BVA9502979 DOCKET NO. 94-01 326 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to special monthly pension based on the need for regular aid and attendance. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and her daughter ATTORNEY FOR THE BOARD James J. Dunphy, Counsel INTRODUCTION The veteran had active service from March 1942 to July 1945. This appeal to the Board of Veterans' Appeals (Board) arises from a September 1992 rating decision by the Cleveland, Ohio, Department of Veterans Affairs (VA) Regional Office (RO). In her hearing testimony and the appellant's appeal, she indicated that she desired a special monthly pension based either on the need for aid and attendance or upon the appellant being housebound. In view of the Board's action below granting a special monthly pension based on the need for regular aid and attendance, the greater benefit, the Board holds that the appellant's claim for a special monthly pension based on housebound status is moot. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that as a result of a hemorrhage and an aneurysm, requiring hospitalization, she required the aid and assistance of another person to deal with normal living. Accordingly, a special monthly pension is appropriate. 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 evidence supports the grant of a special monthly pension based on the need for regular aid and attendance for the appellant for the period from June 21, 1991, to January 17, 1992. FINDINGS OF FACT 1. The appellant was admitted to a hospital for treatment of a subarachnoid hemorrhage of the brain on June 21, 1991. 2. As a result of this disorder, and a subsequent aneurysm, the appellant required the aid and assistance of another person until January 17, 1992. CONCLUSION OF LAW The criteria for special monthly pension based on the need for aid and attendance for the period from June 21, 1991, to January 17, 1992, have been met. Payment is subject to regulations governing effective dates and payment of monetary benefits. 38 U.S.C.A. §§ 1541 (d), 5107 (West 1991); 38 C.F.R. §§ 3.351 (c), 3.352 (a), 3.400 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board notes that the appellant's claim is well grounded. By this, we mean that she has submitted a claim which is plausible. The Board further concludes that the VA has met its statutory duty to assist the appellant in the development of her claim. 38 U.S.C.A. § 5107 (West 1991). The appellant has been in receipt of death pension benefits from May 1972. She now claims that she should be authorized special monthly pension benefits based on the need for regular aid and attendance. 38 U.S.C.A. § 1541 (d) (West 1991); 38 C.F.R. §§ 3.351 (c), 3.352 (a) (1994). In determining if such a rating is appropriate the following will be accorded consideration: inability of claimant to dress or undress herself, or to keep 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 claimant 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. The Board further notes that this requirement does not have to be permanent. OGC Prec. 21-94 (Dec. 13, 1994). Accordingly, the Board must closely consider both the medical evidence of record and the testimony offered by the appellant and her daughter to determine if at any time the appellant met the above stated criteria for the grant of special monthly pension based on the need for regular aid and attendance. The evidence leads the Board to conclude that for the period from June 21, 1991 to January 17, 1992, the appellant required care and assistance on a regular basis to protect herself from the hazards and dangers incident to her daily environment. Accordingly, a special monthly pension for that period is appropriate. The evidence indicates that the appellant was admitted to the Marymount Hospital on June 21, 1991, with a subarachnoid hemorrhage of the brain. She underwent a right frontotemporal craniotomy, microclipping of an aneurysm, and insertion of an epidural sensor. The hearing testimony indicates that the appellant required help in her everyday activities. Her daughter indicated that she required 24 hour a day care for, among other problems, the appellant being unable to control her bladder and wetting the bed. A letter from Myeong Kim, M.D., confirmed the need for extended care and 24 hour assistance during this period. After her release from this hospitalization in September 1991, sworn testimony indicates that the appellant continued to require regular 24 hour a day care. This was confirmed by statements from Ben D. Ortega, M.D., Steven J. Goliat, D.O. and the provider of in-home health care. The appellant remained at home, requiring around the clock aid and assistance until November 7, 1991. At that time, she was again admitted to the Marymount Hospital, and underwent a ventriculoperitoneal shunt for communicating hydrocephalus. Upon release from this hospitalization on November 19, 1991, she continued to require aid and assistance. In support of this conclusion, we have the sworn testimony of the appellant's daughter, who provided some of the care, along with medical records provided by the professional caregivers. These records and this testimony clearly establish that the appellant continued to require aid and assistance of another until January 17, 1992, at which time it was the conclusion of the medical professionals that such services were no longer required. As previously noted, the General Counsel has concluded that the need for aid and assistance does not have to be permanent, but rather special monthly pension can be awarded for the period when it is shown that the appellant meets the above stated criteria. After reviewing the hospitalization reports, medical records, and sworn testimony at the appellant's hearing, testimony which is both sincere and credible, the Board concludes that the appellant meets the criteria for special monthly pension based on the need for regular aid and attendance from June 21, 1991, to January 17, 1992. This is the period from the appellant's first admission to the hospital, through a period in which either her daughter or medical professionals provided home care, an additional period of hospitalization, and an additional period of home care. The period ends when it is specifically determined by medical personnel that such services were no longer required. Accordingly, the Board concludes that the appellant's claim must be granted to this extent. ORDER Special monthly pension based on the need for regular aid and attendance for the period from June 21, 1991, to January 17, 1992, is granted, subject to the provisions governing the payment of monetary benefits. J. U. JOHNSON 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.