Citation Nr: 0005706 Decision Date: 03/02/00 Archive Date: 03/14/00 DOCKET NO. 95-33 072A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico THE ISSUE Entitlement to special monthly pension by reason of need for aid and attendance of another person. ATTORNEY FOR THE BOARD L.J. Bakke, Associate Counsel INTRODUCTION The veteran served on active duty from July 1952 to July 1954. This appeal arises before the Board of Veterans' Appeals (Board) from a rating decision in which entitlement to special monthly pension by reason of need for aid and attendance of another person or by reason of being housebound due to disability was denied. The RO, in a subsequent supplemental statement of the case, granted entitlement to special monthly pension by reason of being housebound due to disability. Nonetheless, the claim for special monthly pension by reason of need for aid and attendance of another person remains before the Board. FINDINGS OF FACT 1. The veteran, who was born in February 1929, is in receipt of pension based on permanent and total disability. 2. The veteran has the following nonservice-connected disabilities: insulin dependent diabetes mellitus, diabetic neuropathy, rated 100 percent disabling; amputation, right side, below the knee, rated 40 percent disabling; degenerative joint disease, rated 20 percent disabling; diabetic retinopathy, non-proliferative, senile cataracts, rated 10 percent disabling; and exogenous obesity, rated zero percent disabling. 3. The veteran is not totally blind or near totally blind. 4. The veteran is not a patient in a nursing home. 5. The veteran is not bedridden. 6. The veteran's disabilities do not prevent him from dressing or undressing himself, keeping himself ordinarily clean and presentable, feeding himself, attending to wants of nature, or protecting himself from the hazards or dangers incident to his daily environment. CONCLUSION OF LAW The criteria for special monthly pension based on the need for regular aid and attendance of another person are not met. 38 U.S.C.A. §§ 1502, 1521, 5107 (West 1991); 38 C.F.R. §§ 3.351, 3.352(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). This conclusion is supported by his assertions that he is needs regular aid and attendance which must be taken as credible for the purpose of determining well groundedness. King v. Brown, 5 Vet. App. 19, 21 (1993). The RO has assisted the veteran in all necessary matters, including seeking and securing treatment records and conducting examinations for the purpose of determining the nature and extent of his disabilities. The Board is satisfied that all relevant facts that may be developed have been properly developed, and that no further assistance is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107. Pension benefits are payable at a special, higher rate (with a higher minimum income limit) if a claimant is a patient in a nursing home, helpless or blind, or so nearly helpless or blind as to need or require the regular aid and attendance of another person, or otherwise establishes the factual need for the regular aid and attendance of another person. 38 U.S.C.A. § 1502(b) (West 1991); 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, considerations 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 appliance which by reason of the particular disability cannot be done without aid (not including adjustment of appliances that normal persons would be unable to adjust without aid); an inability to feed himself through loss of coordination of the upper extremities or through extreme weakness; an inability to attend to wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from the hazards or dangers incident to his daily environment. "Bedridden" will be a proper basis for the determination and is defined as that condition that, 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 that a claimant is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establishes 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 (1999). The U.S. Court of Veterans Appeals (now the U.S. Court of Appeals for Veterans Claims, hereinafter Court), in discussing 38 C.F.R. § 3.352(a), noted (1) it is mandatory for VA to consider the enumerated factors within the regulation; (2) eligibility requires that at least one of the enumerated factors be present; and (3) the "particular personal function" refers to the enumerated factors. Turco v. Brown, 9 Vet. App. 222 (1996). In the case of a veteran entitled to a pension who does not qualify for increased pension based on the need of regular aid and attendance, the increase in the pension rate is authorized where the veteran has certain additional severe disabilities or is permanently housebound. The requirements for this increase are met where, in addition to having a single permanent disability rated or ratable as 100 percent under the regular schedular 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 "permanently housebound" by reason of disability or disabilities. 38 U.S.C.A. §§ 1502(c), 1521(e) (West 1991); 38 C.F.R. § 3.351(d) (1999). As noted in the Introduction, above, the RO has granted entitlement to special monthly pension during the pendency of the veteran's appeal, based on his housebound status. In this case, the veteran has the following nonservice- connected disabilities: insulin dependent diabetes mellitus, diabetic neuropathy, rated 100 percent disabling; amputation below the right knee rated 40 percent disabling; degenerative joint disease, rated 20 percent disabling; diabetic retinopathy, non-proliferative, senile cataracts, rated 10 percent disabling, and exogenous obesity, rated zero percent disabling. There are no service-connected disabilities. The evidence of record does not demonstrate, and the veteran has not contended, that he is a patient in a nursing home. He has not asserted, nor does it appear from the medical evidence, that he is totally blind or near totally blind. The September 1998 VA examination report shows diagnoses of non-proliferative diabetic retinopathy and senile cataracts, but no visual field deficit or diplopia. Visual acuity was measured at 20/50 corrected in both the right and the left eye. The veteran underwent a below the knee amputation of his right leg in 1993, and has been prescribed a prosthesis. The examination report indicates he can ambulate, albeit with limitation, with the prosthesis. He also uses a wheelchair for ambulation. Furthermore, the evidence indicates that the veteran is not bedridden or unable to dress or undress himself. During the VA examination, his upper extremities were described as having degenerative joint disease but with satisfactory musculoskeletal function, movement, and coordination. His lower extremities were described as status post right below the knee amputation with well-healed stump scar, degenerative joint disease of left knee joint and diabetic neuropathy, with limitation of motion due to intolerance of the leg prosthesis. However, the examiner observed the veteran to have good control of the wheelchair and to be able to move using it. The report reveals degenerative joint disease of the vertebral spine. The veteran reported that he uses his wheelchair, mainly, to move around. He uses his right leg prosthesis on occasion, for about two hours, approximately, every day, but that he moves better with the wheelchair. According to the examiner, the veteran is partially dependent due to his right leg below knee amputation, and that he has limited ambulation especially in the house. The veteran has not reported and the evidence does not establish that he needs assistance feeding himself, dressing, bathing, or shaving. The examiner made no indication in the examination report that the veteran had any musculoskeletal disorders that would prevent him from feeding, grooming, or dressing himself. Rather, a January 1995 report shows the veteran reported he can ambulate within the premises of his home- both by the use of the prosthesis and with the wheelchair. During a typical day, he reported, he dresses himself in bed, ambulates in his chair from the bed to the bathroom, where he washes and shaves, and ambulates from the bathroom to the dining room to have breakfast at the table by himself. He reported his daily activities consist of reading the paper, watching TV, and walking about within the house using the prosthesis and a wooden cane. He reported that he bathes himself in the evenings, and that he goes to bed after the nightly news. In September 1998, he reported that his daily activities consist of sitting or bed rest during the day, watching TV, reading the paper, playing dominoes, and playing with and feeding his dog. He continues to ambulate within the house using his prosthesis, albeit for a limited time, and continues to ambulate using the wheelchair. Concerning the presence of physical or mental incapacity that requires care or assistance on a regular basis to protect the claimant from the hazards or dangers incident to his daily environment, the examiner conducting the September 1998 examination reported that the veteran was competent for VA purposes and was capable of managing his benefits. The examiner observed that the veteran may leave his home, but requires assistance to do so due to his difficulty ambulating. The medical evidence contains no evidence of any neuro-psychiatric disorder. On the basis of the medical evidence of record, including the most recent, September 1998, VA examination report, the Board finds that the veteran does not lack the capacity to protect himself in his environment. Considering the entire record, the Board concludes that the preponderance of the evidence shows that the veteran does not need regular assistance to protect himself from daily hazards. The Board has noted that the veteran reported in September 1998, that he sits or rests in bed during the day. However, no condition was identified which, through its essential character, actually requires that the claimant remain in bed. As such a disability cannot be identified from the record before the Board, the Board concludes that the veteran is not, in fact, bedridden. Rather, the evidence demonstrates that the veteran ambulates within his house, using the prosthesis and his wheelchair, and that he can leave his home, to attend church as well as medical appointments, but that he requires assistance due to his difficulty ambulating. The Board recognizes that the veteran's various ailments in combination are severely disabling. He is extremely limited in ability to ambulate due to his below the knee right leg amputation and his diabetes. Although he may, in the future, require regular aid and attendance because of advancing age or deterioration in his disabilities, the record as a whole does not show that he now meets the requirements for special monthly pension based on the need for aid and attendance. ORDER Special monthly pension benefits based on the need for regular aid and attendance of another person are denied. MARY GALLAGHER Member, Board of Veterans' Appeals