Citation Nr: 1320071 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 10-40 519A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to a full-dollar rate for the grant of dependency and indemnity compensation (DIC) benefits. 2. Entitlement to an increased rating for DIC based on the need for aid and attendance or on being housebound. ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran served in the Philippine Commonwealth Army from January 1942 to December 1942 and from June 1945 to March 1946. He was a prisoner of war from April 1942 to December 1942. The Appellant is the Veteran's spouse. This appeal comes to the Board of Veterans' Appeals (Board) from February 2010 and September 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Offices (RO) in the Republic of the Philippines. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. 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). FINDINGS OF FACT 1. The Veteran served in the Commonwealth Army of the Philippines from January 1942 to December 1942 and from June 1945 to March 1946. 2. The maximum rate of DIC for a spouse of a veteran who served solely in the Commonwealth Army of the Philippines is $0.50 for each dollar authorized under the law unless the veteran's spouse is residing in the United States as a United States citizen or alien lawfully admitted for permanent residence. 3. The Appellant's disabilities do not prevent her from performing activities of daily living. She is not blind, a patient in a nursing home, or substantially confined to her immediate premises due to her disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to dependency and indemnity compensation (DIC) at the full-dollar rate are not met. 38 U.S.C.A. § 107 (West 2002); 38 C.F.R. §§ 3.40, 3.42 (2012). 2. The criteria for the assignment of an increased award of DIC based on the Veteran's surviving spouse's need for regular aid and attendance, have not been met. 38 U.S.C.A. § 1311 (West 2002); 38 C.F.R. § 3.351 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS DIC Compensation Rate Dependency and indemnity compensation is a monthly payment made by the Department of Veterans Affairs to a surviving spouse, child, or parent because of the Veteran's service-connected death occurring after December 31, 1956. Basic entitlement for a surviving spouse exists if the Veteran's death occurred on or after January 1, 1957. 38 C.F.R. § 3.5 (2012). In January 2010 the RO granted service connection for the Veteran's death, and in February 2010 the Appellant was notified of her monthly entitlement amount. She filed a notice of disagreement, contending she is eligible for entitlement at the full-dollar rate rather than the rate of $0.50 for each dollar awarded. In this case, the Veteran served in the Commonwealth Army of the Philippines. Under 38 C.F.R. § 3.40(c), DIC benefits based on service in the Commonwealth Army of the Philippines are payable at a rate of $0.50 for each dollar authorized under the law except as provided in 38 C.F.R. § 3.42. Under 38 C.F.R. § 3.42, DIC benefits are payable at the full-dollar rate based on service described in § 3.40(b), (c), or (d), to a veteran or a veteran's survivor who is residing in the United States and is either a citizen of the United States or an alien lawfully admitted for permanent residence in the United States. Compensation at the full-dollar rate is also available to those who served in the Philippine Scouts, other than those who enlisted under section 14, Pub. L. 190, 79th Congress (Act of October 6, 1945), including officers who were commissioned in connection with the administration of Pub. L. 190. 38 C.F.R. § 3.40(a), (b). As the evidence shows the Appellant is living in the Philippines, not the United States, she is not eligible for the full-dollar rate under 38 C.F.R. § 3.42. The Veteran's service also does not meet the criteria for eligibility for the full-dollar rate under 38 C.F.R. § 3.40(a), (b) since although he was a commissioned officer, his service was in the Commonwealth Army of the Philippines, not the Philippine Scouts. Therefore, under 38 C.F.R. § 3.40(c), DIC benefits are payable to the Appellant at a rate of $0.50 for each dollar authorized under the law. Additional DIC Compensation The Appellant seeks entitlement to additional dependency and indemnity compensation benefits. She contends that disability has caused her to become housebound, or, in the alternative, to require the regular aid and attendance of another person. Special monthly dependency and indemnity compensation in the form of increased dependency and indemnity compensation is payable to a surviving spouse who is in need of aid and attendance, or, if not in need of aid and attendance, who is housebound. 38 U.S.C.A. §§ 1311 (West 2002), 38 C.F.R. § 3.351 (2012). Need for aid and attendance means helplessness or being so nearly helpless as to require the regular aid and attendance of another person. 38 C.F.R. § 3.351(b). The criteria to be applied in determining whether a surviving spouse is in need of regular aid and attendance is as follows: (1) the spouse is 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; or (2) is a patient in a nursing home because of a mental or physical incapacity; or (3) establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a) , which is to say, an inability of the claimant to dress or undress herself, or to keep herself ordinarily clean and presentable; a frequent need of adjustment of any special prosthetic or orthopedic appliance which by reason of the particular disability cannot be done without aid; inability of the claimant to feed herself through loss of coordination of the upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to her daily environment. "Bedridden" will be a proper basis for the determination. 38 C.F.R. § 3.351(c). Additional benefits based on housebound status are warranted where the surviving spouse is permanently housebound by reason of disability. The "permanently housebound" requirement is met when the surviving spouse is substantially confined to her home (or ward or clinical areas, if institutionalized), or immediate premises by reason of disability or disabilities which it is reasonably certain will remain throughout the surviving spouse's lifetime. 38 U.S.C.A. § 1311 (West 2002), 38 C.F.R. § 3.351(e). The Appellant submitted a private medical report dated May 2010 reflecting an assessment of type II diabetes mellitus, chronic hypertension moderately controlled, osteoarhritis of both knees, hyperuricemia, and allergic rhinitis. Her doctor noted her to be ambulatory with some limping as she walked. She was further found to have some pain on motion in both shoulders and some limitation of motion of both knees. The Appellant also submitted a May 2010 private psychiatric evaluation. The psychiatrist found the Appellant had normal cognitive functioning and a score of 6/16 of Instruments of Daily Living, indicating minimal difficulties. The Appellant noted that because of her physical limitations she had to limit her social life. On physical examination, the psychiatrist noted limitation of movement in the Appellant's knees bilaterally. The psychiatrist assessed the Appellant with generalized anxiety disorder. He noted that despite her intact cognitive functioning, her physical disabilities rendered her unable to take care of her social needs. The evidence does not show that the Appellant is blind in both eyes or a patient in a nursing home. The evidence further does not support that she is unable to perform activities of daily living due to her disabilities or that her disabilities cause her to be substantially confined to her immediate premises. Although the Veteran's psychiatrist noted that her physical disabilities rendered her unable to take care of her "social needs", he also stated that her responses indicated she had minimal difficulties with instrumental activities of daily living. Her private physician did not opine as to the impact of the Veteran's disabilities on her ability to perform routine daily activities. However, her physical disabilities as described by her doctors, including pain on motion in her shoulders and limitation of motion in her knees, do not suggest the Veteran is disabled to the point of being so nearly helpless as to require the regular aid and attendance of another person. The Veteran's psychiatrist further noted normal cognitive function, providing some evidence against this claim. As the preponderance of the evidence is against the Appellant's claim, the benefit of the doubt doctrine does not apply, and the claim for increased rating for DIC based on the need for aid and attendance or on being housebound must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any 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). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 U.S.C.A. § 5103A. Congress, in enacting the statute, noted the importance of balancing the duty to assist with "the futility of requiring VA to develop claims where there is no reasonable possibility that the assistance would substantiate the claim." Mason v. Principi, 16 Vet. App. 129, 132 (2002). Where the law, and not the evidence, is dispositive of a claim, the VCAA is not applicable. Id. (VCAA not applicable to a claim for non-service-connected pension when the claimant did not serve on active duty during a period of war, as required by law). The Court has held that when the interpretation of a statute is dispositive of the issue on appeal, neither the duty-to-assist nor the duty-to-notify provisions of the VCAA are implicated. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000); see also VAOPGCPREC 5-2004 (2004). With respect to the Veteran's claim of entitlement to the full-dollar rate for DIC benefits, the Board finds that the law is dispositive, therefore the provisions of the VCAA are not applicable. Nonetheless, the Board notes that the October 2010 Statement of the Case included the laws and regulations pertaining to the DIC rate. With respect to the Appellant's claim for aid and attendance/housebound allowance, the RO sent the Appellant a letter in August 2011 explaining what evidence was required to substantiate her claim and how the VA determines the effective date in the event that she is found to be entitled to the increased benefit. The letter also explained the Veteran's and VA's respective duties for obtaining evidence. The RO further made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the claim on appeal. The Appellant submitted two private medical reports and did not identify any additional existing evidence necessary for a fair adjudication of the claim that has not been obtained or, most importantly, indications that further testing or examinations would provide medical evidence in support of her claim. In this regard, it is important for the appellant to understand that the Board has reviewed her statements very carefully. Her statements, while they indicate disabilities and that she cannot work (facts not at issue in this case and conceded by the Board), simply do not indicate the standards of the next higher level of compensation will be meet with further development. The Board recognizes that the Appellant has not been afforded a VA examination to determine whether she requires the need for regular aid and attendance of another person. However, the Board finds that no reasonable possibility exists that such an examination would aid in substantiating the claim. The recent examinations submitted by the Appellant in fact support that she is able to independently perform activities of daily living and is not housebound. The evidence of record is sufficient to decide her claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio, 16 Vet. App. 183. ORDER The claim for the full-dollar rate for DIC is denied. The claim for an increased rating for DIC based on the need for aid and attendance or on being housebound is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs