Citation Nr: 0004686 Decision Date: 02/23/00 Archive Date: 02/28/00 DOCKET NO. 98-14 901 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to special monthly allowance for a surviving spouse by reason of being in need of regular aid and attendance of another person. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The veteran served on active duty from October 1943 to March 1946. He died on January [redacted], 1996. The appellant is his surviving spouse. This matter arises from a July 1998 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, which denied the benefit sought on appeal. The Board of Veterans' Appeals (Board) does point out, however, that the RO, in September 1997, granted the appellant housebound benefits. FINDINGS OF FACT 1. All evidence necessary for an equitable adjudication of the appellant's claim has been obtained by the RO. 2. The appellant suffers from certain physical disorders that establish a factual need for the regular aid and attendance of another person; specifically, these disorders render her unable to keep herself ordinarily clean and presentable. CONCLUSION OF LAW Giving the appellant the benefit of the doubt, the requirements for a special monthly allowance based on the need for regular aid and attendance are met. 38 U.S.C.A. §§ 1502, 5107 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.102, 3.351, 3.352 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant and her representative contend, in essence, that she is materially dependent on others for the majority of her necessary daily living activities. It is particularly noted that someone comes to her house three times a week to help with housework and bathing, as well as to provide assistance to the appellant in the taking of her medications. Furthermore, it is asserted that the appellant is unable to get out of bed without assistance. See Written Brief Presentation, dated in January 2000. 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. Further, she has not alleged nor does the evidence show that any records of probative value, which could be associated with the claims folder and that have not already been sought, are available. The Board accordingly finds that the duty to assist the appellant, as mandated by § 5107(a) (West 1991), has been satisfied. Where a surviving spouse who is entitled to death pension is in need of the regular aid and attendance of another person, an increased rate of pension is payable. 38 U.S.C.A. § 1541(d) (West 1991 & Supp. 1999). For pension purposes, a person shall be considered to be in need of regular aid and assistance if such person is (1) a patient in a nursing home on account of mental or physical incapacity, or (2) helpless or blind, or so near helpless or blind as to need the regular aid and attendance of another person. 38 U.S.C.A. § 1502(b) (West 1991 & Supp. 1999); 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 and is defined as that condition which, through its essential character, actually requires that the appellant 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 that the appellant is unable to perform should be considered in connection with her condition as a whole. It is only necessary that the evidence establish 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). An August 1997 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance report, completed by a private physician, showed that the appellant was neither blind nor bedridden. The report revealed that the appellant was able to walk without the assistance of another person for a distance of one-half block. It was noted that she was able to leave her home once a week to go to the doctor, pharmacy, and grocery store. The report also noted that the appellant was able to dress and undress herself, attend to the wants of nature, walk unassisted (with a cane), and keep herself clean (though it was noted she needed assistance with household chores, i.e., cooking, laundry, and cleaning). It was further indicated that the appellant was competent, able to protect herself from hazards or danger, and able to handle government funds. A September 1997 letter supplied from a private physician noted that the appellant had significant gastroesophageal reflux. He opined that this would be a long term problem. A VA Form 21-0158, Improved Pension Eligibility Verification Report, submitted by the appellant in January 1998, noted that she was not a patient in a nursing home. An Examination for Housebound Status or Permanent Need for Regular Aid and Attendance report, shown to have been completed by a private physician in June 1998, indicates that, in part, the appellant was not able to protect herself from hazards or danger. Arthritis, at multiple sites, was diagnosed. A lay statement submitted by a neighbor of the appellant and received by VA in September 1998 indicated that the appellant was very disabled, and unable to walk on some days. The neighbor went on to indicate that the appellant was very disoriented, had continual back problems, was unable to ride in or get out of a car, and that very often she was unable to walk across the street to her mailbox. She added that the appellant was unable to cook and must have someone assist her in doing her work. A letter submitted to VA in September 1998 from a private physician indicated that he had treated the appellant since October 1992 for very significant depression and anxiety. This condition, it was noted, had required the appellant to be hospitalized in the psychiatric unit at St. Vincent's Infirmary on at least two occasions, the last being in May 1998. He also indicated that, from reports from other physicians, he was aware of other conditions from which the appellant suffered, including chronic back pain with spinal stenosis, status-post decompression laminectomy, hypertension, and hypercholesterolemia. He opined that, due to her psychiatric and physical problems, the appellant was totally and permanently disabled. Private hospital records were received by VA by facsimile in January 1999 from Baptist Home Health Network. The records showed that the appellant had been hospitalized in December 1998 for a closed fracture, not otherwise specified. Other pertinent diagnoses were reported as senile osteoporosis; closed rib fracture; asthma; and anxiety, not otherwise specified. Other records on file show that the appellant was admitted via the emergency room on December 3, 1998, with shortness of breath, wheezing, and bronchitis. The diagnosis on admission was upper respiratory infection and acute asthmatic bronchitis. A VA Form 119, Report of Contact, dated March 11, 1999, indicates that the appellant was unable to report for C&P examinations on March 23, 1999, and April 1, 1999, due to recent back surgery. An undated document, from "CareLink," shown to be affiliated with the Central Arkansas Area Agency on Aging, Inc., has also been associated with the record. The document included discussion of a particular program, "ElderChoices," which was noted to be a special Medicaid program designed to help people stay out of nursing homes. Age, income, and care need requirements were addressed. In addition, as regarding care needs, it was further indicated that to qualify for this home level nursing care, an applicant must need help from another person with one or more activities of daily living (such as getting in and out of bed, mobility, eating, and using the toilet), or shown to be require supervision due to Alzheimer's disease or other dementia. The evidence of record includes a notation sent via facsimile to VA from CareLink in September 1999 that confirmed that the appellant had been approved for the ElderChoices program. The record also shows that a private physician completed an addendum report in November 1999 that is shown to include questions pertaining to the appellant's need for aid and attendance. It was indicated that the appellant was unable to walk unassisted; she was noted to require the use of a cane or walker. She was noted to be able to attend to the wants of nature without assistance, but needed assistance in keeping herself ordinarily clean, including bathing. It was added that she was able to protect herself from hazards or danger and that she was not bedridden. The appellant was also found to be able to dress and undress herself, as well as handle her own business affairs. It was further indicated that the appellant was able to leave her home, with the use of a cane, to go to the grocery store and mailbox. A diagnosis of multiple level internal disk disruption was supplied. An undated letter from the appellant shows that she claimed to have been hospitalized three times, and that she had very bad osteoporosis as well as and chronic bronchitis. She also indicated that she had suffered many fractures in her back and ribs, and that she needed a walker or cane to get around. She noted that she needed assistance in order to take a shower or wash her hair, and that she had a woman come into her home 3 times a week to help with the housework and washing. She also noted that she was currently taking six different prescribed and over-the-counter drugs. A computer printout is of record from the Medicine Man Pharmacy located in North Little Rock, Arkansas, which verifies that well in excess of 100 hundred prescriptions were filled at that facility for the appellant between October 1998 and October 1999. The evidence is at least in equipoise as to whether it is established that the appellant requires regular assistance in order to keep herself ordinarily clean and presentable. See 38 C.F.R. § 3.352(a) (1999). The Board observes that, while the appellant has never specifically been medically determined to be in need of "regular" aid and attendance, it has been recently documented that she required regular assistance in order to keep herself ordinarily clean and presentable. See 38 C.F.R. §§ 3.351(c)(3), 3.352(a) (1999). The Board again points out that the appellant has been accepted into the CareLink ElderChoices Medicaid program, where, to qualify, as indicated above, an applicant must need help from another person with one or more activities of daily living. While the Board recognizes that the appellant did not appear on two occasions in order to be examined by VA, this has been shown to have been attributed to her having undergone recent back surgery. According to the United States Court of Appeals for Veterans Claims in Turco v. Brown, 9 Vet. App. 222 (1996), eligibility for special monthly pension requires that at least one, but not all, of the enumerated factors under 38 C.F.R. § 3.352(a) (1999) be found to exist before a favorable rating may be made. Therefore, since the Board finds that the appellant has met at least one of the enumerated factors, i.e., the inability to keep herself ordinarily clean and presentable, the criteria for special monthly pension by reason of being in need of regular aid and attendance of another person are met. 38 U.S.C.A. § 1502(b) (West 1991); 38 C.F.R. §§ 3.351, 3.352(a) (1999). The Board concedes that the appellant's need for aid and assistance may not be constant, insofar as the evidence shows that, for example, she is able to leave her residence, albeit with the aid of walker or cane; however, such requirement is not necessary for the grant of special monthly pension according to 38 C.F.R. § 3.352(a) (1999). Aid and attendance need only be necessary on a regular basis. See also, Turco, supra. The evidence of record does show that she has been hospitalized on several occasions. Also, the Board again points out that she was accepted into a program that requires its participants to need the help of another person with one or more activities of daily living. Accordingly, after a careful review of all of the evidence, the Board is of the opinion that the positive and negative evidence is now in relative equipoise. Therefore, resolving the benefit of doubt in the appellant's favor, the claim is granted. ORDER Special monthly allowance for a surviving spouse by reason of being in need of regular aid and attendance of another person is granted, subject to the provisions governing the award of monetary benefits. M. S. SIEGEL Acting Member, Board of Veterans' Appeals