Citation Nr: 0118462 Decision Date: 07/16/01 Archive Date: 07/24/01 DOCKET NO. 00-25 270 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an effective date earlier than October 3, 1998, for special monthly compensation based on being housebound. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Keith W. Allen, Counsel INTRODUCTION The veteran served on active duty in the military from March 1961 to March 1964. In April 2000, the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, determined the veteran was entitled to special monthly compensation (SMC) based on being housebound (HB). The RO assigned an effective date of October 3, 1998. He appealed to the Board of Veterans' Appeals (Board) for an earlier effective date (EED). FINDINGS OF FACT 1. The veteran has a 100 percent rating for his post- traumatic stress disorder (PTSD), effective from September 22, 1989, the date of receipt of his claim (on VA Form 21- 526) for VA compensation benefits for his psychiatric impairment; this is his only service-connected disability. 2. The veteran filed a claim on February 27, 1996, for SMC based on being HB, and medical evidence since obtained, particularly the results of a March 2000 VA psychiatric evaluation, confirmed that the severity of his service- connected psychiatric impairment precludes him from leaving his home and the immediate premises surrounding it-primarily due to recurring acute anxiety reactions and a panic disorder with agoraphobia, both associated with his PTSD. 3. There was no objective medical evidence of record, prior to February 27, 1996, indicating the veteran actually was housebound, in fact. CONCLUSION OF LAW The criteria have been met for an earlier effective date of February 27, 1996, for SMC based on being housebound. 38 U.S.C.A. §§ 1114(s), 5101(a), 5110(b)(2) (West 1991 & Supp. 2000); 38 C.F.R. §§ 3.1, 3.155, 3.157, 3.400(o)(2), 3.350(i) (2000). REASONS AND BASES FOR FINDINGS AND CONCLUSION The effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, provided that a claim was received within one year from such date. Otherwise, the date of receipt of the claim is the effective date to be assigned. See 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); see also Harper v. Brown, 10 Vet. App. 125, 126 (1997); Wood v. Derwinski, 1 Vet. App. 367, 369 (1991); VAOPGCPREC 12-98 (Sept. 23, 1998). A "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992) (citing 38 C.F.R. § 3.1(p) (1991)). And where, as here, a formal claim for compensation already has been allowed, certain submissions, such as VA medical records, private medical records or lay evidence, will be accepted as an informal claim. 38 C.F.R. §§ 3.157(b)(1)-(b)(3). However, the filing of a formal claim, in the manner prescribed by the Secretary of VA, still is a prerequisite to accepting this type of evidence as an informal claim. 38 C.F.R. § 3.157(a) (2000); see also 38 U.S.C.A. § 5101(a); Jones v. West, 136 F.3d 1296 (Fed. Cir. 1998). In determining the effective date of an award, including the grant of SMC based on being HB, the Board is required to look at all communications in the record which may be construed as either a formal or an informal claim and, then, to all other evidence in the record to determine the "earliest date of which," within the year prior to the claim, the increase in disability was ascertainable. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992); 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. §§ 3.400(o)(2), 3.155(a). The veteran alleges that he is entitled to an EED of September 22, 1989, for his SMC based on being HB because that was when he filed his initial claim for VA compensation benefits (on VA Form 21-526) for his psychiatric impairment, and since the 100 percent rating that he now has for his service-connected PTSD is effective from that date. He also says that some of his allegations at the time of his initial claim in 1989, if reasonably construed, essentially were that he was housebound-meaning they at least should have been accepted as an informal claim for this additional benefit. See, e.g., EF v. Derwinski, 1 Vet. App. 324 (1991) (requiring that VA liberally construe the veteran's claims for VA benefits). For example, in a statement that he submitted along with his September 22, 1989, application for VA compensation benefits, he alleged that since 1976 he had been "withdrawn from most activities outside of the house," and he went on to note that he "rarely [left] the house." His representative also made particular note of those statements in his April 2001 brief on appeal. But despite his and his representative's contentions to the contrary, there was no objective medical evidence of record at the time of his initial claim in 1989, or within one year of it, indicating that he actually was housebound-in fact. So he therefore cannot receive an effective date retroactive to that point in time because he is not objectively shown to actually have been entitled to this additional benefit in 1989, even were the Board-for the sake of argument-to view the evidence in a light most favorable to him by accepting the allegations that he made at the time of his initial claim in 1989 as an additional request for SMC based on being HB (that is, additional to his regular compensation claim for service connection). In order to be entitled to SMC based on being HB, the veteran not only must have at least one service-connected disability that is rated as 100 percent disabling, but he also must have either (1) an additional disability or disabilities independently ratable at 60 percent or more-separate and distinct from the disability rated as 100 percent disabling and involving different anatomical segments/bodily systems, or (2) be permanently housebound by reason of his disability or disabilities. And to satisfy this latter requirement, it is especially important to point out that he must be substantially confined to his dwelling and the immediate premises surrounding it or, if institutionalized, to the ward or clinical area, and it must be reasonably certain that the disability or disabilities and resultant confinement will continue throughout his lifetime. 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i). Records show that in February 1989 the Social Security Administration (SSA) determined the veteran was totally disabled, as of January 1988, because of the severity of his psychiatric impairment-although he did not actually start receiving disability benefits from that agency until effective 5 months later, in July 1988. That determination of the SSA is probative evidence to be considered in this appeal for an EED, although it is not altogether dispositive in and of itself. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). But even giving full faith and credit to that determination of the SSA does not in turn mean the veteran actually was "housebound" in 1989, as defined by the VA law and regulation cited above, because being totally disabled due to a condition-as in unable to work as a result of it, and being permanently housebound as a result of a condition are two entirely different types of functional impairment with two different evidentiary standards of proof. Indeed, as expressly indicated in the governing VA law and regulation cited above, housebound status requires not only a 100 percent rating (which is indicative of the total disability as also determined by the SSA), but in addition to that, housebound status also requires the veteran to actually be precluded from leaving his home and the immediate premises surrounding it due to the severity of his service-connected disability. And there was no objective medical indication of that during 1989 or within one year of it or for several more years. Admittedly, the veteran no doubt was experiencing serious problems even in September 1989 with social isolation, introversion, and avoidance of crowds, and various medical records since obtained show that his recurring difficulties with venturing out of his home were attributable to his acute anxiety reactions and panic disorder with agoraphobia-which in turn were related to his underlying PTSD. See, e.g., a report of contact that he had in January 1989 with the SSA indicating that he experienced anxiety and panic attacks while cutting his grass, prompting him to go inside his house and stay there, and that he also experienced the attacks while out somewhere, prompting him to leave and go straight home. The report of contact with the SSA further notes that he did not socialize much at all like he used to before; that he had no friends; but that he occasionally visited some family members. So although he quite apparently had problems leaving his home, he clearly still was able to nonetheless- albeit with difficulty. See also the results of an August 1990 Minnesota Multiphasic Personality Inventory (MMPI) conducted at the Peace River Center for Personal Development, Inc., and a later statement in May 1991 from one of his treating clinicians at the Peace River Center noting similar findings. But the mere fact that the RO assigned a 100 percent rating for his variously diagnosed psychiatric disability-effective from September 22, 1989, was itself an acknowledgment that he was experiencing "total...social impairment" as of that date and, in fact, that he continues to experience this even to this day. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2000). In other words, this is one of the requirements for a schedular rating at the maximum level of 100 percent. However, as alluded to earlier, the mere fact that he needed to socially isolate himself from others or even to avoid them altogether whenever possible, while relevant, was not the determinative issue in showing that he actually was entitled at an earlier date to SMC based on being HB because that is a significantly greater benefit than regular compensation and, consequently, requires even more functional impairment than he and his representative allege was shown. The more recent medical records concerning the ongoing treatment and evaluation the veteran continued to receive at the Peace River Center on various occasions during 1992 and 1993 contain essentially identical clinical findings insofar as him experiencing recurring attacks of acute anxiety and panic with agoraphobia. In an August 1993 statement, one of his primary treating clinicians at that facility (who reportedly had begun treating him in September 1989 and had continued to treat him until August 1992) also indicated that his symptoms included social isolation and anxiety reactions, and that his PTSD symptoms were severe enough "to make him...a prisoner in his own home...." In another statement in August 1993, from other therapists at the Peace River Center, they reiterated that he "would not be able to negotiate a trip to Washington, D.C. to speak before a panel on [his] own behalf [during a hearing before the Board]"...because he was having "difficulty leaving [his] home even on short distances to any place where people congregate[d]; [noting] this [was], in fact, the thrust of [the] treatment [they had] been providing for [him.]" But the operative word was "difficulty" leaving his home; they did not rule out him leaving his home entirely, under all circumstances. Rather, they only said that he could not leave his home to attend the particular hearing in question, while, at the same time, acknowledging that he still could leave his home in other situations- albeit still with "difficulty," when going elsewhere closer to home. And although they said that even nearby places outside of his home where people congregated presented even further problems for him, that, too, is not clinically suggestive of housebound status, per se, because, by implication, places outside of his home that were not congregated with other people therefore did not present this problem-or at least, if they did, was to a much lesser extent. But the most important point to bear in mind, though, is that, even according to the statements of his own treating clinicians, he still was mentally capable of leaving his home and the immediately surrounding premises to go elsewhere-albeit with certain limitations. However, those limitations did not equate to complete confinement to his house and the immediately surrounding premises, in fact, which is the legal standard at issue. The Board further notes that other contemporaneous medical evidence of record, particularly concerning treatment the veteran had received at the Lakeland Regional Medical Center and the Watson Clinic Edgewood in May, June, and July 1992, show that, although he reportedly was living alone and "spen[t] most of his time in his apartment," he was not necessarily confined to it or the immediately surrounding premises due to his psychiatric disability since those records go on to note that, when he felt well enough, "he [was] able to shop for groceries and other items." Moreover, even he, himself, acknowledged while being treated that his medication (Xanax) had been "helpful" and "enable[d] him to get out of the house more." So, again, although he obviously had "difficulty" leaving his home to get out and about, he still managed to do it-despite the severity of his psychiatric impairment. And thus, that, in turn, means that he did not meet the requirements for SMC based on being HB, and he also did not actually file a claim for this specific benefit (in the manner prescribed by the Secretary of VA) within one year of the August 1993 statements from his treating clinicians at the Peace River Center. So the Board cannot legally treat those statements from those private clinicians as even an informal claim for SMC based on being HB for the purpose of now receiving an EED retroactive to that point in time, much less as a formal claim for this benefit. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.157(a); see also Jones v. West, 136 F.3d 1296 (Fed. Cir. 1998). The results of VA psychiatric evaluations in January 1994 and October 1995 also confirmed the veteran had a "long history" of experiencing "significant" panic attacks with "severe" agoraphobia. Those VA examiners further indicated that he had a long history of experiencing depression and stress, too. Conversely, a VA psychologist who examined the veteran in November 1995 was considerably less convinced- noting some inconsistencies in his allegations. But despite that, during the October 1995 psychiatric evaluation, in particular, the VA examiner indicated the veteran had a "limited range of social activity that he engage[d] in, limited pretty much to going to church." However, that still was an indication just the same that he did, in fact, get out of his house and beyond the immediately surrounding premises to attend his church. So that, too, exceeded the requirements for SMC based on being HB because he was not, in fact, housebound, even according to that VA examiner whose opinion was favorable to him. Even the veteran, himself, acknowledged in a February 1995 statement, which the RO received in March 1995, that, in the opinion of the VA doctors who had examined him, his illnesses were "so severe that they almost totally restrict[ed him] from leaving [his] house or communicating with people[,] including [his] own family." But for the very same reasons as discussed earlier, "almost" (italics added) restricting him to his home is not the same as actually being housebound. One of the veteran's treating clinicians at the Peace River Center also indicated in a statement later that year, in July 1995, that his severe prolonged PTSD rendered him "unemployable and primarily home-bound." But just as in the case of the statement from the veteran, "primarily" (italics added) home-bound also was not the same thing as actually housebound because it acknowledged there were occasions (albeit less often than not) when he could leave his home and the surrounding premises to go elsewhere. The veteran again alleged that he was permanently housebound in a statement received at the RO on February 27, 1996. But more importantly, medical evidence since obtained- particularly the results of a March 2000 VA psychiatric evaluation, finally supported his allegation sufficient to grant this benefit. And although he mistakenly concluded in his June 2000 notice of disagreement (NOD) and in his December 2000 substantive appeal (on VA Form 9) that he regrettably had missed the one-year deadline for timely appealing a November 1998 RO decision, and therefore possibly could not receive an EED for his SMC based on being HB, records show that he did, in fact, timely appeal the specific denial of the claim for SMC based on being HB; it was only the continuation of the rating for his PTSD that he did not timely appeal. So inasmuch as he continually kept his claim open, in an active status, during the interim between February 27, 1996, and the eventual grant of SMC based on being HB, he is entitled to an effective date retroactive to February 27, 1996, the date of receipt of his claim for this specific benefit. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). In assigning this earlier effective date-albeit not to the date requested, the Board is mindful of the recently enacted Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This new law, among other things, redefines the obligations of VA with respect to notifying the veteran of the type of evidence needed to support his claim and assisting him in obtaining evidence that is pertinent to it. Here, however, although the RO did not readjudicate the veteran's claim after enactment of the VCAA, the RO nonetheless provided him a detailed explanation of the reasons and bases for its decision when apprising him of it in April 2000. The RO also apprised him of the governing laws and regulations concerning effective dates when providing him a statement of the case (SOC) in November 2000. And he has not indicated that any additional evidence, not already of record, has not been obtained that might be relevant. He also has had ample opportunity to submit additional evidence supporting his allegations. Consequently, he is not prejudiced by the Board going ahead and deciding his claim without first remanding it to the RO for consideration of the VCAA. See Bernard v. Brown, 4 Vet. App. 384 (1993). ORDER An earlier effective date of February 27, 1996, is granted for SMC based on being housebound,, subject to the laws and regulations governing the payment of VA compensation. C. P. RUSSELL Member, Board of Veterans' Appeals