Citation Nr: 21012622 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 14-27 978 DATE: March 4, 2021 ORDER The claim of whether the Veteran received the benefit payment pursuant to a June 2002 rating decision for post-traumatic stress disorder (PTSD) is denied, as such there are no accrued benefits the appellant is entitled to. Entitlement to special monthly pension (SMP) for a surviving spouse based on the need for the aid and attendance of another person is denied. Entitlement to SMP for a surviving spouse due to being housebound is granted. FINDINGS OF FACT 1. The Veteran received a check dated June 17, 2002 for the benefits for a PTSD claim pursuant to a June 2002 rating decision. 2. This decision was not appealed, as such there are no accrued benefits the Appellant is entitled to. 3. The Appellant is not shown to be in need of regular aid and attendance by another individual. 4. The Appellant is housebound. CONCLUSIONS OF LAW 1. The Veteran received the disability compensation payment paid to him following the June 2002 rating decision, which was correctly calculated and paid. 38 U.S.C. § 1114. 2. The criteria for SMP for a surviving spouse based on the need for the regular aid and attendance of another have not been met. 38 U.S.C. §§ 1502 (b), 1521(d); 38 C.F.R. §§ 3.23, 3.351(b) and (c), 3.352(a). 3. The criteria for entitlement to SMP for a surviving spouse based on the need for housebound status, have been met. 38 U.S.C. §§ 1502 (b), 1521(d); 38 C.F.R. §§ 3.23, 3.351(b) and (c), 3.352(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1964 to May 1967 and from November 1973 to August 1979. The Veteran died in August 2012. The Appellant is the Veteran’s surviving spouse. The Veteran’s surviving spouse has been substituted spouse has been substituted as the Appellant for any claims pending at the Veteran’s death. In July 2012, the Regional Office (RO) issued a rating decision proposing a rating reduction from 100 percent to noncompensable for prostate cancer. However, the Veteran died before any action related to this rating decision was taken. This claim was remanded in July 2018 for further development. The Board finds there has been substantial compliance with its July 2018 remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board’s remand.) 1. Entitlement to accrued benefits The Appellant asserts that she is entitled accrued benefits for her husband’s pension prior to his death. Specifically, the Appellant asserts that the Veteran was entitled to retroactive VA disability compensation benefits in the amount of $13,650.00 at the time of his death as he never cashed the VA check issued to him in that amount. This amount was due to a June 2002 rating decision for PTSD rated at 50 percent, effective June 25, 1997. This decision was not appealed. Accrued benefits are defined as “periodic monetary benefits . . . authorized under law administered by [VA], to which a payee was entitled at his or her death under existing ratings for decisions or those based on evidence in the file at the date of death, and due and unpaid.” 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000(a). Pursuant to the June 2002 rating decision, the Veteran was mailed a check dated June 17, 2002 in the amount of $13,650.00 to the address of record. The Treasury Check Information System reflected that the Veteran endorsed and cashed the check number 62058664 on June 25, 2002. As such, no accrued benefits are outstanding. In this case, payment of accrued benefits is not warranted as there were no claims pending on the date of the Veteran’s death for which compensation was payable. Therefore, the Appellant’s accrued benefits claim is denied. As the law is dispositive in this case, and the relevant facts are not in dispute, the appeal must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Hence, the benefit-of-the-doubt doctrine is inapplicable. 38 U.S.C. § 5107(b); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to SMP for a surviving spouse based on the need for the aid and attendance of another person or being housebound The appellant asserts that her medical conditions have rendered her either housebound or in need of the aid and attendance of another. SMP benefits are payable to surviving spouses that are in need of regular aid and attendance. 38 U.S.C. § 1521(d); 38 C.F.R. § 3.351(a)(5), (6). Requiring aid and attendance means that a person is helpless or so nearly helpless as to require the regular aid and attendance of another person. A spouse will be considered to be 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; (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 38 C.F.R. § 3.352(a); see 38 C.F.R. § 3.351(b), (c). The criteria to be considered in establishing a factual need for aid and attendance include: • The inability of a 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. Being bedridden is a proper basis for the determination. “Bedridden” is that condition which, through its essential character, actually requires that the claimant remain in bed. The fact 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. 38 C.F.R. § 3.352(a). It is not required that all of the disabling conditions enumerated be found to exist before a favorable rating may be made. Moreover, 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. Determinations that a claimant is so helpless, as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant’s condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others. Id. In this case, the evidence does not indicate that SMP is warranted based on the need for aid and attendance under 38 C.F.R. § 3.351 or 3.352. First, the appellant does not 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 Appellant was a patient in a nursing home because of mental and/or physical incapacity. Finally, the evidence does not indicate that a factual need for aid and attendance has been established under 38 C.F.R. § 3.352(a). Specifically, while the appellant submitted medical evidence which indicates she is being treated for numerous medical conditions, including shingles, multiple joint problems including the back, neck, right shoulder, right hip, right ankle, bilateral hands, bilateral knees, and dizziness - there is no indication that she permanently relies upon another in order to sustain herself. In fact, the Veteran’s caregiver provided a note in October 2012 stating that the Veteran required assistance with “heavy cleaning.” While the Board would not dispute the fact that the appellant has many problems she must address on a day to day basis, overall, the evidence including a September 2020 examination for housebound status or permanent need for regular aid and attendance does not indicate an inability by the appellant to feed or dress herself, nor was there any demonstrated inability to maintain her own hygiene. Finally, the evidence also does not indicate that assistance is required to protect her from the hazards, medication management, and dangers of her daily environment. Therefore, a factual need for aid and attendance under 38 C.F.R. § 3.352(a) has not been established. Next, although SMP has not been established based on the need for aid and attendance, the Board has also considered whether SMP may be warranted based on being housebound. In this regard, an appellant will be found to be “permanently housebound” when he or she is substantially confined to his or her house (or ward or clinical areas, if institutionalized) or immediate premises due to disability or disabilities which it is reasonably certain will remain throughout his or her lifetime. 38 U.S.C. §§ 1502(c), 1311(d); 38 C.F.R. § 3.351(f). The Board determines that the requirements for SMP based on housebound status has been met. The VA examiner in September 2020 opined that the Appellant is unable to leave her home “at all” without the aid of others in addition to assistive devices. Therefore, SMP is warranted on this basis of housebound status. 38 U.S.C. §§ 1502 (c), 1311(d); 38 C.F.R. § 3.351 (f). In conclusion, the evidence supports the Appellant’s claim for SMC by reason of being housebound. The Board finds that evidence equipoise is shown, and the benefit of the doubt rule applies. As the weight of the evidence is at least in equipoise as to the claim for entitlement to SMC, the appeal is granted. Saudiee Brown Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Billinger, David 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.