Citation Nr: 1304422 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 10-36 283 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to special monthly compensation for loss of use of both kidneys. ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION Appellant (the Veteran) had active service from September 1989 to February 1990. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2010 rating decision of the RO in Waco, Texas. FINDINGS OF FACT 1. There is no dispute as to any material fact in this case. 2. The Veteran has not lost anatomically, or lost the use of, any of the extremities or organs set out under 38 U.S.C.A. § 1114 and 38 C.F.R. § 3.350. 3. Service connection is in effect for glomerulonephritis; both kidneys are encompassed by the service-connected disability, therefore there is no nonservice-connected kidney. CONCLUSION OF LAW The claim for special monthly compensation for loss of use of both kidneys lacks legal merit. 38 U.S.C.A. §§ 1114, 1155, 1160, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.350, 3.383 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes initially that the Veteran's claim appears to mix separate statutory and regulatory provisions. The Veteran has at times characterized his claim as one for special monthly compensation for the loss of his kidneys, and has at other times cited to provisions governing special consideration for paired organs and extremities. In essence, he contends that he has only one functioning kidney, which came from a donor, and he lost the full use of his own kidneys in 1991. According to the Veteran he was recently told that he will be placed on the donor list again due to the short life expectancy of the transplanted kidney. The Board acknowledges its obligation to read the filings of this pro se claimant liberally. See Moody v. Principi, 360 F.3d 1306 (Fed. Cir. 2004); Szemraj v. Principi, 357 F.3d 1370 (Fed. Cir. 2004); and Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (each emphasizing that pro se filings must be read liberally). The Veteran has alternately framed his claim in terms of the provisions for special monthly compensation, and the provisions for special consideration for paired organs. The Board will consider both provisions. Regarding special monthly compensation, the Veteran asserts that the loss of use of his kidneys is no different than the loss of use of an arm or leg, and that his donated kidney is similar to a prosthesis. Provisions for special monthly compensation are set out under 38 U.S.C.A. § 1114 and 38 C.F.R. § 3.350. This benefit is based on the anatomical loss, or loss of use of certain specified extremities and/or organs. These extremities and organs are specifically enumerated under the above provisions, and they do not include the kidneys. Special monthly compensation under 38 U.S.C. 1114(k) is payable for each anatomical loss or loss of use of one hand, one foot, both buttocks, one or more creative organs, blindness of one eye having only light perception, deafness of both ears, having absence of air and bone conduction, complete organic aphonia with constant inability to communicate by speech or, in the case of a woman veteran, loss of 25 percent or more of tissue from a single breast or both breasts in combination (including loss by mastectomy or partial mastectomy), or following receipt of radiation treatment of breast tissue. The special monthly compensation provided by 38 U.S.C. 1114(l) is payable for anatomical loss or loss of use of both feet, one hand and one foot, blindness in both eyes with visual acuity of 5/200 or less or being permanently bedridden or so helpless as to be in need of regular aid and attendance. The special monthly compensation provided by 38 U.S.C. 1114(m) is payable for: (i) Anatomical loss or loss of use of both hands; (ii) Anatomical loss or loss of use of both legs at a level, or with complications, preventing natural knee action with prosthesis in place; (iii) Anatomical loss or loss of use of one arm at a level, or with complications, preventing natural elbow action with prosthesis in place with anatomical loss or loss of use of one leg at a level, or with complications, preventing natural knee action with prosthesis in place; (iv) Blindness in both eyes having only light perception; (v) Blindness in both eyes leaving the veteran so helpless as to be in need of regular aid and attendance. The special monthly compensation provided by 38 U.S.C. 1114(n) is payable for: (1) Anatomical loss or loss of use of both arms at a level or with complications, preventing natural elbow action with prosthesis in place; (2) Anatomical loss of both legs so near the hip as to prevent use of a prosthetic appliance; (3) Anatomical loss of one arm so near the shoulder as to prevent use of a prosthetic appliance with anatomical loss of one leg so near the hip as to prevent use of a prosthetic appliance; (4) Anatomical loss of both eyes or blindness without light perception in both eyes. The special monthly compensation provided by 38 U.S.C. 1114(o) is payable for: (i) Anatomical loss of both arms so near the shoulder as to prevent use of a prosthetic appliance; (ii) Conditions entitling to two or more of the rates (no condition being considered twice) provided in 38 U.S.C. 1114(l) through (n); (iii) Bilateral deafness rated at 60 percent or more disabling (and the hearing impairment in either one or both ears is service connected) in combination with service-connected blindness with bilateral visual acuity 20/200 or less; (iv) Service-connected total deafness in one ear or bilateral deafness rated at 40 percent or more disabling (and the hearing impairment in either one of both ears is service-connected) in combination with service-connected blindness of both eyes having only light perception or less. Additional provisions relate to combinations of loss or loss of use of the above extremities and/or organs and other requirements, such as need for aid and attendance or housebound status. The provisions governing special monthly compensation do not encompass anatomical loss of a kidney or loss of use of a kidney. The Veteran's assertion that loss of a kidney is similar to loss of an arm or a leg is not supported by the specific language of the statute or regulation. There is no provision for substitution of organs not specified in the law. Accordingly, the Veteran's claim for special monthly compensation for loss of use of both kidneys lacks legal merit. The Veteran has alternatively addressed provisions governing special consideration for paired organs and extremities. Under 38 U.S.C.A. § 1160; 38 C.F.R. § 3.383, compensation is payable for specific combinations of service-connected and nonservice-connected disabilities as if both disabilities were service-connected. These include (1) Impairment of vision in one eye as a result of service-connected disability and impairment of vision in the other eye as a result of non-service-connected disability and (i) The impairment of vision in each eye is rated at a visual acuity of 20/200 or less; or (ii) The peripheral field of vision for each eye is 20 degrees or less. (2) Loss or loss of use of one kidney as a result of service-connected disability and involvement of the other kidney as a result of nonservice-connected disability. (3) Hearing impairment in one ear compensable to a degree of 10 percent or more as a result of service-connected disability and hearing impairment as a result of nonservice-connected disability that meets the provisions of § 3.385 in the other ear. (4) Loss or loss of use of one hand or one foot as a result of service-connected disability and loss or loss of use of the other hand or foot as a result of nonservice-connected disability. (5) Permanent service-connected disability of one lung, rated 50 percent or more disabling, in combination with a nonservice-connected disability of the other lung. In essence, 38 C.F.R. § 3.383 provides that, in the event that one organ is service connected and the other is not service connected, the rating will be applied as though both organs are service connected. In this case, service connection is in effect for glomerulonephritis, which is defined as "nephritis accompanied by inflammation of the capillary loops in the renal glomeruli. See Jarzynka v. Shinseki, 2010 WL 386770 (2010) citing Dorland's Illustrated Medical Dictionary 797 (31st ed. 2007). Glomeruli are tufts or clusters, such as anatomical structures "composed of blood vessels or nerve fibers." Dorland's at 798. There is nothing in the RO's grant of service connection for glomerulonephritis or in any action of the RO since the grant of service connection that would lead to the conclusion that service connection has been denied for either kidney; or, in other words, that there is one service-connected kidney and one nonservice-connected kidney within the meaning of 38 U.S.C.A. § 1160; 38 C.F.R. § 3.383. Service connection is in effect for the disease process of glomerulonephritis, which in the Veteran's case affects both kidneys. This was confirmed by bilateral biopsies in February 1991. Moreover, the Veteran is rated under 38 C.F.R. § 4.115b, Diagnostic Code 7531 (2012), which rates in accordance with renal dysfunction under 38 C.F.R. § 4.115a (2012). The criteria under the formula for rating renal dysfunction are not specific to a particular kidney, but are based on laboratory results, the need for dialysis, the effect of the dysfunction on activity, and the effect of the dysfunction on other organs and systems. The Board acknowledges that there may be some ambiguity in the terminology describing the grant of service connection in this case. The reference to the disease process rather than the specific kidney or kidneys involved may have left the Veteran to question whether both kidneys were included in the grant of service connection for glomerulonephritis. However, as service connection has never been specifically denied for either kidney, and as compensation has not been limited based on a finding that one or the other kidney is not service connected, or that certain symptoms are attributable to a nonservice-connected kidney, the Board finds that application of 38 C.F.R. § 3.383 in this case is inappropriate. In any event, application of that section would result in no change to the Veteran's level of compensation. The Veteran appears to assert that some additional unspecified level of compensation should result from the provisions of 38 U.S.C.A. § 1160; 38 C.F.R. § 3.383; however, this is simply not supported by the language of those sections. Accordingly, the claim for special consideration for paired organs and extremities lacks legal merit. Where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In this case, there is no dispute as to any material fact. Rather, the Veteran's assertions as to the benefits sought are not supported under the law. Duties to Notify and Assist 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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In some cases, however, the VCAA need not be considered because the issue presented is solely one of statutory interpretation and/or the claim is barred as a matter of law. See Smith v. Gober, 14 Vet. App. 227, 231-232 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002). See also 38 C.F.R. § 3.159(b)(3)(ii) (VCAA notice not required when, as a matter of law, entitlement to the benefit claimed cannot be established); 38 C.F.R. § 3.159(d)(3) (VA will refrain from or discontinue assistance with regard to a claim requesting a benefit to which the claimant is not entitled as a matter of law). The facts are not in dispute here; instead, resolution of the claim is wholly dependent on interpretation of the applicable laws and regulations pertaining to special monthly compensation and consideration for paired organs and extremities. The VCAA is therefore inapplicable and need not be considered in this case. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); see also VAOPGCPREC 5-2004. ORDER Special monthly compensation for loss of use of both kidneys is denied. ____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs