Citation Nr: 20021796 Decision Date: 03/01/20 Archive Date: 03/27/20 DOCKET NO. 17-13 734 ORDER Entitlement to special monthly pension (SMP) is denied. FINDING OF FACT The Veteran is not blind or nearly blind, a patient in a nursing home, in need of regular aid and attendance, or substantially confined to his dwelling and the immediate premises. CONCLUSION OF LAW The criteria for entitlement to special monthly pension based on the need for aid and attendance or by reason of being permanently housebound are not satisfied. 38 C.F.R. §§ 1502, 1521, 5107; 38 C.F.R. §§ 3.102, 3.351, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1968 to February 1970. The matter arises from an October 2016 rating decision. The claim was remanded by the Board of Veterans’ Appeals (board) in February 2019. 1. Entitlement to special monthly pension (SMP) is denied. The Veteran asserts that he is entitled to either SMP based on the need for aid and attendance (A&A) or by reason of being housebound. An increased rate of pension in the form of SMP is provided at the rates set forth in 38 U.S.C. § 1521 (d) and (e) when an otherwise eligible veteran is in need of regular aid and attendance or is permanently housebound. 38 U.S.C. § 1521 (d)(e); 38 C.F.R. § 3.351 (a). Entitlement to SMP by reason of need for aid and attendance will be established if the evidence shows one of the following: (1) the veteran 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; (2) the veteran is a patient in a nursing home because of mental or physical incapacity; or (3) the veteran has a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352 (a). 38 U.S.C. § 1502 (b); 38 C.F.R. § 3.351 (c). Entitlement to SMP at the housebound rate will be established if the veteran has a single permanent disability rated as 100 percent disabling under the Schedule for Rating Disabilities (not including ratings based upon unemployability under 38 C.F.R. § 4.17 (2018)), and has additional disability or disabilities ratable at 60 percent or more, separate and distinct from the permanent disability rated as 100 percent disabling and involving different anatomical segments or bodily systems, or is permanently housebound by reason of disability or disabilities. 38 C.F.R. § 3.151 (d). The “permanently housebound” requirement is met when the veteran 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. Id. The factors considered in determining the need for aid and attendance include, in pertinent part, the inability to perform such tasks as to dress and undress oneself, to maintain ordinary cleanliness, to feed oneself, to attend to the wants of nature, or to have physical or mental incapacity which requires care or assistance on a regular basis to protect the claimant from the hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352 (a). Not all of the above disabling conditions need be found to exist in order to grant aid and attendance benefits. Id. 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. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Relevant Facts The Veteran underwent a VA Examination for Housebound Status or Permanent Need for Regular Aid and Attendance in September 2015. The examiner noted the Veteran is able to feed himself, prepare his own meals, does not need assistance in bathing and tending to other hygiene needs, is not legally blind, does not require nursing home care, can manage his own financial affairs, and requires medication management. The Veteran underwent another VA examination in September 2016. The examiner noted that the Veteran is not bedridden, not currently hospitalized, and he can travel beyond his current domicile (including using public transportation alone). The Veteran is noted as able to toilet, dress, groom, and bathe, without assistance. He prepares his daily meals and is able to drive short distances during the day for errands. He has difficulty remembering to take his daily medications. There are no body parts or system impairments that affect the ability of the Veteran to protect himself from the daily environment. He can perform all functions of self-care skills. The Veteran does not need any aid for ambulation. The circumstances the Veteran can leave the home are unrestricted. The best corrected vision is neither 5/200 or worse in both eyes. The examiner opined that the Veteran is not housebound. Legal Analysis and Conclusion The preponderance of the evidence shows that the criteria for SMP are not satisfied. The Veteran is not 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, as shown in the VA examinations dated September 2015 and September 2016. He is not a patient in a nursing home. See VA examinations dated September 2015 and September 2016. Probative evidence also shows that he does not have a factual need for aid and attendance. VA examinations dated September 2015 and September 2016 show that the Veteran is able to attend to his own toileting, hygiene, dressing and grooming, that he could feed himself, and that he prepared his own meals. The Veteran drove to nearby places on occasion. The September 2015 and September 2016 VA examiners found that the Veteran was able to perform all functions of self-care. He does not need any aid for ambulation or managing his financial affairs. The September 2016 VA examiner concluded that the Veteran’s conditions did not cause him to be housebound and that he is unrestricted in terms of leaving his home. The Veteran has not submitted any lay statements asserting why SMP should be awarded. Moreover, the evidence does not otherwise show that the Veteran has been so helpless as to be in need of regular aid and attendance. In sum, a factual need for aid and attendance is not established. See 38 C.F.R. § 3.352. Accordingly, the criteria for SMP based on need for aid and attendance are not satisfied. See 38 C.F.R. §§ 3.151 (c). With regard to SMP at the housebound rate, the evaluations assigned the Veteran’s disabilities under the rating schedule do not satisfy the housebound criteria based on schedular ratings. Here, the Veteran is currently only service-connected for schizophrenia at 70 percent disabling. Moreover, as discussed above, the September 2015 and September 2016 VA examination reports show that the Veteran is not substantially confined to his home and immediate premises. See 38 C.F.R. § 3.151 (d). Thus, the criteria for SMP at the housebound rate are not satisfied. In sum, the preponderance of the evidence is against the Veteran’s claim. Consequently, the benefit-of-the-doubt rule does not apply, and entitlement to SMP is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. The Board is grateful to the Veteran for his service, and regrets that it cannot render a favorable decision in this matter. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Cho, Associate Counsel 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.