Citation Nr: 19106953 Decision Date: 01/29/19 Archive Date: 01/29/19 DOCKET NO. 16-31 508 DATE: January 29, 2019 ORDER Entitlement to reinstatement of nonservice-connected pension is denied. Entitlement to special monthly pension based on the need for regular aid and attendance is denied. FINDINGS OF FACT 1. The Veteran’s countable income exceeds the maximum annual pension rate for a Veteran with no dependents. 2. The Veteran is not in need of regular aid and attendance by another individual. CONCLUSIONS OF LAW 1. The criteria for eligibility for nonservice-connected pension are not met. 38 U.S.C. §§ 110, 1521; 38 C.F.R. §§ 3.2, 3.3, 3.6. 2. The criteria for special monthly pension based on the need for regular aid and attendance are not met. 38 U.S.C. §§ 1502(b), 1521(d); 38 C.F.R. §§ 3.23, 3.351(b)–(c), 3.352(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1974 to September 1976. A hearing was not requested. 1. Entitlement to reinstatement of nonservice-connected pension In September 2006, the RO informed the Veteran that it was discontinuing nonservice-connected pension based on excessive income. This was the result of the Veteran’s receipt of Social Security benefits. In July 2012, the Veteran indicated by telephone that he was submitting a claim for nonservice-connected pension. He later indicated that he is also claiming special monthly pension based on the need for regular aid and attendance. See January 2013 report of contact. The Board will first address the Veteran’s claim for reinstatement of nonservice-connected pension. The law authorizes the payment of a nonservice-connected disability pension to a wartime Veteran who has the requisite service and who is permanently and totally disabled. Generally, basic entitlement exists if a Veteran: (1) served in the active military, naval or air service for ninety (90) days or more during a period of war; (2) at or above 65 years of age or permanently and totally disabled from nonservice-connected disability not due to his/her own willful misconduct; and (3) 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. 38 U.S.C. §§ 1502, 1521; 38 C.F.R. § 3.3(a)(3). The first element is satisfied, in that the Veteran served on active duty for more than 90 days during the Vietnam era. Unfortunately, even assuming that the second element is satisfied, entitlement to nonservice-connected pension must be denied because the Veteran’s annual income is in excess of the maximum annual pension rate for a Veteran with no dependents. A December 2012 Eligibility Verification Report indicates that the Veteran is receiving $1,100.00 per month in SSA benefits. A December 2012 SSA inquiry indicates that the Veteran was receiving $1,211.00 per month effective December 2011 and $1,232.00 per month effective December 2012. The Board will use the numbers from the SSA inquiry, as these appear to be the values before tax deductions. Tax deductions are not excluded from income. See 38 C.F.R. §§ 3.272–272. From these numbers, the Veteran’s annual income is $14,532.00 effective December 2011 and $14,784.00 effective December 2012. The Veteran does not list any medical expenses. See December 2012 VA medical expenses report. He also does not indicate being married or having any dependents. See December 2012 eligibility report. Effective December 1, 2011, the maximum annual pension rate for a veteran without spouse or child is $12,256.00. This is lower than the Veteran’s annual Social Security income of $14,532.00 for this time period. Effective December 1, 2012, this rate is $12,465. This is lower than the Veteran’s annual Social Security income of $14,784.00 for this time period. Based on the Veteran’s Social Security income with no reported medical expenses, the Veteran does not qualify for nonservice-connected pension. His claim must therefore be denied. The Board notes that a May 2012 SSA record indicates that the Veteran is no longer disabled according to the SSA definition and that his last check for benefits will be for July 2012. However, the Veteran’s December 2012 statement and the December 2012 SSA inquiry indicate continued receipt of Social Security benefits. Furthermore, the Veteran has provided no evidence or argument to suggest that he is not in receipt of Social Security benefits, despite the holdings of several decisions that have denied entitlement to nonservice-connected income on the basis of excessive income. For these reasons, the Board finds that the Veteran is in receipt of SSA benefits for all relevant periods on appeal as described above. 2. Entitlement to special monthly pension based on the need for regular aid and attendance As already noted, in addition to his claim for reinstatement of nonservice-connected pension, the Veteran also claims entitlement to special monthly pension based on the need for regular aid and attendance. See January 2013 report of contact. 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 or will be contemporaneously awarded pension benefits. Simply put, since the Veteran does not qualify for nonservice-connected pension due to excessive income, he cannot qualify for special monthly pension. Additionally, the Veteran has not demonstrated a factual need for regular aid and attendance so as to support entitlement to special monthly pension based on the need for regular aid and attendance. Special monthly pension is payable to individuals who are permanently bedridden, helpless, or so nearly helpless as to be in need of the regular aid and attendance of another. 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). 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 assistance (this will not include the adjustments of any 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; and the 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 also provide a proper basis for the determination. 38 C.F.R. § 3.352(a). Bedridden will be that condition which, through its essential character, actually requires that the veteran remain in bed. Id. 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. Id. The particular personal functions that the veteran is unable to perform are considered in connection with the veteran’s condition as a whole. 38 C.F.R. § 3.352(a). It is only necessary that the evidence establish that the veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Id. Determinations that a 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 or her to be in bed. Id. They must be based on the actual requirement of personal assistance from others. 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 VA regulation is met. See Prejan v. West, 13 Vet. App. 444, 448 (2000); 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 on 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. The Veteran has submitted two VA aid and attendance examinations, dated April 2013 and August 2015. Also, a VA general pension examination was completed in May 2016. None of these VA examinations indicate the need for regular aid and attendance based on vision problems or residence in a nursing home because of mental or physical incapacity. Furthermore, there is no additional lay or medical evidence indicating a need for regular aid and attendance on these bases. The Veteran is therefore only entitled to regular aid and attendance if he can demonstrate a factual need for regular aid and attendance. The evidence does not indicate a factual need for aid and attendance. In February 2013, the Veteran was hospitalized for amputation of his great left toe. See April 2013 VA aid and attendance examination. Due to scheduling difficulties, this procedure was not performed until March 22, 2013. Complications followed, resulting in an additional surgery on the Veteran’s left foot on April 25, 2013. Four days after the April 2013 surgery, a VA doctor filled out a VA aid and attendance examination form. That form indicates that the Veteran needs help transferring himself and is confined to a wheelchair, but is able to feed himself, able to prepare his own meals, and has “no restrictions on . . . leaving his home.” Further complications followed the April 2013 surgery. On July 22, 2013, a left-side, below-the-knee amputation was performed. The Veteran thereafter had an “irregular discharge” from his VA hospital in September 2013 “after failing to return from a weekend pass.” See December 2013 VA medical record. The Veteran attributes this discharge to being “unable to get transportation back to VA.” Id. He was re-admitted to VA for prosthesis fitting and additional rehabilitation from January 2014 to April 2014. An August 2013 VA medical record states: “Patient reports being independent community dweller prior to [left-side, below-the-knee amputation] surgery.” A January 23, 2014, VA medical record indicates that the Veteran “plans to get clearance card signed by Provider to use gym to build up upper body strength independently.” A January 24, 2014, VA medical record states that the Veteran “is progressing well with skilled therapy and displays good ability to perform transfers and walker assisted ambulation” but “would benefit from continuation of skilled therapy to improve functional mobility and independence.” A January 26, 2014, VA medical record states that the Veteran “has been accompanied by a friend to the gym and back today.” A January 28, 2014, VA medical record states that the Veteran “has been to the gym and exercised and tolerated it well.” A February 18, 2014, VA medical record states that the Veteran “is not happy that he will not be allowed to go to the gym because of his fluct[u]ations in the blood glucose levels.” A February 22, 2014 VA medical record indicates that the Veteran “is very active and is not at risk for a pressure ulcer breakdown” and “has been independent with his leisure skills” despite “remain[ing] at a diminished functional level” due to the below-the-knee amputation. Although the Veteran “was going to the gym,” this was temporarily prohibited “due to his severe blood glucose level.” An April 2014 VA medical record indicates that while the Veteran is still prohibited from using the gym due to his blood glucose level, he nevertheless is “very active[,] toilets himself independently, and eats well.” In a May 2015 VA medical record, the Veteran requests, and is given permission, to continue supervised exercise in the gym. An August 2015 VA aid and attendance examination indicates that because of a right-hand fracture and his below-the-knee amputation the Veteran is unable to prepare his own meals and needs assistance with bathing and attending to other hygiene needs. He is nevertheless able to feed himself and can leave his home “as tolerated.” This form was filled out on the day of a VA hospital discharge by a staff physician who signed off on the Veteran’s discharge. A September 2015 VA medical record states that the Veteran “works out lifting weights at a gym 5 days a week.” In a November 2015 VA medical record, the Veteran states he will “go to the gym every day” and “workout at the YMCA.” In a March 2016 VA medical record, the Veteran states: “I go to the gym everyday and try to keep myself up beat.” In the same medical record, his medical provider records the following: “Veteran states he is able to take care of himself and is not in need of any assistance in the home.” In another March 2016 VA medical record, the Veteran states: “I go to the gym to work out daily.” An April 2016 VA mental health note indicates that the Veteran is “going to the gym.” A May 2016 VA medical record states that the Veteran “is a teacher in fitness” who “works out some every day[,] . . . walks 1/4 mile daily, and sometimes he swims.” Consistent with this, in VA medical records dated from May 2015 to April 2016, the Veteran consistently indicates that he exercises. In May 2016, a VA pension examination was performed. The examiner indicates that the Veteran is not housebound and that a “[t]ypical day includes getting out [for] shopping or medical appointments independently.” Further, the Veteran is capable of activities of daily living, including independently putting on his prosthetic, using a walker for balance, administering his own insulin, and preparing meals. Also according to the May 2016 VA examiner, the Veteran is “capable of sedentary work with ample breaks to manage dietary and insulin requirements.” In summary, the preponderance of the evidence is against the existence of a factual need for regular aid and attendance. By his own admission, the Veteran was an “independent community dweller” before his 2013 surgeries. He was incapacitated for periods shortly preceding and following these surgeries, but as of January 2014 he was regularly working out at a gym. The Veteran was frustrated by later prohibitions on his ability to work out, but was nevertheless largely independent by April 2014. He fractured his wrist in August 2015. See May 2016 VA pension examination. But by September 2015, as recorded in multiple VA medical records, he was again working out regularly. In March 2016, he additionally told a VA medical provider that “he is able to take care of himself and is not in need of any assistance in the home.” Consistent with this, his May 2016 VA pension examination indicates that he is independent and capable of sedentary work. As recorded by a medical provider, the Veteran was a fitness teacher in May 2016. Taken together, the Veteran has consistently told medical providers that he exercises regularly and is largely independent. Statements made for the purpose of medical diagnosis or treatment, such as those described above, are considered exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive a proper diagnosis or treatment. White v. Illinois, 502 U.S. 346, 356 (1992). The Board finds that the preponderance of this highly credible evidence is against the existence of a factual need for aid and attendance. The Board further notes that VA aid and attendance examinations dated April 2013 and August 2015 indicate limitations that by themselves would support a factual need for aid and attendance. However, both of these forms were completed shortly after major treatments requiring hospitalization, including a left toe amputation in April 2013 and treatment for a right wrist fracture in August 2015. The findings in those examinations, therefore, describe short-term, convalescence-related limitations resulting from specific VA treatments, not consistent symptomatology indicative of a need for regular aid and attendance. In assessing entitlement to regular aid and attendance, “[t]he 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.” 38 C.F.R. § 3.352(a). For these reasons, in considering the evidence as a whole, the findings contained in the April 2013 and August 2015 VA aid and attendance examinations do not by themselves support entitlement to special monthly pension based on the need for regular aid and attendance. As the preponderance of the evidence is against the existence of a factual need for regular aid and attendance, the Veteran’s claim must be denied. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Cannon, Associate Counsel