Citation Nr: 0004448 Decision Date: 02/18/00 Archive Date: 02/23/00 DOCKET NO. 95-31 698 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to special monthly pension based on the need for regular aid and attendance or at the housebound rate. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Jeffrey J. Schueler, Counsel INTRODUCTION The appellant had active service from December 1959 to March 1974. This matter comes to the Board of Veterans' Appeals (Board) from a June 1995 rating decision of the Department of Veterans Affairs (VA) Houston Regional Office (RO), which denied the claim listed on the title page of this decision. In a September 1997 rating decision, the RO denied the appellant's claim of service connection for prostate cancer. In September 1997 statement, the appellant asked that the RO "reopen" his claim of service connection for prostate cancer. Although that statement implied a request to reopen a previously denied claim and the RO declined to reopen the claim in a September 1998 rating decision, the statement was received by the RO within one year of notification of the September 1997 rating decision. It thus constituted a valid notice of disagreement with the denial of service connection for prostate cancer. The record does not indicate that the RO issued a statement of the case with respect to that denial. Action to cure this procedural defect is set forth in the Remand section of this decision. In a September 1998 statement, the appellant filed claims of service connection for multiple joint arthritis and for residuals of shrapnel wounds to the neck and left arm. He also filed a claim for an increase in the evaluation assigned his service-connected cervical spine disability. The record does not indicate that the RO adjudicated these claims; thus, they are referred back to the RO for appropriate adjudication. Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995). See Bernard v. Brown, 4 Vet. App. 384 (1993) (Board cannot address a question not already addressed by RO). FINDINGS OF FACT 1. All available relevant evidence necessary for an equitable disposition of the appeal has been obtained by the RO. 2. The appellant's disabilities do not render the appellant bedridden, housebound, or in need of regular aid and attendance. CONCLUSION OF LAW The criteria for special monthly pension based on the need for regular aid and attendance or at the housebound rate are not met. 38 U.S.C.A. §§ 1521(d) and (e), 1155, 1521, 5107(a) (West 1991); 38 C.F.R. §§ 3.351, 3.352 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Special monthly pension provided by 38 U.S.C.A. § 1521(d) and (e) is payable, in part, where the appellant is bedridden or so helpless as to be in need of regular aid and attendance. 38 C.F.R. § 3.351(a)(1) and (b). The appellant will be considered in need of regular aid and attendance if he: (1) Is 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) Is a patient in a nursing home because of mental or physical incapacity; or (3) Establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). Section 3.352(a) provides for the following considerations in determining the need for regular aid and attendance: inability of claimant to dress or undress himself, or to keep himself 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 himself 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 his daily environment. "Bedridden" is defined as a condition that, through its essential character, actually requires that the claimant remain in bed. The fact that 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. Id. It is not required that all of the above described disabling conditions are found to exist before a favorable rating may be made. The particular personal functions that the claimant is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establishes that the claimant is so helpless as to need regular aid and attendance, not that there is a constant need. Determinations that the claimant is so helpless as to be in need of regular aid and attendance will not be based solely upon an opinion that his condition is such as would require him to be in bed. They must be based on the actual requirement of personal assistance from others. Id. The appellant also seeks entitlement to a special monthly pension based on claimed housebound status, which is payable where the appellant is entitled to a nonservice-connected pension, is not in need of regular aid and attendance, has a single permanent disability rated 100 percent disabling and, (1) 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 (2) Is permanently housebound by reason of disability or disabilities. This requirement is met when the appellant 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 C.F.R. § 3.351(d). VA medical examination in March 1995, conducted for the pupose of determining housebound status or permanent need for regular aid and attendance (HB-AA), indicated that the appellant was able to feed, dress, and shave himself. The examination was conducted at a VA medical facility and the examiner indicated that the appellant was able to leave home for short visits and for medical appointments. It was also reported that the appellant was not blind or bedridden and that he could attend to the wants of nature, keep himself ordinarily clean, protect himself from hazards or dangers, and walk without assistance of another person. The examiner certified that daily skilled services were not indicated. VA HB-AA examination in August 1995 showed that the appellant complained of inability to easily ambulate, to the extent that he used a crutch or wheelchair for movement. The examiner noted that the appellant was capable of all activities of daily living; that he could dress himself, shower, shave, and attend to the wants of nature, and could leave his home at will when accompanied by his spouse. The examiner concluded that the appellant did not qualify for aid and attendance or housebound status, noting that he was able to take care of all activities of daily living and that daily skilled services were not indicated. On October 1997 VA general medical examination, the examiner indicated a medical impression that the appellant was "able to handle all of his activities of daily living currently" and that he stated he was able to drive. VA hospital records that same month showed no physical activity restrictions. On VA HB-AA examination in January 1999, the appellant reported that he lived with his wife, and was able to drive a car, attend to the wants of nature, feed, dress, bath, and shave himself without the assistance of another person. He reported some difficulty with ambulation for which he used special shoes, a hand crutch, and when necessary, a wheelchair. The examiner noted that the appellant was able to ambulate from the waiting area to an examination room, with the help of a crutch, and he was able to dress and undress himself. The examiner concluded that, according to the appellant's statements, he was not completely housebound or in need of regular aid and attendance. As to that aspect of the claim, concerning the need for regular aid and attendance of another person, the record does not indicate that the appellant is blind or that he is a patient in a nursing home. Thus, to qualify for special monthly pension, the evidence must establish a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). None of the evidence described above suggests that the appellant is unable to dress or undress himself, keep himself ordinarily clean and presentable, feed himself, or attend to the wants of nature. In fact, the evidence reveals just the opposite. Nor does this evidence indicate a frequent need of adjustment of any special prosthetic or orthopedic appliance that cannot be done without aid or an incapacity requiring care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. Moreover, none of the evidence cited above indicated that the appellant was bedridden. The evidence showed that the examinations were generally conducted at a VA medical facility and that the appellant drove himself in a motor vehicle to those examinations, and ambulated into the examination room with the aid of a crutch on most recent VA examination in January 1999, thus demonstrating that he is not bedridden. None of this evidence suggests that the appellant is bedridden. The appellant also seeks special monthly pension based on housebound status. 38 C.F.R. § 3.351(d). The RO established the appellant's entitlement to a nonservice-connected pension in a June 1995 rating decision. As noted above, the appellant is not in need of regular aid and attendance. To qualify for special monthly pension based on housebound status, the appellant must have a single permanent disability rated 100 percent disabling. As noted in the record, the appellant is service connected for post-traumatic stress disorder (30 percent disabling), cervical arthritis and nerve root compression (10 percent disabling), and warts of the hands (noncompensable). In addition to these service- connected disabilities, his nonservice-connected pension is based on peripheral vascular disease of the right leg (40 percent disabling), coronary artery disease (30 percent disabling), right foot drop (20 percent disabling), hemorrhoids (10 percent disabling), hypertension (10 percent disabling), residuals of colon resection (10 percent disabling), and a skin rash and prostate cancer (each considered noncompensable). None of these disabilities constitute a single permanent disability, rated 100 percent disabling. In the absence of such a permanent disability, the claim for special monthly pension based on housebound status must be denied. The Board need not reach the additional criteria for special monthly pension based on housebound status, such as whether there is additional disability or disabilities independently ratable at 60 percent or more or whether the appellant is substantially confined to his dwelling and immediate premises. In any event, it is amply clear that the latter does not obtain in this particular case. ORDER Entitlement to special monthly pension based on the need for regular aid and attendance or at the housebound rate is denied. REMAND A statement of the case has not been issued regarding the claim of service connection for prostate cancer. Where notice of disagreement has been filed without subsequent issuance of a statement of the case, a remand is required to cure the procedural defect. Manlincon v. West, 12 Vet. App. 238 (1999). Thus, the case is REMANDED for the following development: The RO should provide a statement of the case to the appellant and his representative addressing the issue entitlement to service connection for prostate cancer. The statement of the case should include all relevant law and regulations pertaining to the claim. Reasons and bases for the denial also should be included. The appellant must be advised of the time limit in which he may file a substantive appeal. 38 C.F.R. § 20.302(b). Then, only if an appeal is perfected, should this issue be returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). J. F. Gough Member, Board of Veterans' Appeals