Citation Nr: 21064468 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 17-46 590 DATE: October 20, 2021 ORDER Entitlement to special monthly pension based on the need for regular aid and attendance or housebound prior to July 27, 2021 is denied. FINDINGS OF FACT 1. Prior to July 27, 2021, the Veteran's conditions did not result in the need for regular aid and attendance of another person in meeting his daily personal needs, such as dressing and feeding himself, attending to the wants of nature, keeping himself ordinarily clean and protecting himself from the hazards and dangers of his daily environment. 2. While the Veteran is considered totally disabled due to his nonservice-connected prostate cancer, his additional disabilities are not independently ratable at 60 percent or more; he is also not so limited in his ability to function that he is housebound due to his disorders. CONCLUSION OF LAW The criteria for special monthly pension (SMP) based on the need for regular aid and attendance or by reason of being housebound prior to July 27, 2021 are not met. 38U.S.C. §§1521, 5107; 38C.F.R. §§3.102, 3.351, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from September 1964 to July 1966. In October 2018, the Board denied the claim for special monthly pension. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). By a June 2019 Memorandum Decision, the Court vacated the Board decision and remanded the claim. In January 2020 the Board again denied the claim for special monthly pension. The Veteran appealed that decision to the Court and in November 2020, the Court remanded the issue pursuant to the terms of the joint motion remand. In March 2021, the Board remanded the case for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that the Veteran's claim of entitlement to special monthly pension was granted in an August 2021 rating decision effective July 27, 2021 and payable August 1, 2021. As such, the remaining issue before the Board is whether entitlement to special monthly pension is warranted prior to July 27, 2021. Entitlement to special monthly pension based on the need for regular aid and attendance or housebound Legal Criteria An increased rate of pension is available, in the form of special monthly pension, when an otherwise eligible veteran is in need of regular aid and attendance or has a disability rated as permanent and total and (1) has an additional disability or disabilities ratable at 60 percent, or (2) is permanently housebound. 38U.S.C. §§1521(d), (e); see also 38C.F.R. §§3.351(b), (c), (d). The need for aid and attendance is defined as helplessness or being so nearly helpless as to require the regular aid and attendance of another person. 38C.F.R. §3.351(b). The spouse shall be considered to be in need of regular aid and attendance if the person 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 is a patient in a nursing home because of mental or physical incapacity; or establishes a factual need for aid and attendance under the criteria set forth in 38C.F.R. §3.352(a). See also 38C.F.R. §3.351(c). A factual need for aid and attendance includes the inability to dress, undress, keep ordinarily clean and presentable, feed oneself through loss of coordination of the upper extremities or through extreme weakness, or attend to the wants of nature. A need for aid and attendance also includes either physical or mental incapacity that requires care or assistance on a regular basis to protect against the hazards or dangers incident to the daily environment. See C.F.R. § 3.352(a). See also Turco v. Brown, 9 Vet. App. 222, 224 (1996). Bedridden will be a proper basis for the determination of whether the veteran is in need of regular aid and attendance of another person. Bedridden is that condition which, through its essential character, actually requires that the claimant remain in bed. That a claimant 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. 38C.F.R. §3.352(a). Permanently housebound means substantial confinement to the veteran's home and immediate premises. 38U.S.C. §1521(e); 38C.F.R. §3.351(d). Analysis The Veteran underwent an examination to determine housebound status or the permanent need for regular aid and attendance in March 2016. The examination revealed that the Veteran was able to feed himself, prepare his own meals and did not need assistance with bathing or medication management. He was not confined to bed, not legally blind and did not require nursing home care. The examiner specifically indicated the Veteran was able to manage his own financial affairs. The Veteran attended a VA examination in May 2017. The examiner noted that the Veteran lived alone in a one-story house and paid an individual to perform household chores and prepare his meals. The examiner reported the Veteran was not bedridden or hospitalized and could travel beyond his domicile. His daily activities included toileting, preparing coffee, and walking around his house. He did not have an impairment which prevented him from protecting himself from the hazards of his daily environment. The Veteran was able to leave his house unrestricted, perform all self-care functions and walk without the assistance of another person for up to one mile. He had normal function of the spine, and upper and lower extremities, no cognitive impairment and his best corrected vision was not 5/200 or worse. With regard to competency, the examiner found the Veteran knew the amount of his benefit payment, prudently handled his payments, was aware of the amounts of his monthly bills and personally handled his money and paid his own bills. However, the examiner also noted the Veteran was not capable of managing his financial affairs but reported no cognitive impairment. Pursuant to the March 2021 remand directives, the Veteran underwent an aid and attendance or housebound examination in July 2021, which occurred via telephone interview. The examination revealed that the Veteran is not permanently bedridden or currently hospitalized and is able to travel beyond his current domicile. He reported spending his day in the house and that he has a person, that he hired, to assist with chores such as preparing meals, cleaning the house, and washing clothes as well as bathing, toileting, grooming and changing clothes. He disclosed that his son buys the groceries and takes him to medical appointments and pays the bills but he is aware of the bills and gives the money to his son. The examiner concluded that the Veteran can only walk alone within his home, has limited range of motion, mild to moderate impairment of the upper extremities, and marked difficulty with dressing, bathing, grooming and toileting. The Veteran's corrected vision was not 5/200 or worse in both eyes and he was found capable of handling money and paying bills. However, the examiner did not view the Veteran as capable of managing his financial affairs stating he is well aware of current bills and up to date on payments, which his son makes for him. The examiner concluded that the Veteran requires aid and attendance but is not housebound as he is able to leave his home for medical appointments. Review of the medical records, which include both private treatment records and VA treatment records, consistently reflect that the Veteran did not require assistance for activities of daily living (ADLs) and required minimal assistance with his instrumental activities of daily living (IADLs) prior to July 27, 2021. Functional status screens conducted throughout the period at issue repeatedly reported that the Veteran did not require assistance for bathing, dressing, toileting, transfers, and feeding and for his IADLs, he was able to dial a few well-known numbers, shop independently for small purchases, heat, service and prepare meals, but not maintain an adequate diet, perform light daily housekeeping, launder small items, travel independently, be responsible for his own medications and manage his own finances. These functional screens were conducted in April 2018, May 2019, March 2020, and February 2021. Additionally, the Veteran was described as alert, oriented in time, place and person, ambulatory with no distress and no limited range of motion, seating and standing well with no distress in October 2016, June 2017, April 2018, August 2018, November 2019, and March 2020. In April 2018, Dr. A.C., private clinician, reported that the Veteran was independent with toileting, feeding, dressing, and bathing and was ambulatory. He reported that the Veteran was able to prepare meals independently, shop for personal items alone, manage his medications and money matters on his own, use a telephone without help, do light and heavy work independently and did not require transportation assistance. In September 2020 the Veteran reported handling his own money and that it was being handled properly. The Veteran suffered a fall at home in April 2021; however, the examination revealed a normal gait and normal musculoskeletal examination. He again had a normal musculoskeletal examination in June 2021 with a normal gait. The medical records include a medical data review from Dr. C.M., who assessed the Veteran as 100 percent disabled due to his medical conditions and effects of advanced age. Dr. C.M. concluded that the Veteran needed aid and attendance with activities of daily living to include meal preparation, medication management and personal hygiene on a regular basis. See Medical Treatment Record Non-Government Facility April 2021. The Board finds that the evidence establishes that prior to July 27, 2021 the Veteran was independent in his activities of daily living as he did not require assistance for bathing, dressing, toileting, transfers, and feeding as reported at least five different times in the medical records by different clinicians from April 2018 to February 2021. He was also consistently described as alert, ambulatory with no distress and no limited range of motion, and seating and standing well numerous times from October 2016 to March 2020, indicating that he did not require care or assistance on a regular basis to protect against the hazards or dangers incident to the daily environment as he was alert and able to ambulate independently. While the evidence establishes that the Veteran hired an individual to assist with household chores and meal preparation, household chores are not an activity of daily living and, therefore, such assistance does not qualify him for special monthly pension based on aid and attendance. Furthermore, the Veteran was repeatedly found capable of meal preparation throughout the period at issue by various providers. Thus, the evidence indicates that the Veteran hired help out of convenience and not due to the need of regular aid and attendance. The Board also finds that the Veteran was able to manage his financial affairs. The May 2016 examiner found the Veteran capable of handling his finances, Dr. A.C. found the Veteran capable of managing his own finances in April 2018 and the Veteran reported properly handling his own money in September 2020. While the May 2017 VA examiner found the Veteran not capable of managing his own finances, this is inconsistent with the rest of the examination reporting that he knew the amount of his benefit payment, prudently handled his payments, was aware of the amounts of his monthly bills, personally handled his money, paid his own bills, and did not have a cognitive impairment. The Board considered the November 2020 assessment of Dr. C.M.; however, the findings are inconsistent with the medical treatment records, which showed the Veteran independent in his activities of daily living prior to the assessment in March 2020 and after the assessment in February 2021. Thus, greater probative weight is given to the medical records. Furthermore, the evidence of record does not establish that the Veteran was blind, or going blind, as the most recent VA examination revealed corrected vision that was no worse than 5/200 in both eyes. Additionally, the November 2020 medical data review by Dr. C.M., which listed his medical diagnoses, did not include any diagnoses related to the eye or vision difficulties and the Veteran consistently denied blurred vision in the medical records. The weight of the evidence also demonstrates that the Veteran was not confined to a nursing home or considered "permanently housebound" as defined by 38C.F.R.§3.351. Throughout the period at issue, he lived in his own home and traveled outside his home to regularly attend medical appointments. Additionally, the treatment records reported that the Veteran was able to shop independently, ambulate without assistance and did not require assistance with transportation; thus, indicating that he was not substantially confined to his dwelling or immediate premises. Accordingly, the claim for entitlement to special monthly pension prior to July 27, 2021 is denied as the need for regular aid and attendance of another person or by reason of being housebound is not established. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Prinsen 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.