Citation Nr: 1102139 Decision Date: 01/19/11 Archive Date: 01/26/11 DOCKET NO. 08-39 435 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to special monthly compensation (SMC) by reason of being housebound. REPRESENTATION Veteran represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Carole R. Kammel, Counsel INTRODUCTION The Veteran had active military service from April 1974 to January 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. By that rating action, the RO denied the Veteran's claim of entitlement to SMC by reason of being housebound. The Veteran appealed the RO's May 2008 rating action to the Board. In April 2010, the Veteran submitted medical records from the Mary Washington Hospital in Fredericksburg, Virginia that are duplicative of those previously of record and considered by the RO in an October 2008 Statement of the Case (SOC). ((See October 2008 SOC, page (pg.) 1)). Thus, a remand to the RO is unnecessary in this instance. 38 C.F.R. § 20.1304 (2010). In November 2010, the Veteran failed to appear for a hearing before a Veterans Law Judge at the Roanoke, Virginia RO. Accordingly, the Veteran's request for a hearing is considered withdrawn. 38 C.F.R. § 20.704(e) (2010). The Board will therefore proceed with appellate consideration of the claim. The issues of entitlement to service connection for a low back disorder, traumatic brain injury, right ear hearing loss, neurological disorder of the bilateral lower extremities, bladder and bowel incontinence, and spinal dural arteriovenous malformations (AVMs), each claimed as secondary to the service- connected schizophrenia; and a separate claim under the provisions of 38 U.S.C.A. § 1151 have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Service connection is in effect for schizophrenia (rated as 100 percent disabling) and right knee arthritis (rated as 10 percent disabling). 2. The preponderance of the competent and credible evidence of record shows that the Veteran is not permanently housebound by reason of his service-connected disabilities. CONCLUSION OF LAW The criteria for special monthly compensation based on being housebound are not met. 38 U.S.C.A. §§ 1114, 5103, 5103A, 5107 (West 2002 &. Supp. 2010 ); 38 C.F.R. §§ 3.350, 3.352 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.) and the Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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, 3.326(a) (2010). Upon receiving a complete or substantially complete application, VA must notify the claimant of any information and evidence not of record that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a). With respect to the claims on appeal, via an August 2007 pre-adjudication letter, the RO specifically notified him of the substance of the VCAA including the types of evidence necessary to establish the claims, and the division of responsibility between the Veteran and VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), the letter essentially satisfied the requirements of the VCAA by: (1) informing the Veteran about the information and evidence not of record that was necessary to substantiate his claims; (2) informing the Veteran about information and evidence VA would seek to provide; and (3) informing the Veteran about the information and evidence he was expected to provide. The notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA, however, may proceed with adjudication of a claim if errors in the timing or content of the VCAA notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Pelegrini, 18 Vet. App. at 121; Sanders v. Nicholson, 487 F.3d 892 (Fed. Cir. 2007); Simmons v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Pre-VCAA adjudication notice as to the SMC claim was provided in an August 2007 letter. This letter informed the Veteran to advise VA of any evidence he thought would support the claim; that it was his responsibility to ensure that VA received all requested records not in the possession of a Federal entity; and advised the Veteran of where to send any information required by VA. The Veteran has not received notice concerning the downstream disability rating and effective date elements of his SMC claim. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). However, because the Board concludes that the preponderance of the evidence is against the claim, any questions as to the appropriate downstream disability rating and/or effective date to be assigned are moot. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of his claims for service connection for bilateral hearing loss and left knee disorder. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In December 2007, VA examined the Veteran in conjunction with his SMC claim. A copy of this examination report is contained in the claims files. This examination report is thorough and is consistent with VA and private medical reports that are of record. In addition, on a July 2010 VCAA notice response form, the Veteran indicated that he did not have any additional evidence to submit in support of his claim. He requested that his claim be decided as soon as possible. The Board finds that there is no further assistance that would be reasonably likely to substantiate the SMC claim analyzed in the decision below. II. The Merits of the Claim Special monthly compensation may be payable if the Veteran has a single permanent disability rated 100 percent disabling, has either additional service-connected disability or disabilities independently ratable at 60 percent or more or is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.351(d) (2010). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Pertinent to a claim for an increased rating, lay testimony is competent when it describes symptoms, which supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see Proscelle v. Derwinski, 2 Vet. App. 629 (1992) (holding that, in general, for the need for a VA examination to arise, a claimant would only need submit his competent testimony that symptoms, reasonably construed as related to the service-connected disability, have increased in severity since the last evaluation.). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). The Veteran seeks entitlement to special monthly compensation based on being housebound. Service connection is currently in effect for schizophrenia, evaluated as 100 percent disabling, and right knee traumatic arthritis, evaluated as 10 percent disabling. The combined disability evaluation is 100 percent. While the Veteran has a single disability rated as 100 percent disabling (i.e., schizophrenia), he does not have an additional service-connected disability or disabilities independently ratable at 60 percent. Thus, he does meet the statutory or regulatory threshold for special monthly compensation pursuant to 38 U.S.C.A. § 114(s) or 38 C.F.R. § 3.350(i). In addition, although the Veteran has asserted that he is housebound as a result of his service-connected disabilities, the preponderance of the competent and credible medical evidence of record shows that he is permanently housebound from nonservice- connected disabilities (i.e., spinal dural arteriovenous malformations (AVMs) that caused bilateral lower extremity paralysis and residuals of a skull fracture). Thus, SMC based on being housebound is denied. The competent and credible private and VA medical evidence of record shows that the Veteran is confined to a wheelchair as a result of a spinal cord injury that necessitated surgery for AVMs, which, in turn, caused bilateral lower extremity paralysis with long-term sequale to include a neurogenic bladder. These same reports also show that the Veteran had sustained a basilar skull fracture that resulted in an altered mental status and small, focal hematoma from a sports-related injury. However, the Veteran's service-connected schizophrenia was noted to have been well-controlled with medication. ((See generally, April 2000 report, prepared by Walter Reed Armey Medical Center, July 2007 report, prepared by Mary Washington Hospital, and December 2007 VA aid and attendance (A&A) examination report)). A December 2007 VA A&A examination report reflects that the examining physician had reviewed the claims files prior to the examination. The examining physician reported that the Veteran was not permanently bedridden, was not currently hospitalized, could travel beyond his domicile, and arrived to the examination in a specially equipped van and accompanied by an attendant. It was noted that the Veteran lived alone. The Veteran stated that he spent most of his day in his chair or bed. He related that he slept in his bed. The Veteran stated that he rarely left the house except for doctors' appointments and that he used a motorized and manual wheelchair within his home. The examiner noted that the Veteran experienced weekly but less than daily dizziness, mild occasional memory loss and imbalance that affected his ability to ambulate. The examiner reported that the Veteran's spinal fistula caused him to have bilateral lower extremity paralysis from his knees to his feet. The Veteran dragged his feet, took six (6) to eight (8) steps with the aid of a walker, was very unsteady, and stated that he fell several times a month. The examiner indicated that the Veteran performed all of his activities of daily living but with great difficulty and very slowly. The Veteran was unable to clean his house and would infrequently visit the grocery store in his electric wheelchair. Upon physical examination in December 2007, the VA examiner noted that the Veteran walked without the assistance of another person but only within his home. It was noted that he needed a walker for ambulation. The examiner noted that the Veteran only left his home for medical appointments . His functional impairments were found to have been permanent. The examiner noted that the Veteran had a stiff lumbar spine and demonstrated muscle weakness, paralysis, atrophy, and lack of coordination of both lower extremities. His weight bearing, propulsion and balance were all found to have been abnormal. However, and critical to this analysis, the examiner also reported that the Veteran had incontinence of bowel and bladder secondary to his non-service-connected spinal condition as well as muscle spasms of both legs that were painful and required constant treatment with prescribed medications. The Veteran was diagnosed with T8 paraplegia ASIA-D. In August 2009, VA received VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Air and Attendance, which was completed by the Veteran and not a physician. The Veteran described having physical problems, such as loss of equilibrium, bilateral lower extremity paralysis, bowel incontinence, and memory loss, due to his non-service- connected back surgery and residuals of a skull fracture, respectively, as opposed to his service-connected schizophrenia and right knee traumatic arthritis. The preponderance of the competent and credible evidence of record is against an award of SMC on the basis of being housebound. While the Veteran has a single disability rated as 100 percent disabling (i.e., schizophrenia), he does not have an additional service-connected disability or disabilities independently ratable at 60 percent. Thus, he does meet the statutory or regulatory threshold for special monthly compensation pursuant to 38 U.S.C.A. § 114(s) or 38 C.F.R. § 3.350(i). Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for special monthly compensation based on housebound status. See 38 U.S.C.A. §§ 5017(b); 38 C.F.R. § 4.3;Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to SMC based on housebound status is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs