BVA9507464 DOCKET NO. 92-04 795 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Propriety of the termination of special monthly pension based on the need for regular aid and attendance. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Milo H. Hawley, Counsel INTRODUCTION The veteran had active service from June 1944 to December 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 1991 decision by the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida. CONTENTIONS OF APPELLANT ON APPEAL It is contended that, because of the veteran's multiple disabilities, particularly memory loss, the veteran continues to be in need of care by another person to protect her from the hazards of daily living. 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 files. 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 records support the continuance of special monthly pension based on the need for regular aid and attendance. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the VA. 2. The veteran is not capable of taking care of her daily personal needs and is not able to protect herself from the hazards incident to her daily environment. CONCLUSION OF LAW The criteria for continued entitlement to special monthly pension based on the need for regular aid and attendance have been met. 38 U.S.C.A. §§ 1502, 1521, 5107 (West 1991); 38 C.F.R. § 3.352(a) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107. The Board is satisfied that all relevant facts have been properly developed and that no further assistance is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107. The report of a November 1989 VA examination states that the appellant was extremely forgetful and, at times, confused. The examiner commented that it appeared that she would be eligible for "aid and attendance housebound." It was noted that it was possible that she was developing an early Alzheimer's disease, but at any rate it was a dementia of some type. The diagnoses included dementia, of unknown type, possibly Alzheimer's. The report of a November 1989 VA examination for housebound status or permanent need for regular aid and attendance states that the veteran could perform most activities of daily living with minimal assistance, but needed help cutting food, bathing and fixing her hair. She was able to walk one block without assistance, but complained of pain in the lower extremity and give way of her legs. She could only stand short periods of time. It indicates that she demonstrated signs of memory deficit, dizziness and poor balance. It indicates that the veteran required almost constant attendance because of cardiac problems, shortness of breath, memory loss and intermittent confusion. Because of poor balance, she required constant attendance to avoid hurting herself. She required the assistance of someone when she would leave her home for appointments. The diagnoses were borderline dementia, chronic obstructive pulmonary disease, severe, and unstable angina. It was indicated that she required daily personal health care services of a skilled provider. A December 1989 rating decision granted special monthly pension on the basis of need of regular aid and attendance. VA outpatient treatment records, dated in April 1990 and January 1991, reflect that the veteran was ambulatory and independent, and able to take care of all of her activities of daily living. The physician indicated that there was no reason for aid and attendance for the veteran. The report of a June 1991 VA examination for housebound status or permanent need for regular aid and attendance states that the veteran could perform most activities of daily living without assistance, but she sometimes needed help with a bath. She had some problems with balance and weight bearing, but there was minimal limitation of range of motion with respect to her lower extremities. She had problems with forgetfulness and intermittent confusion and needed supervision because of this. She would be able to walk one block without assistance. The report indicates that the veteran required daily personal health care services of a skilled provider without which she would require hospital, nursing home or other institutional care. An August 1991 rating decision proposed to terminate the appellant's special monthly pension on the basis of need for regular aid and attendance. The appellant was notified of this action by official letter in August 1991. A November 1991 rating decision terminated the veteran's special monthly pension on the basis of need for regular aid and attendance. A March 1992 letter from the veteran's daughter reflects that the veteran had been living with her for the past several years except when the veteran had stayed with her older sister while she was on temporary duty with the military. The letter indicates that the veteran is unable to take care of herself in everyday living. It states that the veteran forgets if she has taken her medicine and was unable to cook for herself because of memory impairment, i.e., she would be unable to remember if she had turned the stove on or off. The report of an August 1993 VA special examination for aid and attendance and housebound benefits reflects that the appellant was not currently hospitalized, but had been hospitalized three times in 1993. The appellant complained of chest pain and shortness of breath. She would walk with her granddaughter approximately 1 1/2 blocks to the hospital. This required two stops because of shortness of breath. Her posture and gait were normal. There were no functional limitations with respect to the upper extremities. She reported that she would fall frequently, but was unable to say whether this was due to dizziness or sudden weakness of the lower extremities. The examiner indicated that it was likely that the veteran could protect herself from hazards of the dangers of the daily environment. It was noted that the veteran's life was basically sedentary. She did not cook nor do any housework. Ordinarily, she would dress herself and care for other bodily needs. The veteran's granddaughter indicated that the veteran would frequently get lost in what should be familiar surroundings. The examiner indicated that the veteran would be able to leave her premises only when she had someone to accompany her. It was indicated that the veteran's monetary affairs were managed by her daughter and son-in-law. She was unable to balance her checkbook, but did sign all of her checks. The examiner indicated that the veteran could manage most of her activities of daily living, but it would be a hazard with such things as showering in view of her tendency to fall. The examiner questioned the veteran carefully about her medications and was convinced that she could not manage them herself. Her short-term memory was poor. Her remote memory was normal. The report of an August 1993 VA medical examination states diagnoses including pulmonary tuberculosis, probably inactive, diverticulosis with episodes of diverticulitis, depression, organic heart disease, classification III-C and dementia, moderate. In making a determination with respect to a need for aid and attendance, the actual requirements of personal assistance are considered. Factors considered include the inability of the claimant to dress or undress herself or to keep herself ordinarily clean and presentable. Frequent need of adjustment of any special prosthetic or orthopedic appliance which by reason of the particular disability cannot be done without aid, inability of the person 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. Bedridden, in essence, requires that the person remain in bed. All of these conditions need not be found in order to find that aid and attendance is necessary. It is only required that the evidence establish that the person is so helpless as to need regular aid and attendance, not that there be a constant need. 38 C.F.R. § 3.352(a). The veteran does have substantial physical disabilities. However, she retains good function with respect to her upper extremities and is apparently able to continue to feed and dress and undress herself. She also continues to have mobility, with the primary restriction in walking being her shortness of breath. However, she also experiences frequent falling which could provide substantial hazard without the presence of another person. It has been indicated that this falling could interfere with her ability to bathe herself. The veteran also receives ongoing mental health care, but the most recent examination reflects that her depression is controlled with medication. The clinical evidence of record, as well as the lay evidence in the form of statements from the veteran's daughters, reflects that her most serious disability which interferes with her ability to protect herself from hazards and dangers incident to her daily environment is her short-term memory loss. While the report of a recent examination indicates that the appellant is able to care for herself with respect to her activities of daily living, it notes that she does not cook for herself. Her daughter has indicated that she is unable to cook for herself because of short-term memory loss and the dangers inherent in an individual preparing food with the use of a cooking stove and forgetting that the stove is turned on. The most recent examination also indicates that the appellant, after careful questioning, is unable to manage her own medication. On the basis of this record, it would appear that the appellant is capable of performing many of her activities of daily living, but is unable to cook for herself, manage her medication, shower without risk of falling, or move about without risk of falling or becoming disoriented because of inability to remember where she is at. In considering the activities of daily living which the appellant is able to perform and those which she is unable to perform, there is created an approximate equipoise in the evidence with respect to whether she needs the regular aid and attendance of another. In resolving doubt in her behalf, she is in need of regular aid and attendance of another and special monthly pension on that basis should not have been terminated. 38 U.S.C.A. § 5107. ORDER Restoration of special monthly pension on the basis of need of regular aid and attendance is granted, subject to laws and regulations governing the payment of monetary benefits. JEFFREY MARTIN 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.