Citation Nr: 1123568 Decision Date: 06/21/11 Archive Date: 06/28/11 DOCKET NO. 10-33 932 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to a rate of special monthly compensation (SMC) higher than 38 U.S.C.A. § 1114(l). 2. Entitlement to a special home adaptation grant under 38 U.S.C.A. § 2101(b). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Heneks, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1943 to January 1946. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In January 2011, the issues of entitlement to service connection for the right lower extremity, an increased rating for service-connected left lower extremity radiculopathy associated with lumbosacral strain with degenerative disc disease, and SMC based on the loss of use of one or both lower extremities were remanded to the AOJ for adjudication in the first instance. The Board observed that these matters were inextricably intertwined with the claims before the Board; entitlement to SMC based on the need for aid and attendance (A&A) or housebound status; entitlement to specially adapted housing; and entitlement to a special home adaptation grant. In an April 2011 rating decision, the RO granted entitlement to service connection for loss of use of the bilateral lower extremities and assigned a 100 percent rating, entitlement to SMC based on the loss of use of the bilateral lower extremities at the rate under 38 U.S.C.A. § 1114(l), and entitlement to specially adapted housing. Thus, the grant of service connection for loss of use of the bilateral lower extremities at a 100 percent rating resolved the matters of entitlement to service connection for the right lower extremity, an increased rating for service-connected left lower extremity radiculopathy associated with lumbosacral strain with degenerative disc disease, and SMC based on the loss of use of one or both lower extremities. Although the Veteran has been awarded SMC at the rate for A&A, the Board must still address whether he is entitled to a higher award of SMC. Further, although the Veteran was awarded specially adapted housing, the Board must address whether he is also entitled to a special home adaptation grant. Therefore, the matters remaining on appeal are stated above. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. The Veteran is service-connected for loss of use of his bilateral lower extremities (100 percent); lumbosacral strain with degenerative disc disease (40 percent); and tinea pedis/tinea corporis/eczema of the bilateral hands (10 percent). 3. As the result of service-connected disability, the Veteran has not suffered the anatomical loss or loss of use of both hands, or of one or both legs at a level, or with complications, preventing natural knee action with prosthesis in place, or of one arm and one leg at levels, or with complications, preventing natural elbow and knee action with prosthesis in place; blindness in both eyes having only light perception; or blindness in both eyes, rendering him so helpless as to be in need of regular aid and attendance. 4. As the result of service-connected disability, the Veteran has not suffered the anatomical loss or loss of use of both arms at levels, or with complications, preventing natural elbow action with prosthesis in place; the anatomical loss of one or both legs so near the hip as to prevent the use of prosthetic appliances; the anatomical loss of one arm and one leg so near the shoulder and hip as to prevent the use of prosthetic appliances; the anatomical loss of both eyes; or blindness without light perception in both eyes. 5. The Veteran is not service-connected for anatomical loss of both arms so near the shoulder as to prevent use of a prosthetic appliance; entitled to two or more of the rates provided in 38 U.S.C.A. § 1114(l)-(n); service-connected for deafness or blindness; or paralyzed in both lower extremities together with loss of anal and bladder sphincter control. 6. The Veteran was granted entitlement to specially adapted housing under 38 U.S.C.A. § 2101(a) in an April 2011 rating decision. CONCLUSIONS OF LAW 1. The criteria for a rate of SMC higher than 38 U.S.C.A. § 1114(l) have not been met. 38 U.S.C.A. §§ 1110, 1114, 1131 (West 2002); 38 C.F.R. §§ 3.350, 3.352 (2010). 2. The criteria for entitlement to a certificate of eligibility for a special home adaptation grant have not been met. 38 U.S.C.A. §§ 1110, 1131, 2101, 2101A (West 2002); 38 C.F.R. §§ 3.809, 3.809a (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his/her representative, if applicable, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Further, in Dingess v. Nicholson, the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, VA is required to review the evidence presented with the claim and to provide the claimant with notice of what evidence not previously provided will help substantiate his/her claim. 19 Vet. App. 473 (2006); see also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Specifically, VA must notify the claimant of what is required to establish service connection and that a disability rating and effective date for the award of benefits will be assigned if service connection is awarded. The Board finds that the VCAA duty to notify was satisfied by letters sent to the Veteran in February and March 2010 with regard to the claims for special monthly compensation and entitlement to special home adaptation grant. The letters addressed all of the notice elements and were sent prior to the initial unfavorable decision by the AOJ in May 2010. The letters also provided the notice that addresses the relevant rating criteria and effective date provisions. Therefore, the Board finds that VA has fulfilled its duty to notify under the VCAA. VA has also satisfied its duty to assist the Veteran at every stage of this case. All available and identified VA medical records pertinent to the claims are in the claims file and were reviewed by both the RO and the Board. Additionally, the Board finds that the March 2011 VA examination is adequate upon which to base a determination. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted below, the Board finds that the VA examination obtained in this case is adequate, as it addresses the necessary criteria for establishing a higher rate of SMC; namely the degree of impairment in the Veteran's lower extremities. Further, the Veteran's VA medical records fully address the Veteran's state of functioning and degree of disability necessary to assign the proper SMC rating. There is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). VA has also assisted the Veteran and his representative throughout the course of this appeal by providing them with an August 2010 SOC (statement of the case) and April 2011 SSOC (supplemental statement of the case (SSOC), which informed them of the laws and regulations relevant to his claims. For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. LAW AND ANALYSIS 1. Entitlement to a rate of special monthly compensation (SMC) higher than 38 U.S.C.A. § 1114(l). SMC is authorized in particular circumstances in addition to compensation for service-connected disabilities. See 38 U.S.C.A. § 1114; 38 C.F.R. §§ 3.350, 3.352. SMC is authorized under subsections (k) through (s), with the rate amounts increasing the later in the alphabet the letter appears (except for the (s) rate). SMC under subsections (k) and (r) are rates that are paid in addition to any other SMC rates, with certain monetary limits. SMC under subsection (k) is for loss or loss of use of certain body parts. 38 U.S.C.A. § 1114(k); 38 C.F.R. § 3.350(a). Subsection (l) provides for SMC based on the need for aid and attendance. 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b). Subsection (o) is the highest rate of SMC permitted. 38 U.S.C.A. § 1114(o); 38 C.F.R. § 3.350(e). Subsection (p) provides for SMC rates in between the different subsections, i.e., "intermediate" rates. 38 U.S.C.A. § 1114(p); 38 C.F.R. § 3.350(f). Effective November 9, 2010, the Veteran became entitled to SMC under 38 U.S.C.A. § 1114(l) on account of loss of use of both feet. The Veteran is in receipt of service connection for loss of use of his bilateral lower extremities (100 percent); lumbosacral strain with degenerative disc disease (40 percent); and tinea pedis/tinea corporis/eczema of the bilateral hands (10 percent). He was in receipt of a total rating based on individual unemployability (TDIU) from February 20, 2009 to November 9, 2010, when he was awarded service connection for loss of use of his bilateral lower extremities at the 100 percent rating. SMC at the aid and attendance rate under subsection (l) is payable when the veteran, due to service-connected disability, has the anatomical loss or loss of use of both feet, or of one hand and one foot, or is blind in both eyes, with 5/200 visual acuity or less, or is permanently bedridden or has such significant disabilities as to be in need of regular aid and attendance. 38 U.S.C.A. § 1114(l); 38 C.F.R. §§ 3.350(b), 3.352 (a). As the Veteran is already in receipt of SMC at the subsection (l) rate, the Board will consider whether he is entitled to a higher rate of SMC. As set forth under 38 U.S.C.A. § 1114(m), special monthly compensation is warranted if the veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both hands, or of both legs at a level, or with complications, preventing natural knee action with prosthesis in place, or of one arm and one leg at levels, or with complications, preventing natural elbow and knee action with prosthesis in place, or has suffered blindness in both eyes having only light perception, or has suffered blindness in both eyes, rendering such veteran so helpless as to be in need of regular aid and attendance. See 38 C.F.R. § 3.350(c). As reflected above, the Veteran is service connected for his bilateral lower extremities; lumbosacral strain with degenerative disc disease; and tinea pedis/tinea corporis/eczema of the bilateral hands. The Veteran is not service connected for, nor does the evidence of record show that, he has loss of use of both hands, loss of use of one arm at any level, or blindness. Thus, the question is whether he has anatomical loss or loss of use of both legs at a level, or with complications, preventing natural knee action with prosthesis in place. See 38 C.F.R. § 3.350(c)(2). This is not shown by the evidence of record. In this regard, the evidence reflected that the Veteran uses a cane and has weakness in both legs. VA medical evidence dated in 2009 to the present showed that he uses furniture to aid him in moving around his house. Importantly, the Veteran is able to walk short distances and can drive a car. As noted during his May 2010 VA examination, the Veteran's left lower extremity had functional limitations of muscle weakness and atrophy which limited his standing and walking. He needed to use a cane due to balance problems and left lower extremity weakness. His muscle strength was 3/5 and weakness caused associated problems with weight bearing. Significantly, during his March 2011 VA examination, the examiner noted that no function of any joint was affected by the Veteran's bilateral lower extremity radiculopathy. The Veteran had decreased vibration and position in the right and left leg below the knees more prominent in the left leg. Left hip flexion, hip extension, knee flexion, and knee extension was 4, indicating active movement against some resistance. Right hip flexion, hip extension, knee flexion, and knee extension was 5, indicating active movement against full resistance. Ankle dorsiflexion, ankle plantar flexion, and great toe extension on the left was 4 and on the right was 5. Muscle tone was decreased on the left quad and calf and there was muscle atrophy. Although the Veteran has significant dysfunction from his bilateral lower extremities, he does not have loss of use of one or both legs at a level preventing natural knee action. (The Board observes that if loss of use of one leg combined with the loss of use of one foot was shown the Veteran would be entitled to the half step 38 U.S.C.A. § 1114(1) + 1/2 pursuant to 38 C.F.R. § 3.350(f)(1)(i)). Thus, the Veteran is not entitled to a rating pursuant to 38 C.F.R. § 3.350(c). 38 U.S.C.A. § 1114(n) provides special monthly compensable where the veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both arms at levels, or with complications, preventing natural elbow action with prosthesis in place, has suffered the anatomical loss of both legs so near the hip as to prevent the use of prosthetic appliances, or has suffered the anatomical loss of one arm and one leg so near the shoulder and hip as to prevent the use of prosthetic appliances, or has suffered the anatomical loss of both eyes, or has suffered blindness without light perception in both eyes. There is no indication that the Veteran has suffered the anatomical loss of one or both legs so near the hip as to prevent the use of prosthetic appliances. Accordingly, the Veteran is not entitled to a rating pursuant to 38 C.F.R. § 3.350(d) or § 3.350(f)(1)(ii). Lastly, the Board observes that the Veteran is not entitled to a higher rate of SMC under 38 U.S.C.A. § 1114(o). As applicable, the Veteran is not service-connected for anatomical loss of both arms so near the shoulder as to prevent use of a prosthetic appliance; entitled to two or more of the rates (no condition being considered twice) provided in 38 U.S.C.A. § 1114(l)-(n); service-connected for deafness or blindness; or paralyzed in both lower extremities together with loss of anal and bladder sphincter control. 38 C.F.R. § 3.350(e). Accordingly, the Board concludes that the Veteran has been correctly assigned the SMC rate under (l) and a higher SMC rate is not warranted. 2. Entitlement to a special home adaptation grant under 38 U.S.C.A. § 2101(b). Claims for entitlement to a certificate of eligibility for a special home adaptation grant are governed by 38 C.F.R. § 3.809a. In pertinent part, a certificate of eligibility for assistance in acquiring necessary special home adaptations, or, on or after October 28, 1986, for assistance in acquiring a residence already adapted with necessary special features, under 38 U.S.C. 2101(b) or 2101A(a) may be issued to a veteran if the following requirements are met. The veteran is not entitled to a certificate of eligibility for assistance in acquiring specially adopted housing under 38 C.F.R. § 3.809 nor had the veteran previously received assistance in acquiring specially adopted housing under 38 U.S.C.A. § 2101(a). 38 C.F.R. § 3.809a(a). The veteran must be entitled to compensation under chapter 11 of title 38, United States Code, for a disability rated as permanent and total. The disability must: (1) Include the anatomical loss or loss of use of both hands, or (2) Be due to: (i) Blindness in both eyes with 5/200 visual acuity or less, or (ii) Deep partial thickness burns that have resulted in contractures with limitation of motion of two or more extremities or of at least one extremity and the trunk, or (iii) Full thickness or subdermal burns that have resulted in contracture(s) with limitation of motion of one or more extremities or the trunk, or (iv) Residuals of an inhalation injury (including, but not limited to, pulmonary fibrosis, asthma, and chronic obstructive pulmonary disease). 38 C.F.R. § 3.809a(b); 75 Fed. Reg. 57859 (September 23 1010). As indicated above, the Veteran was granted entitlement to specially adapted housing under 38 U.S.C.A. § 2101(a) in an April 2011 rating decision. See 38 C.F.R. § 3.809. The regulation clearly states that a veteran must not be entitled to a certificate of eligibility of assistance in acquiring specially adopted housing under 38 C.F.R. § 3.809 in order to receive a special home adaption grant. As the Veteran was awarded entitlement to specially adapted housing in an April 2011 rating decision, he cannot receive a special home adaption grant. Therefore, the benefit must be denied. See 38 C.F.R. §§ 3.809, 3.809a. ORDER Entitlement to a rate of SMC higher than 38 U.S.C.A. § 1114(l) is denied. Entitlement to a special home adaptation grant under 38 U.S.C.A. § 2101(b) is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs