Citation Nr: 0000224 Decision Date: 01/05/00 Archive Date: 12/28/01 DOCKET NO. 98-19 937 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to special monthly pension based on the need for the regular aid and attendance of another person or on account of being housebound. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Patricia A. Boston, Counsel INTRODUCTION The veteran served on active duty from March 1943 to December 1945. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a May 1998 rating decision from the Department of Veterans Affairs (hereinafter VA) Nashville, Tennessee, Regional Office (hereinafter RO). FINDINGS OF FACT 1. The veteran was assigned a permanent and total disability evaluation for pension purposes, effective December 1, 1985. 2. The veteran's current disabilities include degenerative joint disease of the left hand, evaluated as 40 percent disabling; degenerative joint disease of the right hand, evaluated as 20 percent disabling; degenerative joint disease of the lumbar spine, evaluated as 20 percent disabling; degenerative joint disease of the cervical spine, evaluated as 20 percent disabling; traumatic degenerative changes, evaluated as 10 percent disabling; tonsillectomy, evaluated as noncompensable; arthritis of the shoulders, spine, hips and legs, evaluated as noncompensable; a prostate disorder, evaluated as noncompensable; a kidney disorder, evaluated as noncompensable; and generalized anxiety disorder, evaluated as noncompensable. The combined total rating is 80 percent. 3. The veteran's disabilities, when considered in combination, result in his inability to care for some of his daily personal needs without regular personal assistance from his spouse, and in an inability to protect himself from the hazards and dangers of his daily environment. 4. The veteran is not shown to be substantial confined to his dwelling or immediate premises as a result of disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to special monthly pension based on the need for the regular aid and attendance of another person have been met. 38 U.S.C.A. §§ 1502, 1521, 5107 (West 1991); 38 C.F.R. §§ 3.351, 3.352 (1999). 2. The criteria for entitlement to special monthly pension on account of being housebound have not been met. 38 U.S.C.A. §§ 1502, 1521, 5107 (West 1991); 38 C.F.R. §§ 3.351, 3.352 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes that the veteran's claims are "well-grounded" within the meaning of 38 U.S.C.A. § 5107. That is, the Board finds that he has presented claims which are plausible. The Board is also satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107. The veteran contends that his disabilities are so severe that he is in need of the aid and attendance of another person or on account of being housebound. The veteran reports that he requires the aid and the assistance of his spouse for everyday things, to include putting on his shoes and sock, zipping his clothes, cutting his toe nails, opening and closing doors, bending over to reach anything that is low; bending over to pick up anything of weight; and lifting his granddaughter. He mentions that he is restricted because of his inability to walk and function normally. He states that he is confined to his home and immediate premises. Applicable statutory and regulatory provisions stipulate that an increased rate of pension is appropriate when an otherwise eligible veteran is in need of regular aid and attendance. See 38 U.S.C.A. § 1521(d). These provisions require that such an veteran be a patient in a nursing home on account of mental or physical incapacity, or helpless or blind, or nearly so helpless or blind as to need the regular assistance of another person. 38 U.S.C.A. § 1502(b); 38 C.F.R. § 3.351. The regulations specifically require that determinations as to the need for aid and attendance be based on actual requirements of personal assistance from others. 38 C.F.R. § 3.352(a). In making such determinations, consideration is given to such conditions as the inability to dress or undress oneself or to keep clean and presentable; frequent need to adjust a special prosthetic or orthopedic appliance which by reason of the particular disability cannot be accomplished without assistance; inability to feed oneself through loss of coordination of the upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity (either physical or mental) that requires care and assistance on a regular basis to protect the claimant from hazards or dangers incident to the daily environment. Id. "Bedridden" will be a proper basis for this determination and is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. Id. The Board points out that it is not required that all of these criteria must be present before a favorable decision may be made. The particular personal functions, which the claimant is unable to perform, should be considered in connection with the situation as a whole. Id. It is only necessary that the evidence demonstrate that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. Id. The veteran was assigned a permanent and total disability evaluation for pension purposes, effective December 1, 1985. The veteran's current disabilities include degenerative joint disease of the left hand, evaluated as 40 percent disabling; degenerative joint disease of the right hand, evaluated as 20 percent disabling; degenerative joint disease of the lumbar spine, evaluated as 20 percent disabling; degenerative joint disease of the cervical spine, evaluated as 20 percent disabling; traumatic degenerative changes, evaluated as 10 percent disabling; tonsillectomy, evaluated as noncompensable; arthritis of the shoulders, spine, hips and legs, evaluated as noncompensable; a prostate disorder, evaluated as noncompensable; a kidney disorder, evaluated as noncompensable; and generalized anxiety disorder, evaluated as noncompensable. The combined total rating is 80 percent. A statement from the veteran's spouse dated in June 1998, reported that the veteran walked with two canes at all the time. She stated that the veteran has been unable to put on his shoes and socks for approximately three years; to cut his toe nails; to button the buttons on his clothing; to straighten his clothing when they get twisted when he is trying to dress; to carry a cup of coffee or any other food; to load or unload groceries; to stand in church due to pain; to retrieve items that he drops; to pick up his small granddaughter; and to perform daily tasks, as these tasks require her assistance. She reported that the veteran has to sleep in a recliner because he cannot lay flat. A VA aid and attendance/housebound examination was conducted in August 1998. At that time, the veteran stated that he required the regular assistance of his wife in his activities of daily living, primarily that he was unable to put on his own shoes and socks. He stated that he could not tie his shoes and that he was unable to button any buttons, due to severe arthritis. The veteran reported that he had chronic upper and lower back pain and severe arthritis in his hips. He noted that an orthopedic surgeon suggested that he undergo bilateral hip replacements. The veteran stated that since the orthopedic surgeon was unable to guarantee a good result, the veteran was unwilling to have surgery. It was noted that the veteran has never had a fractured bone that has been diagnosed by a physician, and has not had any type of surgery. The visual screening was 20/30 in both eyes with corrected lenses. It was indicated that the veteran was able to drive an automobile, although he was restricted in his endurance and did not drive further than 11 miles to the market. He was not bedridden. The veteran stated that he slept in a recliner as turning in a bed was difficult for him due to the arthritis in his back, as this aggravated his pain. He utilized two canes when he walked about his home, and did not required a wheelchair. He did not use any braces or other orthopedic devices. On examination, the veteran provided a description of a typical day. He stated that he eats at the table with his wife, moving about the house and watching television, occasionally driving to the market since his wife was unable to drive ( a distance of approximately 11 miles) and then sleeps in a recliner at night. He was well developed and had a slight kyphosis on standing. His gait was impaired due to decreased mobility of the hips, bilaterally, and a fixed extension of his lower back. Upper extremities revealed grip to be equal, bilaterally. He was able to touch all of the fingers to his thumb, bilaterally. There was some evidence of osteoarthritis of the hands, primarily in the distal interphalangeal joints, bilaterally. His strength was decreased and coordination ability to fasten clothing was diminished. He had the ability to shave himself and toilet, on his own, and he was able to feed himself. On examination of the lower extremities, the range of motion of both hips was markedly restricted. His gait was restricted to approximately 6 inch to 12 inch step, bilaterally. He required two canes to balance and support his weight when walking. There was no evidence of atrophy or contractures. There was slight swelling in the left ankle. There was no evidence of deformity of the thoracic spine, interfering with his breathing. He was able to walk less than one block due to back and hip pain, and due to lack of endurance. The examiner concluded that the veteran had a diagnosis of severe degenerative arthritis of the spine and both hips. The Board finds the medical evidence, and the veteran and his wife's lay statements reasonably demonstrate that the veteran's physical disabilities require on a regular basis, the care and assistance of another person to perform the personal functions of daily living and to protect him from the hazards or dangers incident to his daily environment. Thus, entitlement to special monthly pension by reason of being in the need of aid and attendance of another person is warranted. Turning to the issue of whether the veteran's disabilities are of sufficient severity to render him housebound, pension benefits are payable by reason of being housebound when, in addition to having a single permanent disability rated as 100 percent under the schedule, that he 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 that he is permanently housebound by reason of disability or disabilities. This requirement is met when the veteran is substantially confined 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); 38 C.F.R. §§ 3.351(d). In the instant case, the veteran does not qualify for special monthly pension based on having one disability rated as 100 percent disabling and additional disabilities independently ratable as at least 60 percent disabling. Additionally, the Board notes that the veteran does not have a physical disability which renders him substantially immobile. The most recent medical evidence found that the veteran could walk with two canes, albeit less than one block and could drive an automobile, although restricted by his endurance. Similarly, there were no other indications that he is, in fact, housebound. Therefore, the veteran's disabilities are not sufficiently severe to provide a basis by which to grant special monthly pension benefits on account of being housebound. 38 U.S.C.A. §§ 1502(c), 1521(e); 38 C.F.R. § 3.351(d). ORDER Entitlement to special monthly pension based on the need for regular aid and attendance of another person is granted, subject to the provisions governing the award of monetary benefits. Entitlement to special monthly pension based on being housebound is denied. JOY A. MCDONALD Acting Member, Board of Veterans' Appeals