Citation Nr: 21007687 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 191212-49717 DATE: February 10, 2021 ORDER Entitlement to special monthly pension (SMP) based on the need for the regular aid and attendance of another person prior to May 8, 2019, is denied. FINDING OF FACT The probative evidence of record is against a finding that the appellant’s conditions rendered her helpless or so nearly helpless that she required the regular aid and attendance of another person prior to May 8, 2019. CONCLUSION OF LAW Prior to May 8, 2019, the criteria for entitlement to SMP at the aid and attendance rate were not met. 38 U.S.C. § 1541; 38 C.F.R. §§ 3.351, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1945 to July 1946. The Veteran died in November 2016, and the appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a Higher-Level Review (HLR) decision issued by a Department of Veterans Affairs (VA) regional office in November 2019. In a December 2019 VA Form 10182 Notice of Disagreement the Veteran requested Direct Review of the HLR decision. In January 2020, the Board denied the appellant’s claim. The appellant appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In September 2020, the Court granted a Joint Motion for Remand (JMR) in which the parties agreed to vacate the Board’s decision with respect to the issue listed above and to remand the appeal to the Board for compliance with the JMR. The appellant asserts that she should be awarded SMP at the aid and attendance rate prior to May 8, 2019. Pension benefits are available to surviving spouses of veterans with qualifying service who meet specific income and net worth requirements. 38 C.F.R. § 3.3(b). SMP is available to a surviving spouse who meets those requirements and is in need of aid and attendance. 38 C.F.R. § 3.351. To establish a need for regular aid and attendance, the appellant must (1) be 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 five 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 U.S.C. § 1502(b); 38 C.F.R. § 3.351(c). Determinations as to a factual need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to such conditions as the inability to dress and undress, the inability to keep ordinarily clean and presentable, the inability to feed oneself through loss of coordination of the upper extremities or through extreme weakness, or the inability to attend to the wants of nature. It includes the frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid. 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 their daily environment. 38 C.F.R. § 3.352(a). It is not required that all of the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found to exist before a favorable rating may be made. The particular personal functions which the appellant is unable to perform should be considered in connection with her condition as a whole. It is only necessary that the evidence establishes that the appellant is so helpless as to need regular aid and attendance, not that there is a constant need for aid and attendance. 38 C.F.R. § 3.352(a); see Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in § 3.352(a) must be present to grant SMP based on the need for aid and attendance). Initially, the Board notes that the appellant has been granted entitlement to survivor’s pension from November 8, 2017, the date she filed a VA Form 21-0966, Intent to File a Claim. She was found eligible for SMP at the aid and attendance rate effective May 8, 2019, the date of a VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance (SMP examination), demonstrating such entitlement. She asserts that she should be awarded SMP from the date of the November 2017 Intent to File. In that regard, she contends that she needed the aid and attendance of another person because she needed assistance with medications, had an inability to handle her financial affairs, suffered from imbalance, and was using a walker to leave home for doctor’s appointments. In November 2017, the appellant’s son, G.D., provided an Attendant Affidavit. G.D. indicated that he provided health care for his mother, including: assistance with bathing, getting in and out of bed, assistance walking, help standing and/or sitting, help eating and with meal preparation, help dressing and undressing, transportation to doctor’s appointments, and handling her financial affairs. Also in November 2017, the Executive Director of the appellant’s assisted living facility provided a statement indicating that the facility provides assistance with meal preparation and/or eating, but did not comment on the appellant’s capabilities. In a November 2017 letter, the appellant’s physician indicated that she must reside at a care facility, but noted that the reason was so that the appellant can obtain personal care services from her son. The physician did not provide any additional information in support of this finding. The physician also completed an SMP examination report, noting that the appellant was 92 years old and did not require hospitalization. Her gait was noted to be slow. The physician indicated that the appellant was capable of feeding herself and preparing her own meals. The appellant did not require assistance in bathing or tending to her hygiene needs. She was not legally blind and did not require nursing home care. The physician indicated that the appellant did require medication management and that her son handled her finances. Mild weakness of the upper and lower extremities was noted, but with no restrictions and the ability to ambulate fully. The appellant was reported to experience some imbalance without dizziness. She was able to leave the home once a week for doctor’s appointments with the assistance of a walker. In May 2019, the appellant underwent another SMP examination. Given the findings in this report, entitlement to SMP based on the need for aid and attendance was established. Specifically, this examination report indicated that the appellant now had an unsteady and shuffling gait, was unable to prepare her own meals due to weakened upper extremities, and required assistance with bathing and hygiene. The Board finds the most probative evidence is against a finding that, prior to May 2019, the appellant was helpless or so nearly helpless as to require the regular aid and attendance of another person. During the period at issue, the appellant was not blind or nearly blind and was not a patient in a nursing home. The record suggests that the appellant required assistance with medication management and that her son handled her finances, but she was otherwise fully ambulatory and able to accomplish all activities of daily living. While G.D. may have, in fact, been assisting the appellant with her activities of daily living, the most probative evidence, including the SMP examination report provided by the appellant’s physician in November 2017, does not establish that her disabilities resulted in the inability to care for herself as contemplated by 38 C.F.R. § 3.352(a). Further, while G.D. assisted the appellant with her finances, the medical evidence does not reflect a diagnosis of a condition which affected her mental capacity, nor were such symptoms noted by her physician in the November 2017 examination report. The Board notes that the record also contains a September 2011 SMP examination report which the appellant argues should weigh in favor of a finding that she required aid and attendance prior to May 2019. In this examination report, a physician noted that the appellant could not prepare her own meals and needed to live in a protective environment. However, the Board finds this evidence lacks probative value. In that regard, while evidence prior to the period on appeal can shed light on the appellant’s condition during the relevant period, this evidence is too remote in time from the period in question to provide support to the appellant’s contentions. A person’s physical and mental condition is subject to significant change over a period of years, and there is insufficient evidence to support a finding that all of the impairments noted on examination in September 2011 continued through to the relevant period. As such, the Board finds the more contemporaneous medical evidence, including the November 2017 and May 2019 SMP examination reports, to be significantly more probative than the September 2011 report. Finally, the Board is cognizant of the finding in the November 2019 rating decision that the appellant lacked the ability to protect herself from the hazards or dangers incident to her daily environment because she required assistance with meal preparation and medication management. The appellant was noted to need assistance with medication management on examination in both November 2017 and May 2019. As the agency of original jurisdiction (AOJ) found this factor weighed in the appellant’s favor to find that SMP was warranted from May 2019, the appellant argues that it should also support a finding that she is entitled to SMP from November 2017. The Board is bound by favorable findings of the AOJ, unless such findings are rebuttable by clear and unmistakable evidence. 38 C.F.R. § 20.801(a). While this is a favorable finding, the Board notes that the finding that that the appellant requires medication management was not the sole basis for finding that SMP was warranted. Turning to the explicit language of the AOJ decision, aid and attendance was awarded on the basis that the appellant needed assistance with both medication management and meal preparation; the most probative evidence indicates that, while she may have received assistance with meal preparation, she did not require assistance prior to the May 2019 SMP examination. Furthermore, it is not clear that these two factors enumerated in the AOJ decision are intended to serve as the only basis for the award; the May 2019 SMP examination also indicated a deterioration of the appellant’s condition in other areas, particularly with regard to hygiene and the functional ability of the upper and lower extremities. As such, while the Board is bound by the favorable finding of the AOJ that the Veteran’s need for medication management in part renders her in need of aid and attendance since May 2019, this finding does not mean that the need for medication management alone rendered her in such need prior to May 2019. While the appellant did demonstrate some deficiencies similar to those noted in 38 C.F.R. § 3.352(a) prior to May 8, 2019, the most probative evidence is against a finding that she required care or assistance on a regular basis to protect against the hazards or dangers incident to her daily environment during this period. Accordingly, entitlement to SMP due to the need for the regular aid and attendance of another person prior to May 8, 2019, is not warranted and the claim must be denied. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. D. Bruce, 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.