Citation Nr: 20021174 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 18-52 897 DATE: March 24, 2020 ORDER Entitlement to special monthly pension is denied. FINDING OF FACT Although the appellant is elderly, the preponderance of the evidence fails to show that she is in need of the regular aid and attendance of another person or is housebound. CONCLUSION OF LAW The criteria for special monthly pension based on the need for regular aid and attendance of another person or because of being permanently housebound are not met. 38 U.S.C. §§ 1502, 1541, 5307; 38 C.F.R. §§ 3.102, 3.159, 3.350, 3.351, 3.352, 4.3. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active military service from January 1947 to June 1954. He also had inactive military service with the Army National Guard of the Commonwealth of Puerto Rico from February 1971 to December 1975. The Veteran is deceased having died in June 2017. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Regional Office (RO)’s August 2018 decision. Entitlement to special monthly pension The appellant contends that she is severely ill and needs a caregiver for all daily tasks. Therefore, she claims that she should be entitled to special monthly pension based on the need for the regular aid and attendance of another person. See September 2018 notice of disagreement. A surviving spouse who is receiving pension benefits may receive it at a higher rate if she (or he) is in need of “regular aid and attendance” or is permanently housebound. 38 U.S.C. § 1541(d) and (e). Such a rate is known as special monthly pension. The need for aid and attendance means helplessness or being so nearly helpless as to require the regular aid and attendance of another person. 38 C.F.R. § 3.351(b). The criteria for entitlement to special monthly pension based on the need for regular aid and attendance include consideration of (1) whether the surviving spouse is blind or is 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) is a patient in a nursing home because of mental or physical incapacity; or (3) the evidence establishes a factual need for aid and attendance under the criteria set forth in § 3.32(a). 38 U.S.C. § 1502(b); 38 C.F.R. § 3.351(c). The following criteria should be considered when determining if there is a “factual need” for regular aid and attendance: • Inability unable to dress or undress oneself; • Inability to keep oneself 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 to feed oneself through loss of coordination of upper extremities or through extreme weakness; • Inability to attend to the wants of nature; and • Physical or mental incapacity which requires assistance on a regular basis to protect one from the hazards or dangers incident to one’s daily environment. 38 C.F.R. § 3.352(a). It is not necessary that all these disabling conditions be found to exist before a favorable rating may be made. The particular personal function which the surviving spouse is unable to perform should be considered in connection with his other condition as a whole. It is only necessary that the evidence establish that the surviving spouse is so helpless as to need regular aid and attendance, not that there be constant need. Id. Furthermore, the need for aid and attendance does not have to be permanent. See VAOPGCPREC 21-1994. However, it may be logically inferred from the governing regulatory criteria that eligibility to receive additional VA disability benefits requires that at least one of the enumerated factors be present. See Turco v. Brown, 9 Vet. App. 222, 224 (1996). If a surviving spouse is not in need of regular aid and attendance but is “permanently housebound” by reason of disability or disabilities (i.e., the surviving spouse is substantially confined to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical area, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime), he or she is entitled to pension benefits at the housebound rate. 38 U.S.C. § 1541(e); 38 C.F.R. § 3.351(f). In August 2017, the appellant filed an initial claim for VA survivor’s benefits to include pension benefits with special monthly pension based on the need for regular aid and attendance or housebound status. In a September 2017 decision, she was denied special monthly pension but granted basic non-service-connected disability pension benefits for the period of July 1, 2017 to July 1, 2018. Benefits were terminated July 1, 2018 due to her income being excessive. In a December 2017, based on the appellant’s submission of unreimbursed medical expenses, her pension entitlement was revised for the period of July 1, 2017 to July 1, 2018, but her entitlement after that remained denied due to her income still being too high. In May 2018, the appellant resubmitted the same VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, along with a caregiver’s statement, her Form SSA-1099 and a VA Form 21-8416, Medical Expense Report. The RO took these submissions as a new claim for VA survivor’s pension benefits with special monthly pension. In an August 2018 decision, the RO denied her claim because the May 2018 submissions were essentially duplicates of what was previously submitted and, therefore, the appellant had not submitted any new evidence to support her claim for special monthly pension and, therefore, her income still exceeded the maximum allowable income limit for a surviving spouse with no dependents. The appellant has appealed the denial of special monthly pension. The appellant contends that she is severely ill and needs a caregiver for all daily tasks. See September 2018 notice of disagreement. However, the Board does not find that the medical evidence she has submitted supports her contention that she needs the regular aid and attendance of another person or that she is permanently housebound such that she is entitled to special monthly pension. The appellant has submitted the same aid and attendance examination report completed in August 2017 multiple times in support of her claim. The only difference in the report is how much of the biographical information is filled out, but nothing is changed in her physician’s responses. Her physician reported that the appellant is diagnosed to have arterial hypertension, diabetes mellitus, migraines and hyperlipidemia. Initially the Board notes that hyperlipidemia is not a disability for VA compensation purposes. See Schedule for Rating Disabilities; Endocrine System Disabilities, 61 Fed. Reg. 20,440, 20,445 (May 7, 1996). Her physician checked that the appellant can feed herself and prepare her own meals and does not need assistance in bathing or tending to other hygiene needs. He further indicated that the appellant is not legally blind, and does not require nursing home care or medication management. The physician noted that the appellant has normal posture and general appearance and has no restrictions of the upper and lower extremities or of the spine, trunk or neck. She can leave her home daily without restriction. The only negative thing the physician noted at all on the examination is that the appellant forgets things, including to make her payments, and, thus, in his opinion. she does not have the ability to manage her own financial affairs. The appellant is neither blind (or nearly blind) nor is she in a nursing home. Therefore, the need for aid and attendance must be based upon a factual need. The aid and attendance examination does not show that the appellant needs assistance with basic self-care activities such as bathing or showering, eating, toileting, dressing, transferring and ambulating around the home or living area. She does not have any special prosthetic or orthopedic appliance. Furthermore, there is nothing on the examination to show that the appellant requires care or assistance to protect herself from the hazards or dangers incident to her daily environment. The physician merely indicates the appellant has some memory issues in that she forgets to make payments and, therefore, it appears she may need some assistance with her finances. However, needing assistance with one’s finances is not one of the criteria for aid and attendance under 38 C.F.R. § 3.351. Also, in support of her claim, the appellant submitted a statement from a caregiver dated in May 2018 who reported that she has cared for the appellant since July 2017 and assists in bathing, clothing, feeding and giving the appellant her medicines as well as taking her to doctor visits. However, the Board finds that this statement is inconsistent with the August 2017 examination as to what activities of daily living the appellant need assistance with. Although the caregiver may assist the appellant with bathing, clothing, feeding and medications, the physician clearly stated in the August 2017 examination report that the appellant does not need assistance with any of those activities. Therefore, though the appellant may get assistance from her caregiver for her activities of daily living, that in and of itself is not evidence that she needs such assistance. The Board finds the medical evidence to be more probative and persuasive as to whether the appellant is in need of aid and attendance as such evidence is based on whether the appellant’s need is based on her medical conditions and not just solely due to her age or other factors. Furthermore, the Board acknowledges that the appellant submitted in October 2019 treatment records showing she was hospitalized for four days in May 2019 for a non-ST elevated myocardial infarction, pneumonia, hypertension and chronic diastolic (congestive) heart failure and underwent a left heart catheterization; however, those records show she was discharged home without any plan for continued outpatient treatment, such as in-home care. The Board does not find anything in these records to indicate the appellant’s need for aid and attendance has changed since the August 2017 examination. Finally, the Board finds that the evidence does not demonstrate that the appellant is permanently housebound. The August 2017 examination report clearly states that the appellant can leave her home or immediate area daily and does not place any restrictions on doing so. The appellant was advised in a June 2018 duty to assist letter that the evidence she has submitted is not sufficient to support her claim for special monthly pension and she was advised of the specific information and evidence needed to be provided to support her claim. The appellant’s response was to resubmit the paperwork previously provided. The appellant has not submitted any additional evidence in support of her claim except for the May 2019 treatment records, which as discussed do not provide any additional relevant information to support the appellant’s claim. Consequently, based upon a review of the evidence of record, the Board finds that the preponderance of the evidence is against finding that the appellant is in need of the regular aid and attendance or is permanently housebound and, therefore, entitlement to special monthly pension is denied. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. M. Kreitlow The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.