Citation Nr: 0814366 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 06-02 544 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to receipt of special monthly compensation while incarcerated. 2. Entitlement to service connection for tinnitus. 3. Whether new and material evidence as been received to reopen a claim for service connection for bilateral hearing loss. 4. Whether new and material evidence as been received to reopen a claim for service connection for the postoperative residuals of a right inguinal hernia. 5. Whether new and material evidence as been received to reopen a claim for service connection for the postoperative residuals of a left inguinal hernia. 6. Entitlement to an increased rating for bilateral testalgia, status postoperative varicocele, currently evaluated as 10 percent disabling. 7. Entitlement to an increased (compensable) rating for sterility. 8. Entitlement to a separate compensable rating for penile dysfunction. 9. Entitlement to a separate compensable rating for impotency. 10. Entitlement to a separate compensable rating for erectile dysfunction. 11. Entitlement to a separate compensable rating for painful organisms. 12. Entitlement to a separate rating for loss of use of multiple creative organs. 13. Entitlement to a separate rating for loss of use of the vas deferens. 14. Entitlement to a separate rating for loss of use of the penis. 15. Entitlement to compensation for significant scarring under the provisions of 38 U.S.C.A. § 1151. 16. Entitlement to special monthly compensation for loss of use of the epididymis under the provisions of 38 U.S.C.A. § 1151. 17. Entitlement to compensation for nerve damage under the provisions of 38 U.S.C.A. § 1151. 18. Entitlement to compensation for urinary dysfunction under the provisions of 38 U.S.C.A. § 1151. 19. Entitlement to compensation for functional impairment of the abdomen under the provisions of 38 U.S.C.A. § 1151. 20. Entitlement to compensation for a right arm disorder under the provisions of 38 U.S.C.A. § 1151. 21. Entitlement to compensation for visual impairment of the left eye under the provisions of 38 U.S.C.A. § 1151. ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The veteran served on active duty from August 1978 to March 1979. This case comes to the Board of Veterans' Appeals (Board) on appeal of a rating decision of the Buffalo, New York, Regional Office (RO) of the Department of Veterans Affairs (VA). The Board has recharacterized some issues on the title page to best reflect their current legal standing. All issues other than that of entitlement to receipt of special monthly compensation while incarcerated are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The veteran is shown to be incarcerated in a state prison system for conviction of a felony and the term of his incarceration exceeds 60 days. 2. He is service connected for bilateral testalgia, status postoperative varicocele, rated 10 percent disabling, and sterility rated noncompensably disabling. He had also had been assigned special monthly compensation based on the loss of use of a creative organ. CONCLUSION OF LAW Special monthly compensation benefits to the benefits on account of the loss of use of a creative organ are not warranted as the result of the incarceration for a felony conviction. 38 U.S.C.A. §§ 1114, 5313 (West 2002); 38 C.F.R. § 3.665 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board must first address the provisions of the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. § 5100 et seq. (West 2002); see 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The law addresses the notification and assistance requirements of VA in the context of claims for benefits. In this regard, the Court has held that a notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the Court held that a notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must accomplish the following: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." Id. There are certain situations, however, when the VCAA does not apply. The United States Court of Appeals for Veterans Claims (Court) has held that where the law, and not the underlying facts or development of the facts are dispositive in a case, the VCAA can have no effect on the appeal. See Manning v. Principi, 16 Vet. App. 534, 542 (2002). See also Smith v. Gober, 14 Vet. App. 227 (2002) (VCAA has no effect on appeal limited to interpretation of law); Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (VCAA not applicable where law, not factual evidence, is dispositive). Moreover, VA's General Counsel has held that the notice and duty to assist provisions of the VCAA are not applicable to a claim, as here, where it cannot be substantiated because there is no legal basis for it, or because the undisputed facts render the claimant ineligible for the claimed benefit. See VAOPGCPREC 5-2004 (June 23, 2004). The question to be answered concerning this issue is whether or not the appellant has presented a legal claim for a VA benefit. Sabonis v. Brown, 6 Vet. App. 426 (1994). If he has not done so, his appeal must be denied. As explained below, the Board finds that he has not submitted such a claim. Under VA laws and regulations, a person who is incarcerated in a Federal, State or Local penal institution in excess of 60 days for conviction of a felony will not be paid compensation in excess of that amount specified in 38 C.F.R. § 3.665 beginning on the 61st day of incarceration. 38 U.S.C.A. § 5313(a)(1); 38 C.F.R. § 3.665(a). In the case of a veteran with a service-connected disability rated at 20 percent or more, the veteran shall not be paid an amount that exceeds the rate under 38 U.S.C. § 1114(a), which is at the rate of 10 percent. 38 C.F.R. § 3.665(d). If a disability evaluation is less than 20 percent, the veteran shall receive one-half the rate of compensation payable under 38 U.S.C.A. § 1114(a). 38 C.F.R. § 3.665(d). The record shows that the veteran has been found service connected for bilateral testalgia, with postoperative left varicocele, rated as 10 percent disabling; and sterility, rated as noncompensable. He has also been found to be entitled to special monthly compensation for loss of use of a creative organ under 38 U.S.C.A. § 1114(k) and 38 C.F.R. § 3.350(a). In January 2005, VA obtained information that the veteran was incarcerated. The veteran does not dispute that he is incarcerated or that it has been for over 60 days. A January 2005 VA letter clearly notified the veteran of the proposed reduction of compensation benefits due to incarceration, any dependent's rights to apportionment, and the possible resumption of benefits upon his release from incarceration. The letter also notified the veteran that he had 60 days in which to submit evidence to show that the adverse action should not be taken. 38 C.F.R. §§ 3.103, 3.105, 3.665. In May 2005, the veteran's benefits including special monthly compensation benefits were reduced. The award of special monthly compensation is made under the provisions of 38 U.S.C.A. § 1114(k). The law and regulations clearly state that an incarcerated veteran is entitled to no more than an award of compensation at the rate under the provisions of 38 U.S.C.A. § 1114(a), which is a 10 percent evaluation. In fact, as the veteran has been found eligible for a 10 percent rating only, his actual award is half the rate under the provisions of 38 U.S.C.A. § 1114(a). Because the law, rather than the facts in this case, is dispositive, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C.A. § 5107(b) (West 2002). ORDER Entitlement to receipt of special monthly compensation while incarcerated is denied. REMAND The veteran has claimed many additional issues for appellate review. He has submitted statements from a private physician, dated in February and May 2006, and January and February 2008, which have not been considered by the RO. He has not waived consideration of these statements. Moreover, he has submitted additional material, including a journal that has not been considered. As such the claims must be returned for review and issuance of a supplemental statement of the case. Accordingly, the case is REMANDED for the following action: The RO/AMC should readjudicate the remaining issues on appeal. If the determination remains unfavorable the veteran should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations considered. The veteran should be given an opportunity to respond to the SSOC prior to returning the case to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs