Citation Nr: 0807686	
Decision Date: 03/06/08    Archive Date: 03/17/08

DOCKET NO.  06-09 794	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina


THE ISSUE

Entitlement to special monthly pension on the basis of the 
need for regular aid and attendance of another person or by 
reason of being housebound.


ATTORNEY FOR THE BOARD

T. S. Kelly, Counsel


INTRODUCTION

The vetera had active service from August 1943 to December 
1946.

This matter comes before the Board of veterans' Appeals 
(Board) on appeal from a May 2004 rating determination of the 
Indianapolis, Indiana, Department of Veterans Affairs (VA) 
Regional Office (RO), which denied entitlement to special 
monthly pension.  In his substantive appeal the veteran 
indicated that he was only appealing the denial of special 
monthly pension on account of being housebound, and the 
subsequent supplemental statement of the case listed that as 
being the issue on appeal.  The RO however, has certified the 
issue on appeal as being entitlement to special monthly 
pension in general.  The Board will therefore consider the 
question of entitlement to special monthly compensation based 
on the need for aid and attendance of another person.  

The Winston-Salem RO currently has jurisdiction.  


FINDINGS OF FACT

1.  The veteran is not 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; he also is not a patient in a nursing home and is not 
bedridden.

2.  Although the veteran has difficulty walking, he is able 
to ambulate up to 30 yards with the use of a walker; he does 
not require the adjustment of any special prosthetics or 
orthopedic appliances; he is able to dress (with the 
exception of being able to put on his shoes and socks), 
bathe, and feed himself; to attend to the wants of nature; to 
keep himself ordinarily clean and presentable; and to protect 
himself from the hazards or dangers incident to his daily 
environment without care or assistance on a regular basis.

3.  The veteran is over 65, and has disabilities that prevent 
him from leave his home to earn an income.


CONCLUSION OF LAW

1.  The criteria for special monthly pension based upon the 
need of regular aid and attendance have not been met.  
38 U.S.C.A. §§ 1502, 1521 (West 2002); 38 C.F.R. §§ 3.351, 
3.352 (2007).

2.  The criteria for special monthly pension by reason of 
being housebound have been met.  38 U.S.C.A. §§ 1502, 1521; 
38 C.F.R. §§ 3.351, 3.352.


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA) and 
implementing regulations impose obligations on VA to provide 
claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 
5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R §§ 
3.102, 3.156(a), 3.159, 3.326(a) (2007).

The Board notes that the February 2004 VCAA letter informed 
the appellant of the information and evidence necessary to 
substantiate the claim, what types of evidence VA would 
undertake to obtain, and what evidence the appellant was 
responsible for obtaining.  The letter did not explicitly 
tell him to submit all relevant evidence in his possession.  
An error by VA in providing notice of the information and 
evidence necessary to substantiate a claim under 38 U.S.C. 
§ 5103(a) is presumptively prejudicial and in such a case the 
burden shifts to VA to demonstrate that the error was not 
prejudicial to the appellant.  Sanders v. Nicholson, 487 F.3d 
881, 888-9 (Fed. Cir. 2007).  The letter did tell him to 
submit medical evidence in his possession and to tell VA 
about relevant evidence and that it was his responsibility to 
ensure that VA received the evidence.  He was thereby put on 
notice to submit relevant evidence in his possession and he 
was not prejudiced by the failure of the RO to provide 
explicit notice to submit relevant evidence in his 
possession. 

VCAA notice should be provided to a claimant before the 
initial unfavorable agency of original jurisdiction (AOJ) 
decision on a claim.  Such was the case here.  

The Court has also held that the VCAA notice requirements of 
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all 
five elements of a service connection claim.  Those five 
elements include: 1) veteran status; 2) existence of a 
disability; 3) a connection between the veteran's service and 
the disability; 4) degree of disability; and 5) effective 
date of the disability.  Dingess/Hartman v. Nicholson, 19 
Vet. App. 473 (2006).

The veteran was provided with notice of what type of 
information and evidence was needed to substantiate his claim 
and he was provided with notice of the type of evidence 
necessary to establish a disability rating and effective date 
for the disability on appeal in August 2006.  While this 
notice might be procedurally defective, as the Board 
concludes below that the preponderance of the evidence is 
against the claim any question as to the appropriate 
disability rating or effective date to be assigned is 
rendered moot.

The Board finds that there has been compliance with the 
assistance requirements of the VCAA.  All available service 
medical, VA, and private treatment records have been 
obtained.  The veteran was also afforded several VA 
examinations.  As such, no further action is necessary to 
assist the claimant with the claim.


Special Monthly Pension

The veteran seeks special monthly pension based upon the need 
for regular aid and attendance.  Special monthly pension at 
the aid and attendance rate is payable when the veteran is 
helpless or so nearly helpless that he requires the regular 
aid and attendance of another person.  To establish a need 
for regular aid and attendance, the veteran must be 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; a patient in a nursing 
home because of mental or physical incapacity; or show a 
factual need for aid and attendance. 38 C.F.R. §§ 3.351(b)- 
(c), 3.352(a).

A factual need for aid and attendance includes the inability 
to dress, undress, keep ordinarily clean and presentable, 
feed oneself, or attend to the wants of nature.  It also 
includes the frequent need of adjustment of any special 
prosthetic or orthopedic appliances or either physical or 
mental incapacity that requires care or assistance on a 
regular basis to protect against the hazards or dangers 
incident to a claimant's daily environment.  Also, an 
individual who is bedridden, as that term is defined by 
regulation, meets the criteria for aid and attendance. 38 
C.F.R. § 3.352(a).  

The particular personal functions which the veteran is unable 
to perform should be considered in connection with the 
claimant's condition as a whole.  The evidence need only 
establish that the veteran is so helpless as to need regular 
aid and attendance, not constant need.  Determinations that 
the veteran is so helpless as to need regular aid and 
attendance will not be based solely upon an opinion that the 
veteran's condition requires the veteran to be in bed.  They 
must be based on the actual requirement of personal 
assistance from others.  38 C.F.R. § 3.352(a).  The veteran 
must be unable to perform one of the enumerated disabling 
conditions, but the veteran's condition does not have to 
present all of the enumerated disabling conditions.  Turco v. 
Brown, 9 Vet. App. 222, 224 (1996).

The criteria for determining whether a veteran is in need of 
the aid and attendance of another person may be met if he is 
bedridden.  "Bedridden" is defined as a condition that, 
through its essential character, actually requires that the 
veteran remain in bed.  The fact that a veteran 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.  The 
performance of the necessary aid and attendance service by a 
relative of the beneficiary or other member of his or her 
household will not prevent the granting of the additional 
allowance.  38 C.F.R. § 3.352.

A veteran receiving non-service-connected pension may receive 
housebound-rate special monthly pension if he has a 
disability rated as permanent and total (but not including 
total rating based upon unemployability under 38 C.F.R. § 
4.17) and (1) has additional disability or disabilities 
independently ratable at 60 percent or more, or (2) by reason 
of disability or disabilities, is permanently housebound but 
does not qualify for special monthly pension at the "aid and 
attendance" rate.  38 U.S.C.A. § 1521(e) (West 2002); 
38 C.F.R. § 3.351(d)(1) and (2) (2007).

A veteran will be determined to be "permanently housebound" 
when he is substantially confined to his house (or ward or 
clinical areas, if institutionalized) or immediate premises 
due to disability or disabilities which it is reasonably 
certain will remain throughout his lifetime.  38 U.S.C.A. 
§ 1502(c) (West 2002); 38 C.F.R. § 3.351(d)(2) (2007).

In the case of a veteran over 65, there is no need for a 
single 100 percent disability before special monthly pension 
based on being housebound can be granted.  In the case of a 
veteran 65 or older, housebound benefits can be awarded 
where in addition to age, he has disability rated at 60 
percent or more; or is substantially confined to his home.  
Hartness v. Nicholson, 20 Vet App 216, 220-2 (2006).

For purposes of housebound benefits, the Court held that 
being "substantially confined" to the home, means an 
inability to leave to earn an income.  Absent a regulation by 
the Secretary defining the term "substantially confined," 
the Court held that the term may conceivably be more broadly 
construed.  It found that "Congress intended to provide 
additional compensation for veterans who were unable to 
overcome their particular disabilities and leave the house in 
order to earn an income as opposed to an inability to leave 
the house at all."  Hartness v. Nicholson, 20 Vet. App. at 
222., cf. Howell v. Nicholson, 19 Vet. App. 535, 540 (2006). 

In a February 2004 examination for housebound status or 
permanent need for aid and attendance report, it was noted 
that the veteran's main complaint was that he could not walk 
more than a few feet due to knee pain.  The veteran was noted 
to have been in a wheelchair at the time of the examination 
and was able to use a walker to go a few feet.  Examination 
of the upper extremities revealed that they were within 
normal limits.  

The veteran could not bear weight on either leg for more than 
a few feet.  He had no limitation of motion in his neck or 
trunk, but had severe limited motion of the lumbar spine.  
The veteran was noted to have chronic low back pain and 
severe knee pain.  It was the examiner's impression that the 
veteran was able to walk a few feet without the assistance of 
another person.  The veteran was able to leave the home once 
a week.  A cane was not much help, and he was only able to 
walk a few feet with a walker.  Diagnoses of degenerative 
arthritis of the knees and low back pain were rendered.  The 
examiner concluded that the veteran did not need daily 
skilled services.  

At the time of an April 2004 VA examination, the veteran 
reported that he lived with his son.  He stated that he was 
occasionally separated from his wife but noted that they were 
both living with his son.  The veteran had a room on the 
first floor.  There were two steps to enter the house.  He 
was accompanied to the examination by his son who offered 
some assistance when needed.  The veteran used a wheelchair 
in the community and used a rolling walker for household 
distances.  He stated that he used a quad cane for shorter 
household distances and for transfers into the bathroom.  

The examiner reported that the veteran was not permanently 
bedridden and his vision was reasonably well corrected with 
glasses.  He was able to watch television from across the 
room.  The veteran's wife did the finances but he indicated 
that he would able to do so.  He also noted that he would be 
able to exit the home if there were a fire or other hazard.  
The veteran was able to move about the house on his own and 
had no cognitive impairments.  He was also able to manage his 
medications without difficulty.  His typical day included 
watching television and going out on the porch and playing 
with his dogs.  

The veteran stated that he went into the community once a 
month.  He also went to the bank on his own and drove to 
Burger King by himself.  His major limitation was from 
degenerative joint disease of the knees resulting in 
significant pain.  The veteran denied any dizziness or 
balance problems.  He had frequent urination and had had an 
elevated PSA reading in the past.  He had no bowel or bladder 
problems and was able to get to the bathroom on his own.  

The examiner noted that the veteran's medical history 
included bilateral degenerative joint disease of the knees, 
hypertension, elevated PSA, and morbid obesity.  The 
hypertension was stable on medication.  The veteran noted 
that he had had a history of low back pain but this was no 
longer limiting and it was mainly his knees that gave him 
difficulty.  The examiner stated that his main limiting 
factor was morbid obesity as he was 5 feet 4 inches tall and 
weighed 309 pounds.  The veteran noted that he was only able 
to walk short distances due to the pain.  He stated that he 
was much more comfortable when not moving.  

On physical examination the veteran was noted to be morbidly 
obese and in a wheelchair.  He was alert and oriented times 
three and was in no acute distress.  His speech was fluent 
and appropriate.  Examination of the extremities revealed 3+ 
edema, bilaterally.  There were chronic skin changes due to 
the edema.  The extremities were warm to the touch.  

Examination of the knees revealed negative 10 degrees 
extension for active range of motion.  The examiner was able 
to obtain full extension passively, but the last 10 degrees 
were painful for the veteran.  There was moderate crepitus 
for both knees.  There were no effusions or Baker's cysts.  
The veteran had approximately 110 degrees of flexion.  He was 
able to ambulate a short distance with his quad cane, with a 
slow and steady gait and the cane on his right.  He had a 
stooped posture but his balance was good.  His gait was 
antalgic.   

The examiner diagnosed morbid obesity.  In his opinion, the 
veteran's morbid obesity was his most significant limiting 
factor and had been a direct contributing factor to his 
severe degenerative joint disease.  This significantly 
impaired his mobility.  The examiner further diagnosed the 
veteran as having degenerative joint disease of the knees.  
He did have significant pain on terminal range of motion, 
bilaterally.  The veteran was noted to be able to ambulate 
short distances with a quad cane and longer distances with a 
rolling walker.  The pain was adequately controlled by his 
opioids.  He also diagnosed hypertension and an elevated PSA 
level.  

The examiner stated that in terms of the veteran's need for 
aid and attendance, he did not feel that the veteran required 
significant additional assistance.  He was cognitively intact 
and was able to protect himself from hazards if needed.  The 
examiner further noted that the veteran was able to manage 
his medications.  He further observed that although he had 
assistance with his finances, he could handle them on his 
own.  He noted that the veteran did not require 24 hour 
supervision but he had it most of the time.  The examiner 
stated that if the veteran had further medical complications 
or functional decline this would certainly change the status.  

In his February 2005 notice of disagreement, the veteran 
indicated that his condition had worsened.  In his March 2006 
substantive appeal, the veteran indicated that he was no 
longer able to exit and enter his dwelling or move within the 
home without help due to his severe degenerative joint 
disease of the knees and open leg ulcers.  He was also unable 
to go up stairs.  His feet were severely swollen despite 
taking diuretics and he was unable to write due to carpal 
tunnel syndrome and extreme shakiness.  

The veteran was also unable to visit VAMCs without help and 
could not walk up or down stairs.  The veteran also had skin 
cancer, prostate cancer, and hypertension.  He could no 
longer drive.  It was indicated that there was absolutely no 
possibility of the veteran being able to leave his home or 
move within his home without help.  It was further noted that 
the veteran's condition had worsened since the process had 
started as a result of insufficient medical care due to lack 
of funds.  

In July 2006, the veteran was afforded a VA general medical 
examination.  The examiner noted that the veteran had been 
retired since 1988.  He now stayed at home and needed 
assistance with daily living.  The veteran had been using a 
walker since 1999 and was able to walk for about 30 yards 
with the walker.  He only walked around the house and was 
unable to walk outside the house because of his severe 
degenerative arthritis of the knees.  

Physical examination revealed that the veteran was 5'5" tall 
and weighed 291 lbs.  He was alert and oriented and was 
accompanied by his son to the examination.  He came to the 
room in a wheelchair and his son wheeled him in.  He needed 
assistance transferring from the chair to the examining 
table.  The veteran also needed help taking off his shoes and 
socks as he was unable to bend down.  

During the examination, the veteran was unable to stand up by 
himself.  He needed someone to help him stand up from the 
seated position.  He walked with a small limp to favor the 
right knee because it was in worse pain than his left knee.  
The veteran used a walker at home to move about the house.  

He had difficulty walking because of his knee condition.  The 
veteran was able to walk with a walker at home and walked 
very slowly for about 10 minutes for approximately 30 yards.  
The examiner indicated that the veteran had no dyspnea and a 
workload of approximately 6 or 7 METs.  

Following examination, diagnoses of status post removal of 
basal cell carcinoma of the skin at the right ear, and left 
forehead, no residual found; hypertension, under treatment, 
no history of stroke or heart attack, no ventricular 
hypertrophy by EKG; degenerative joint disease of the 
lumbosacral spine with residual pain and limitation of 
motion; severe osteoarthritis of the knees with residual pain 
and limitation of motion, no instability on examination; 
carpal tunnel syndrome of the right hand; stasis pigmentation 
of both lower legs, secondary to obesity and immobility 
condition, status post bilateral episode of leg ulcer, 
requiring elastic stockings for swelling condition; and 
severe obesity condition, were rendered.  

At the time of a July 2006 VA aid and attendance examination, 
the examiner indicated that the veteran arrived at the 
examination with his son.  His son drove him and helped him 
move around the clinic.   The veteran was noted to not be 
hospitalized and to not be permanently bedridden.  His vision 
was better than 5/200 and he was capable of managing his 
benefit payments.  He was also able to recognize hazards and 
dangers and ask for help.  

The examiner asked the veteran about the need for aid and 
attendance.  The veteran stated that he had a severe 
arthritic knee condition.  He was unable to walk around.  
Even when walking with a walker, he walked slowly.  He was 
unable to walk outside the house.  The veteran noted that he 
needed help putting on his shoes and socks because he could 
not bend down.  He also needed assistance in and out of the 
bathroom as a result of a fear of falling.  He had not driven 
a car for two years.  

The veteran also needed assistance getting in and out of the 
car and others drove him to doctor's appointments.  He was 
unable to do shopping because of knee pain.  He was also 
unable to houseclean and could not do foot separation.  The 
veteran needed assistance for all these activities.  He was 
able to take his own medication.  

The examiner indicated that the veteran had no functional 
limitations of his upper extremities, except some tingling in 
his right hand when holding objects due to his carpal tunnel 
syndrome.  

The veteran was able to feed himself, fasten his clothes, 
bathe himself, and shave himself.  However, he needed 
assistance putting on his shoes and socks and getting in and 
out of the bathroom because of fear of falling due to his 
knee pain.  He was unable to do prolonged standing or 
walking.  He was able to walk only about 10 minutes with a 
walker and he walked slowly and had a slight limp to favor 
the right ankle and knee as the right knee was worse than the 
left.  

The examiner stated that the veteran was able to walk with a 
walker inside the house.  The maximal distance of walking was 
about 30 yards; however, he walked slowly.  He needed 
assistance on occasion transferring from a seated to a 
standing position because of his knee pain and weight 
condition.  He had been using a walker since 1999.  He was 
unable to leave his home or immediate premises without the 
assistance of another.  He had not gone outside the house for 
the past two years without the assistance of another due to 
fear of falling.  

The examiner indicated that the veteran required assistance 
in transferring from sitting to standing, getting in and out 
of the car, for food preparation, and housekeeping.  He also 
needed assistance putting on his shoes and socks.

Diagnoses of hypertension under treatment; degenerative 
arthritis of the lumbar spine; degenerative joint disease of 
the knees, bilaterally; carpal tunnel syndrome of the right 
hand; and severe obesity, were rendered.  

As outlined above, the veteran is capable of dressing 
himself, feeding himself, and attending to the wants of 
nature.  He is not bedridden, blind or a patient in a nursing 
home.  He has been found capable of protecting himself from 
the hazards incident to his environment.  He has full use of 
his hands and has not lost the use of his feet.  In short, 
the evidence is clear that he does not meet any of the 
criteria for special monthly pension based on the need for 
regular aid and attendance.

Because the veteran is over 65, special monthly pension at 
the housebound rate may be awarded without the need for a 
disability rated at 100 percent.  The housebound rate is 
payable if the veteran has disabilities rated at 60 percent 
or is unable to leave his home to earn an income.  Hartness.  
The RO has evaluated the veteran's disabilities as 30 percent 
disabling.  This evaluation appears to be low given the 
findings of sever limitation of the lumbar spine and the 
indications of very little active flexion in the knees.  

In any event, the evidence shows that the veteran is only 
able to ambulate 30 yards with a cane and never leaves his 
home without assistance.  Even with assistance, the veteran 
only leaves his home about once per month.  Examiners have 
consistently described significant difficulties in movement.  
Given these limitations, it appears unlikely that the veteran 
would be able to leave his home to earn a living.  Resolving 
reasonable doubt in his favor, the Board finds that the 
criteria for special monthly pension at the housebound rate 
are met. 


ORDER

Entitlement to special monthly pension based on the need for 
aid and attendance is denied.

Entitlement to special monthly pension by reason of being 
housebound is granted.




____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs