Citation Nr: 1813513 Decision Date: 03/06/18 Archive Date: 03/14/18 DOCKET NO. 14-41 292A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee Pension Center THE ISSUES 1. Entitlement to nonservice-connected special monthly pension based on the need for aid and attendance or being house bound prior to December 30, 2010 and beginning calendar year 2014. 2. Whether the Veteran's countable income exceeds the income limit for VA nonservice-connected pension prior to December 30, 2010 and VA nonservice-connected pension with special monthly pension based on being housebound in calendar year 2014, including whether the expenses for room and board at the [REDACTED] may properly be deducted from the Veteran's countable income. 3. Entitlement to nonservice-connected special monthly pension based on the need for aid and attendance of another person from December 30, 2010 through calendar year 2013. 4. Whether the Veteran's countable income exceeds the income limit for VA nonservice-connected pension, including whether the expenses for room and board at the [REDACTED] may properly be deducted from the Veteran's countable income for calendar years 2011, 2012, and 2013. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L.J. Bakke, Counsel INTRODUCTION The Veteran served on active duty from June 1948 to June 1952. This appeal comes before the Board of Veterans Appeals (Board) from an administrative decision of the Department of Veterans Affairs (VA) Pension Center (PC) (now the Pension Management Center (PMC) and hereinafter referred to as PMC) in Milwaukee, Wisconsin. New evidence pertinent to the issues on appeal has been received in the record since the most recent, November 2014, statement of the case (SOC). However, the evidence, such as it is relevant to the issues of entitlement to special monthly pension (SMP) based on the need for the aid and attendance (A&A) of another prior to December 30, 2010 or in calendar year (CY) 2014 and subsequently, is in part the basis for the remand immediately following this decision. The evidence is not relevant to the issue of entitlement to SMP based on A&A from December 30, 2010 through CY 2013. This decision grants entitlement to pension with SMP on the basis of being housebound for calendar years 2011, 2012, and 2013. Accordingly, the Board may proceed with the issues herein adjudicated. See 38 C.F.R. §§ 19.37, 20.1304 (2017). In the November 2014 SOC the VA Regional Office (RO) in Chicago, Illinois, identified the first issue as one of entitlement to nonservice-connected pension (NSCP) with SMP based on being housebound. In fact, entitlement to NSCP with SMP based on being housebound was granted, effective December 30, 2010 in the August 2011 rating decision. However, the benefit was disallowed because the evidence showed that the Veteran's income effective December 30, 2010 exceeded the maximum annual pension rate (MAPR) allowed for a Veteran with one dependent. The August 2011 rating decision also denied entitlement to SMP based on the need for A&A from another. See August 2011 Rating Decision Narrative, Legacy Content Manager Document (LCMD); VA 21 Form 4138, marked rec'd 5/30/2012, LCMD; September 2011 Notification Letter, LCMD. Of note, the evidence identifies the Veteran's place of residence variously as retirement home, retirement facility, assisted living facility, independent living facility. In this case, and as will be explained below, the title of the facility is not of significance. For the sake of consistency, the Board will refer to the facility as [REDACTED]. In the present case, and as will be discussed below, the Board finds that the Veteran's income does not exceed the MAPR for a Veteran with one dependent for the calendar years CYs 2011, 2012, 2013. However, the issues of entitlement to SMP based on the need for A&A or being housebound prior to December 30, 2010 and beginning calendar years 2014, and whether the Veteran's countable income exceeds the income limit for VA NSCP prior to December 30, 2010 and for VA NSCP with SMP based on the need for A&A or being housebound in CY 2014, including whether the expenses for room and board at the [REDACTED] qualify as unreimbursed expenses that may be properly deducted from the Veteran's countable income must be remanded. The issues have thus been recharacterized and separated as reflected on the front page of this decision. The issues of entitlement to SMP based on the need for A&A of another or on being housebound prior to December 30, 2010 and beginning calendar year 2014, and whether the Veteran's countable income exceeds the income limit for VA NSCP prior to December 30, 2010 and for VA NSCP with SMP based on being housebound in 2014, including whether the expenses for room and board at the [REDACTED] may properly be deducted from the Veteran's countable income are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2014). FINDINGS OF FACT 1. The Veteran has not required care and assistance on a regular basis due to his service-connected disabilities from December 30, 2010 through calendar year 2013. 2. The version of regulations concerning deductibility of expenses for room and board at a home, assisted-living facility, or other institution most favorable to the Veteran is that in effect prior to October 26, 2012. 3. In an August 2011 administrative decision, the VA PMC determined the Veteran to be entitled to nonservice-connected pension with special monthly pension based on being housebound effective December 30, 2010; he is thus a beneficiary maintained in a home, assisted-living facility, or other institution because he needs to live in a protected environment. 4. The out of pocket costs for room and board at [REDACTED] are properly deductible as unreimbursed medical expenses from the Veteran's countable income for the calendar years 2011, 2012, and 2013. 5. The Veteran's countable income as a Veteran with one dependent does not exceed MAPR limitation for the purpose of VA nonservice-connected pension with special monthly pension based on being housebound for the calendar years 2011, 2012, and 2013. CONCLUSIONS OF LAW 1. The criteria for entitlement to SMP based on the need for regular A&A of another person have not been met from December 30, 2010 through calendar year 2013. 38 U.S.C. §§ 1114, 5107 (2014); 38 C.F.R. §§ 3.102, 3.350, 3.352 (2017). 2. The criteria are met for the payment of NSCP benefits with SMP based on being housebound for calendar years 2011, 2012, and 2013. 38 U.S.C. § 1521, 1542, 5312 (2014); 38 C.F.R. §§ 3.2, 3.3, 3.21, 3.23, 3.271, 3.272, 3.274 (2017); M21-1MR (effective prior to October 26, 2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran and his representative have not raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). The Veteran appealed an August 2011 administrative decision that disallowed his claim for VA non-service connected disability pension (NSCP) benefits with SMP based on requiring the A&A of another or being housebound because his income exceeded the maximum annual pension limit. This determination was based on the finding that the amount of money the Veteran paid for independent retirement living facility services at the [REDACTED] (also known as [REDACTED]) did not qualify as unreimbursed medical expenses. Thus, those expenses were not calculated in reducing his countable income. There is no dispute in this case that the Veteran would otherwise qualify for a pension. His service records specifically show service for 90 days or more during a period of war under 38 C.F.R. § 3.2. In fact, February and August 2011 administrative decisions granted entitlement to NSCP with SMP based on being housebound effective December 20, 2010. The claim for SMP based on the need for A&A of another remained denied. As the grant of SMP based on housebound criteria is not a complete grant of benefits, the claim for SMP based on aid and attendance remains on appeal. In addition, as above stated, both claims were disallowed because the Veteran's income was deemed excessive. Thus, the crucial questions in this case are whether the Veteran meets the criteria for SMP based on the need for A&A from December 30, 2010 through CY 2013, and whether the payments to the Veteran's retirement home/independent living facility qualify as unreimbursed medical expenses. The Board will answer each in turn. Background The Veteran first filed a claim for NSCP in December 2008. See Form 21-526, (LCMD, rec'd 12/23/2008). VA Form 21-8947 shows that the Veteran's claim was disallowed in December 2008 for reason code "11-EXCESSIVE INCOME." See December 2008 Compensation and Pension Award (LCMD). The December 2008 notification letter explained to the Veteran that his claim was disallowed for excessive income and instructed him to provide evidence of changes in income and/or paid unreimbursed medical expenses for the period of December 19, 2008 through December 31, 2009 prior to January 1, 2011 to protect the earliest possible date for entitlement to potential increased benefits. See December 2008 Notification Letter (LCMD). In December 2010, the Veteran filed "Home Care/Assisted Care Status Form" documents, showing that the Veteran and his spouse had been residents at [REDACTED] since September 2006. The forms were signed by a [REDACTED] administrator in December 2010, and certify that monthly out-of-pocket costs of living in the facility for the Veteran and his wife are $2,145.00 monthly. No amounts were paid by Medicaid, insurance or other. The forms indicate that the Veteran was considered to be mentally capable of handling his own affairs, but his wife was not. Physical needs of both the Veteran and his wife were considered to be permanent. The services offered by [REDACTED] are described as follows: [REDACTED] offers a full time, 24-hour staff, providing three nutritious meals daily (including all special dietary needs). Medications are kept in locked areas and distributed morning and evening as directed by physicians. Utilities, laundry facilities, and housekeeping services are included in a monthly fee. Units are clean and spacious, with handy pull chains in every room for quick response to any accident or medical need. There are no elevators or steps in the facility, and hallways are wide enough to accommodate passing wheelchairs. Free transportation is offered for visits to and from doctor appointments. Healthcare professionals visit weekly to monitor and record residents' heart rate and blood pressure so that current and on-going records are available for their doctors. A hair salon is located conveniently within the facility. See Assisted Living Information Forms, LCMD, rec'd 12/13/2010 and 12/30/2010. In addition, the Veteran submitted VA Form 21-0516-1, Improved Pension Eligibility Verification Report (EVR) for a Veteran with No Children, in which the Veteran reported income for himself and his wife and his net worth for CY 2010. See EVR (LCMD, rec'd 12/30/2010). The VA PMC accepted these documents as a new claim for VA NSCP. In January 2011, the Veteran submitted additional evidence including a medical expense report and completed examinations for housebound status or permanent need for regular A&A for himself and his wife. The examination forms indicate the Veteran is diagnosed with hypertension, hypercholesterolemia, depression, osteoarthritis, benign prostatic hypertrophy, essential tremors, and a history of cerebral vascular accident. The Veteran was observed to use a cane to ambulate due to occasional gait instability, but was judged able to manage his own financial affairs and to feed himself. He needed no assistance with bathing or other hygiene needs, was not legally blind, and required neither nursing home care nor medication management. It was noted that the Veteran left his home for doctor visits, and that he could ambulate 5 or 6 blocks with the use of a cane. His wife was diagnosed with type II diabetes mellitus, hypertension, left lower extremity cellulitis, Alzheimer's, hypothyroidism, atrial fibrillation, and venous stasis disease. She was observed to need assistance with activities of daily living, specifically dressing and hygiene, due to her Alzheimer's and was judged unable to manage her own financial affairs. She could feed herself but needed assistance in bathing and tending to other hygiene needs. She was not legally blind and did not require nursing home care, but did require medication management. It was noted that she left her home for doctor visits, and needed no assistance with ambulation. See December 2010 Examinations for Housebound Status or Permanent Need for Regular and Aid and Attendance (LCMD, rec'd 1/7/2011). The Veteran reported medical expenses paid in CYs 2010 and 2011 on December 31, 2010. For CY 2011, the Veteran reported $2,316.80 yearly for Medical Part B, $360.00 yearly for private medical insurance, $846.00 yearly for prescription medication and $25,740.00 yearly for assisted living. In addition, he reported $690.56 for co-pays, and $2,047.00 for over the counter medications. See CY 2010 and 2011 Medical Expense Reports (LCMD, rec'd 1/7/2011). In December 2010, the [REDACTED] submitted VA Form 21-0779 Request for Nursing Home Information in Connection with Claim for Aid and Attendance. The form reveals that the Veteran and his spouse were admitted to the retirement home on September 25, 2006, and that the Veteran's out-of-pocket costs totaled $2,145.00 monthly. In block 9, the facility official certified that the Veteran was a patient in the facility because of mental or physical disability and received "other" care, which the official did not specify. See December 2010 Request for Nursing Home Information in Connection with Claim for Aid and Attendance (LCMD, rec'd 1/7/2011). Based on the foregoing, the VA PMC granted entitlement to NSCP in a February 2011 administrative decision, with SMP based on the Veteran being housebound effective December 30, 2010. The claim for SMP based on the need for A&A of another was deferred. The August 2011 administrative decision continued the aforementioned grant of entitlement of NSCP with SMP based on being housebound, but denied SMP based on the need for A&A. The September 2011 notification letter explained that, although the Veteran was entitled to NSCP with SMP based on being housebound, his income exceeded the MAPR limits for a Veteran with one dependent; therefore, the benefit was disallowed. Instrumental in this decision was a finding that the fees paid to [REDACTED] were not deductible as unreimbursed medical expenses on the finding that the facility did not provide medical services. In addition, the PMC did not deduct expenses for over-the-counter medication, co-pays, and annual prescriptions on the finding that these expenses were not projectable. In May 2012, the Veteran appealed the August 2011 decision, submitting the statements of his treating health care providers, MDH, MD and IP, PA-C, and of his witness, P.K. In his notice of disagreement, the Veteran argued that [REDACTED] is an assisted living facility, where staff helped him and his wife with daily living activities such as preparing meals, and provided medication management. The Veteran asserted that he had fallen because of his disabilities, he is unable to grip or write, and he has transient ischemic attacks. Without the assistance of [REDACTED] staff, he stated, who knows how long it would have been before someone helped him after he fell. In addition, he offered that the facility rendered assistance to his wife with daily living activities that he was unable to provide to her. See May 2012 Statement in Support of Claim (LCMD, rec'd 6/25/2012). The statements of Dr. M.D.H. and IP, PA-C described the Veteran's physical status and that of his spouse. In pertinent part, the statements reflect: [The Veteran] has weakness and reports that his osteoarthritis is worsening with pain in his hips, knees, hands and fingers. He uses a cane or walker to ambulate. He has transient ischemic attacks and reports 'trouble thinking.' He states he is no longer able to write checks. Additionally, he is having some trouble with his hearing. I have prescribed multiple medications to treat his conditions. See May 2012 Private Medical Treatment Records, Letters from Internal Medicine Specialists (LCMD, rec'd 5/30/2012). Concerning the Veteran's spouse, Dr. M.D.H., the physician explained: [The Veteran's spouse] is unable to complete her activities of daily living without assistance. She is unable to make any decisions and cannot be left alone. She also has incontinence of urine and additionally requires reminders to toilet, dress, and eat. See Id. In her statement, PK explained she is the daughter of the Veteran's friends, who also live at [REDACTED]. In pertinent part, she offered: Please allow me to tell you why the [Veteran and his spouse] live at [REDACTED]. They are older and frail and can no longer take care of themselves. [The Veteran's wife] has diabetes and Alzheimer's and [the Veteran] must use a cane to walk. His memory is falling also. He lives with daily pain from arthritis throughout his body, has tremors in his hands, and cannot grasp or hold objects with his left hand. Neither can drive a car anymore and both are quite weak due to various ailments. Daily life is a chore, from bathing and getting dressed to boarding the shuttle provided by [REDACTED] to go to the doctor and lab appointments. *** [REDACTED] provides a safe environment for [the Veteran and his wife]. No cooking stoves are in the units, and personnel are available to help with bathing. Medications are dispensed from a locked pill room, so there's no chance of overdoses or lost pills. See May 2012 Correspondence from PK (LCMD, rec'd 5/30/2012). In August 2012, the PMC notified the Veteran that it had lost all evidence the Veteran had submitted in support of his claim, and requested that the evidence be resubmitted. See August 2012 Notification Letter (LCMD). In September 2012, the Veteran replied, resubmitting the statements of his physician and witness (above excerpted) requested information. See September 2012 Statement in Support of Claim (LCMD, rec'd 9/19/2012) and additional documents received that date. A December 2012 report of contact shows that the VA PMC again contacted [REDACTED] and verified the Veteran receives meals and medication monitoring from the facility. See December 2012 Report of General Information (LCMD). In August 2014, the PMC obtained a records review VA examination for A&A or housebound examination. The examiner noted that the record reviewed consisted of the Veteran's claims file in the Veteran's representative's office. The examiner determined the Veteran was not permanently bedridden or hospitalized, and that he was able to perform all self-care skills. He was not found to be blind in both eyes, but he was found to have an ataxic gait and to exhibit poor balance which affected his ability to ambulate constantly or nearly so. The examiner also found the Veteran to exhibit moderate memory loss. Limitations were found in ambulation, in which the Veteran could only walk without the assistance of another person within his home, and required a walker to ambulate elsewhere. He could leave his home for medical appointments and shopping in transportation provided by [REDACTED], and with family members. Additional limitations were found in the strength and coordination of the upper extremities which were described as producing some difficulty in self-feeding, dressing and undressing, self-bathing, self-grooming, and toileting as well as abnormal weight bearing, poor balance, abnormal propulsion and the need for a walker. Limitations of joint motion and muscle weakness in the lower extremities were found to produce poor balance and abnormal propulsion, for which the Veteran required a walker. The examiner diagnosed hypertension, osteoarthritis, depression, hyperlipidemia, and Parkinson's disease. The examiner commented that the Veteran would benefit from home health care assistance to aid in his activities of daily living. See August 2014 Records Review VA DBQ Examination for Aid and Attendance and Housebound Status (LCMD). Law and Regulations As a general matter, VA will pay a pension to any veteran of a period of war because of nonservice-connected disability or age. 38 U.S.C.A. § 1521. Basic entitlement exists if a veteran meets one of several criteria, including service in the active military, naval or air service for 90 days or more during a period of war and meets the net worth requirements under 38 C.F.R. § 3.274 and does not have an annual income in excess of the applicable maximum annual pension rate specified in 38 C.F.R. § 3.23; and is age 65 or older. 38 C.F.R. § 3.3(a)(3). 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 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. "Bedridden" will be a proper basis for the determination and is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. It is not required that all of 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 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). In addition, any determination that the veteran 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 to be in bed. It must be based on the actual requirement of personal assistance from others. See Turco v. Brown, 9 Vet App. 222, 224 (1996). In determining whether annual income is in excess of the applicable maximum annual pension rate, the amount of the countable annual income of the veteran is reduced. See 38 C.F.R. § 3.23(b). Certain expenses shall be excluded from countable income for the purpose of determining entitlement to improved pension. In relevant part, there will be excluded from the amount of an individual's annual income any unreimbursed amounts which have been paid within the 12-month annualization period for medical expenses regardless of when the indebtedness was incurred. 38 C.F.R. § 3.272(a). Unreimbursed medical expenses will be excluded from a Veteran's income when all of the following requirements are met: (i) They were or will be paid by a veteran or spouse for medical expenses of the veteran, spouse, children, parents and other relatives for whom there is a moral or legal obligation of support; (ii) They were or will be incurred on behalf of a person who is a member or a constructive member of the veteran's or spouse's household; and (iii) They were or will be in excess of 5 percent of the applicable maximum annual pension rate or rates for the veteran (including increased pension for family members but excluding increased pension because of need for aid and attendance or being housebound) as in effect during the 12-month annualization period in which the medical expenses were paid. 38 C.F.R. § 3.272(g)(1). During this time period, there were changes to the law as to whether assisted or independent living facility charges for custodial care (prior to 2012, also defined as "room and board") could be deducted as unreimbursed medical expenses from countable income, and how such charges may be deducted. Namely, during the pendency of this claim, VA Fast Letter (FL) 12-23 (Oct. 26, 2012) was issued and, subsequently, rescinded as incorporated into M21-1 as part of the "Live Manual" project. FL 12-23 defined and limited the deductibility of the cost of room and board at facilities other than nursing homes and assisted living facilities as unreimbursed medical expenses. FL 12-23 defined "custodial care" as assisting an individual with two or more ADL. The cost of assistance with IADL would be deducted only where the individual was entitled to pension at the A&A or housebound rate or a physician had certified that the claimant needed to be in a protected environment, and the facility provided medical services or assistance with ADL to the individual. A four-step procedure was provided to determine whether pension applicants residing in these facilities could deduct as unreimbursed medical expenses fees for room and board under 38 C.F.R. § 3.272(g). The interpretations and procedure were to apply to all original claims pending on or filed after the date of FL 12-23, which was October 26, 2012. As noted above, the provisions set forth in FL 12-23 were subsequently incorporated into VBA Manual M21-1 at V.iii.1.G.3.m, and FL 12-23 was rescinded. The current provision states that unreimbursed fees paid for room and board for pension claimants or relatives receiving custodial care in independent living facilities (defined as any other facility that is not a nursing home or assisted living facility) may be considered a deductible expenses where * The claimant or relative who is receiving custodial care is eligible to be rated for the need of aid and attendance or being housebound, and * Is rated for pension at the aid and attendance or housebound rate, or has a physician's statement in writing that the claimant or relative needs to be in a protected environment, and * The facility provides or contracts for custodial care to the claimant or relative, or * The facility receives same from a third party contractor and the claimant has a physician's statement in writing that the claimant or relative must reside in a particular facility to receive medical, nursing, or custodial care. See M21-1.V.iii.1.G.3.m (accessed 1/5/2018) (2018). Prior to issuance of FL 12-23, the M21-1MR, Part V.iii.1.G.43.h (2011) provided in relevant part the following: If a beneficiary or dependent, or other person for whom medical expenses may be allowed, is maintained in a home, assisted-living facility, or other institution, because the individual needs to live in a protected environment, all unreimbursed fees paid to the institution for custodial care ("room-and-board") and medical or nursing care are deductible expenses, as long as * a licensed physician certifies that the individual has a medical condition that makes such a level of care necessary, or * VA has determined the individual is entitled to A&A or Housebound benefits as a beneficiary or the spouse of a Veteran entitled to compensation at the 30-percent rate or higher. *** A physician's statement specifically addressing the issue of whether an individual who is not entitled to A&A or Housebound benefits needs to be in a protected environment must be of record, even if the individual's diagnosis is known. See M21-1MR, Part V, Subpart iii, Chapter 1, Section G, p. 1-G-13 (downloaded 1/5/2018), prior to 10/26/2012. VA interpretations of its own regulations in its Adjudication Procedures Manual are controlling as long as they are not plainly erroneous or inconsistent with the regulation. Smith v. Shinseki, 647 F.3d 1380, 1385 (Fed. Cir. 2011). Analysis a) Entitlement to SMP based on A&A from December 30, 2010 through CY 2013 The Veteran seeks SMP based on the need for A&A of another. At the outset, the Board notes that the Veteran has been found to be entitled to SMP on the basis of being housebound from December 30, 2010. He thus meets the threshold criteria for SMP under 38 U.S.C. § 1521; 38 C.F.R. § 3.351. However, the benefit of SMP on the basis of need for A&A grants a greater benefit than that of SMP on the basis of being housebound. Medical and lay evidence reflects that the Veteran has been observed to be fragile, in pain, to have an unstable gait, and to have transient ischemic attacks, difficulty with memory and trouble with thinking. His physical needs are considered to be permanent. Yet, the medical evidence does not establish that the Veteran is legally blind, unable to feed himself or perform other activities of daily living, or to attend to the wants of nature, that he is confined to a bed, or that he is so helpless as to need the regular aid and attendance of another. Rather, in 2010, he was observed to ambulate 5 or 6 blocks, albeit with a cane and occasional gait instability. He did not need assistance with feeding himself, bathing, or other hygiene needs. He was not legally blind and left home for doctor visits. See December 2010 VA Examination. There is no other evidence of record tending to demonstrate that the Veteran is blind in both eyes or is permanently bedridden; that he is unable to dress or undress himself, keep himself clean and presentable, feed himself, or tend to the wants of nature; that he needs the protection of another from the hazards or dangers incident to his daily environment or that he is so helpless as to need the aid and attendance of another during the time period from December 30, 2010 through the end of CY 2013. As there is no competent medical evidence of record to support the claim of entitlement to SMP based on the need for A&A of another person from December 30, 2010 through the end of CY 2013, the preponderance of the evidence is against the claim, and the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). b) Deductibility of Room and Board Expenses at [REDACTED] for CYs 2011, 2012, and 2013. Of importance in this case, the law governing the deduction of such expenses changed during the pendency of his appeal. Generally, when the law changes during the pendency of a claim, the law most favorable to the claimant must be applied. McGrath v. Gober, 14 Vet. App. 28, 34 (2000); see also Ervin v. Shinseki, 24 Vet. App. 318, 323 (2011), opinion corrected, 25 Vet. App. 178 (2012). In this case, the Veteran's claim was pending in October 2012, when FL 12-23 amended that version of M21-1 effective prior to October 26, 2012 and subsequently, after FL 12-23 was rescinded. In comparing which version of the M21-1 should apply, the Board finds that the version of the M21-1 in effect prior to 10/26/2012 is more favorable. Under the criteria in effect prior to 10/26/2012, the M21-1 provisions were interpreted as meaning that "custodial care" was the same as room and board. In addition, where VA had determined the individual is entitled to A&A or housebound benefits as a beneficiary, such as the Veteran in this case, the requirement for a physician's statement certifying that the individual needed to live in a protected environment could be determined from that entitlement alone. See M21-1MR, Part V, Subpart iii, Chapter 1, Section G, p. 1-G-13 (downloaded 1/5/2018), prior to 10/26/2012 (see provision requiring a physician's statement for individual "who is not entitled to A&A or Housebound benefits" (emphasis added)). This compares to provisions under FL 12-23 which specifically excluded room and board unless the facility also provided medical services or assistance with ADLs to the individual, and the version of M21-1 currently in effect, which requires that the facility either provide or contract for custodial care, or that the facility contract with a third party for such care; and that a physician certify that the individual must reside in such a facility to receive medical, nursing or custodial care. The Board will, accordingly, apply the version of the M21-1MR prior to 10/26/2012. Based on the finding that the version of the M21-1 effective prior to October 26, 2012 is for application in this case, the Board determines that the Veteran meets the criteria for deducting the [REDACTED] out of pocket expenses as unreimbursed medical expenses for the CY years 2011, 2012, and 2013. The Board's reasoning here is that the VA PMC found the Veteran to be entitled to NSCP with SMP based on being housebound effective December 30, 2010. Hence, it may be inferred that the Veteran lived in the [REDACTED] because he needed to live in a protected environment. The Board finds that the Veteran's need to live in a protected environment may be inferred from the VA PMC's finding that the Veteran is entitlement to SMP on the basis of being housebound. The Board further finds that the lay and medical evidence supports this inference throughout the period on appeal. In his own statements, the Veteran argued he is unable to ambulate without fear of falling, and that he had fallen and was assisted by [REDACTED] staff without whom, he would have lain, unable to get up, until found by someone else. His witness described the Veteran and his wife as frail and weak. She attested the Veteran must use a cane to walk, is in pain and has hand tremors. He cannot grasp or hold objects with his left hand, and his memory is failing. Medical evidence shows the Veteran is diagnosed with osteoarthritis and essential tremors in 2010, and with osteoarthritis and Parkinson's disease in 2014. Medical evidence further establishes the Veteran exhibited occasional gait instability in 2010 and ataxic gait, poor balance, and abnormal propulsion in 2014. In 2010 the Veteran was found to be able to ambulate only 5 to 6 blocks with a cane and left his domicile only for medical appointments-to which he was driven by facility staff. In 2014, the Veteran required a walker to ambulate outside his room, and could leave his domicile only in the company of family or facility staff. See May 2012 Notice of Disagreement; May 2012 Correspondence from PK; May 2012 Letters from Internal Medicine Specialists; December 2010 Examination for Housebound Status or Permanent Need for Regular and Aid and Attendance; and August 2014 Records Review VA DBQ Examination for Aid and Attendance and Housebound Status. As the medical evidence corroborates the Veteran's lay statements and those of his witness, the Board concurs with the VA PMC's finding in August 2011 that the Veteran meets the criteria for NSCP with SMP based on being housebound. In short, he is unable to leave his domicile without the assistance of family or facility staff, and is unable to ambulate on his own without risk of falling-even with assistive devises. See also 38 U.S.C. § 1521 (2014); 38 C.F.R. § 3.351(b), (c), (d) (2017). Accordingly, the Board finds that the Veteran meets the criteria for having all unreimbursed fees paid to the [REDACTED] for custodial care, or room-and-board, deducted from his countable income. See M21-1MR, Part V.iii.1.G.43.h (prior to October 26, 2012). The Board next turns to an analysis as to whether the Veteran's income in 2011, 2012, and 2013 is excessive for the purposes of VA NSCP with SMP based on being housebound. MAPR are specified in 38 U.S.C.A. § 1521 and 1542 as increased from time to time under 38 U.S.C.A. § 5312. The rates of pension benefits are published in tabular form in Appendix B of M21-1 (M21-1), and are given the same force and effect as if published in Title 38 of the Code of Federal Regulations. 38 C.F.R. § 3.21. MAPRs beginning December 1 for the years 2011 through 2013 (with five percent calculations) are as follows: 2011: $18,773 ($802.00), 2012: $19,093 ($816.00), and 2013: $19,380 ($828.00) For the year beginning January 1, 2011, the Veteran's countable income consists of his income from Social Security in the amount $1,176.00 monthly ($14,112.00 yearly), his spouse's income from Social Security in the amount of $497.00 monthly ($5,964.00 yearly), and the Veteran's GM pension in the amount of $827.00 monthly ($9,924.00 yearly). The evidence does not reveal any additional reported income. Added together Veteran's reported income totals $30,000.00 for 2011. See EVR for CY 2011, eReader (rec'd 9/14/2014). For the year beginning January 1, 2012, the Veteran's countable income consists of his income from Social Security in the same amounts. The evidence does not reveal any additional reported income. Added together Veteran's reported income totals $30,000.00 for 2012. See EVR for CY 2012, eReader (rec'd 9/14/2014). For the year beginning January 1, 2013, the Veteran's countable income consists of his income from Social Security in the same amounts. The evidence does not reveal any additional reported income. Added together Veteran's reported income totals $30,000.00 for 2013. See EVR for CY 2013, eReader (rec'd 9/14/2014). The Veteran and his wife paid a yearly fee of $25,740.00 in 2011, $25,740.00 in 2012, and $25,740.00 in 2013 to reside at [REDACTED]. See VA Form 21P-8416 Medical Expense Report (Expense Report) for CYs 2011, 2012, and 2013 eReader (rec'd 9/4/2014). These amounts are greater than five percent of the applicable MAPR for these years. Deducting this amount from their total yearly gross income and adjusting for the five percent of MAPR, results in income amounts for VA purposes of $5,062.00 in 2011, $5,076.00 in 2012, and $5,088.00, in 2013. As these amounts are below the MAPRs for each year as reported above, it is not necessary to further analyze the additional expenses the Veteran reported, to determine whether they are deductible or not. Thus, the Veteran's income for these years-2011, 2012, and 2013-is not excessive for the purposes of VA NSCP with SMP based on being housebound for a Veteran with one dependent. ORDER Entitlement to SMP for A&A of another for the period of time from December 30, 2010 through CY 2013 is denied. Out of pocket costs for room and board paid to [REDACTED] are properly deductible as unreimbursed medical expenses from the Veteran's countable income, and payment of VA nonservice-connected pension with special monthly compensation on the basis of being housebound is allowed for calendar years 2011, 2012, and 2013. The benefit is granted. REMAND The issues of entitlement to NSCP with SMP based on the need for A&A or being house bound prior to December 30, 2010 and beginning CY 2014, and whether the Veteran's countable income exceeds the income limit for VA NSCP prior to December 30, 2010 and VA NSCP with SMP based on being housebound in CY 2014, including whether the expenses for room and board at the [REDACTED] may properly be deducted from the Veteran's countable income, remain pending. At the outset, the Board observes that M21-1MR, Part V, Subpart iii, Chapter 1, Section G, p. 1-G-13 (effective prior to October 26, 2012) applies in the present case. Further development is required to determine whether the Veteran was entitled to NSCP with SMP based on being housebound prior to December 30, 2010. The August 2011 VA PMC administrative decision held that the Veteran was entitled to NSCP with SMP based on being housebound effective December 30, 2010, based on a determination that December 30, 2010 was the date of claim. See August 2011 VA PMC Administrative Decision (LCMD). However, the Veteran first filed a claim for NSCP in December 2008. See Form 21-526, (LCMD, rec'd 12/23/2008). VA Form 21-8947 shows that the Veteran's claim was disallowed in December 2008 for reason code "11-EXCESSIVE INCOME." See December 2008 Compensation and Pension Award (LCMD). The December 2008 notification letter explained to the Veteran that his claim was disallowed for excessive income and instructed him to provide evidence of changes in income and/or paid unreimbursed medical expenses for the period of December 19, 2008 through December 31, 2009 prior to January 1, 2011 to protect the earliest possible date for entitlement to potential increased benefits. See December 2008 Notification Letter (LCMD). The Veteran met the deadline for filing additional information, submitting "Home Care/Assisted Care Status Form" documents showing that the Veteran and his spouse had been residents at [REDACTED] since September 2006, and certifying that monthly out-of-pocket costs of living there totaled $2,145.00 monthly. In addition, he submitted VA Form 21-0516-1, Improved Pension Eligibility Verification Report (EVR) for a Veteran with No Children, reporting net worth and CY 2010 income for himself and his wife. See EVR (LCMD, rec'd 12/30/2010). Hence, remand is required to determine whether the Veteran's out of pocket costs for room and board at [REDACTED] may be properly deducted from his countable income prior to December 30, 2010. In addition, the Veteran's circumstances changed dramatically in CY 2014, and further development is required to determine any additional expenses that may qualify as properly deductible from the Veteran's countable income for that year and forward. The Board observes that the August 2014 VA examiner who conducted a records review examination for aid and attendance and housebound status of the Veteran observed conditions that appeared to have worsened since the examinations conducted in 2010. The examiner observed additional limitations of strength and coordination of upper extremities, producing difficulty in self-feeding, dressing and undressing, self-bathing, self-grooming and toileting. Additional limitations of joint motion and muscles weakness in the lower extremities were found to produce poor balance and abnormal propulsion for which the Veteran required a walker. The examiner diagnosed Parkinson's disease, which had not been diagnosed in 2010. Finally, and of pertinent import, the examiner stated the Veteran would benefit from a home health care assistance to aid in his activities of daily living. See August 2014 Records Review VA DBQ Examination for Aid and Attendance and Housebound Status. The Board further notes with sadness that the Veteran's spouse died in 2014, and that the Veteran's representative informed the Board that he had been hospitalized with suicidal ideation and diagnosed with a terminal illness. Hence, remand is therefore required to determine whether the Veteran may now meet the criteria for SMP based on the need for A&A, and to provide the Veteran and his representative an opportunity to provide evidence concerning any additional expenses the Veteran may have incurred in CY 2014 and subsequently which may be properly deducted from his countable income. As the Board is remanding this case on other grounds, there is no need to discuss remand for a supplemental statement of the case following receipt of new and pertinent evidence. See 38 C.F.R. §§ 19.37, 20.1304 (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is directed. 1. As the Veteran and his representative to identify any and all sources of treatment afforded the Veteran, including for his hospitalization. Obtain all identified records that are not already present in the claims file. Complete any other development indicated. 2. Send the appropriate documentation to assist the Veteran and his representative to identify any and all income and expenses he wishes VA to consider for CY 2014 and subsequently. 3. After completion of #1-2, ask the VA examiner who conducted the August 2014 records review, or any other appropriate examiner, to review the Veteran's claims file, including any and all newly acquired evidence, and offer an opinion as to whether or not the Veteran requires the A&A of another for any period of time beginning during CY 2014. The entire claims file, this remand, and all documentation received as a result of development pursuant to this remand must be made available to the examiner. The examiner should note that the claims file and any additional documents were reviewed. A complete rationale must be provided for any and all opinions given. 4. After all of the above development is completed, readjudicate the claims on appeal (whether the Veteran's out of pocket costs for room and board may be properly deducted from his countable income prior to December 30, 2010 AND whether the Veteran meets the criteria for SMP based on the need for A&A in calendar year 2014 forward). If any benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ____________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs