BVA9505918 DOCKET NO. 93-11 863 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUE Entitlement to an increased rate of death pension for a surviving spouse based on need for regular aid and attendance or by reason of being housebound. REPRESENTATION Appellant represented by: American Red Cross ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Associate Counsel INTRODUCTION The veteran served on active duty from July 1918 to January 1919. The appellant is his widow. This appeal arises from a November 1992 rating decision of the San Juan, Puerto Rico, regional office (RO). That rating decision denied the appellant's claim for an increased rate of death pension based on need for regular aid and attendance or by reason of being housebound. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that she is entitled to receive an increased rate of death pension either on the basis of her need for the regular aid and attendance of another person or because of her housebound status. She contends that she is unable to walk without the assistance of another person and requires the daily personal health care services of a skilled provider. She also contends that she is senile. 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 appellant'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 preponderance of the evidence is against the appellant's claim for an increased rate of death pension based on need for regular aid and attendance or by reason of being housebound. FINDINGS OF FACT 1. The appellant is neither a patient in a nursing home, nor helpless or blind, nor so nearly helpless or blind as to need or require the regular aid and attendance of another person. 2. The appellant is not substantially confined to her home or immediate premises by reason of disability which it is reasonably certain will remain throughout her lifetime. CONCLUSION OF LAW The requirements for an increased rate of death pension on account of the need for the regular aid and attendance of another person or at the housebound rate have not been met. 38 U.S.C.A. § 1541 (West 1991); 38 C.F.R. §§ 3.351, 3.352 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant's claim is "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, she has submitted a claim which is plausible and capable of substantiation. The Board is also satisfied that no further assistance to the appellant is required in order to comply with the duty to assist her mandated by 38 U.S.C.A. § 5107(a). The appellant is the widow of the veteran, who died in August 1953. She began receiving pension benefits in 1967. The appellant's claim for increased rate of death pension was denied by rating decision in November 1992. The appellant seeks an increased rate of death pension either on the basis of her need for the regular aid and attendance of another person or at the housebound rate. Pension benefits are payable at a special, higher rate (with a higher minimum income limit) than normal pension benefits if a claimant is shown to be a patient in a nursing home, helpless or blind, or so nearly helpless or blind as to need or require the regular aid and attendance of another person, or otherwise establishes a factual need for the regular aid and attendance of another person. 38 U.S.C.A. § 1541 (West 1991); 38 C.F.R. § 3.351 (1994). The evidence of record does not demonstrate, and the appellant has not even contended, that she is a patient in a nursing home, or blind, or so nearly blind as to need or require the regular aid and attendance of another person. Determinations as to the need for the regular aid and attendance of another person must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to such conditions as: Inability of the claimant to dress or undress himself/herself or to keep himself/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 claimant to feed himself/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 the hazards or dangers incident to his/her daily environment. "Bedridden" will also 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/her 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). A June 1992 statement by a private physician, which is virtually illegible, states that the appellant is not able to walk without the assistance of another person and that she requires the daily personal health services of a skilled provider without which she would require hospital, nursing home or other institutional care. These pre-printed statements were found in blocks on the VA examination form which were checked by the examiner. The examiner's conclusions are not supported by legible medical findings. VA examinations were conducted in September 1992. On the psychiatric examination, the appellant and her daughter reported that the appellant had a poor memory; had ten children; and lived with one son while her other children, who lived nearby, checked on her frequently. On examination, the appellant was unable to recall when she was born, when the veteran died, and many names and dates. She referred to arthritis and to upper respiratory infections. She was quite hyperactive during the interview. She was not reliable in all the information she provided but her responses were relevant and coherent. The content was very unspecific. She did not have major complaints, but said that her mind went blank at times. She was not delusional or hallucinating. She was oriented as to person, but disoriented as to time and partially oriented to place. Her memory was defected in all areas except as to remote events, which were marginally preserved. Intellectual functioning was noted to be very low average, but it was added that consideration should be given to her lack of education. Her judgment was fair and insight nil. The diagnosis was organic brain disorder, mild (senile changes). The level of functioning was noted as poor. A physical examination was also conducted. The appellant complained of forgetfulness, joint pains mainly in the knees, and occasional headaches. She denied history of diabetes mellitus, high blood pressure, gout or other major disease. There were no other complaints. On examination, the appellant was described as overweight and well-developed, with erect posture and normal gait. She was well-groomed and neatly attired. There were no restrictions of the upper or lower extremities and no defects of weight bearing, balance or propulsion. There were no limitations of motion of the spine, trunk or neck, and no deformities of the spine. There were no pathological processes at present. The appellant's typical day was described in terms of early rising followed by washing, dressing and preparing breakfast for herself. She then did household chores and fixed herself lunch. She could then fall asleep in a chair, but never took a nap. Her son took her grocery shopping to a nearby store. She went to bed early at night. The examiner stated that there were no special distance limitations to her ambulation. The appellant could get out of the home at will to known nearby surroundings to shop for groceries. The diagnoses were degenerative joint disease of the knees and early organic brain syndrome, mild. In the appellant's written appeal to the Board, dated in February 1993, she stated that she was not bedridden, totally blind, or completely helpless. She maintained that she was dependent on her family to assist her with basic needs and to accompany her anytime she left her house. She stated that at her age and with her poor health she needed to be assisted. The appellant is shown to have mild degenerative joint disease of the knees and mild organic brain syndrome. However, the evidence of record fails to demonstrate that the appellant needs the regular aid and assistance of another person to dress or undress herself, to keep herself ordinarily clean and presentable, to feed herself, or to attend to the wants of nature. She is not bedridden, she does not wear a prosthetic or orthopedic appliance which requires adjustment, and she is not shown to suffer from any incapacity which requires care or assistance on a regular basis to protect her from hazards or dangers incident to her daily environment. The brief private medical report which stated that the appellant was not able to walk without the assistance of another person and required daily personal health care services of a skilled provider is directly contradicted by the findings of the VA examiner, whose detailed report showed that the veteran's ambulation was unrestricted and that she did not require daily health care. Based on her reported daily routine, she is relatively self-reliant. Under these circumstances, entitlement to special monthly pension based upon the appellant's need for the regular aid and attendance of another individual has not been demonstrated. The appellant has also asserted her entitlement to special monthly pension benefits on the grounds that she is permanently housebound as a result of disabilities which will continue throughout her lifetime. 38 C.F.R. § 3.351(e). The medical evidence of record demonstrates that the appellant is able to leave her house at will and to proceed to nearby known surroundings such as the grocery store. The medical record does not provide a basis for the Board to conclude that the appellant is substantially confined to her home or immediate premises by reason of disabilities which it is reasonably certain will remain throughout her lifetime. Consequently, the Board must also conclude that special monthly pension at the housebound rate is not warranted. ORDER Special monthly pension for a surviving spouse based on need for regular aid and attendance or by reason of being housebound is denied. MARY GALLAGHER 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.