Citation Nr: 20013243 Decision Date: 02/19/20 Archive Date: 02/19/20 DOCKET NO. 18-26 414 DATE: February 19, 2020 ORDER Entitlement to aid and attendance benefits for the Veteran’s spouse is denied. FINDING OF FACT The Veteran’s spouse has not been shown 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, to be a patient in a nursing home, to be bedridden, or to otherwise have a factual need for aid and attendance. CONCLUSION OF LAW The criteria for aid and attendance benefits for the Veteran’s spouse are not met. 38 U.S.C. §§ 1114, 1115 (2012); 38 C.F.R. §§ 3.351, 3.352 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from November 1952 to March 1953, and from February 1954 to August 1956. The matter before the Board arises from the May 2017 rating decision that denied an aid and attendance allowance for the Veteran’s spouse. The Board recognizes that a hearing was requested by way of the May 2018 VA Form 9. However, the hearing request was withdrawn in April 2019. Entitlement to aid and attendance benefits for the Veteran’s spouse is denied. The Board observes that the Veteran was awarded special monthly compensation (SMC) based on his need for aid and attendance by way of a June 2018 rating decision. The matter on appeal is limited to whether an aid and attendance allowance is warranted for his spouse. Under 38 C.F.R. § 3.351(a)(2), SMC is payable to a Veteran by reason of the Veteran’s spouse being in need of aid and attendance. 38 U.S.C. §§ 1114, 1115. The need for aid and attendance means helplessness as to require the regular aid and attendance of another person. 38 C.F.R. § 3.351(b). In this regard, the Veteran’s spouse 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 § 3.352(a). 38 C.F.R. § 3.351(c). Under 38 U.S.C. § ; 38 C.F.R. § 3.352(a) the following will be accorded consideration in determining the need for regular aid and attendance: inability of claimant to dress or undress herself, or to keep herself 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 (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of claimant to feed herself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to her daily environment. 38 C.F.R. § 3.352(a). “Bedridden” will be a proper basis for the determination. For the purpose of this paragraph, “bedridden” will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that the claimant has voluntarily taken to bed or that a physician has prescribed bed rest for the greater or lesser part of the day to promote convalescence or cure will not suffice. Id. It is not required that all of the disabling conditions enumerated in this paragraph 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 her 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. Id. In this case, a private physician completed a VA Form 21-2680 Examination for Housebound Status or Permanent Need for Aid and Attendance (VA Form 21-2680) in June 2016. This report documents the Veteran’s spouse’s hypertension, osteoarthritis, heart disease, pulmonary embolism, diabetes mellitus, rheumatoid arthritis, and obesity. The osteoarthritis and rheumatoid arthritis were noted to cause restrictions in activity and an unsteady gait. The Veteran’s spouse was not noted as bedridden and it was indicated she is able to feed herself, but needs assistance preparing meals, as well as standing, bending or reaching. The physician confirmed that the Veteran’s spouse is not blind and does not require nursing home care, medication management, or any need for assistance with financial affairs. The physician noted that the Veteran’s spouse is unable to ambulate independently and is wheelchair bound, which caused it to be taxing to leave home. This physician suggested that the Veteran’s spouse should be in a rehabilitation facility; however, there is no indication that she has gone to any such facility. In March 2017, another private physician submitted a VA Form 21-2680. The same medical conditions were noted at this time. This physician indicated that the Veteran’s spouse has difficulty standing and walking, and has her activities limited by her diabetes, arthritis, difficulty ambulating, as well as hyperlipidemia. The Veteran’s spouse was again observed to be in a wheelchair. This physician also noted that the Veteran’s spouse required no assistance to feed herself but needed help to prepare meals. She also was noted to need assistance bathing herself and this physician suggested she is in need of nursing home care and medication management. However, there was no discussion of the basis for this conclusion. The Veteran’s spouse was again confirmed as not blind and as able to manage her own financial affairs. The physician noted the upper and lower extremities are limited by rheumatoid arthritis and the ability to ambulate on her own is limited by the rheumatoid arthritis and obesity. The physician suggested that the Veteran’s spouse can leave the home for doctor visits as needed, but that she needs assistance. Additional records were submitted in April 2018 suggesting the Veteran’s spouse had been hospitalized in June 2017 and discharged home with periodic home care. The home care instructions noted help was needed to prepare food and assistance needed for bed mobility, locomotion, dressing, toileting, hygiene, and bathing. The frequency was not noted, but the billing documents submitted do indicate that this was not a daily home visit, but, rather, periodic. More recently, the record shows that the Veteran’s spouse was contacted in February 2020 to gather information related to her role as the Veteran’s fiduciary. The notes from this call indicate she reported that the Veteran’s money was being used for shopping, personal needs and casino trips. There were additional expenses monthly for a caregiver. The Veteran’s spouse also noted that they had purchased a car, and that they had used some of the Veteran’s retroactive benefits “for her and [the Veteran] to take a few vacations, update their bedroom and living room furniture and personal items, install a stair lift, and a hot tub to help with arthritic symptoms.” In sum, it appears that the Veteran’s spouse does have some difficulty ambulating, which leads to her getting assistance to cook meals, use a wheelchair to ambulate, and getting assistance with some hygiene activities. The Veteran’s spouse, however, has not been shown 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, to be a patient in a nursing home, or to be bedridden. Furthermore, while some assistance is evident in the record, the Veteran’s spouse does not appear to be unable to dress herself, or to keep herself ordinarily clean and presentable; have a frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; be unable to feed herself through loss of coordination of upper extremities or through extreme weakness; to be unable to attend to the wants of nature; or to be incapacitated physically or mentally such that care or assistance is needed on a regular basis to protect her from hazards or dangers incident to her daily environment. While some assistance is shown in the record, it has not been shown as needed daily or at such a level to show a factual need for aid and attendance as defined by 38 C.F.R. § 3.352(a). Again, the most recent evidence suggests she and the Veteran have taken vacations, go to casinos, and purchased a vehicle for their use. Given the above, the preponderance of the evidence is against the Veteran’s claim of entitlement to aid and attendance benefits for the Veteran’s spouse. There is no reasonable doubt to be resolved, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Julie C. Unger Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Adamson, 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.