Citation Nr: 0000015 Decision Date: 01/03/00 Archive Date: 12/28/01 DOCKET NO. 98-04 520 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder. 2. Entitlement to special monthly pension based on the need for regular aid and attendance or upon housebound status. 3. Whether the veteran's income is excessive for the payment of improved pension benefits. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The veteran served on active duty from June 1970 to June 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. The issue of whether or not the veteran's income is excessive for the payment of improved pension benefits is the subject of a remand section of this opinion. FINDINGS OF FACT 1. The veteran's claim for service connection for post- traumatic stress disorder is not plausible. 2. The veteran has been assigned the disability evaluations of 30 percent for dysthymic disorder; 30 percent for a status post open reduction internal fixation left humerus with implantation of bone stimulator, with radial nerve palsy; 30 percent for open reduction internal fixation left femur, with impingement of bone stimulator; and 0 percent for several other disabilities, for a combined rating of 70 percent. 3. The veteran is able to adequately attend to the needs of daily living without the regular assistance of another person and he is able to protect himself from the hazards and dangers inherent in his daily environment. 4. The veteran does not have a single permanent disability ratable at 100 percent disabling, and it is not shown that by his disabilities he is substantially confined to his dwelling or immediate premises as a result of his disabilities. CONCLUSIONS OF LAW 1. The veteran's claim for service connection for post- traumatic stress disorder is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 2. The criteria for an award of special monthly pension based on the need for regular aid and attendance or upon housebound status have not been met. 38 U.S.C.A. § 1502(b) (c), 5107 (West 1991); 38 C.F.R. §§ 3.351, 3.352 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The United States Court of Appeals for Veterans Claims (Court) has stated repeatedly that 38 U.S.C.A. § 5107(a) unequivocally places an initial burden on a claimant to produce evidence that a claim is well grounded. See Grivois v. Brown, 6 Vet. App. 136 (1994); Grottveit v. Brown, 5 Vet. App. 91, at 92 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, at 610-611 (1992). A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § 5107(a). For a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of inservice occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service disease or injury and the current disability. Where the determinative issue involves medical causation, competent medical evidence to the effect that the claim is plausible is required. Epps v. Gober, 126 F.3d 1464 (1997). The veteran contends that he is entitled to service connection for post-traumatic stress disorder. The veteran's service medical records do not show that any psychiatric disorder was diagnosed. The June 1973 discharge examination report indicates that the veteran's psychiatric status was found to be normal. An August 1993 periodic Air Force Reserves examination report also indicates that the veteran's psychiatric status was found to be normal. The post-service medical evidence of record includes no evidence showing that the veteran has ever been found to have post-traumatic stress disorder. The veteran has received psychiatric treatment, both private and VA, since December 1993. These records show treatment for major depression and alcohol abuse. In February 1998 the veteran underwent a VA psychiatric examination for the purpose of determining whether he had post-traumatic stress disorder. The VA examiner stated that the veteran did not have post-traumatic stress disorder. The veteran stated in his April 1998 notice of disagreement that he was being treated at VA facilities for post-traumatic stress disorder. However, a review of the VA medical records and a statement from the Des Moines Vet Center fail to confirm the veteran's assertion. The evidence that the veteran currently has post-traumatic stress disorder is limited to the veteran's own contentions. As a layman, he is not competent to provide evidence requiring medical expertise. See Espiritu v. Derwinski, 2 Vet.App. 492, at 494 (1992). Since the record contains no medical diagnosis of post- traumatic stress disorder, the Board must conclude that the veteran's claim is not well grounded. Although the Board has considered and denied this claim on a ground different from that of the RO, that is, whether the appellant's claim is well grounded rather than whether he is entitled to prevail on the merits, the appellant has not been prejudiced by the Board's decision. In assuming that the claim was well grounded, the RO accorded the appellant greater consideration than his claim warranted under the circumstances. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). To remand this case to the RO for consideration of the issue of whether the appellant's claim is well grounded would be pointless, and in light of the law cited above, would not result in a determination favorable to the appellant. VAOPGCPREC 16-92 (O.G.C. Prec. 16-92). II. Special Monthly Pension The Board finds that the veteran's claim for special monthly pension is well grounded within the meaning of 38 U.S.C.A. § 5107(a). The Board is satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). The veteran seeks an award of special monthly pension based on the need for regular aid and attendance or upon housebound status. He maintains that he experiences severe pain and fatigue. Some days he can not get out of bed and he needs help with his meals. He asserts that he needs help in completing normal every day tasks such as preparing meals, laundry, showers and general up keep. The record reveals that the veteran was riding his bicycle in September 1995 when he collided head on with an automobile. This accident resulted in numerous traumatic injuries, including multiple left rib fractures, left tibia fracture, left midshaft comminuted humerus fracture, and left intertrochanteric fracture of the hip. The veteran was treated at a private hospital for over two months. He then received inpatient rehabilitative treatment at a VA facility through March 1996. The veteran submitted a claim for special monthly pension based on the need for regular aid and attendance or upon housebound status in September 1997. On release from VA inpatient treatment in March 1996, the veteran was noted to have independence in ambulation greater than 150 feet with a walker. He was noted to be independent in the activities of daily living and mobile for long distances with a wheelchair. It was indicated that the veteran was independent in feeding self. The veteran underwent left femoral surgery in December 1996. He received inpatient rehabilitative treatment at a VA facility in December 1996 and January 1997. On release the veteran was noted to be returning to independent living in his own apartment. A July 1997 VA mental health clinic record indicates that the veteran reported that he was walking over two miles per day, five days a week. The veteran submitted a November 1997 examination report for housebound status or regular aid and attendance. The examiner, a private physician, stated that due to unsteady gait and chronic pain of the back and left leg the veteran had disability in ambulating or traveling. He noted that the veteran could walk without the assistance of another person. He stated that the veteran could ambulate with the support of a cane or crutches. The private physician certified that the veteran required the daily personal health care services of a skilled provider without which the veteran would require hospital, nursing home, or other institutional care. On VA psychiatric examination in February 1998 the veteran was noted to be able to ambulate favoring his left leg without support. The veteran reported that he resided with a woman friend and her three teenage children. He did household tasks, grocery shopping, and he exercised on a stationary bike. A. Aid and Attendance Section 3.351(b) defines the need for aid and attendance as "helplessness or being so nearly helpless as to require the regular aid and attendance of another person." Section 3.351(c), which is labeled "[a]id and attendance; criteria," establishes three alternative criteria that constitute helplessness. Neither of the first two criteria under section 3.351(c) is applicable to this case because the first provision deals with situations where the claimant is legally blind, 38 C.F.R 3.351(c)(1), and the second provision deals with situations where the claimant is confined to "a nursing home because of mental or physical incapacity," 38 C.F.R 3.351(c)(2). The third criterion, 38 C.F.R. § 3.351(c)(3), directs consideration pursuant to section 3.352(a), which provides: The following will be accorded consideration in determining the need for regular aid and attendance: inability of 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 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 (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 his or her daily environment... 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 function which the veteran is unable to perform should be considered in connection with his or her condition as a whole. It is only necessary that the evidence establishes that the veteran is so helpless as to need regular aid and attendance, not that there be a constant need. C.F.R. § 3.352(a). In the Board's opinion, while the evidence reflects that the veteran has significant disabilities, it is not shown that regular aid and attendance is required. While a private physician noted that the veteran required the daily aid of a skilled health care provider, he did not identify any activities of self care that the veteran is unable to perform. Although he noted that the veteran had difficulty with ambulation and traveling, he also stated that the veteran was able to ambulate with the use of a cane or crutches. He did not identify any function the veteran was unable to perform with his upper extremities. The other medical evidence clearly shows that the veteran is able to care for himself and protect himself from the hazards incident to his daily environment. The record also clearly shows that the veteran has successfully lived independently and that he is capable of all the activities of daily living. He is able to walk long distances and is able to use a stationary bicycle. While the veteran may require a cane to walk and while he may tire quickly due to pain and his orthopedic disabilities, the medical evidence reveals that the veteran is able to function in life on his own and that any personal assistance he requires is less than that necessary to meet the criteria for regular aid and attendance. Consequently, special monthly pension based on the need for regular aid and attendance is not warranted. B. Housebound Status In the case of a veteran entitled to pension who does not qualify for increased pension based on need of regular aid and attendance, an increase in the rate of pension is authorized where the veteran has certain additional severe disabilities or is permanently housebound. The requirement for this increase in pension will be considered to have been met where, in addition to having a single permanent disability ratable as 100 percent under regular scheduler evaluation, without resort to individual unemployability, the veteran has an additional disability or disabilities independently ratable at 60 percent or more, separate and distinct from the permanent disability ratable as 100 percent disabling and involving different anatomical segments or bodily systems, or is permanently housebound by reason of disability or disabilities. Housebound means substantially confined to his dwelling and the immediate premises. 38 U.S.C.A. § 1502(c); 38 C.F.R. § 3.351(d). Thus, the threshold requirement for special monthly pension under the housebound rate is that the qualified veteran have a single permanent disability ratable as 100 percent disabling under the Schedule for Rating Disabilities. 38 C.F.R. § 3.351(d). It is clear from the record that none of the veteran's disabilities is 100 percent disabling under the schedular criteria. In addition, the evidence does not show that the veteran is permanently housebound as the veteran is not substantially confined to his dwelling or the immediate premises as a result of his disabilities. The record indicates that he is able to ambulate for up to two miles. Accordingly, special monthly pension due to housebound status is not warranted. ORDER Entitlement to service connection for post-traumatic stress disorder is denied. Special monthly pension based on the need for regular aid and attendance or upon housebound status is denied. REMAND The veteran claims that he meets the income requirements for eligibility for improved disability pension benefits. The record reveals that his only income is his Social Security income. The veteran submitted an informal claim for pension benefits in September 1997. He submitted a formal claim for pension benefits in December 1997. On his December 1997 application for pension benefits the veteran indicated that he had two unmarried dependent children. While these children were noted to be in the care of someone else, the veteran was making contribution of half of his income to those children. In adjudicating the veteran's claim for pension benefits the RO only considered the maximum annual rate of pension for a veteran with no dependents. Since the veteran's application for pension benefits indicates that the veteran is claiming two dependents, the RO must make a determination as to whether the veteran actually has any eligible dependents, and if so, whether the veteran meets the income requirements for pension benefits based on the maximum annual rate of pension for a veteran with dependent(s). In light of the foregoing, this case is REMANDED to the RO for the following actions: 1. The RO should obtain any necessary information to make a determination as to whether the veteran has any dependent children for improved disability pension purposes. 2. If the veteran has any dependent children for pension purposes, the RO should make a determination as to whether the veteran is entitled to improved disability pension benefits based on the maximum annual rate of income for a veteran with the appropriate number of dependents. Thereafter, the case should be returned to the Board, if otherwise in order. By this remand, the Board intimates no opinion as to any ultimate outcome warranted. The veteran need take no action until he is otherwise notified by the RO. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). SHANE A. DURKIN Member, Board of Veterans' Appeals