BVA9504087 DOCKET NO. 92-55 382 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Manila, Philippines THE ISSUES 1. Entitlement of the veteran's surviving spouse to an increased rate of dependency and indemnity compensation benefits due to her need for the regular aid and attendance of another individual. 2. Entitlement of the veteran's surviving spouse to an increased rate of dependency and indemnity compensation benefits due to her being permanently housebound. ATTORNEY FOR THE BOARD D.P. Dean, Counsel INTRODUCTION The appellant is the unremarried widow of a deceased veteran who served in the U.S. Armed Forces from April 1944 to April 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating determinations by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Republic of the Philippines. The case was before the Board in April 1992 and February 1994, at which times it was remanded to the RO for further development. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that she is dizzy and weak, can't see very well, and can't travel from her home without assistance. She has not contended that she is permanently 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 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 preponderance of the evidence is unfavorable to the claims seeking an increased rate of dependency and indemnity compensation (DIC) benefits either on account of the appellant's need for the regular aid and attendance of another individual, or because she is permanently housebound. FINDINGS OF FACT 1. The appellant is not blind or so nearly blind as to have corrected visual acuity of 5/200 or less in both eyes, or contraction of the visual field to five degrees or less. 2. The appellant is not a patient in a nursing home. 3. The appellant is able to perform the basic functions of self care and is not so helpless as to be in need of the regular aid and attendance of another individual. 4. The appellant is not substantially confined to her home by reason of disability. CONCLUSIONS OF LAW 1. Entitlement to an increased rate of DIC benefits based upon the need for the regular aid and attendance of another individual is not established. 38 U.S.C.A. §§ 1311(c), 5107(a) (West 1991); 38 C.F.R. §§ 3.351(a),(b) and (c), 3.352(a) (1994). 2. Entitlement to an increased rate of DIC benefits based upon permanently housebound status is not established. 38 U.S.C.A. §§ 1311(d), 5107(a) (West 1991); 38 C.F.R. § 3.351(e) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board notes that the appellant's claims are found to be well-grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, she has presented claims which are plausible. Murphy v. Derwinski, 1 Vet.App. 78 (1990). In general, an allegation of increased disability is sufficient to establish a well-grounded claim seeking an increased rating. Proscelle v. Derwinski, 2 Vet.App. 629 (1992). There is no indication that there are additional records which have not been obtained and which would be pertinent to the present claims by the appellant. Thus, no further assistance to the appellant is required in order to comply with VA's duty to assist her in the development of her claims as mandated by 38 U.S.C.A. § 5107(a). Godwin v. Derwinski, 1 Vet.App. 419 (1991); White v. Derwinski, 1 Vet.App, 519 (1991). The appellant married the veteran in December 1945. The veteran died in September 1947, and the appellant has not remarried. She has been in receipt of DIC benefits since 1954 based upon the veteran's service-connected death. She now claims entitlement to a higher rate of DIC benefits based upon her alleged need for the aid and attendance of another individual or based upon her status as permanently housebound. She has unsuccessfully attempted to obtain a higher rate of payment of DIC benefits on several previous occasions. Increased DIC benefits are payable to a surviving spouse by reason of being in need of aid and attendance, which is defined as helplessness or being so nearly helpless as to require the regular aid and attendance of another individual. A claimant is 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 five degrees or less; (2) is a patient in a nursing home because of mental or physical incapacity; or (3) establishes a factual need for regular aid and attendance. 38 U.S.C.A. § 1311(c); 38 C.F.R. § 3.351 (a), (b) and (c). The following will be accorded consideration in determining the need for regular aid and attendance: inability of a 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 adjustments of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of a 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, either 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 functions which a claimant 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 claimant is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that a claimant 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. 38 C.F.R. § 3.352(a). In support of the present claim, the appellant has submitted a medical statement signed in February 1990 by H.B. Venus, M.D. in which he stated that his examination of the appellant at that time disclosed that she was unable to attend to the wants of nature or keep herself clean without the assistance of another person. Dr. Venus' findings included poor vision limited to counting fingers at three feet; pain and tenderness in both hips, the pelvic joints, and the back, which prevented the appellant from standing or walking unassisted; epigastric pain; and dizziness and loss of memory, as well as general debility and bodily weakness. The reported diagnoses included senile cataracts, osteoarthritis, peptic ulcer, dementia, and avitaminosis. Dr. Venus' findings are contradicted by the report of an official VA examination of the appellant in March 1994. At that time, the examining physician reported that the appellant arrived for the examination accompanied by her daughter. She was thin, but fairly nourished. She complained of dizziness, headaches, body malaise, cough, joint and muscular pains of the lower extremities, and easy fatigability. Although she had blurred vision, she could still see, and she was able to sit erect and to walk alone (with a cane). According to the examining physician, the appellant had the ability to feed herself. She could fasten her clothing, bathe herself, and attend to the needs of nature without assistance. There was some limitation of motion in the lower extremities due to pain, but there was no muscular atrophy. According to the physician, the appellant was able to go out in her yard and sunbathe every day; she went to church every Sunday; and she went to the municipal hall every month to collect her VA check. (In her Substantive Appeal, the appellant had earlier denied that she was able to pick up her check personally, and stated that she sent her daughter to collect it.) The diagnoses included cataracts, osteoarthritis, and a peptic ulcer. Although diagnoses of dementia and senility were also reported, the examining physician specifically stated that the appellant was competent to manage her financial affairs. Also of record is the written report of a VA field examiner who saw and interviewed the appellant earlier, in January 1993. This report corroborates most of the findings later reported on the March 1994 examination of the appellant. The field examiner also reported that the appellant was able to correctly count fingers up to seven or eight feet. In a deposition taken from the appellant at that time, she confirmed that she personally collected her monthly VA check, using public transportation to get there. The Board has concluded that the findings reported on the official examination of the appellant in March 1994 are entitled to greater probative weight than those reported in 1990 by Dr. Venus. Not only are the 1994 findings more specific and complete than those dating from 1990, they are also the most current findings and are consistent with the findings reported by the field examiner in January 1993. Applying the controlling legal criteria to the facts as shown on the March 1994 examination of the appellant, she is not shown to be in need of the regular aid and attendance of another individual, nor is she shown to be permanently housebound. She is shown to be able to care for herself without assistance and to be able to leave her house whenever she wants to do so. Under these circumstances, the appeal must be denied. ORDER As to both issues, the appeal is denied. BRUCE E. HYMAN 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.