BVA9504666 DOCKET NO. 93-08 631 DATE JAN 04 1995 On appeal from the decision of the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to special monthly pension based on the need for regular aid and attendance or based on being housebound. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD Jeanne M. Schlegel, Associate Counsel INTRODUCTION The appellant served on active duty from November 1945 to March 1947. This matter comes before the Board of Veterans' Appeals (the Board) from a rating determination by the Department of Veterans Affairs (VA) Regional Office (RO). In its December 1992 determination, the RO denied entitlement to special monthly pension based on the need for regular aid and attendance or on being housebound. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that he requires aid and attendance due to the fact that since his stroke in May 1992 he has not been able to read or write due to memory loss. He additionally alleges that he has developed a heart condition and high blood pressure due to the amputation of the right leg. The appellant's wife submitted a letter received in March 1993 in which she maintains that the appellant is unable to perform all of his daily needs without assistance due to his inability to read and write and memory loss resultant of his stroke in May 1992. 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 file. 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 appellant has not met the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim of entitlement to special monthly pension based on the need for regular aid and attendance or on being housebound is well-grounded. FINDINGS OF FACT 1. The appellant's disabilities include: above the knee amputation, evaluated as 80 percent disabling; a fracture of the left calcaneal, evaluated as 20 percent disabling; status post cerebrovascular accident with right arm weakness (major) evaluated as 10 percent disabling; and, a noncompensable evaluation for status- post gastrectomy. His combined non service-connected disability evaluation is 90 percent. 2. The appellant has not submitted evidence which justifies a belief in a fair and impartial individual that he is a patient in a nursing home, helpless or blind, or so nearly helpless or blind as to need the regular aid and attendance of another person, nor that he requires regular aid and attendance for his daily functions. 3. The appellant has not submitted evidence which justifies a belief in a fair and impartial individual that he has a single permanent disability rated as 100 percent disabling under regular scheduler evaluation without resort to individual unemployability, and the evidence shows he is not confined to his dwelling or immediate premises by his permanent disabilities. CONCLUSION OF LAW The appellant has not submitted evidence of a well-grounded claim of entitlement to special monthly pension based upon the need for the regular aid and attendance of another person or on account of being housebound. 38 U.S.C.A. 1502, 1521, 5107 (West 1991); 38 C.F.R. 3.351, 3.352 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The threshold question in this case is whether the appellant has presented evidence of a well-grounded claim, that is, a claim which is plausible, meritorious on its own or capable of substantiation. 38 U.S.C.A. 5107. Murphy v. Derwinski, 1 Vet.App. 78 (1990). Although the claim need not be conclusive, it must be accompanied by evidence which justifies a belief by a fair and impartial individual that the claim is plausible. (emphasis in the original.) Tirpak v. Derwinski, 2 Vet.App. 609, 611 (.1992). Where the, appellant has not submitted competent evidence which meets the statutory prerequisite of submitting a well-grounded claim, the case must be dismissed, as the Board does not have jurisdiction to adjudicate a claim that is not well-grounded. Boeck v. Brown, 6 Vet.App. 14, 17 (1993). Further, the statutory duty to assist the appellant in the development of his claim does not arise unless and until a well-grounded claim is presented. Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). The basic criteria governing the benefits sought on this appeal are as follows: 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). The law and regulations provide that, for pension purposes, a person shall be considered to be in need of regular aid and attendance 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 nearly helpless or blind as to need the regular aid and attendance of another person. 38 U.S.C.A. 1502(b) (West 1991); 38 C.F.R. 3.351 (1992). 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 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; 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 and is defined as 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 above be found to exist before a favorable rating may be made. The particular personal functions which the claimant 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 claimant is so helpless as to need regular aid and attendance, not that there be a constant need. 38 C.F.R. 3.352(a) (1993). Housebound 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 rated as 100 percent under regular scheduler evaluation, without resort to individual unemployability 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 substantially confined as a direct result of his or her disabilities 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 U.S.C.A. 1502(c), 1521(e) (West 1991); 38 C.F.R. 3.351(d) (1993). Evidentiary assertions have been submitted by and on behalf of the appellant that he is in need of aid and attendance or housebound benefits because he can not read or write due to memory loss. King v. Brown, 5 Vet.App. 19 (1993) While the Board has no doubt that the claim has been made in good faith and must presume these assertions as to the veteran's inability to read or write due to memory loss to be true for purposes of determining whether the claim is well grounded, it does not immediately follow from such assertions that the appellant would met the requirements for the benefits sought. Further, the Court has held that a claim must be accompanied by evidence; a mere assertion of entitlement will not suffice. The sole piece of medical evidence submitted in support of this claim is a report of an "Aid and Attendance" examination conducted by a private physician in October 1992. The examiner determined that the appellant could dress, bathe, eat, go to the bathroom, and walk in and out of his home without assistance. The appellant was not bedridden, and walked with crutches. Nutrition was determined to be adequate. Blood pressure was 120/70. It was noted that improvement was not anticipated. The examiner's findings showed that he appellant was 65 years old. Approximately 10 years prior to the examination his right leg was amputated above the knee. A history of cerebrovascular accident was noted with "expressive aphagia and dysphagia." The examiner commented that this condition had improved but not resolved with speech therapy. Mild "dysphagia" and right side weakness persisted since the appellant's stroke (in May 1992). The diagnoses were: status-post cerebrovascular accident (May 1992) with expressive aphasia, dysphagia, and mild right "hemiparesis, status-post amputation above the right knee (1982), status-post subtotal gastrectomy (1983) secondary to carcinoma of the stomach, ischemic cardiomyopathy, and, atherosclerotic peripheral vascular disease. Simply stated, the report of this examination does not show evidence of inability on the part of the appellant to perform the activities of daily life unassisted, or to protect himself from the hazards of his environment. He was not shown to be a patient in a nursing home, helpless or blind, or so nearly helpless or blind as to need the regular aid and attendance of another person. Indeed, the report appears to demonstrate a basic lack of entitlement to the benefits sought on this appeal. As such, the appellant clearly has not met his initial burden of submitting evidence to establish that his claim is well grounded. Tirpak at 611. The Board now turns to the issue of entitlement to special monthly pension on account of being housebound. A rating determination of December 1992 indicated that the appellant's disabilities include: above the knee amputation, evaluated as 80 percent disabling (Code 5161); a fracture of the left calcaneal, evaluated as 20 percent disabling (5273); status-post cerebrovascular accident with right arm weakness (major) evaluated as 10 percent disabling (Codes 8008- 8515 1); and, a noncompensable evaluation for status-post gastrectomy (Code 7308). His combined non service-connected disability evaluation was 90 percent. The RO determined that the appellant was not entitled to special monthly pension. The appellant was rated as totally and permanently disabled for pension purposes since April 1969. Under applicable scheduler criteria, an 80 percent evaluation may be assigned for an amputation of a lower extremity of the upper third. This is the highest scheduler evaluation provided under this diagnostic code. 38 C.F.R., Part 4, Diagnostic Code 5161 (1993). A 20 percent evaluation may be assigned for marked deformity Os calcis or astragalus, malunion of the ankle. This is the highest scheduler evaluation provided under this diagnostic code. 38 C.F.R., Part 4, Diagnostic Code 5273 (1993). Thrombosis of brain vessels under Diagnostic Code 8008 may be rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. 38 C.F.R., Part 4, Diagnostic Code 8008 (1993). Incomplete paralysis of the median nerve of a major joint is evaluated as 10 percent disabling when mild and 30 percent disabling when moderate. 38 C.F.R., Part 4, Diagnostic Code 8515 (1993). Postgastrectomy syndrome is evaluated as 20 percent disabling when mild, characterized by infrequent episodes of epigastric distress with mild circulatory symptoms or continuous mild manifestations. 38 C.F.R., Part 4, Diagnostic Code 7308 (1993). A prerequisite to a determination that an appellant is housebound is that he has a single permanent disability rated as 100 percent disabling. The appellant has not expressly asserted that any of his disabilities should be so rated, and in any event the medical report submitted in support of the claim does not show any of his disabilities would meet or more closely approximate the criteria for a 100 percent scheduler rating. Even if a single disability was shown as 100 percent disabling, he has not submitted evidence that would suggest that he has an additional disability rated at least 60 percent disabling, and the medical report clearly indicates he is not housebound. In light of the lack of evidence to show that the claim for housebound benefits is plausible, the Board finds that the claim predicated on this basis is not well- grounded. 38 U.S.C.A 1502, 1521. Since the Board has determined that the claims are not well-grounded, the appellant cannot invoke the VA's statutory duty to assist in the development his claims. Rabideau v. Derwinski, 2 Vet.App. 141, 144 (1992). A review of the record reflects that the RO's denial was based on a review of the merits of the appellant's claim reflecting that the RO found the claim well-grounded. The appellant was fully informed of his procedural rights and the applicable laws and regulations regarding the RO decision in the statement of the case and supplemental statement of the case. The Board's decision is based on the fact that the claim is not well-grounded and is not final as to the actual merits of the claim. Accordingly, the Board finds that the appellant's procedural rights have not been prejudiced and a remand to the RO for additional development is not deemed necessary. Bernard v. Brown, 4 Vet.App. 3 84 (1993). By dismissing this claim, the Board does not burden the appellant with a final determination on the merits of the claim. Therefore, if a well-grounded claim is submitted in the future, the appellant will not be required to submit new and material evidence to reopen this claim. McGinnis v. Brown, 4 Vet.App. 239 (1993). The appellant may take the above discussion as guidance as to how to go about submitting a claim which is well grounded. ORDER The claim of entitlement to special monthly pension based upon the need for regular aid and attendance or on account of being housebound is not well grounded and, accordingly the appeal dismissed. RICHARD B. FRANK 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.