Citation Nr: 0000201 Decision Date: 01/05/00 Archive Date: 12/28/01 DOCKET NO. 98-10 893 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to special monthly pension for a surviving spouse based on the need for aid and attendance or housebound status. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD J. M. Ivey, Associate Counsel INTRODUCTION The veteran served on active duty from December 1942 to October 1945. The veteran died in May 1984. The appellant is the surviving spouse of the veteran. This matter arises from a November 1997 rating decision of the Montgomery, Alabama, Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. The appellant's disabilities include status post cerebrovascular accident with ataxia. 2. The appellant is not blind, or nearly blind, and is not institutionalized in a nursing home on account of physical or mental incapacity. 3. The appellant's disabilities, when considered in conjunction with each other, do not result in her inability to care for her daily personal needs without regular personal assistance from others, nor do they result in an inability to protect herself from the hazards and dangers of her daily environment. 4. The appellant's disabilities do not result in her confinement to her home and the immediate premises. CONCLUSIONS OF LAW 1. The criteria for a special monthly pension by reason of the appellant being in need of the regular aid and attendance of another person have not been met. 38 U.S.C.A. §§ 1502, 1521 (West 1991); 38 C.F.R. §§ 3.351, 3.352 (1999). 2. The criteria for a special monthly pension by reason of the appellant being housebound due to disabilities have not been met. 38 U.S.C.A. §§ 1502, 1521 (West 1991); 38 C.F.R. §§ 3.351, 3.352 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant has contended that she is in need of the regular aid and attendance of another person in order to accomplish the activities of daily living. Initially, the Board finds that the appellant's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, she has presented a claim that is plausible. The RO has met its duty to assist the appellant in the development of her claim under 38 U.S.C.A. § 5107 (West 1991). There is no indication from the appellant or her representative that there is outstanding evidence that would be relevant to this claim. The Board finds that the duty to assist the appellant has been satisfied. See Epps v. Brown, 9 Vet. App. 341 (1996). For pension purposes, a person shall be considered to be in need of regular aid and attendance if such person is (1) blind, or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less, or (2) a patient in a nursing home on account of mental or physical incapacity, or (3) establishes a factual need for aid and attendance. 38 U.S.C.A. § 1502(b) (West 1991); 38 C.F.R. § 3.351 (1999). 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 the appellant 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; inability of the appellant 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 will be a proper basis for the determination. For the purpose of this regulation, "bedridden" will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that a claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. 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 that the appellant is unable to perform should be considered in connection with the condition as a whole. It is only necessary that the evidence establishes that the appellant is so helpless as to need regular aid and attendance, not that there be a constant need. 38 C.F.R. § 3.352(a) (1999). Pension benefits are payable by reason of being housebound when, in addition to having a single permanent disability rated as 100 percent disabling under the schedule, the appellant has a separate disability or disabilities independently ratable at 60 percent or more disabling, or is substantially confined as a direct result of her disabilities to her dwelling and the immediate premises, or if institutionalized to the ward or clinical area. 38 U.S.C.A. §§ 1502, 1521 (West 1991); 38 C.F.R. § 3.351 (1999). A private aid and attendance examination report, received by the RO in September 1997, showed that the surviving spouse was not bedridden, could walk in and out of her home unassisted and was able to perform all daily self care functions without assistance. Physical examination revealed that the appellant was unsteady on her feet secondary to a cerebrovascular accident (CVA). The diagnosis was vertigo. In a private examination report, received by the RO in January 1998, the physician reported that the appellant, the surviving spouse, was 75 years old. She had a stroke in July 1997 with residual lower extremity weakness and imbalance, causing her to use a cane when she walked. She was not bedridden, and she could dress, bathe, go to the bathroom, eat, and walk in and out of her home unassisted. The diagnosis was CVA with lower extremity weakness and unbalance. A private physician, in August 1998, diagnosed status post CVA with ataxia. The appellant was unsteady on her feet and used a cane to get around. The appellant was not bedridden. She could dress, bathe, go to the bathroom, eat, and walk in and out of home unassisted. When all the evidence is assembled, the determination must then be made as to whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The evidence does not establish a factual need for aid and attendance. The appellant is able to dress herself without assistance. The medical examiner, in September 1997, January 1998 and in August 1998, reported that she performed all of her own self-care. Although the appellant is competent to report what she needs help with, the Board is persuaded by what she has reported to the examiner on three occasions. Furthermore, the objective opinion of the examiner as to her ability to perform these tasks is of greater probative weight when balanced against the appellant's lay statements. The examiner is a disinterested and trained professional. Although her form of ambulation, with a cane impedes her mobility, the appellant is still able to ambulate. This does not rise to a level of immobility that prevents her from protecting herself. Likewise this evidence does not demonstrate that she is bedridden. The competent examiner who has conducted examinations that identified all of her most limiting disabilities has determined that the appellant is not in need of regular aid and attendance. The Board finds that the preponderance of the evidence is against a claim for special monthly pension based on the need for aid and attendance and it is denied. The Board has considered the appellant's housebound status. None of the medical examiners have found her housebound. The examiner, in September 1997, January 1998 and in August 1998, reported that she was able to walk in and out of her home unassisted. Therefore, the preponderance of the evidence is against a claim for special monthly pension based on housebound status. There is no doubt to be resolved. ORDER Special monthly pension based on the need for regular aid and attendance is denied. Special monthly pension is by reason of being housebound is denied. M. S. SIEGEL Acting Member, Board of Veterans' Appeals