exclusions include: welfare, maintenance, VA pension benefits, reimbursement for casualty loss, profit from the sale of property, joint accounts acquired by reason of death of the other joint owner, and medical expenses in excess of five percent of the MAPR, which have been paid. Income received from the SSA is not specifically excluded under 38 C.F.R. § 3.272. Such income is, therefore, included as countable income. As such, it is necessary for the RO to contact SSA to obtain the Veteran’s current SSA benefit payments since his release from incarceration. Additionally, this will afford the Veteran another opportunity to provide any updated qualified medical expenses to reduce such countable income in accordance with 38 U.S.C. § 1503(a); 38 C.F.R. §§ 3.260, 3.261, 3.262. The matters are REMANDED for the following action: 1. Afford the Veteran the opportunity to provide updated income information. Specifically, provide him with VA Form 21-0516, Improved Pension Eligibility Verification Report and ask him to submit updated income information. Inform the Veteran that his income and unreimbursed medical expenses must be determined for each year since September 2011, and afford him the opportunity to provide information and documentation regarding medical expenses incurred since that time. Specifically, provide the Veteran with VA Form 21-8416 (Medical Expense Report), and ask him to report any additional medical expenses incurred since September 2011. 2. Obtain the Veteran’s current benefit payment schedule since his release from incarceration in March 2018 from SSA. 3. Conduct any other appropriate development deemed necessary. Thereafter, readjudicate the issue on appeal, considering all evidence of record. If the benefit sought on appeal remains denied, provide the Veteran a supplemental statement of the case and an appropriate period of time to respond. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Dodd, Counsel