BVA9504238 DOCKET NO. 93-08 079 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to special monthly pension based on the need for regular aid and attendance or based on being housebound. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jeanne Schlegel, Associate Counsel INTRODUCTION The veteran served on active duty from January 1955 to October 1957. This matter comes before the Board of Veterans' Appeals (the Board) from a rating determination by the Department of Veterans Affairs (VA) Regional Office (RO). In its September 1992 determination, the RO denied entitlement to special monthly pension based on the need for regular aid and attendance or based on being housebound. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that he requires aid and attendance or in the alternative that he is housebound due to the fact that he requires continuous oxygen therapy, 24 hours daily due to emphysema. The appellant maintains that he fights for every breath he takes and that he is helpless. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the appellant has not met the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim of entitlement to special monthly pension based on the need for regular aid and attendance or on being housebound is well-grounded. FINDINGS OF FACT 1. The appellant's disabilities include: emphysema, evaluated as 100 percent disabling (Code 6603); hemorrhoids, evaluated as non- compensably disabling (Code 7330); and, a noncompensable evaluation for cirrhosis of the liver (Code 7312). His combined non service-connected disability evaluation is 100 percent. 2. The appellant has not submitted evidence which justifies a belief in a fair and impartial individual that he is a patient in a nursing home, helpless or blind, or so nearly helpless or blind as to need the regular aid and attendance of another person, nor that he requires regular aid and attendance for his daily functions. 3. The appellant has submitted evidence which shows that he has a single permanent disability rated as 100 percent disabling under regular schedular evaluation without resort to individual unemployability, however, evidence shows that he is not confined to his dwelling or immediate premises by his permanent disability, nor does he have an additional disability or disabilities which are independently rated as at least 60 percent disabling. CONCLUSION OF LAW The appellant has not submitted evidence of a well-grounded claim of entitlement to special monthly pension based upon the need for the regular aid and attendance of another person or on account of being housebound. 38 U.S.C.A. §§ 1502, 1521, 5107 (West 1991); 38 C.F.R. §§ 3.351, 3.352 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The threshold question in this case is whether the appellant has presented evidence of a well-grounded claim. The United States Court of Veterans Appeals (the Court) has defined a well-grounded claim as one which is plausible, that is meritorious on its own or capable of substantiation. 38 U.S.C.A. § 5107. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Although the claim need not be conclusive, it must be accompanied by evidence which justifies a belief by a fair and impartial individual that the claim is plausible. (emphasis in the original.) Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). Where the appellant has not submitted competent evidence which meets the statutory prerequisite of submitting a well-grounded claim, the case must be dismissed, as the Board does not have jurisdiction to adjudicate a claim that is not well-grounded. Boeck v. Brown, 6 Vet.App. 14, 17 (1993). Further, the statutory duty to assist the appellant in the development of his claim does not arise unless and until a well- grounded claim is presented. Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). The basic criteria governing the benefits sought on this appeal are as follows: Aid and Attendance Where an otherwise eligible veteran is in need of regular aid and attendance, an increased rate of pension is payable. 38 U.S.C.A. § 1521(d) (West 1991). The law and regulations provide that, for pension purposes, a person shall be considered to be in need of regular aid and attendance if such person is (1) a patient in a nursing home on account of mental or physical incapacity or, (2) helpless or blind, or so nearly helpless or blind as to need the regular aid and attendance of another person. 38 U.S.C.A. § 1502(b) (West 1991); 38 C.F.R. § 3.351 (1993). Determinations as to 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: inability of 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; inability of 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, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. "Bedridden" will be a proper basis for the determination and is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. 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 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. 38 C.F.R. § 3.352(a) (1993). Housebound In the case of a veteran entitled to pension who does not qualify for increased pension based on need of regular aid and attendance, an increase in the rate of pension is authorized where the veteran has certain additional severe disabilities or is permanently housebound. The requirement for this increase in pension will be considered to have been met where, in addition to having a single permanent disability rated as 100 percent under regular schedular evaluation, without resort to individual unemployability the veteran: (1) Has additional disability or disabilities independently ratable at 60 percent or more, separate and distinct from the permanent disability rated as 100 percent disabling and involving different anatomical segments or bodily systems, or (2) Is substantially confined as a direct result of his or her disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical area and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 U.S.C.A. §§ 1502(c), 1521(e) (West 1991); 38 C.F.R. § 3.351(d) (1993). Evidentiary assertions have been submitted by and on behalf of the appellant that he requires continuous oxygen therapy 24 hours daily, and that he is helpless. King v. Brown, 5 Vet.App. 19 (1993). While the Board has no doubt that the claim has been made in good faith and presumes that the assertions as to the veteran's condition are true for purposes of determining whether the claim is well grounded, it does not immediately follow from such assertions that the appellant would meet the requirements for the benefits sought. Further, the Court has held that a claim must be accompanied by evidence; a mere assertion of entitlement will not suffice. An examination for housebound status or permanent need for regular aid and attendance was conducted by the VA in August 1992. The examiner's findings showed that he appellant was 55 years old. Nutrition was determined to be good. Blood pressure was 140/88. Gait was recorded as normal, and posture and general appearance were described as good. It was indicated that the appellant spent 9 hours in bed overnight, but was not bedridden during the hours between 9 AM and 9 P.M. The examiner recorded "no restrictions" of the upper extremities with regard to dressing, bathing, eating, and going to the bathroom. No restrictions were noted with regard to the lower extremities, spine, trunk, or neck. The examiner recorded that the appellant could walk 5 or 6 blocks without the assistance of another person or a locomotive aid. The report shows that the appellant goes out once a day but not in extreme heat or cold due to his severe underlying emphysema. The examiner commented that the patient was on continuous oxygen therapy and that travel was somewhat limited secondary to this. The diagnosis was emphysema. Further, the examiner certified that the need for daily skilled services was not indicated on examination. Simply stated, the report of this examination does not show evidence of inability on the part of the appellant to perform the activities of daily life unassisted, or to protect himself from the hazards of his environment. The examiner conducting the August 1992 examination was cognizant of the appellant's required continuous oxygen therapy, and nevertheless made findings that show that the appellant retained the capacity to perform the activities of daily living and to protect himself from the hazards of daily living. The appellant was not shown to be a patient in a nursing home, helpless or blind, or so nearly helpless or blind as to need the regular aid and attendance of another person. On its face, the relevant medical report of record demonstrates a basic lack of entitlement to the benefits sought on this appeal. As such, the appellant clearly has not met his initial burden of submitting evidence to establish that his claim is well grounded. Tirpak at 611. The Board now turns to the issue of entitlement to special monthly pension on account of being housebound. A rating determination of September 1992 indicated that the appellant's disabilities include: emphysema, evaluated as 100 percent disabling (Code 6603); hemorrhoids, evaluated non-compensably disabling (Code 7330); and, a noncompensable evaluation for cirrhosis of the liver (Code 7312). His combined non service- connected disability evaluation was 100 percent. The RO determined that the appellant was not entitled to special monthly pension. Under applicable schedular criteria, a 100 percent evaluation may be assigned for pulmonary emphysema, when it is shown as pronounced; intractable and totally incapacitating; with dyspnea at rest, or marked dyspnea and cyanosis on mild exertion. This is the highest schedular evaluation provided under this diagnostic code. 38 C.F.R., Part 4, Diagnostic Code 6603 (1993). Cirrhosis of the liver evaluated under Diagnostic Code 7312 may be rated as 30 percent disabling when moderate; with dilation of superficial abdominal veins, chronic dyspepsia, slight loss of weight or impairment of health. 38 C.F.R., Part 4, Diagnostic Code 7312 (1993). Hemorrhoids, demonstrated by slight infrequent fecal discharge are evaluated as 30 percent disabling. 38 C.F.R., Part 4, Diagnostic Code 7330 (1993). A prerequisite to a determination that an appellant is housebound is that he has a single permanent disability rated as 100 percent disabling. The appellant's emphysema demonstrates such a disability. However, even though a single disability was shown as 100 percent disabling, he has not submitted evidence that would suggest that he has an additional disability or disabilities independently rated at least 60 percent disabling. Further, the medical report clearly indicates he is not housebound. In light of the lack of evidence to show that the claim for housebound benefits is plausible, the Board finds that the claim predicated on this basis is not well-grounded. 38 U.S.C.A. § 1502, 1521. Since the Board has determined that the claims are not well-grounded, the appellant cannot invoke the VA's statutory duty to assist in the development his claims. Rabideau v. Derwinski, 2 Vet.App. 141, 144 (1992). With respect to these determinations, the Board must point out that there is no controversy over the fact that the veteran is severely disabled, as reflected by the fact that the appellant's emphysema meets the requirements for a schedular 100 percent evaluation. The questions raised on this appeal, however, go to whether his disabilities are of such magnitude as to meet the criteria for the award of additional benefits. For the reasons noted above, the Board must conclude that the most probative evidence of record at this time does not reasonably suggest the veteran's disabilities meet the requirements for these benefits. Further, a review of the record reflects that the RO's denial was based on a review of the merits of the appellant's claim indicating that the RO found the claim well-grounded. The appellant was fully informed of his procedural rights and the applicable law and regulations regarding the RO decision in the statement of the case and supplemental statement of the case. The Board's decision is based on the fact that the claim is not well-grounded and is not final as to the actual merits of the claim. Accordingly, the Board finds that the appellant's procedural rights have not been prejudiced and a remand to the RO for additional development is not deemed necessary. Bernard v. Brown, 4 Vet.App. 384 (1993). The appellant may take the above discussion as guidance as to how to go about submitting a claim which is well grounded. ORDER The claim of entitlement to special monthly pension based upon the need for regular aid and attendance or on account of being housebound is not well grounded and, accordingly the appeal is dismissed. RICHARD B. FRANK Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.