Citation Nr: 0000162 Decision Date: 01/05/00 Archive Date: 12/28/01 DOCKET NO. 96-47 389 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUE Entitlement to special monthly pension by reason of being in need of regular aid and attendance or on account of being housebound. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD Clifford R. Olson, Counsel INTRODUCTION The veteran served on active duty from April 1945 to April 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. The appellant is not shown to be 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. 3. The appellant is not shown to be a patient in a nursing home because of mental or physical incapacity. 4. The evidence does not show that the appellant is bedridden, is unable to dress or undress himself, is unable to keep himself ordinarily clean and presentable, needs aid for the frequent adjustment of any prosthetic device, is unable to feed himself, is unable to attend to the wants of nature, or has a physical or mental incapacity which requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. 5. The veteran has a single disability which is permanently and totally disabling, adenocarcinoma of the prostate. 6. The veteran is housebound and is reasonably certain to remain so throughout his lifetime. CONCLUSIONS OF LAW 1. The criteria for special monthly pension by reason of the need for regular aid and attendance are not met. 38 U.S.C.A. §§ 1502(b), 1521(d), 5107 (West 1991); 38 C.F.R. §§ 3.351, 3.352 (1999). 2. The criteria for special monthly pension by reason of being permanently housebound are met. 38 U.S.C.A. §§ 1502(c), 1521(e), 5107 (West 1991); 38 C.F.R. § 3.351 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Special Monthly Pension Based on Need of Regular Aid and Attendance Where an otherwise eligible veteran is in need of regular aid and attendance, an increased rate of pension is payable. 38 U.S.C.A. § 1521(d) (West 1991). Need for aid and attendance means helplessness or being so nearly helpless as to require the regular aid and attendance of another person. The veteran shall be considered to be in need of regular aid and attendance if he or she: (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). 38 C.F.R. § 3.351 (1999); see also 38 U.S.C.A. § 1502(b) (West 1991). The following will be accorded consideration in determining the need for regular aid and attendance under 38 C.F.R. § 3.351(c)(3): 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" will be a proper basis for the determination. For the purpose of this paragraph "bedridden" will be 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 in this paragraph be found to exist before a favorable rating may be made. The particular personal functions which the veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that the veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that the veteran is so helpless, as to be in need of regular aid and attendance must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352(a). There is no evidence that the veteran 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. On VA examination in September 1997, the veteran's corrected visual acuity in each eye was 20/40 and the examiner reported that there was no visual field defect. Consequently, there is no well grounded claim based on being blind or nearly blind, under 38 U.S.C.A. §§ 1502(b)(2), 1521(d) (West 1991); 38 C.F.R. § 3.351(c)(1) (1999). There is no evidence that the veteran is a patient in a nursing home. On VA examination in September 1997, it was reported that he lived alone. He did have a housekeeper who cooked and cleaned, but that is not the same as being a patient in a nursing home. Consequently, there is no well grounded claim based on being a patient in a nursing home, under 38 U.S.C.A. §§ 1502(b)(1), 1521(d) (West 1991); 38 C.F.R. § 3.351(c)(2) (1999). The veteran asserts that he qualifies for special monthly pension because he is helpless or so nearly helpless as to require the regular aid and attendance of another person. This claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, he has presented a claim which is plausible under the provisions of under 38 U.S.C.A. §§ 1502(b)(2), 1521(d) (West 1991); 38 C.F.R. § 3.351(c)(3) (1999) referring to the need for regular aid and attendance. All relevant facts have been properly developed. VA has completed its duty to assist the veteran in the development of his claim. See 38 U.S.C.A. § 5107(a). The veteran has not reported that any other pertinent evidence might be available. See Epps v. Brown, 9 Vet. App. 341, 344 (1996). Review of the veteran's medical history in accordance with 38 C.F.R. §§ 4.1, 4.2 (1999) shows that on a May 1994 VA examination, he was able to ambulate normally without deficits in weight bearing, balance and propulsion. There were no limitations of motion or deformities of the spine. A claim for special monthly pension was denied by the RO in an October 1994 rating decision. The veteran did not appeal that decision. In September 1995, the RO received the veteran's request to be evaluated for housebound purposes. In a note dated in October 1995, a private orthopedic surgeon stated the veteran had recurrent plantar fasciitis and diabetic retinopathy. There was no comment as to the extent of the conditions or the impact on the veteran's ability to care for himself. In a letter dated in April 1996, another private physician stated that the veteran was being treated for: Non-insulin dependent diabetes mellitus, frequent upper respiratory infections, bronchitis, osteoarthritis of the knees and plantar regions of both feet and secondary anemia. It was also noted that the veteran was under care for prostate cancer. There was no comment as to the extent of the conditions or the impact on the veteran's ability to care for himself. A VA examination was performed in May 1996. The veteran reported living alone in a rented house. He gave a history of spurs in both os calcis, non-insulin dependent diabetes mellitus, arthritis, carcinoma of the prostate, cholecystectomy, transurethral resection of the prostate and refractive error. He complained of loss of balance, dizziness episodes when he walked, loss of vision, low back pain radiating into both legs, cramps in the legs, numbness of the hands, dermatocytosis of the toes, headaches, and loss of memory. The examiner found a normal gait with loss of balance on occasions. The veteran was alert, oriented and coherent. The joints of his hands and fingers were affected by arthritis but there was satisfactory coordination of hand movements. In the lower extremities, there was osteoarthritis of the knees and bilateral os calcis spurs with a loss of balance when walking. Degenerative joint disease affected his spine trunk and neck. The doctor noted that the veteran was living alone and performed his self care functions, although he asked for help to cook and clean his house. On a typical day, he walked in the house premises, watched television and met friends. He ambulated alone without assistance or aid with loss of balance and limping on occasion. In a statement received in April 1997, a witness reported that she traveled every day to the veteran's home to care for everything in the home. She said that she cooked, cleaned the house, washed clothes and did the other laundry. She cut the nails of his hands and feet. The veteran paid her for these services. A barber came to his house to shave the veteran and give him a haircut because he could not ambulate outside his home. VA outpatient treatment records from August 1995 to August 1997 were added to the record. These show VA treatment for various symptoms. They do not indicate that the veteran needed help to perform basic self care functions. The report of the August 1997 VA examination shows the veteran was born in July 1916. He came to the examination alone in a public car. He was alert, oriented and coherent. He walked alone with the assistance of a cane. It was noted that he was living alone in a rented house. His medical history was reviewed. Current complaints were of blurred vision, loss of vision, hearing loss, pain in both legs, and a hot and tingling sensation with cramps in the lower extremities. He reported constipation, low back pain, and pain in both feet. On examination, he had a limping gait. He was alert, oriented and coherent. An electrocardiogram reported sinus bradycardia and right bundle branch block. Degenerative joint disease affected the upper extremity joints, but with satisfactory movement and coordination. There was also degenerative joint disease of the lower extremities, weakness in the joints, pain in the knees and ankles, bilateral os calcis spurs and diabetic neuropathy. There was also arthritis of the spine. The doctor commented on that the veteran was independent in his self care and was living alone. He had some limitation due to foot pain. It was noted that the veteran had another person cook and clean. He walked in the house, patio and home premises. On a typical day, he sat, watched TV and read news papers. As to ambulation, the doctor commented that the veteran was able to walk without the assistance of another person. He walked alone with slow locomotion, limping. The evidence does not show that the veteran is unable to dress or undress himself, or to keep himself ordinarily clean and presentable. He does not have frequent need of adjustment of any special prosthetic or orthopedic appliances which requires the aid of another. He can feed himself and does not have loss of coordination of upper extremities or extreme weakness. He is able to attend to the wants of nature. He does not have any incapacity, physical or mental, which requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. The evidence in this case does not show that the veteran must have such help on a regular basis because of his disabilities. While the veteran is affected by arthritis in many joints, it was the medical opinion that the movement and coordination were satisfactory on the 1996 and 1997 VA examinations. The doctor's opinion on this point is substantially more probative than the veteran's lay assertions as to the extent of the disability. In this case, the medical evidence provides a preponderance of evidence which establishes that the veteran can perform his basic self care functions. 38 U.S.C.A. § 5107(b) (West 1991). Thus, while the assistance of another may be convenient, it is not required on a regular basis. Consequently, the veteran does not meet the criteria for special monthly pension based on the need for regular aid and attendance. 38 U.S.C.A. §§ 1502(b), 1521(d), 5107 (West 1991); 38 C.F.R. §§ 3.351, 3.352 (1999). Special Monthly Pension on Account of Being Housebound If the veteran does not qualify for special monthly pension based on the need for regular aid and attendance, he can be awarded special monthly pension at a different rate if he has a disability rated as permanent and total and additional disability or disabilities independently ratable at 60 percent or more or he is housebound. 38 U.S.C.A. § 1521(e) (West 1991). A person will be considered to be permanently housebound if he is substantially confined to his house or immediate premises due to disability or disabilities which it is reasonably certain will remain throughout his lifetime. 38 U.S.C.A. § 1502(c) (West 1991). In this case, the RO determined in the August 1996 rating decision that the veteran's adenocarcinoma of the prostate was 100 percent disabling under 38 C.F.R. Part 4, Code 7528 (1999). As the adenocarcinoma appears to remain despite treatment, the Board finds that it will be a permanent and total disability, meeting the first criteria for special monthly pension at the housebound rate. The veteran has specifically claimed that he is housebound. A witness has stated that he can not leave his house and that she and others go to the veteran's home to care for him. The recent VA examination reports show that the veteran was brought to the first examination by a friend and the second examination by a public car. The ability of someone else to take the veteran from his premises does not mean that he can get beyond the immediate premises by himself. The medical reports are to the contrary. The May 1996 VA examination report shows that he ambulated with loss of balance and limping. The August 1997 VA examination report reveals a limping gait and slow locomotion with a cane. Such difficulty walking would prevent him from going to a food store, or otherwise meeting basic needs. Giving the veteran the benefit of the doubt, the veteran's difficulty walking would substantially confine him to his home and its immediate premises. 38 U.S.C.A. §§ 1502(c), 5107(b) (West 1991). This meets the criteria for special monthly pension at the housebound rate. 38 U.S.C.A. § 1521(e) (West 1991). The Board also notes that the VA examination was inadequate in detailing the extent of impairment due to orthopedic abnormality. The examiner noted that there was joint disease of the upper extremities, lower extremities and spine. However, the examiner did not detail which parts of the upper extremities were affected. If we assume the minimum compensable evaluation for each segment of the spine, the knees, ankles, and one joint of each of the upper extremities, when the bilateral factor is considered, the veteran would meet the requirement of a separate 60 percent evaluation. ORDER Special monthly pension by reason of being in need of regular aid and attendance is denied. Special monthly pension by reason on account of being housebound is granted, subject to the law and regulations governing the payment of monetary awards. H. N. SCHWARTZ Member, Board of Veterans' Appeals