Citation Nr: 1309785	
Decision Date: 03/22/13    Archive Date: 04/01/13

DOCKET NO.  07-27 491	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUE

Entitlement to an effective date prior to June 10, 2003 for the grant of special monthly compensation based on housebound status. 


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

K. M. Schaefer, Counsel

INTRODUCTION

The Veteran served on active duty from April 1993 to January 1994. 

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which, in relevant part, found error in a June 2004 rating decision that failed to grant entitlement to special monthly compensation (SMC) based on housebound status and granted that benefit, effective June 10, 2003. 

In September 2011, the Board denied an earlier effective date for the grant of SMC, and the Veteran appealed that decision to the United States Court of Appeals for Veterans claims (Court).  In June 2012, the parties filed a Joint Motion for Remand, which the Court granted in June 2012, and the case was returned to the Board for further consideration.

The Veteran provided testimony at a September 2008 hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is associated with the claims file.  


FINDINGS OF FACT

1. The Veteran's grant of TDIU, effective November 2, 2000, was based solely on the combined disability of PTSD, and residual cognitive damage of brain injury.

2. From November 2, 2000 to February 12, 2002, the Veteran's non-psychiatric service-connected disabilities were a seizure disorder, evaluated as 20 percent disabling; peripheral nerve damage of the left arm, evaluated as 20 percent disabling; left leg neuritis, evaluated as 10 percent disabling; residuals of facial injury with disfiguring scars, evaluated as 10 percent disabling; and residuals of rib fractures, evaluated as 0 percent disabling.  The combined rating of these disabilities was 50 percent.

3. From February 12, 2002 to June 10, 2003, the Veteran's non-psychiatric service-connected disabilities were a seizure disorder, evaluated as 40 percent disabling; peripheral nerve damage of the left arm, evaluated as 20 percent disabling; left leg neuritis, evaluated as 10 percent disabling; residuals of facial injury with disfiguring scars, evaluated as 10 percent disabling; and residuals of rib fractures, evaluated as 0 percent disabling.  The combined rating of these disabilities was 60 percent.

4. The Veteran initially met the criteria for entitlement to SMC based on housebound status on February 12, 2002. 


CONCLUSION OF LAW

The criteria for an effective date of February 12, 2002, but no earlier, for the grant of SMC based on housebound status have been met.  38 U.S.C.A. §§ 1114, 5103, 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.159, 3.350, 3.400 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) imposes certain duties upon VA to notify the claimant of the shared obligations of the claimant and VA in developing his or her claim and to assist the claimant by making reasonable efforts to obtain relevant evidence in support of the claim.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 

VA must inform a claimant about the information and evidence not of record that is necessary to substantiate the claims, the information and evidence that VA will seek to provide, and the information and evidence that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1) (revised 73 Fed. Reg. 23353 -23356, April 30, 2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Additionally, the Court of Appeals for Veterans Claims (Court), in the consolidated appeal of Dingess/Hartman v. Nicholson, held that VCAA notice requirements also apply to the evidence considered in determinations of the degree of disability and effective date of the disability once service connection has been established.  19 Vet. App. 473 (2006).

VCAA notice must be provided before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claims for VA benefits.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  In this case, the claim of entitlement to SMC was raised by the RO in light of the Veteran's level of disability as of June 10, 2003.  As a result, the Veteran was not sent a VCAA letter specific to his SMC.  Nevertheless, the Board observes that the Veteran was provided with notice as to how to substantiate effective dates generally in an April 2006 VCAA letter.  Further, the Veteran's arguments in support of his claim, in particular the argument submitted in October 2012, demonstrate that he has actual knowledge of the criteria for SMC.  Therefore, the Board finds that the Veteran was not prejudiced by the lack of notice as to the evidence needed to substantiate a claim for SMC.  

VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim.  The Veteran's service treatment records, VA medical records, reports of multiple VA examinations, lay statements and hearing testimony were reviewed by both the AOJ and the Board in connection with adjudication of the claim.  He has not identified any additional, relevant records that VA needs to obtain for an equitable disposition of his claim.  Moreover, in this particular case, the facts that serve as the basis of the denial of the claim are incontrovertible.  Thus, as no reasonable possibility exists that any further factual development would assist in substantiating the claim, any deficiencies of VCAA notice or assistance, if they exist are rendered moot.  See 38 U.S.C.A. § 5103A ; Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the VCAA is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim).  Moreover, because the claim is being denied as a matter of law, no further development under the VCAA is warranted.  See Mason v. Principi, 16 Vet. App. 129, 132 (2002); see also Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding that the VCAA is not applicable where it could not affect a pending matter and could have no application as a matter of law); Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) (where the operation of law is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought).

II. Analysis

Service connection has been established for residual cognitive damage as a result of brain injury, effective from January 17, 1994.  A 10 percent initial rating was assigned prior to June 2, 1998, and a 50 percent rating was assigned from June 2, 1998.  In a June 2001 rating decision, the rating for that disability was increased to 70 percent, effective April 17, 2001.  A February 2003 rating decision granted service connection for PTSD and assigned a 50 percent rating, effective March 13, 2000.  Thereafter, a June 2004 rating decision combined the two psychiatric disabilities into PTSD with residuals of brain injury and cognitive damage, and assigned a 100 percent schedular rating, effective from June 10, 2003.  Finally, an August 2006 rating decision, while denying an earlier effective date for the grant of entitlement to service connection for PTSD, also indicated that two separate ratings for residuals of cognitive damage as a result of brain injury and PTSD had been inappropriate at the time of the grant of service connection for PTSD as the two ratings were based on the same symptomatology.  See 38 C.F.R. § 4.14.  Therefore, the ratings assigned were changed to 50 percent for PTSD with residuals of brain injury and cognitive damage from March 13, 2000 to April 17, 2001 and 70 percent for PTSD with residuals of brain injury and cognitive damage from April 17, 2001 to June 10, 2003.  The Board notes that this change was administrative only and had no effect on the disability payments made to the Veteran during the period in which the incorrect ratings were in effect.  To the extent this change is relevant to the Veteran's entitlement to special monthly compensation, that will be discussed below. 

The Board notes that the Veteran appealed the effective date assigned for the grant of service connection for PTSD, the initial ratings assigned for PTSD with residuals of brain injury and cognitive damage, the effective date for the 100 percent rating assigned for that disability, and the effective date for the grant of a 40 percent rating for his seizure disorder.  A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement and substantive appeal are filed within the applicable time limits.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012).  A decision issued by the Board is final unless appealed to the Court.  38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 20.1100, 20.1104(a)(1) (2012). 

Following receipt of a notice of a timely disagreement, the RO must issue a statement of the case.  38 C.F.R. § 19.26 (2012).  A Substantive Appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the statement of the case to the appellant, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later.  38 C.F.R. § 20.302(b) (2012). 

With respect to the effective date for the 100 percent rating for PTSD with residuals of brain injury and cognitive damage and the effective date for the 40 percent rating for seizure disorder, both these ratings were granted by a rating decision in June 2004 and effective June 10, 2003.  The RO issued a statement of the case in January 2005.  However, the Veteran's substantive appeal was not received until October 2005; therefore, it was not timely.  Thus, the June 2004 decision became final.  Even so, the Board notes that in an August 2006 rating decision, the RO granted an effective date of February 12, 2002 for the 40 percent rating for seizure disorder.  

In a June 2009 decision, the Board denied entitlement to an effective date prior to March 13, 2000 for the grant of service connection for PTSD.  The Veteran did not appeal this decision to the Court nor request reconsideration of the decision by the Board.  Therefore, the Board's June 2009 decision is final.

The June 2009 Board decision also remanded the issue of entitlement to an initial rating in excess of 50 percent for PTSD with residuals of brain injury and cognitive damage from March 13, 2000 to April 16, 2001, and entitlement to an initial rating in excess of 70 percent for PTSD with residuals of brain injury and cognitive damage from April 17, 2001 to June 9, 2003 for the issuance of a statement of the case in accordance with Manlincon v. West, 12 Vet. App. 238, 240-41 (1999).  In March 2010, a statement of the case was issued; however, a substantive appeal was not received.  As a result, the decisions with regard to those ratings became final.  

In light of these facts, there are no issues regarding the disability ratings and effective dates assigned for the Veteran's service-connected disabilities before the Board.  Therefore, the assessment of the proper effective date for the grant of SMC will be based on the rating evaluations and effective dates assigned by the RO.  

SMC is a special statutory award in addition to awards based on the schedular evaluations provided by the diagnostic codes in VA's rating schedule.  Claims for SMC, other than those pertaining to one-time awards and an annual clothing allowance, are governed by 38 U.S.C.A. § 1114 (k)-(s) and 38 C.F.R. §§ 3.350 and 3.352.  To establish entitlement to SMC based on housebound status under 38 U.S.C.A. § 1114(s), the evidence must show that a Veteran has a single service-connected disability evaluated as 100-percent disabling and an additional service-connected disability, or disabilities, evaluated as 60 percent or more disabling that is separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or the Veteran has a single service-connected disability evaluated as 100 percent disabling and due solely to service-connected disability, or disabilities, the Veteran is permanently and substantially confined to his or her immediate premises.  38 C.F.R. § 3.350(i) (2012). 

Additionally, the Court has held that 38 U.S.C. § 1114(s) for housebound benefits does not limit "a service-connected disability rated as total" to only a schedular rating of 100 percent, and that 38 C.F.R. § 3.350(i)  permits a TDIU rating based on a single disability to satisfy the statutory requirement of a total rating.  Bradley v. Peake, 22 Vet. App. 280, 293 (2008). 

The TDIU rating based on a single disability that satisfies the total (100 percent) rating requirement must be separate and distinct from the additional disability or disabilities independently ratable at 60 percent or more for purposes of housebound benefits.  Id.  The Bradley decision also declared that the direction to treat multiple disabilities as one under 38 C.F.R. § 4.16(a) was specifically limited to TDIU ratings. 

A TDIU rating based on multiple service-connected disabilities does not satisfy the criteria for one total disability in considering entitlement to housebound benefits under 38 U.S.C.A. § 1114(s).  Id. at 290-91.

Under governing law, the effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection, shall be the day following separation from active service or the date entitlement arose, if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2) (2012).  The effective date of an award of increased compensation may, however, be established at the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the application for an increased evaluation is received within one year from that date.  38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); see Hazan v. Gober, 10 Vet. App. 511 (1997); Harper v. Brown, 10 Vet. App. 125, 126 (1997); see also Swanson v. West, 12 Vet. App. 442 (1999) (VA must consider all the evidence of record, including that which predated a decision on the same matter, to determine when an ascertainable increase occurred in the rated disability); VAOGCPREC 12-98.  In a claim for increased compensation, a treatment record may serve as an informal claim for the purposes of determining an effective date.  38 U.S.C.A. § 5110(b)(2) (West 2002); see 38 C.F.R. § 3.400(o)(2) (2012); Harper v. Brown, 10 Vet. App. 125 (1997).

In a June 2001 rating decision, entitlement to TDIU was granted, effective April 17, 2001.  In a June 2004 rating decision, an earlier effective date of November 2, 2000 for TDIU was assigned.  It was noted that the Veteran last worked full time on November 1, 2000.  A review of the June 2001 rating decision reflects that the grant of TDIU was based solely on the neurological and psychiatric disability caused by the Veteran's PTSD with residuals of brain injury and cognitive damage.  Therefore, the Board finds that the TDIU was based on a single service-connected disability.  
The remaining question is whether the ratings for the Veteran's other disabilities of seizure disorder, left arm peripheral nerve damage, left leg neuritis, residuals of facial injury, and residuals of rib fractures when combined equal 60 percent or more.  As of November 2, 2000, the seizure disorder was evaluated as 20 percent disabling, peripheral nerve damage of the left arm as 20 percent disabling, left leg neuritis as 10 percent disabling, residuals of facial injury with disfiguring scars 10 percent disabling, and residuals of rib fractures as 0 percent disabling.  The combined rating of these disabilities was 50 percent.  38 C.F.R. § 4.25, Table I.  

As of February 12, 2002, the seizure disorder was evaluated as 40 percent disabling, peripheral nerve damage of the left arm as 20 percent disabling, left leg neuritis as 10 percent disabling, residuals of facial injury with disfiguring scars 10 percent disabling, and residuals of rib fractures as 0 percent disabling.  The combined rating of these disabilities was 60 percent.  Id. In light of these facts, the Veteran first met the criteria for entitlement to SMC as of February 12, 2002.

The Board acknowledges the Veteran's argument that he met the criteria for SMC as of November 2, 2000.  He argues that the June 2001 rating decision that granted entitlement to TDIU points to neurological and psychiatric symptoms associated with his closed head injury, and that, as a result, the Veteran's TDIU rating was based solely on the disability then rated as residuals of cognitive damage as a result of brain injury.  He further argues that he had separate disabilities with a combined rating of at least 60 percent in that his PTSD rated at 50 percent, seizure disorder rated at 20 percent, peripheral nerve damage of the left arm rated at 20 percent, left leg neuritis rated at 10 percent, residuals of facial injury with disfiguring scars rated at 10 percent, and residuals of rib fractures rated at 0 percent yielded a combined rating of 70 percent.  

Nevertheless, the Board observes that the January 2000 rating decision that granted a 50 percent rating for the residuals of cognitive damage as a result of brain injury relied on a January 2000 VA psychiatric examination.  The June 2001 rating decision that granted TDIU and increased the rating for cognitive disorder to 70 percent cites both the November 2000 VA neurological and VA psychiatric examinations.  Thus, the ratings assigned for the Veteran's cognitive disorder were consistently based on psychiatric symptomatology.  Further, it was the same November 2000 VA psychiatric examination that was the basis for the assignment of the initial 50 percent rating for PTSD.  Thus, the two ratings were based on the same symptomatology, which is prohibited.  38 C.F.R. § 4.14.  This fact was the reason the cognitive disability and PTSD were combined into one disability by the RO in the August 2006 rating decision.

To reiterate, the single disability that serves as the basis for the TDIU rating must be separate and distinct from the additional disability or disabilities.  That is, the same disability must not be counted twice, once in support of the TDIU rating and again in support of the special monthly compensation.  Bradley, 22 Vet. App. at 293.  As is evident from the above discussion, even when it was rated separately, the Veteran's PTSD was not separate and distinct from the cognitive disorder.  Moreover, using the residuals of cognitive damage as a result of brain injury as the basis for the TDIU rating and the PTSD as part of the basis for the SMC would be, essentially, counting the same disability twice as they both contemplated the same symptoms.  Therefore, the Board is prohibited from considering the separate rating assigned for the PTSD in the February 2003 rating decision in determining the entitlement to SMC.  Id.; 38 C.F.R. § 4.14.  

Consequently, the Board finds that the combined disability of PTSD with residuals of brain injury and cognitive damage served as the sole basis for the grant of TDIU. 
Therefore, from November 2, 2000 to February 12, 2002, the Veteran met the criteria of one service-connected disability rated as 100 percent disabling, but his remaining disabilities did not meet the criterion of having a combined rating of 60 percent or more.  However, as of February 12, 2002, the Veteran continued to have one disability rated as 100 percent disabling and with the increase in the rating for the service-connected seizure disorder to 40 percent, the combined rating for the remaining disabilities was 60 percent.  Accordingly, the criteria for entitlement to SMC were met as of that date, and an effective date of February 12, 2002, but no earlier, is granted.




ORDER

Entitlement to an effective date of February 12, 2002, but no earlier, for the grant of SMC based on housebound status is granted.



____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs