Citation Nr: 21027324 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 15-27 937 DATE: May 5, 2021 ORDER Special monthly pension (SMP) based on the need for the aid and attendance of another person is denied. FINDING OF FACT The Veteran is not permanently housebound; does not have a single permanent nonservice-connected disability evaluated as 100 percent disabling; and is not so helpless as to be in need of regular aid and attendance. CONCLUSION OF LAW The criteria for SMP based on the need for regular aid and attendance or by reason of being housebound have not been met. 38 U.S.C. §§ 1502, 1521; 38 C.F.R. §§ 3.102, 3.159, 3.351, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1972 to April 1973. The Veteran testified before the undersigned Veterans Law Judge in October 2018. This case was previously before the Board in March 2019 and July 2020, when it was remanded for additional development. An additional claim of entitlement to service connection for an acquired psychiatric disability was remanded at that time. In a December 2020 rating decision, the Regional Office (RO) granted service connection for bipolar disorder. This issue is no longer in appellate status. Additional development was completed with respect to the Veteran's remaining claim. The RO issued a supplemental statement of the case in December 2020 and the appeal is once again before the Board. 1. Entitlement to SMP. The Veteran has filed a claim seeking SMP based on the need for aid and attendance of another person. If a veteran has established basic entitlement to nonservice-connected pension benefits, an additional allowance is permitted when he or she is shown to be in need of regular aid and attendance or housebound. Regular aid and attendance is the greater monetary award. 38 U.S.C. § 1521(d), (e); 38 C.F.R. § 3.351. SMP at the aid and attendance rate is payable when a veteran exhibits helplessness or being so nearly helpless as to require the regular aid and attendance of another person. A claimant 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; (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 38 C.F.R. § 3.352(a). 38 U.S.C. § 1502(b); 38 C.F.R. § 3.351(b), (c). The following will be accorded consideration in determining the need for regular aid and attendance: inability of a claimant to dress or undress himself or herself, or to keep himself 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 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 a claimant to feed himself or herself through loss of coordination of the 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 a claimant from hazards or dangers incident to his or her daily environment. 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 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. It is not required that all of the disabling conditions enumerated above 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 his or 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. Determinations that the 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. 38 C.F.R. § 3.352(a); see also Turco v. Brown, 9 Vet. App. 222, 224 (1996) (providing that eligibility by reason of regular need for aid and attendance requires that at least one of the factors set forth in VA regulation is met, but not all). If a veteran does not qualify for increased benefits at the aid and attendance rate, SMP at the housebound rate is payable if he or she has a single permanent disability evaluated as 100 percent disabling (not including ratings based upon unemployability under 38 C.F.R. § 4.17), and, in addition: (1) has additional disability or disabilities independently ratable at 60 percent or more, separate and distinct from the permanent disability evaluated as 100 percent disabling and involving different anatomical segments or bodily systems; or (2) is permanently housebound by reason of a disability or disabilities. 38 U.S.C. § 1521(e); 38 C.F.R. § 3.351(d). The requirement of being permanently housebound is met when a claimant is substantially confined to his or her house (ward or clinical areas, if institutionalized) or immediate premises due to disability or disabilities, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 U.S.C. § 1502(c); 38 C.F.R. § 3.351(d)(2). Substantially confined means the inability to leave the house except in instances of seeking medical treatment. Howell v. Nicholson, 19 Vet. App. 535, 540 (2006). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the criteria for SMP based on the need for regular aid and attendance or by reason of being housebound have not been met. The Veteran filed her claim for increased pension benefits in July 2012. Initially, the record does not show, nor does the Veteran contend, that she is blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or that she has concentric contraction of the visual field to 5 degrees or less. VA treatment records do reflect treatment for her vision. Despite this regular treatment, vision testing does not reflect the Veteran's vision approaches the limitations described above. See August 2020 VA treatment record. The record also does not show, nor does the Veteran contend, that she is a patient in a nursing home because of mental or physical incapacity. A VA treatment record as recent as November 2020 reflected that she was living alone in a senior apartment but was moving to a first-floor unit within the next 7-10 days. A December 2020 VA treatment note reflects that the Veteran had completed her move to her new apartment in her building and had taken on a roommate. Even accepting that the Veteran has nonservice-connected disorders that are sufficient to establish non-service connected pension, the Board finds that the Veteran's overall level of functionality throughout the appeal period shows that she is not so helpless as to be in need of regular aid and attendance. An April 2012 treatment record noted that the Veteran was independent in activities of daily living including personal hygiene, eating, dressing, ambulation, and bathing, but did use a wheelchair and a walker. In a July 2012 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance (VA Form 21-2680), it was noted that the Veteran could feed herself but was not able to prepare her own meals. The Veteran was noted to need assistance in bathing and tending to her hygiene needs, but no explanation was provided. It was noted that the Veteran was not legally blind and did not need nursing home care. Although the examiner noted that she did not have the ability to manage her own financial affairs, no explanation was provided. Her posture was noted to be slightly stooped and a gait disturbance was noted. It was noted that the Veteran could go about 1 block in distance. In a February 2013 statement the Veteran noted that she needs help cooking, bathing, dressing, and using the toilet. She reported that she was unable to lift over 5 lbs. and has a walker and bedside commode. In a March 2013 VA General Pension Examination report, it was noted that the Veteran lives alone in a senior apartment complex and gets help two times a week for kitchen, cooking, laundry, and groceries. It was noted that she needs help with shoes and does not drive. The examiner noted that she uses a walker with wheel for the past year and has not been working for the past 10 years. It was specifically noted that the Veteran does not need help with self-feeding, bathing, toileting, or grooming. An August 2013 VA Aid and Attendance or Housebound Examination was completed. It was noted that the Veteran is not permanently bedridden and was not currently hospitalized. The examiner stated that the Veteran can travel beyond the current domicile. The examiner noted that the Veteran lives in senior housing (independent living) and gets meals on wheels. It was noted that she had paid help for housekeeping, errands, shopping, cooking, laundry, etc. and transportation for shopping and medical appointments. The examiner stated that the Veteran walks with a walker and has special bathing equipment with built in seat for shower. It was reported that she wears slip on shoes, and buttoned shirts for easy wear and sits on her bed to put pants on. The report reflects that she can perform all functions of self-care. A physical examination revealed that she can only walk without assistance within her own home. Her ability to leave the house was noted to be unrestricted. The examiner noted that her vision was not best corrected to 5/200 or worse in both eyes. It was noted she had normal ability to self-feed but had some difficulty dressing, bathing, and grooming. Her toileting ability was described as normal. The examiner noted that the Veteran needs assistance with transportation, housekeeping, cooking etc. She is able to perform her activities of daily living with special equipment for the shower, toilet seat and can dress and feed herself. A September 2014 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance (VA Form 21-2680) was submitted. It was noted that the Veteran was currently hospitalized. She was able to feed herself but needed some assistance bathing and tending to her hygiene needs, and also with meal preparation. The examiner noted that she was not legally blind. Although it was noted that she needed nursing home care and medication management, no explanation, as requested, was provided on the form. The examiner noted that her posture was weak. In an April 2018 statement the Veteran reported that she is in a wheelchair and needed assisted care but could not afford it. At the Veteran's October 2018 BVA hearing she testified that she needs help dressing, getting out of bed, bathing, cooking, with housework, laundry, and shopping. She reported numerous surgeries over the years on her hips and spine. A November 2018 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance (VA Form 21-2680) was submitted. It was noted that the Veteran was not hospitalized and was able to feed herself. The examiner noted that she cannot prepare her own foods and eats yogurt. It was noted that the Veteran needs assistance in bathing and has a bathtub without assistance devices. The examiner stated that the Veteran was not legally blind, did not require nursing care and did not require medication management. She was determined to have the ability to manage her own financial affairs. The examiner stated that she was homebound "for the most part," had some urinary incontinence, and poor balance. It was noted that she used a walker. In a September 2018 VA treatment record it was noted that the Veteran could do all activities of daily living (ADL) independently. She reported that she did not want help with ADLs but could use someone to clean her house and do her laundry. A May 2019 VA treatment record noted that the Veteran had a service animal. A January 2020 VA treatment record noted that she lives in an apartment alone. She reported that she has a deep bathtub and is unable to get into/out of it safely at this time and also needs help with washing/drying. She reported that she is independent with eating, grooming, transfers from chair but has trouble with transfers out of bed. In another January 2020 VA treatment record it was noted that the Veteran reports she does not have a walker for household ambulation. The treatment record reflects that the Veteran lives in an apartment and is independent with her activities of daily living. The Veteran reported that she does not use any device to walk around inside the house but uses an electric wheelchair for community distance mobility. The physical therapist noted that the Veteran was able to walk greater than 250 feet with a rollator walker on level surface, balance was good, and the Veteran is functioning at her baseline level for her mobility. She was instructed on home exercises and on safety and fall prevention. A July 2020 VA Social Work assessment noted that the Veteran lived alone in an apartment. She reported that she is independent with meeting her personal care needs, but reports difficulty with meeting and managing her instrumental activities of daily living. She reported that she is able to drive, but needs assistance with grocery shopping, laundry, and housekeeping. A September 2020 VA treatment record noted that the Veteran was able to drive. A November 2020 VA treatment record noted that the Veteran lives alone in a senior apartment and was moving to a first-floor unit within the next 7-10 days. She reported needing assistance with bathing (into/out of tub, washing/drying her body), dressing (mainly her lower body due to low back pain), grooming (hair and nail care), eating (meal prep and food arranged on plate for her), and toileting (bladder incontinence several nights per week). The Veteran stated that she uses a motorized scooter for long distance use and is able to transfer independently. She reported using a front wheeled walker for short distances. Based on the foregoing, the Board acknowledges the Veteran's difficulty completing daily tasks, such as bathing, cleaning, and preparing meals. The Board further notes that the Veteran's conditions require periodic assistance in these daily tasks. However, the evidence reflects that the Veteran is able to feed herself and has not become bedridden. Additionally, the medical evidence does not indicate that the Veteran requires care or assistance on a regular basis to protect her from hazards or dangers incident to her daily environment. In sum, despite evidence demonstrating the Veteran needing some assistance, the Board finds that the Veteran has not been shown to need regular aid and attendance to meet the requirement for SMP. In reaching this decision, the Board notes that it has considered the possible functional effects from her disabilities, but still finds that the required criteria have not been met. In addition, the record as outlined above, including the Veteran's own reports and attendance to multiple examinations, show that she has not been permanently housebound. See 38 C.F.R. § 3.351(d)(2). Therefore, the Board finds that the weight of the evidence is against the Veteran's claim. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. See 38 U.S.C. §§ 3.102, 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. M. Clark, 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.