BVA9503789 DOCKET NO. 93-09 018 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to special monthly pension benefits based on the need for regular aid and attendance, or at the housebound rate. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD J.W. Engle, Counsel INTRODUCTION The appellant served on active duty from April 1968 to April 1970. This matter came before the Board of Veterans' Appeals (the Board) on appeal from a decision dated in December 1992 by the Albuquerque, New Mexico, Department of Veterans Affairs Regional Office (VARO). CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that his disabilities render him in need of regular aid and attendance and also render him housebound. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims files. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the appellant's claim to special monthly pension benefits. FINDINGS OF FACT 1. The appellant has been assigned a permanent and total disability evaluation for pension purposes since February 1989, based on a 60 percent rating for post lumbar laminectomies with arthritis and radiculopathy; thereafter in 1992, the compensable nonservice-connected disabilities were expanded to include an 80 percent rating for residuals of a femoral osteotomy with allograft. 2. The appellant's disabilities do not render him unable to care for most of his daily personal needs without assistance from others, nor do they render him unable to protect himself from the hazards and dangers incident to his daily environment. 3. The appellant has no single disability ratable at 100 percent, and he is not confined to his dwelling or immediate premises due to disabilities. CONCLUSIONS OF LAW 1. The criteria for an award of special monthly pension benefits based on the need for regular aid and attendance have not been met. 38 U.S.C.A. §§ 1502(b), 1521(d), 5107 (West 1991); 38 C.F.R. §§ 3.351, 3.352(a) (1993). 2. The criteria for an award of special monthly pension benefits at the housebound rate have not been met. 38 U.S.C.A. §§ 1502(c), 1521(e), 5107 (West 1991); 38 C.F.R. § 3.351(d) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the appellant has submitted evidence which is sufficient to justify a belief that his claims are well grounded. 38 U.S.C.A. § 5107(a) (West 1991) and Murphy v. Derwinski, 1 Vet.App. 78 (1990). Review of the record reveals that the appellant has been assigned a permanent and total disability evaluation for pension purposes since February 1989. His disabilities as currently classified by the originating agency are: Status post femoral osteotomy with allograft, rated 80 percent disabling; post lumbar laminectomies with arthritis and radiculopathy, rated 60 percent disabling; lesion, left femur, skin lesion, patella and thigh, tinea pedis, fungus condition, cysts and dental disorder, all rated as noncompensable. The criteria for determining whether increased pension is payable by reason of need of aid and attendance or by reason of being housebound is set forth in 38 C.F.R. § 3.351 (1993), and in pertinent part provides: (b) Aid and attendance; need. Need for aid and attendance means helplessness or being so nearly helpless as to require the regular aid and attendance of another person. The criteria set forth in paragraph (c) of this section will be applied in determining whether such need exists. (c) Aid and attendance; criteria. The veteran, spouse, surviving spouse or parent will be considered 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 § 3.352(a). (d) Housebound, or permanent and total plus 60 percent; disability pension. The rate of pension payable to a veteran who is entitled to pension under 38 U.S.C.A. § 1521 and who is not in need of regular aid and attendance shall be as prescribed in 38 U.S.C.A. § 1521(e) if, in addition to having a single permanent disability rated 100 percent disabling under the Schedule for Rating Disabilities (not including ratings based upon unemployability under § 4.17 of this chapter) the veteran: (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 veteran 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. § 3.352 (1993) provides the criteria for permanent need for aid and attendance and "permanently bedridden'' as follows: (a) Basic criteria for regular aid and attendance and permanently bedridden. The following will be accorded consideration in determining the need for regular aid and attendance (§ 3.351(c)(3): 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. `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. 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. 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 or her 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 will not be based solely upon an opinion that the claimant's condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others. Entitlement to aid and attendance benefits is predicated on the objective evidence of record demonstrating that the appellant is so disabled as to require the regular aid and attendance of another person. It is the essential contention in this case that the appellant's status post femoral osteotomy with allograft and post lumbar laminectomies with arthritis and radiculopathy make it difficult for him to get around. In that regard, the undersigned notes that the status post femoral osteotomy with allograft is rated pursuant to Diagnostic Code 5255 which provides, in pertinent part, that a fracture of the shaft or anatomical neck with nonunion and/or loose motion (spiral or oblique fracture) warrants an 80 percent disability evaluation. The 80 percent rating is the maximum rating provided for by the rating schedule. The Board has also examined the appellant's claim, mindful of his post lumbar laminectomies with arthritis and radiculopathy, which is evaluated pursuant to Diagnostic Code 5293 which provides that symptoms analogous to a pronounced intervertebral disc syndrome with persistent symptoms compatible for sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk or other neurological findings appropriate to the site of the diseased disc with little intermittent relief warrants a 60 percent disability evaluation. The 60 percent disability evaluation is the maximum provided for by the rating schedule. In view of the above, the evidence has been reviewed to determine whether or not the appellant's left femur disorder or his lumbar disorder warrants an extraschedular evaluation pursuant to 38 C.F.R. § 3.321(b) (1993). The medical evidence of record, including VA outpatient treatment reports dated in 1992 which note findings of chronic, severe pain and weakness in the left lower extremity and persistent low back pain, does not suggest that either the left femur disability or the lumbar spine disability present such an exceptional or unusual disability picture, as manifested by frequent periods of hospitalization or other indicia of such nature as to render impractical the application of the regular schedular standards. The Board notes that there is no evidence of record to support a 100 percent disability evaluation for any of the appellant's additional disabilities which are currently evaluated as noncompensable. After review of the evidence of record, the undersigned concludes that the evidence does not demonstrate that the appellant is so severely disabled as to need the regular aid and assistance of another person. Significantly, a statement from the appellant's treating physician dated in December 1992 noted that while the appellant could not dress himself without help and cannot bathe himself, he can walk 100 yards unassisted, he can feed himself and he is not confined to his home. Accordingly, entitlement to special monthly pension benefits based on the need for regular aid and attendance is not warranted. The appellant is also seeking special monthly pension benefits based on being housebound. Entitlement to these benefits is predicated on the evidence of record showing that the appellant has one single disability ratable 100 percent disabling and has additional disabilities independently ratable 60 percent or more disabling: or, in addition to the 100 percent disability evaluation, is demonstrably housebound due to disability. In this case, as noted above, none of these criteria have been met. The appellant has no single disability which can be evaluated as 100 percent disabling. Additionally, the clinical data do not demonstrate that the appellant is confined to his dwelling or the immediate premises due to disability. The statement from the appellant's treating physician dated in December 1992 specifically states that the appellant is not confined to his home. Thus, there is on legal basis upon which entitlement to housebound status may be established. ORDER Special monthly pension benefits based on the need for regular aid and attendance or at the housebound rate are denied. C.P. RUSSELL Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.