BVA9501372 DOCKET NO. 93-04 017 ) 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 based on the need for regular aid and attendance of another person or by reason of being housebound. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The veteran served on active duty from May 1973 to April 1974. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a September 1992 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that because of his back disability, he is in need of the regular aid and attendance of another person and/or is housebound. It is asserted that he has had five surgeries on his back and that he is unable to walk 1 block as was stated in VA medical records. He also states that he is not able to get out of bed without help, can not cook for himself, can only stand for a few moments, can not bathe himself, can not drive and can not dress himself or tie his shoes. 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 evidence supports the veteran's claim for entitlement to special monthly pension on account of need for regular aid and attendance. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. The veteran requires the regular assistance of another person with a number of activities of daily living. CONCLUSION OF LAW The criteria for entitlement to special monthly pension on account of need for regular aid and attendance have been met. 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 Board notes that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, the Board finds the claim to be plausible. We are also 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 him as mandated by 38 U.S.C.A. § 5107(a) (West 1991). The veteran has been found to be permanently and totally disabled for pension purposes by the RO. A 60 percent rating has been assigned for lumbar instability, his only nonservice-connected disability. The law provides that entitlement to special monthly pension based on the need for regular aid and attendance is warranted where it is shown that the veteran is in a nursing home or is helpless or blind or so nearly helpless or blind as to need the regular aid and assistance of another person. 38 U.S.C.A. § § 1502, 1521 (West 1991); 38 C.F.R. 3.351, 3.352 (1993). In applying the law to the existing facts, the Board finds that it can reasonably be determined that the veteran is entitled to an increased rate of pension due to the need for regular aid and attendance. Private medical records show that the veteran was treated in December 1988 for back problems. A history of previous back problems, including surgeries was given. In May 1989, he underwent additional back surgery. Follow-up reports in 1989 showed that he complained of problems with falling and increasing pain. It was reported that he wore a back brace. In an August 1989 statement, the veteran noted that he was receiving continuing care from private physicians. In August 1992, the veteran underwent a VA examination for housebound status or permanent need for regular aid and attendance. He stated that he was unable to leave home except for doctor's visits. It was noted that the veteran walked carefully with his back stiff and appeared in pain. There were no noted restrictions of the upper extremities. Weakness in the left leg with numbness of the lower leg and feet was reported. Range of motion of the back was markedly restricted and it was indicated that the veteran walked poorly, using a back brace for support. It was also noted that he could walk 1 block without the assistance of another person. The examiner noted that the veteran had undergone back surgery more than 6 times. Low back syndrome, unstable, was found, and the examiner determined 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. The Board has reviewed the evidence of record. We note that the veteran has undergone multiple surgeries on his back. A VA examiner has examined him and noted marked restriction of motion of the back and the use of a back brace for support. Although the evidence showed no restrictions with reference to the upper extremities, it was noted that the veteran walked poorly and could walk only 1 block without the aid of another. The VA examiner has specifically opined that the veteran requires daily personal health care services of a skilled provider, without which he would require hospital, nursing home or institutional care. Although the veteran may be able to attend to some personal functions, the Board finds that with resolution of reasonable doubt in the veteran's favor, the evidence supports a conclusion that he is so helpless as to need regular aid and attendance. 38 U.S.C.A. § § 1502, 1521, 5107 (West 1991); 38 C.F.R. § § 3.351, 3,352 (1993). In view of the above finding. the issue of entitlement to special monthly pension by reason of being housebound is moot. ORDER Special monthly pension on account of need for regular aid and attendance is granted, subject to the laws and regulations governing monetary awards. F. JUDGE FLOWERS 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.