Citation Nr: 22016336 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 17-48 254 DATE: March 21, 2022 ORDER Entitlement to special monthly pension based on the need for aid and attendance or at the housebound rate is denied. FINDING OF FACT The Veteran's disabilities do not render him so helpless as to require the regular aid and attendance of another person; the Veteran is not housebound, and he does not have one disability rated as total with additional separate disabilities rated at 60 percent or more. CONCLUSION OF LAW The criteria for special monthly pension based on the need of regular aid and attendance or at the housebound rate have not been met. 38 U.S.C. §§ 1114, 1502(b), 1521; 38 C.F.R. §§ 3.23, 3.351, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1954 to August 1956. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision which denied entitlement to special monthly pension. In May 2021, the Board remanded the matter for issuance of a supplemental statement of the case (SSOC). Entitlement to special monthly pension based on the need for aid and attendance or at the housebound rate. The Veteran contends that special monthly pension is warranted based on the need for aid and attendance or at the housebound rate. Special monthly pension is payable to individuals who are permanently bedridden or helpless or so nearly helpless as to be in need of the regular aid and attendance of another person under the criteria set forth in 38 C.F.R. § 3.352(a). 38 U.S.C. §§ 1502(b), 1521; 38 C.F.R. § 3.351(a), (b). To establish a need for regular aid and attendance, a veteran 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 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 U.S.C. § 1502(b); 38 C.F.R. § 3.351(c). The following factors will be accorded consideration in determining the need for regular aid and attendance: inability of a claimant to dress or undress himself, or to keep himself 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 adjustments 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 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, which 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). A finding that the Veteran is "bedridden" will provide a proper basis for the determination. Bedridden will be that condition which, through its essential character, requires that the Veteran remain in bed. The fact that a Veteran 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 the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made. Id. Eligibility for special monthly pension by reason of regular need for aid and attendance requires that at least one of the factors set forth in the VA regulation is met. See Turco v. Brown, 9 Vet. App. 222, 224 (1996). In addition, 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. Id. In adjudicating claims for special monthly pension, VA must consider all the enumerated factors listed in the regulation and, if at least one of the factors is present, special monthly pension should be awarded. See Prejean v. West, 13 Vet. App. 444, 448 (2000). Turning to the evidence of record, a January 2013 VA Form 21-2680 (Examination for Housebound Status or Permanent Need for Regular Aid and Attendance) reflects diagnoses of major depression, degenerative joint disease, left heel tendonitis, and hypertension. The Veteran was able to feed himself and prepare his own meals. He did not need assistance in bathing or tending to hygiene needs, he was not legally blind, did not need medication management, or require nursing home care. There was no weakness in the upper or lower extremities, although the Veteran reported pain in his knees and left heel, and the Veteran maintained movement and the ability to ambulate without an assistive device. His clinician noted he managed well with the activities of daily living. VA treatment records prior to April 2020 show the Veteran was able to bathe, dress, attend to his hygiene needs, feed himself, transfer, and ambulate without assistance. He was able to independently operate a phone, shop, prepare meals, perform light housekeeping tasks and laundry, take medications, and handle his finances, but reported requiring assistance to travel unless by taxi. Beginning in April 2020, the Veteran reported that he was unable to shop, prepare food, or participate in housekeeping tasks. However, he maintained independence in bathing, dressing, attending to his hygiene needs, feeding himself, transferring, and ambulating without assistance. The evidence of record does not show that the Veteran is blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes. The January 2013 aid and attendance examination did not show, nor does the record indicate, that the Veteran is a patient in a nursing home because of mental or physical incapacity. The record does not show that he is bedridden. With regard to the question of whether there was a factual need for the aid and attendance of another person, the January 2013 examination and VA treatment records show that the Veteran is able to dress or undress himself, to keep himself ordinarily clean, to feed himself, attend to the wants of nature, and to protect himself from hazards or dangers incident to his daily environment. Thus, the evidence of record does not establish a factual need for regular aid and attendance. As to the housebound rate, special monthly pension is payable at the housebound rate where the Veteran has a single disability rated as 100 percent disabling and, in addition: (1) has a disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent disability, and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). The Veteran is service-connected for major depressive disorder at 30 percent from January 30, 2013, and right and left knee disabilities at 10 percent each from November 9, 2011. Thus, the Veteran does not meet the rating requirements for special monthly pension at the housebound rate. Furthermore, as discussed above, the evidence of record does not reflect that the Veteran is housebound. Accordingly, the Board finds that the weight of the evidence is against the claim for special monthly pension based on the need for regular aid and attendance of another person or at the housebound rate. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable. Entitlement to special monthly pension is denied. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Owen, 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.