Citation Nr: 1305673 Decision Date: 02/15/13 Archive Date: 02/21/13 DOCKET NO. 07-34 711 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to total disability based upon individual unemployability due to service-connected disabilities (TDIU). 2. Entitlement to special monthly compensation based on the need for regular aid and attendance or being housebound. ATTORNEY FOR THE BOARD M. McBrine, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from January 20, 1983, to July 26, 1983. This case comes before the Board of Veterans' Appeals (the Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. These issues were remanded for further development in February 2012. All requested development having been completed, these claims now return before the Board. FINDINGS OF FACT 1. The Veteran is service-connected for tibial pain syndrome of the right lower extremity at a 30 percent evaluation, and tibial pain syndrome of the left lower extremity at 20 percent evaluation. These ratings combine for a 50 percent total evaluation. 2. The medical and other evidence of record does not indicate the Veteran's service-connected disabilities preclude her from securing or following a substantially gainful occupation consistent with her education and occupational experience. 3. The Veteran is not service-connected for a disability that is productive of blindness in both eyes with 5/200 visual acuity or less or concentric contraction of the visual field to 5 degrees or less, is not a patient in a nursing home, and is not bedridden. Her service connected disabilities, alone, are not otherwise shown to be so disabling as to render her unable to care for her daily needs or protect herself from the hazards incident to her environment. 4. The Veteran is not permanently housebound by reason of her service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to a TDIU have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2012). 2. The criteria for SMC based upon the need for regular aid and attendance of another person or on account of being housebound have not been met. 38 U.S.C.A. §§ 1114(l)-(s) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.350(i)(2), 3.351(b)-(c), 3.352(a), 4.25 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and 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). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in her possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letters dated in June 2008 and June 2009, prior to the initial adjudication of these claims, as well as letters in September 2011, February 2012, and August 2012, and a February 2012 Remand, satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was advised that it was ultimately her responsibility to give VA any evidence pertaining to the claims. The letters informed her that additional information or evidence was needed to support her claims, and asked her to send the information or evidence to VA. See Pelegrini II, at 120-121. Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and relevant VA medical records are in the file. All records identified by the Veteran as relating to the claims have been obtained, to the extent possible. The Board finds that the record contains sufficient evidence to make a decision on the claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). The Veteran was provided with examinations during the course of this appeal for these specific issues, in March 2012 and September 2012. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran contends that her service connected right and left tibial pain syndrome render her unable to work, and render her housebound and requiring the assistance of others to attend to her daily needs. TDIU A total disability evaluation may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). The Board is precluded from granting a TDIU under § 4.16(b) in the first instance. The Board must evaluate whether there are circumstances in the Veteran's case, apart from any non service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). The Veteran is service-connected for right tibial pain syndrome at 30 percent, and left tibial pain syndrome at 20 percent, for a combined rating of 50 percent. Therefore, she does not meet the percentage requirements set out in 38 C.F.R. § 4.16(a). Where the evidence suggests that a Veteran may be unemployable due to service connected conditions that do not meet the percentage requirements, the Board is required to remand the claim for referral to the appropriate first line authority for consideration of entitlement to TDIU under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1, 10 (2001). In accordance with 38 C.F.R. § 4.16(b), the Board has considered whether the Veteran's claim for a TDIU should be referred to the Director of the Compensation and Pension Service for extraschedular consideration. Reviewing the evidence of record therefore as to the question of referral, the Veteran indicated on her August 2012 Form 21-8940 that she has last worked part time in January 1994 as an administrative director for a county chamber of commerce. She reported last working full time in June 1991 as a manager for an entertainment venue. She also reported three years of college. VA treatment records dated throughout the appeal noted that the veteran walked with a cane, and complained of knee pain, tenderness, and crepitus, particularly in the right knee. The record reflects that the Veteran has not worked since the 1990s and is unemployability. The question presented is therefore, whether her service connected disabilities alone are sufficient to render her unemployable. In addition to her service connected bilateral tibial pain syndrome, the records reflects that the Veteran has cervical intervertebral disc disease, degenerative joint disease of both knees and hips, and lumbar disc disease. The report of a September 2012 VA housebound and aid and attendance examination notes that the Veteran could not work outside of the home; however, the examiner did not provide an opinion as to which disabilities precluded employment or indicate that her service connected disabilities alone rendered her unemployable. The Veteran received a VA general medical examination regarding her employability in March 2012. At that time, the Veteran was found to carry a diagnosis of periosititis of both lower extremities. Right knee flexion was 0 to 125 degrees, limited by pain to 120 degrees. Left knee flexion was 0 to 130 degrees, limited by pain to 125 degrees. After repetitive testing, further pain was noted. Tenderness of the knee was also noted. Muscle strength of both legs was normal, and there was no evidence of instability or patellar subluxation or dislocation. The Veteran was noted to use a wheelchair occasionally and a cane regularly, to assist with ambulation. The Veteran reported that she felt the condition of her legs was such that it prevented her from working. As to employability, the examiner indicated that considering that the Veteran had an Associate's degree, he felt that, even with her service connected disabilities, she could work a sedentary job that did not require prolonged sitting or standing. The March 2012 examination is given great probative weight as the examiner's opinion was proffered after a review of the pertinent evidence of record, an interview with the Veteran, and a contemporaneous examination addressing the severity of the Veteran's service connected disabilities. While the evidence reflects that the Veteran's right and left tibial pain syndrome causes some occupational impairment, there is no evidence that the Veteran's service-connected disabilities, alone, render her unable to secure or follow a substantially gainful occupation. Finally, the Board does not doubt the sincerity of the Veteran, and her belief that she is unable to work and requires aid and assistance, solely due to her service connected disabilities. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), the Board finds that the specific issues in this case, such as determining which specific service and nonservice connected disabilities cause which impairments, is outside the scope of a normal lay person's knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." Accordingly, the evidence of record, taken as a whole, portrays the Veteran as having employment-related problems caused by her service-connected disabilities. Crucially however, the evidence does not indicate that these disabilities alone result in her unemployability. In conclusion, for the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the Veteran's claim for a TDIU. In particular, referral to appropriate authority for consideration on an extraschedular basis under the provisions of 38 C.F.R. § 4.16(b) is not warranted, and the benefit sought on appeal is accordingly denied. Aid and Attendance Special monthly compensation at the aid and attendance rate is payable when a Veteran is helpless or so nearly helpless that she requires the regular aid and attendance of another person. To establish a need for regular aid and attendance, a Veteran must be blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; a patient in a nursing home because of mental or physical incapacity; or show a factual need for aid and attendance. 38 C.F.R. §§ 3.351(b)-(c), 3.352(a). A factual need for aid and attendance includes the inability to dress, undress, keep ordinarily clean and presentable, feed oneself, or attend to the wants of nature. It also includes the frequent need of adjustment of any special prosthetic or orthopedic appliances or either physical or mental incapacity that requires care or assistance on a regular basis to protect against the hazards or dangers incident to a claimant's daily environment. Also, an individual who is bedridden, as that term is defined by regulation, meets the criteria for aid and attendance. 38 C.F.R. § 3.352(a). The particular personal functions which a Veteran is unable to perform should be considered in connection with the claimant's condition as a whole. The evidence need only establish that a Veteran is so helpless as to need regular aid and attendance, not constant need. Determinations that a Veteran is so helpless as to need regular aid and attendance will not be based solely upon an opinion that the Veteran's condition requires the Veteran to be in bed. They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352(a) . A Veteran must be unable to perform one of the enumerated disabling conditions, but a Veteran's condition does not have to present all of the enumerated disabling conditions. Turco v. Brown, 9 Vet. App. 222, 224 (1996). The criteria for determining whether a Veteran is in need of the aid and attendance of another person may be met if he is bedridden. "Bedridden" is defined as a condition that, through its essential character, actually requires that a Veteran remain in bed. The fact that a Veteran has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. The performance of the necessary aid and attendance service by a relative of the beneficiary or other member of his or her household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352. In order for a Veteran to prevail in her claim, the evidence must show that it is a service-connected disability that has resulted in the need for regular aid and attendance. Prejean v. West, 13 Vet. App. 444 (2000). The Veteran's service connected right and left tibial pain does not affect her vision and the Veteran reportedly lives at home. Her disabilities were not found to impair her judgment or thought processes on the most recent VA examination in March 2012. There is no other evidence that they interfere with her ability to protect herself from the hazards incident to her environment or undertake the activities of daily living. An examination was conducted as to the need for housebound status or need for regular aid and attendance in September 2012. At that time, the examiner noted that the Veteran had diagnoses of reflex sympathetic dystropyhy, pain disorder, and cervical interbertebral disc disease. The examiner stated that pain in the Veteran's back, and also lower legs, caused restrictions with her activities. The examiner indicated that the Veteran was able to feed herself and prepare simple meals, but would need assistance with some activities of daily living, specifically, bathing and changing bed sheets. She was noted to come to the clinic in a wheelchair, and used a cane and environmental structures for balance. Her neck/spine disease was noted to have caused deviation of the neck to the side, and also intermittent arm and hand cramping. Her service connected lower leg conditions were reported to cause difficulty with ambulation. The Veteran was able to transfer from her wheelchair to an examination table with assistance. However, it was her nonservice connected neck disability that was noted to cause her much distress with activities of daily living. Her chronic pain was reported to be disabling at times. She was also noted to have a psychoaffective component to her difficulties. The Board has considered this examination, and finds that it appears to indicate that the bulk of the Veteran's troubles with activities of daily living are related to her nonservice connected neck disability, which is noted throughout the examination as causing significant problems with activities of daily living. While her leg condition is noted to cause her some problems with ambulation, the Board finds that, considering all of the Veteran's disabilities listed in this examination, the Veteran's service connected bilateral tibial pain syndrome does not significantly interfere with her ability to undertake the activities of daily living. The Board also notes the findings from the March 2012 general medical examination, which found the Veteran to have right knee range of motion to 125 degrees, and left knee range of motion to 130, nearly normal ranges of motion, normal muscle tone and strength of the lower legs, and which found that the Veteran could work a sedentary job that did not require prolonged sitting or standing. The Board finds this evidence indicates that the Veteran's service connected disabilities alone do not prevent her from attending to her activities of daily living. The record also shows that the Veteran is not bedridden and is able to leave home, though she apparently is limited because she does not own a car and does not drive. In short, the Board finds that the evidence does not show that as a result of the Veteran's service right and left tibial pain, that any of the factors listed in 38 C.F.R. § 3.351 or 3.352 are present. The evidence is therefore against the grant of special monthly compensation based on the need for aid and attendance. Housebound Special monthly compensation is also payable, under 38 U.S.C.A. 1114(s), where a Veteran has a single service-connected disability rated as 100 percent and, (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when a Veteran is substantially confined as a direct result of service-connected disabilities to her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout her lifetime. 38 C.F.R. § 3.350(i)(2). In this case, the Veteran does not have a single service connected disability that is rated total. Her only service connected disabilities are tibial pain of the right and left lower extremities, which combine to a 50 percent evaluation; and as discussed above, a grant of TDIU based on those disabilities is not warranted. Accordingly, the Veteran is not eligible for SMC on account of being housebound. 38 U.S.C.A. §§ 1114(l), 5107(b); 38 C.F.R. §§ 3.351, 3.352. In addition, as noted above, there is no evidence that the Veteran's service-connected disabilities render her confined to her home. Thus, the criteria for SMC on account of being housebound are also not met. 38 U.S.C.A. §§ 1114(s); 5107(b); 38 C.F.R. § 3.350(i)(2). For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim. The benefit-of-the-doubt doctrine is not applicable and the claim for SMC based on the need for regular aid and attendance of another person or on account of being housebound must be denied. See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-57. ORDER Entitlement to a TDIU is denied. Entitlement to SMC based upon the need for regular aid and attendance of another person or on account of being housebound is denied. ____________________________________________ DAVID WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs