Citation Nr: A21020068 Decision Date: 12/16/21 Archive Date: 12/15/21 DOCKET NO. 210409-151531 DATE: December 16, 2021 ORDER Entitlement to special monthly pension (SMP) based on the need for the regular aid and attendance of another person is denied. Entitlement to non-service-connected pension benefits is denied. FINDINGS OF FACT 1. The Veteran is not shown to be in need of the regular aid and attendance of another individual. 2. For the period relevant to the claim, the Veteran's countable income exceeded the maximum allowable pension rate (MAPR) for purposes of entitlement to non-service-connected pension benefits. CONCLUSIONS OF LAW 1. The criteria for an award of SMP based on the need for the regular aid and attendance of another person have not been met. 38 U.S.C. § 1521; 38 C.F.R. §§ 3.23, 3.351, 3.352. 2. The criteria for payment of non-service-connected pension benefits have not been met. 38 U.S.C. §§ 1502, 1521; 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272, 3.273, 3.277. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from October 1962 to August 1964, and from February 1966 to March 1967. His decorations include the National Defense Service Medal. The original rating determination underlying the present appeal was issued in August 2019 by a Department of Veterans Affairs (VA) Regional Office. Later that month, the Veteran requested Higher-Level Review of that decision. Following a denial on Higher-Level Review in October 2019, the Veteran filed a Supplemental Claim in January 2020. After a denial of the Supplemental claim was entered in April 2020, he timely appealed to the Board of Veterans' Appeals (Board) in April 2021, requesting direct review of the evidence considered by the agency of original jurisdiction (AOJ) pursuant to the Appeals Modernization Act (AMA). See April 2021 VA Form 10182; 38 C.F.R. §§ 20.201, 20.202(b)(1). The Board has bifurcated the appeal as listed on the title page in order to address the different bases for the denial of the Veteran's claim. 1. Entitlement to SMP based on the need for the regular aid and attendance of another person is denied. The Veteran seeks SMP based on the need for regular aid and attendance. Special monthly pension is payable at a specified rate if a VA claimant is helpless or so nearly helpless that he requires the regular aid and attendance of another person. To establish a need for regular aid and attendance, the claimant must (1) be blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or have 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 C.F.R. §§ 3.351(b)-(c), 3.352(a). The criteria to be considered in establishing a factual need for aid and attendance include: inability of the claimant to dress or undress him or herself or to keep him or 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 assistance; inability of the claimant to feed him or herself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, either physical or mental, that 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). The particular personal functions which the veteran is unable to perform should be considered in connection with the claimant's condition as a whole. The evidence need only establish that the veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that the veteran is so helpless as to need regular aid and attendance will not be based solely upon an opinion that the veteran's condition requires the veteran to be in bed. Rather, they must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352(a). At least one of the listed criteria must be met, but not all of them. Turco v. Brown, 9 Vet. App. 222, 224 (1996). Being "bedridden" will also be a proper basis for finding that a VA claimant is in need of regular aid and attendance. The term "bedridden" means a condition which, through its essential character, actually requires that the claimant remain in bed. However, the fact that someone 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 is not sufficient. 38 C.F.R. § 3.352(a). For the reasons set forth below, the Board finds that the evidence weighs against finding that SMP based upon the need for regular aid and attendance of another individual is warranted. In April 2019, the Veteran provided a November 2018 VA Form 21-2680 (Examination for Housebound Status or Permanent Need for Regular Aid and Attendance). A private examiner assessed that the Veteran was not blind or bedridden, did not require nursing home care, and did not require assistance with bathing, dressing, tending to personal hygiene needs, or feeding himself. It was noted that he was unable to prepare his own meals. It was further assessed, however, that he was not confined to his residence, could leave his home as needed, and was competent to manage his affairs. The Veteran had full use of his upper and lower extremities. He could walk a city block with the use of a cane. In light of the above, the Board finds that the evidence weighs against a finding that SMP is warranted based on the need for aid and attendance under 38 C.F.R. § 3.351 or 3.352. First, the Veteran is not shown to have a corrected visual acuity of 5/200 or less in both eyes, or concentric contraction of the visual field to 5 degrees or less. Further, the evidence also does not indicate that the Veteran is a patient in a nursing home because of mental or physical incapacity. In addition, the evidence does not otherwise support a finding that a factual need for aid and attendance has been established under 38 C.F.R. § 3.352(a). Specifically, while the Veteran has been diagnosed with multiple disabilities and cannot prepare his own meals, the evidence does not reflect that he has an inability to feed or dress himself. Nor is there any demonstrated inability to maintain his own hygiene. Finally, the evidence does not reflect that assistance is required to protect him from the hazards or dangers of his daily environment. Therefore, a factual need for aid and attendance under 38 C.F.R. § 3.352(a) has not been established. The Board acknowledges the Veteran's belief that his symptoms are of such severity as to warrant SMP based on the need for aid and attendance. However, the Board finds the medical evidence provided by the Veteran, which directly addresses the criteria under which SMP is evaluated, more probative than the Veteran's own assessment. Based on the foregoing, the evidence does not support the Veteran's claim for SMP based on the need for regular aid and attendance. Equipoise is not shown, and the benefit of the doubt rule does not apply. As the weight of the evidence is against the Veteran's claim, the appeal of this issue must be denied. 2. Entitlement to non-service-connected pension benefits is denied. The Veteran seeks to establish entitlement to non-service-connected pension benefits. The record reflects that VA received his original pension claim in April 2019. As the AMA decision on appeal is dated in April 2020, the relevant period on appeal is from April 2019 to April 2020. Pursuant to 38 U.S.C. § 1521(a), non-service-connected disability pension is a benefit payable to a veteran of a period of war who is permanently and totally disabled from non-service-connected disability not the result of his own willful misconduct. A veteran is entitled to pension only if his income is not in excess of the applicable MAPR, as specified at 38 C.F.R. § 3.23 and changed periodically, as reported in the Federal Register. See 38 U.S.C. § 1521. The maximum rates for a veteran's pension are reduced dollar for dollar by the amount of the countable income of a veteran, his spouse, and any dependent(s). 38 U.S.C. § 1521; 38 C.F.R. § 3.23(d). In this case, the record reflects that the Veteran satisfies the service criteria as set out in 38 C.F.R. § 3.3(a)(3)(i) based on more than 90 days of active service during the Vietnam War period, which is defined as running from February 28, 1961 to May 7, 1975. See also 38 U.S.C. § 101; 38 C.F.R. § 3.2. The question for the Board is whether, for the relevant period on appeal, the Veteran's countable income was below the relevant MAPR for purposes of entitlement to non-service-connected pension benefits. In determining income for this purpose, payments of any kind from any source are counted as income during the 12-month annualization period in which received unless specifically excluded. 38 U.S.C. § 1503; 38 C.F.R. § 3.271. Unreimbursed medical expenses reduce countable income for VA pension purposes. Unreimbursed medical expenses in excess of five percent of the maximum annual pension rate, which have been paid by the appellant, may be excluded from an individual's income for the same 12-month annualization period to the extent they were paid. 38 C.F.R. § 3.272(g)(1)(iii). Other expenses that may be excluded from countable income include: welfare; maintenance (including nursing home and home care fees); VA pension benefits; payments under Chapter 15 of Title 38, United States Code, including accrued pension benefits; reimbursements for casualty loss; profit from sale of property; and joint accounts (accounts and joints accounts in banks and similar institutions acquired by reason of death of the other joint owner). 38 C.F.R. § 3.272. The record reflects that at the time of the Veteran's claim in April 2019, he had one dependent (his spouse). At that time, for non-service-connected pension purposes, the MAPR for a Veteran with one dependent was $17,724. See Pension Rate Tables, effective December 1, 2018, available at https://www.va.gov/pension/ veterans-pension-rates/past-rates-2019/ (accessed on December 15, 2021). Following review of the record, the Board finds that the preponderance of the evidence is against the Veteran's claim. On his April 2019 VA Form 21-527EZ, the Veteran reported that he was in receipt of Social Security Administration (SSA) income of $1,431 per month ($17,172 per year), and that his spouse was in receipt of SSA income of $697 per month ($8,364 per year). See also August 2019 VA Form 21P-0969 (showing that the Veteran reported that his SSA income $1,470 per month and that his spouse's SSA income was $539 per month). However, a June 2019 SSA inquiry report shows that the Veteran's SSA income was $1,470.50 per month ($17,646 per year) effective December 2018. A separate June 2019 SSA inquiry report confirmed that his spouse's SSA income was $716.50 per month ($8,598 per year) effective December 2018. Given the discrepancy between the amounts reported by the Veteran on his April 2019 VA Form 21-527EZ and August 2019 VA Form 21P-0969 and the amounts reported by SSA, the Board will use the gross amounts as reported by SSA. Using those figures, the Veteran's total annualized household income was $26,244 effective April 2019 (calculated by adding the Veteran's annualized SSA income of $17,646 and his spouse's annualized SSA income of $8,598). Unreimbursed medical expenses that are over five percent of the relevant maximum annual pension rate are used to reduce countable income. The MAPR, effective December 1, 2018, for a Veteran with one dependent was $17,724, and 5 percent of that amount is $886.20. Therefore, in calculating the Veteran's countable expenses, only unreimbursed medical expenses in excess of $886.20 can be considered. In this case, with regard to the annualized period from April 2019, the record shows that the Veteran had unreimbursed medical expenses totalling $8,826.48. On his April 2019 VA Form 21-527EZ, he reported Medicare Part B expenses for him and his spouse totalling $3,440.40 per year. However, a June 2019 SSA inquiry report shows that his Medicare Part B premium was $135.50 per month ($1,626 per year). A separate June 2019 SSA inquiry report confirmed that his spouse's Medicare Part B premium was also $135.50 per month ($1,626 per year). Given the discrepancy between the amounts reported by the Veteran on his April 2019 VA Form 21-527EZ and the amounts reported by SSA, the Board will use the Medicare Part B premium amounts as reported by SSA. Using those figures, the Veteran's total household Medicare Part B premiums was $3,252 (calculated by adding the Veteran's Medicare Part B premiums of $1,626 and the spouse's annualized Medicare Part B premiums of $1,626). On his April 2019 VA Form 21-527EZ, the Veteran also reported Medicare supplemental insurance premiums totalling $5,574.48 per year. In an August 2019 VA Form 21-4138, the Veteran reported Medicare supplemental insurance premiums totalling $4,285.80. Specifically, he reported that his Medicare supplemental insurance premiums were $316.55 per month ($3,798.60 per year) and that his spouse's Medicare supplemental insurance premiums $40.60 per month ($487.20 per year). Given the discrepancy between the amounts reported by the Veteran on his April 2019 VA Form 21-527EZ and August 2019 VA Form 21-4138, the Board will use the higher, more favorable, amounts as reported on his April 2019 VA Forms 21-527EZ. Based on the foregoing, the Board finds that the Veteran's total household unreimbursed medical expenses for the annualization period from April 2019 were $8,826.48 (calculated by adding $3,252 in Medicare Part B premiums and $5,574.48 in Medicare supplemental insurance premiums). Deducting the $886.20 (5 percent of MAPR) from $8,826.48 (total unreimbursed expenses for the annualization period from April 2019) results in $7,940.28 in deductible unreimbursed expenses for the annualization period from April 2019. After deducting the amount of unreimbursed expenses that are over 5 percent of the relevant MAPR from the total income of $26,244 per year for the annualization period from April 2019, the resulting countable income is $18,303.72, which is higher than the relevant MAPR amount of $17,724. The Veteran has not provided any additional income or net worth information or evidence and has not provided any additional evidence of eligible unreimbursed medical expenses or any other expenses that may be deducted from his income for purposes of calculating his countable income for non-service-connected disability pension purposes. Based on the foregoing, the Board finds that, for the relevant period on appeal (from April 2019 to April 2020), the preponderance of the evidence establishes that the Veteran's countable income exceeded the relevant MAPR. Accordingly, as he has not met the annual income requirement set forth in 38 C.F.R. § 3.3, payment of non-service-connected pension benefits cannot be made for the period on appeal from April 2019 to April 2020. The appeal of this issue must be denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Ragheb, 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.