Citation Nr: 1311087	
Decision Date: 04/03/13    Archive Date: 04/19/13

DOCKET NO.  10-39 912	)	DATE
	)
	)


On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUES

1.  Entitlement to special monthly compensation on account of being housebound in accordance with 38 U.S.C.A. § 1114(s).

2.  Entitlement to special monthly compensation based upon the need for regular aid and attendance of another person (A&A).  

3.  Entitlement to special monthly compensation for loss of use of the hands or arms.  

4.  Entitlement to a separate disability evaluation for warts and the removal thereof. 

5.  Entitlement to a temporary total disability evaluation pursuant to 38 C.F.R. § 4.30 based upon convalescence from the repeated removal of a wart from the right third finger.  



REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

Patrick J. Costello, Counsel


INTRODUCTION

The Veteran had active duty service from May 13, 2003 to July 17, 2003, from December 31, 2003 to April 1, 2004, from May 13, 2007 to June 20, 2007, from July 8, 2007 to August 11, 2007, and from September 4, 2007 to December 4, 2008.  He also had service in the Reserve Officer Training Corps (ROTC) from August 23, 2004 to May 13, 2005.  The dates of service recognized as credible for consideration in the award of education benefits are May 13, 2003, to July 17, 2003, December 31, 2003, to April 1, 2004, May 13, 2007, to June 30, 2007, July 8, 2007, to August 11, 2007, and from September 4, 2007, to December 4, 2008.  

This case is before the Board of Veterans' Appeals (hereinafter the Board), on appeal from multiple rating actions of the New York, New York, Department of Veterans Affairs (VA) Regional Office (RO).  When the claim was originally presented before the Board, the issues on appeal included service connection, increased evaluations, a temporary total rating, special monthly compensation, an earlier effective date, a recovery of overpayment of education benefits, and a request for additional education benefits.  Three separate decisions were promulgated by the Board in April 2012.  The Veteran's appeals involving a request for an earlier effective date, a temporary total rating, and special monthly compensation were remanded to the RO via Appeals Management Center (AMC), in Washington, DC, for further action either by the RO/AMC or by the Veteran.  

With respect to the issue involving entitlement to an earlier effective date for the granting of service connection for painful scars of the both hands and the right wrist, the record reveals that in an action by the RO in August 2012, the RO assigned an effective date of December 5, 2008.  The grant of service connection was based on an injury that occurred in the last period of active service.  The effective date was the day following the Veteran's release from that period of active duty and is the earliest date that could be assigned.  As such, this is considered a full grant of benefits and this issue is no longer before the Board on appeal.

The Board remanded the issue of entitlement to a temporary total disability rating so that a statement of the case could be issued.  Such an action occurred and the Veteran then perfected his appeal with respect to this issue.  As such, this issue is now properly before the Board on appeal.  

The record reflects that in January 2011, the Veteran proffered testimony before the undersigned at the RO.  The hearing pertained to issues that are not currently before the Board.  A transcript of that hearing was prepared and has been included in the claims folder for review.  

The record reflects that the Veteran has requested an extension of a temporary total evaluation pursuant to 38 C.F.R. § 4.30 based upon convalescence for surgery performed on the left hand in October 2010.  See VA Medical Treatment Record Addendum, June 8, 2011.  That treatment record indicated that the Veteran would require an additional four months of convalescence for splinting of the left hand for recovery.  As this issue has not been addressed by the RO, said issue is referred to the RO for review and action.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The issues of entitlement to special monthly compensation based upon the need for regular aid and attendance of another person and for loss of use of a body part, along with entitlement to a separate disability evaluation for warts and the removal thereof, are addressed in the REMAND portion of the decision below and they are REMANDED to the RO via the AMC.  


FINDINGS OF FACTS

1.  The Veteran's seborrheic arthritis disabilities, which all stem from the same underlying disease, are rated at 100 percent and at least one of his remaining service-connected disabilities have been assigned a rating of 60 percent since June 19, 2010.

2.  The Veteran underwent surgery on his right hand on June 16, 2011.  A second surgery at the same location of the hand was accomplished on July 7, 2011, with follow-up surgery on July 21, 2011.

3.  A VA examiner has indicated that upon completion of surgery on the right hand, the Veteran was required a period of at least one month of convalescence.


CONCLUSIONS OF LAW

1.  The criteria for entitlement to special monthly compensation on account of being housebound have been met.  38 U.S.C.A. §§ 1114(s), 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.350(i) (2012).

2.  The criteria for entitlement to a total disability evaluation based on the need for convalescence for the period extending from June 16, 2011, to August 31, 2011, have been met.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.30 (2012). 



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's Duty to Notify and Assist

VA has specified duties to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits.  The Board has considered whether further development and notice under the Veterans Claims Assistance Act of 2000 (VCAA) or other law should be undertaken.  However, given the results favorable to the service member, further development under the VCAA or other law would not result in a more favorable outcome or be of assistance to this inquiry. 

In the decision below, the Board grants the claim for special monthly compensation based on the Veteran being housebound.  The  Board has also granted the claimed temporary total rating.  In his substantive appeal the Veteran argued that he was entitled to a one month temporary total rating for convalescence following the scar removal.  That is the benefit being granted in this decision.  As such, no further notice or assistance is needed to aid the Veteran in substantiating this claim. 

Special Monthly Compensation-Housebound

Laws, Regulations, and Discussion

Special monthly compensation benefits by reason of being housebound are payable if the veteran has a single permanent disability rated 100 percent disabling, and has either (1) additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) is "permanently housebound" by reason of service-connected disability or disabilities.  38 U.S.C.A. § 1114(s) (West 2002 & Supp. 2012); 38 C.F.R. § 3.350(i) (2012).  

The disabilities independently ratable at 60 percent or more must be separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems.  38 C.F.R. § 3.350(i)(1) (2012); see also Hartness v. Nicholson, 20 Vet. App. 216 (2006).  

Subsection 1114(s) for housebound benefits requires that a disabled veteran whose disability level is determined by the ratings schedule must have at least one disability that is rated at 100 percent in order to qualify for the special monthly compensation provided by that statute.  Subsection 1114(s) benefits are not available to a veteran whose 100 percent disability rating is based on multiple disabilities, none of which is rated at 100 percent disabling.  Regardless, the Court has held that 38 U.S.C.A. § 1114(s); see Bradley v. Peake, 22 Vet. App. 280, 293 (2008). 

Additionally, a veteran will be determined to be "housebound" when he/she is substantially confined to his/her house (ward or clinical areas, if institutionalized) or immediate premises due to service-connected permanent disability or disabilities, and it is reasonably certain that the disability of disabilities and resultant confinement will continue throughout his or her lifetime.  38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i)(2) (2012).  For purposes of housebound benefits, the Court held that being "substantially confined" to the home means an inability to leave to earn an income.  Hartness v. Nicholson, 20 Vet. App. 216, 220-22 (2006); cf. Howell v. Nicholson, 19 Vet. App. 535, 540 (2006) (substantially confined means the inability to leave the house except in instances of seeking medical treatment).

A review of the claims folder reveals that, as of 19 June 2010, the Veteran's rating disability percentages were as follows:  

Gastroesophogeal reflux disease		60 percent
Right hand psoriatic arthritis		60 percent
Left hand psoriatic arthritis/surgery	50 percent
Painful scars hands and right wrist	20 percent
	Associated with psoriatic
	arthritis
Left wrist disorder				10 percent
	Associated with psoriatic
	arthritis
Right wrist condition			10 percent
	Associated with psoriatic
	arthritis
Right knee disability			10 percent
	Associated with psoriatic
	arthritis
Nephrolithiasis				30 percent

The Veteran is also now service-connected for a psychiatric disorder, evaluated as 10 percent disabling since March 11, 2011.  

The rating for psoriatic arthritis with consideration of the bilateral factor is 100 percent.  See 38 C.F.R. §§ 4.25 (combined ratings table); 4.26 (2012).  

The Veteran's entitlement to housebound benefits turns on whether the disabilities resulting from psoriatic arthritis may be considered "a service connected disability rated total" for purposes of 38 U.S.C.A. § 1114(s) or "a single service-connected disability rated as 100 percent" under 38 C.F.R. § 3.350(i).  Althought the Bradley Court noted that multiple disabilities arising from a single accident would not satisfy the requirement for a single disability rated 100 percent; it did not consider the situation in the instant case, where multiple ratings have been provided for the manifestations of a single disease.  Bradley v. Peake, at 290-1.

There is no regulatory guidance or court precedent to indicate that a single disease given multiple ratings would not be considered a "service connected disability rated total."  Accordingly, the Board views the psoriatic arthritis as "a service connected disability rated total" or 100 percent.  As noted above he has additional disabilities rated 60 percent or more.  

Because the Veteran has a single service-connected disability rated as 100 percent and has an additional service-connected disability, gastroesophageal reflux disease, independently evaluated as 60 percent disabling, the criteria for special monthly compensation at the housebound rate were met as of June 19, 2010.  As such, the Veteran's claim for special monthly compensation at the housebound rate is granted, effective June 19, 2010.  


II.  Temporary Total Disability Evaluation

Laws and Regulations

Under VA regulation, a temporary total disability evaluation (100 percent rating) will be assigned if treatment of a service-connected disability resulted in surgery necessitating: 

(1)  at least one month of convalescence; 
(2)  surgery with severe post-operative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or 
(3)  immobilization by cast, without surgery, of one major joint or more. 

See 38 C.F.R. § 4.30(a)(1), (2), (3) (2012).  Extensions of one, two or three months beyond the initial three months may be granted under paragraph (a)(1), (2) or (3) of this section.  See 38 C.F.R. § 4.30(b)(1) (2012).  Extensions of one or more months up to six months beyond the initial six months period may be granted under paragraph (a)(2) or (3) of this section upon approval of the Veterans Service Center Manager.  See 38 C.F.R. § 4.30(b)(1) (2012). 

In Felden v. West, 11 Vet. App. 427, 430 (1998), the United States Court of Appeals for Veterans Claims, hereinafter the Court, citing Dorland's Illustrated Medical Dictionary, p. 374 (28th ed. 1994), defined convalescence as "the stage of recovery following an attack of disease, a surgical operation, or an injury."  The Court also defined recovery as "the act of regaining or returning toward a normal or healthy state."  Id., citing Webster's Medical Desk Dictionary 606 (1986).  In other words, the purpose of a temporary total evaluation, pursuant to 38 C.F.R. § 4.30, is to aid the Veteran during the immediate post-surgical period when he or she may have incompletely healed wounds or may be wheelchair-bound, or when there may be similar circumstances indicative of transient incapacitation associated with recuperation from the immediate effects of an operation.  The Court has also held that notations in the medical record as to the Veteran's incapacity to work after surgery must be taken into account in the evaluation of a claim brought under the provisions of 38 C.F.R. § 4.30.  See Seals v. Brown, 8 Vet. App. 291, 296-97 (1995); Felden at 430. 

C.  Facts and Discussion

In this instance, the record reflects that on June 17, 2011, the Veteran underwent the removal of a large wart on the dorsal third digit of the right hand.  Per a Dermatology Outpatient Note of June 23, 2011, the examiner thought that the wart was related to the Veteran's service-connected psoriatic arthritis.  On the 23rd of June, the Veteran had returned to the VA health center to have the wound checked and the bandage changed.  There was no bleeding or signs of infection and there appeared to be no problem with healing.  On the bottom of the dermatology note written on June 23, 2011, the doctor typed the following:

To Whom It May Concern:
Re:			Veteran
Date of Procedure:	6/16/11

The patient will require a one-month period of convalescence due to bandaging [of] the right [dominant] hand as the result of a recent surgical procedure.

A separate letter restating the above was prepared and a copy of that letter is contained in the claims folder.  

Less than a month after the June 16th surgical procedure, a second surgical procedure was accomplished on the dorsal third digit of the right hand.  In other words, the area that originally had been operated thereon had to be re-operated thereon because another growth (wart) was discovered during the recovery period.  The right hand that had been immobilized was further immobilized as a result of the second surgical procedure.  The second surgery occurred on July 7, 2011, followed by a third surgery that was performed on July 21, 2011.  

In order to receive the temporary total evaluation, the Veteran must undergo surgery and/or immobilization as a result of a service-connected disability.  Here, there clearly was surgery and immobilization.  There were in fact three surgeries.  The initial surgery required some type of therapeutic immobilization of the right hand.  The record confirms that the VA treating physician concluded that the Veteran needed to convalesce from his surgery for a period of one month.  The Veteran was unable to fully convalesce for a period of one month because two additional surgeries needed to be accomplished.  There is no evidence of record indicating or suggesting that the Veteran's convalescence from the second or third surgery would be any shorter than one month period of time.

Hence, upon a review of the evidence, it is the conclusion of the Board that the facts weigh in favor of a finding that the Veteran warranted a temporary total rating for convalescence from until August 31, 2011.  See 38 C.F.R. § 4.30 (a) (2012) (providing that the temporary total ratings continue for monthly periods beginning on the first day of the month following surgery).  The Board would add that there is no evidence of record that the Veteran's period of convalescence did or should be extended beyond August 31, 2011.  


ORDER

Entitlement to a special monthly compensation on account of being housebound in accordance with 38 U.S.C.A. § 1114(s) is granted.

Entitlement to a temporary total disability evaluation pursuant to 38 C.F.R. § 4.30 based upon convalescence from the repeated removal of a wart from the right third finger is granted.  


REMAND

When the Board remanded the claim in April 2012, it specifically instructed that the Veteran should be afforded a VA examination to determine whether special monthly compensation for purposes of aid and attendance should be assigned.  This examination was not accomplished.  

The Court has noted that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance."  D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall v. West, 11 Vet. App. 268 (1998), violation when the examiner made the ultimate determination required by the Board's remand, because such determination "more than substantially complied with the Board's remand order").  Yet, in this instance, the Board notes that the requested examination never occurred and as such, the record is missing crucial medical evidence needed to evaluate the Veteran's claim.  Hence, in conjunction with the Court's dictates found in Stegall and D'Aries, these two special monthly compensation issues are returned to the AMC so that an examination may be accomplished and complete and definitive opinions may be obtained. 

As noted in the Introduction, the issue of entitlement to a separate disability evaluation for wars and the removal thereof stems from the Veteran's original disagreement with the effective date that was assigned for the granting of service connection for scars of the hands and wrist.  The Veteran has expressed disagreement with the RO's action that did not assign a separate disability evaluation for warts and the removal thereof.  Instead of awarding a separate rating, the RO has combined the ratings for multiple scars of the hands and the right wrist.  The condition was then rated in accordance with the rating criteria found at 38 C.F.R. Part 4, Diagnostic Code 7804.  

A VA internal electronic mail note, dated October 5 2012, suggests that following the Veteran's notice of disagreement on this issue, a statement of the case was produced on August 6, 2012, and forwarded to the Veteran.  A review of the Veteran's claim folder, including those records contained on the Virtual VA electronic storage system, is negative for the statement of the case.  The claims folder and Virtual VA also do not contain a transmittal letter that would have been used to forward the statement of the case.  

Also, because it appears that the Veteran receives ongoing VA treatment and the claim is being returned for other development, copies of any available VA records subsequent to June 2012 should be obtained and incorporated in the claims file.  It is important to note that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of that claim, regardless of whether those records are physically on file.  See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  Hence, these treatment records should be associated with the claims file.  Any outstanding private records that are relevant to the claim, and not already of record, should be obtained as well.

Accordingly, the case is REMANDED for the following development: 

1.  Ask the Veteran to identify any treatment for his service connected disabilities since June 2012, and take the necessary steps to obtain records of this treatment.

2.  Issue a statement of the case with respect to the issue of entitlement to a separate disability evaluation for warts and the removal thereof; or if previously issued, associate the statement of the case with the claims folder.  This issue should not be certified to the Board, unless a sufficient substantive appeal has been received. 

3.  Schedule the Veteran for a VA examination to determine his need for special monthly compensation based on the need for regular aid and attendance or loss of use of a body part.  The examiner should be given a copy of this remand and the Veteran's entire claims folder.  

The examiner state that the claims file was reviewed.

The examiner should answer the following questions with regard to the service connected disabilities: 

Is the Veteran unable to dress or undress herself and keep herself ordinarily clean and presentable?  

Does he require frequent adjustment of any special prosthetic or orthopedic appliances that cannot be done without aid?  

Is he unable to feed himself through loss of coordination of upper extremities or through extreme weakness, or unable to attend to the wants of nature?  

Does he have incapacity, physical or mental, that requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment?  

The examiner should further make a determination as to whether service connected disabilities result in loss of use of either hand or arm (including an opinion as to the level at which the loss of use occurs).  The examiner should consider a statement from a primary care physician at the New York Harbor Healthcare System dated October 16, 2012, stating that the Veteran has "lost normal use of both your esophagus and your hands."  

The examiner should provide reasons for the opinions.

4.  If the examination report does not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, the requisite report must be returned for corrective action.

5.  If any benefits sought on appeal remain denied, the AOJ should issue a supplemental statement of the case.  Thereafter, the case should be returned to the Board, if in order.

The Board intimates no opinion as to the ultimate outcome of this case.  The Veteran need take no action unless otherwise notified.  The Veteran is advised that pursuant to 38 C.F.R. § 3.655 (2012) failure, without good cause, to report for the requested VA examination may result in an adverse determination.  See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991).

The Veteran 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).

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. 2012).



______________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs