Citation Nr: 1320181 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 10-28 098 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to special monthly compensation (SMC) at the housebound rate. REPRESENTATION Appellant represented by: Michael A. Leonard, Attorney ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran had active service from June 1982 to June 2002. This appeal comes before the Board of Veterans' Appeals (Board) from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied entitlement to SMC at the housebound rate. The Veteran's claim was remanded by the Board for additional development in December 2012. The requested development having been completed, the matter again is before the Board. As noted in the December 2012 Board remand, the Veteran previously had appeals pending for higher disability ratings for five service-connected disabilities. In the December 2009 rating decision, the RO granted higher ratings for three of those disabilities, and granted a total disability rating based on individual unemployability (TDIU). In March 2010, the Veteran stated, through his representative, that he did not wish to further pursue any of the issues of higher disability ratings for the five disabilities. Thus, there are no further issues pending regarding the ratings for those disabilities. The Board has not only reviewed the Veteran's physical claims file, but also his Virtual VA electronic claims file to ensure a total review of the evidence. FINDINGS OF FACT 1. The Veteran is service-connected for depressive disorder with anxiety, rated as 70 percent disabling; low back strain due to degenerative disc disease, rated as 40 percent disabling; migraine headaches, rated as 30 percent disabling; residuals, fracture of right wrist, rated as 10 percent disabling; neurological residuals, right wrist surgical fixation with retained hardware, rated as 10 percent disabling; and residual, right shoulder dislocation, rated as noncompensably disabling; he also is in receipt of a total disability rating based on individual unemployability (TDIU). 2. The evidence of record does not support the conclusion that the Veteran has a service-connected disability rated as total and an additional service-connected disability or disabilities independently ratable at 60 percent or more or that the Veteran is permanently housebound by reason of his service-connected disabilities. CONCLUSION OF LAW The criteria for SMC at the housebound rate are not met. 38 U.S.C.A. §§ 1114(s), 5101, 5103, 5103A, 5107, 5121 (West 2002 & Supp. 2012); 38 C.F.R. § 3.350 (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 claim, 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 his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his 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. In the instant case, the Board notes that the claim arose from the December 2009 rating decision granting, in relevant part, entitlement to a total disability rating based on individual unemployability (TDIU). As the claim for eligibility for SMC at the housebound rate is considered a "downstream" issue, a specific VCAA notice letter addressing requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159 with respect to this issue was not required. See VAOPGCPREC 8-2003 (Dec. 22, 2003) (If, in response to notice of its decision on a claim for which VA has already given the 38 U.S.C. § 5103(a) notice, VA receives a notice of disagreement that raises a new issue, 38 U.S.C. § 7105(d) requires VA to take proper action and issue a statement of the case if the disagreement is not resolved, but section 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate the newly raised issue). Moreover, the Federal Circuit has held that 38 U.S.C. § 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate a claim upon receipt of a notice of disagreement with the initial evaluation assigned by a RO for a compensation award. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). In this regard, once a decision has been made awarding service connection, a disability rating, and an effective date, § 5103(a) notice has served its purpose, as the claim has already been substantiated. Sutton v. Nicholson, 20 Vet. App. 419 (2006). Most significantly, it is clear from the statements of the Veteran and his attorney representative that they understood how to substantiate the claim on appeal. Specifically, the arguments have centered around the contention that the Veteran is unemployable due solely to his service-connected psychiatric disorder and, therefore, that the Veteran's awarded TDIU could serve as the singe service-connected disability rated as 100 percent disabling for the purpose of 38 U.S.C.A. § 1114(s). Thus, any error in the content or timing of notice is nonprejudicial. The Board also concludes VA's duty to assist has been satisfied. The Veteran's VA and service treatment records are in the file. Private medical records identified by the Veteran have been obtained, to the extent possible. Furthermore, the Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). Pursuant to the Board's December 2012 remand, the Veteran was afforded a VA examination in January 2013 to address the likely effects of his service-connected psychiatric disorders on his capacity to hold substantial employment. The VA examination report is thorough and supported by outpatient treatment records. The examination discussed the clinical findings and the Veteran's reported history as necessary to answer the above query. The examination also discussed the impact of the disability on the Veteran's daily living. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disabilities since he was last examined. See 38 C.F.R. § 3.327(a) (2012). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. See VAOPGCPREC 11-95 (April 7, 1995). Based on the examination and the fact there is no rule as to how current an examination must be, the Board concludes the examination in this case is adequate upon which to base a decision. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In reaching that conclusion the Board has considered the February 2013 arguments of the Veteran's representative that the January 2013 VA examination report is inadequate. Specifically, the attorney argues that the examination report: (1) failed to provide an opinion "as to whether it is at least as likely as not.... That the Veteran's mental disorders... alone, without regard to his physical disorders, would make him unable to secure or follow a substantially gainful occupation" and, instead, "focused primarily on separating out symptoms of Traumatic Brian [sic] Injury and non-service-connected psychiatric disorders, which [the Veteran] does not have, from symptoms of his service-connected psychiatric disorder"; (2) did not indicate that the Veteran's claims file had been reviewed; and (3) provided no rationale for the opinion provided. The Board finds these arguments unpersuasive. As to the first argument, while the January 2013 VA examination report did include a notation that the Veteran did not have a Traumatic Brain Injury (TBI), this information was elicited as part of the standard Disability Benefits Questionnaire (DBQ) for Mental Disorders in an attempt to clarify the type and source of the Veteran's mental problems. These notations did not in any way affect the subsequent documentation of the Veteran's reported history and current symptoms or the opinion of the examiner with respect to the effect of the Veteran's service-connected psychiatric disorder on his ability to maintain employment. To that end, while the opinion provided by the January 2013 VA examiner did not use the specific language "at least as likely as not," the examiner clearly found that the Veteran's depression and panic disorder affected his ability to work, but did not "render him unable to secure or maintain substantially gainful employment." Thus, the first argument noted above from the Veteran's attorney is without merit. As to the attorney's second argument, namely that the January 2013 examiner did not review of the Veteran's claims file, this contention is clearly untrue. Under Section II, part 1. Evidence Review of the January 2013 VA examination report, the examiner clearly that "the claims file was reviewed." Thus, the second argument of the Veteran's attorney is without merit. As to the final argument advanced by the Veteran's attorney, that the January 2013 VA examiner provided no rationale for the expressed opinion, the Board does not find that the contention is supported by the evidence of record. In that regard, the January 2013 VA examination report documented the Veteran's reported social, marital, family, occupational, education, mental health, legal and behavioral, and substance abuse histories. In addition, the examination report discussed the Veteran's current symptoms, that included: depressed mood, anxiety, panic attacks, chronic sleep impairment, mild memory loss, disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and intermittent inability to perform activities of daily living. These symptoms resulted in occupational and social impairment with deficiencies in most areas, but the examiner concluded that the totality of these symptoms did not render the Veteran unable to secure or maintain substantially gainful employment. Although not stated as a "rationale" the examiner clearly used the Veteran's reported history and current symptoms as the basis and rationale for her expressed conclusions as to his ability to secure and maintain unemployment. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011) (holding that the Board may permissibly draw inferences from the medical evidence, including an overall reading of a VA examination report, as long as any inferences resulting in a medical determination are independent and cited); see also Acevedo v. Shinseki, 25 Vet. App. 286, 293-94 (2012) (holding that a VA examination report "must be read as a whole, and the Board is permitted to draw inferences based on the overall report so long as the inference does not result in a medical determination"); Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) ("although Mr. Monzingo correctly notes that the rationale provided by the examiner did not explicitly lay out the examiner's journey from the facts to a conclusion, his argument that this renders the examination inadequate is unpersuasive. Although the examiner's statement only noted that she applied her medical judgment to the evidence in military records, the medical report must be read as a whole"). Moreover, the examiner specifically referenced the Veteran's depression, low motivation, concentration problems, and irritability as bases for concluding that his symptoms resulted in considerable difficulty with respect to securing and maintaining employment, but that nevertheless his overall symptomatology picture did not render him unable to secure or maintain substantially gainful employment. Thus, the Board finds the January 2013 VA examination report to be adequate upon which to base decision in this case and that the arguments of the Veteran's representative are without merit. Based on the January 2013 VA examination report and the subsequent readjudication of the claim, the Board finds that there has been substantial compliance with its December 2012 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 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). SMC at the Housebound Rate SMC at the housebound rate may be paid if a Veteran has a single service-connected disability rated 100 percent and either: (1) has an additional service-connected disability or disabilities 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 a service-connected disability or disabilities. Permanently housebound means the Veteran is substantially confined, as a direct result of a service-connected disability or disabilities, to his dwelling or the immediate premises (or, if institutionalized, to the ward or clinical areas), and it is reasonably certain that the service-connected disability or disabilities and resultant confinement will continue throughout his lifetime. 38 U.S.C.A. § 1114(s) (West 2002); 38 C.F.R. § 3.350(i) (2012). In this case, the Veteran does not contend that he is permanently housebound as a result of his service-connected disabilities and there is no medical evidence of record demonstrating the same. Instead, the Veteran argues solely that he meets the requirements of a single service-connected disability rated as 100 percent disabling and that he also has additional service-connected disability or disabilities ratable at 60 percent disabling. In that regard, the Veteran currently is service-connected for depressive disorder with anxiety, rated as 70 percent disabling; low back strain due to degenerative disc disease, rated as 40 percent disabling; migraine headaches, rated as 30 percent disabling; residuals, fracture of right wrist, rated as 10 percent disabling; neurological residuals, right wrist surgical fixation with retained hardware, rated as 10 percent disabling; and residual, right shoulder dislocation, rated as noncompensably disabling. Thus, the Veteran does not have a single disability rated as 100 percent disabling. That said, the Veteran has a TDIU rating, effective from May 3, 2008. A TDIU rating may qualify as a total rating for purposes of 38 U.S.C.A. § 1114(s) where the TDIU is based solely on one service-connected disability. Bradley v. Peake, 22 Vet. App. 280, 292-93 (2008). Where TDIU is based on the effect of a combination of service-connected disabilities, SMC at the housebound rate is not warranted on this basis. Id at 293 (noting that 38 U.S.C.A. § 1114(s) "does not limit 'a service-connected disability rated as total' to only a schedular rating of 100%, and the Secretary's current regulation permits a TDIU rating based on a single disability to satisfy the statutory requirement of a total rating"). The Veteran contends that his service-connected depressive disorder with anxiety alone qualifies him for TDIU. The ratings for the Veteran's service-connected disabilities other than the mental disorders, if combined as VA combines ratings under 38 C.F.R. § 4.25, would combine to 70 percent. The Veteran's claim for SMC under 38 U.S.C.A. § 1114(s), therefore, depends on whether his depressive disorder with anxiety, by itself, warrants a TDIU. VA regulations allow for the assignment of a TDIU when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a) (2012). As such, the relevant question is whether the Veteran's depressive disorder with anxiety makes him unable to secure or follow a substantially gainful occupation. To that end, the Board remanded the Veteran's claim in December 2012 for a VA examination to consider whether the Veteran's service-connected psychiatric disorders rendered him unable to secure or maintain substantially gainful employment. As discussed above, the examiner reviewed the Veteran's claims file, interviewed the Veteran, discussed his relevant history and current symptoms, and based on the foregoing concluded that his depression and panic disorder resulted in "considerable difficulty" with respect to his employability (specifically noting the Veteran's depression, low motivation, concentration problems, and irritability), but did not "render him unable to secure or maintain substantially gainful employment." As discussed above, the Board does not find the arguments of the Veteran's representative as to the adequacy of the examination report persuasive. Rather, the examination report addressed the question of whether the Veteran's service-connected psychiatric disorders alone rendered him unable to secure and maintain employment. The conclusion was supported by a rationale that was not specifically stated in the conclusion section (other than noting some of the Veteran's symptoms that resulted in "considerable difficulty" finding and maintaining employment, but did not result in an inability to find or maintain employment), but in context the examiner's conclusions clearly were based on review of the claims file, interview of the Veteran, his current symptoms, and the other evidence of record. Based on the foregoing, the Board finds the January 2013 VA examination report of significant probative value. No other medical professional has provided an opinion as to the Veteran's service-connected psychiatric disorders alone preventing him from securing or maintaining employment. In that regard, although the Veteran had some periods of unemployment prior to the appellate time period he did maintain full time employment for an extended period that ended in approximately May 2008. At that time, the evidence of record indicates that the Veteran was laid off when the plant in which he was working closed. Statements of the Veteran and his former employer clearly establish that although the Veteran had difficulty interacting with some of his fellow employees, his employer accommodated the Veteran's difficulty by allowing him to make up any hours missed during his scheduled shift during his off hours. In that way, the Veteran was able to maintain full time employment until the closing of the factory. Subsequently, the Veteran has not worked. There is evidence that he went through a vocational rehabilitation program through the VA prior to his last stint of full time employment, but there is no evidence of record that the Veteran resumed enrollment in such a program after May 2008. Records do indicate that the Veteran attended school classes both prior and subsequent to May 2008, but VA treatment records from December 2008 indicated that he had been having a very difficult time and had flunked out of school the previous semester due to stress and anxiety. While these records establish that the Veteran has experienced difficulty in school due to his psychiatric problems, they do not establish that his psychiatric problems alone rendered him unable to secure and maintain substantially gainful employment. To the contrary, they suggest that the Veteran believed he was or would be employable if he could complete certain college coursework. The Veteran was afforded a VA examination in November 2008. At that time, he reported that he was not currently employed and had not worked since May 2008, when the factory in which he worked shut down. While working in the factory full time he denied having been written up on the job, but did report arguments with others at work and panic attacks that had caused problems with employment. He also reported that he had been attempting to complete an on-line degree in internet management for the previous 6 years. Memory and concentration problems had prevented him from completing the degree program. The November 2008 VA examination report did not provide an opinion on the effect of the Veteran's service-connected psychiatric disorders alone on his ability to secure or maintain substantially gainful employment. A June 2008 VA treatment record confirmed that the Veteran was having difficulty completing his college classes due to problems with concentration, focus, and motivation. VA records prior and subsequent to May 2008 show ongoing psychiatric symptomatology, but include no assessment of the Veteran's inability to secure and maintain substantially gainful employment due solely to his service-connected psychiatric disorders. The Board also finds it potentially significant that the evidence of record indicates that the Veteran owns multiple rental properties, which he manages. He has reported some difficulty in getting motivated to pay some related bills, make certain repairs, or rent out certain vacant properties, but the record generally indicates that he has maintained overall control of these rental properties. The Board also has considered the lay contentions of the Veteran, his representative, and his wife. In a February 2013 statement, the Veteran's representative contended that, "most veterans who have a 70-percent evaluation for a psychiatric disorder and are not working are found by VA to be individually unemployable. It is very difficult for a veteran with such severe psychiatric symptoms as [the Veteran] to maintain substantially gainful employment." The Veteran's wife provided a statement in December 2008, in which she discussed the Veteran's symptomatology, to include his inability to manage money, poor hygiene, memory problems, irritability, and lack of motivation. The Veteran has submitted statements discussing his symptoms, including low energy, lack of motivation, problems paying bills, suicidal ideation, memory problems, sleep problems, physical altercations, and other signs and symptoms of his psychiatric problems. With respect to these contentions, the Board acknowledges that the Veteran and other lay persons can attest to factual matters of which they have first-hand knowledge, such as ongoing psychiatric problems and symptoms, and their assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). In this case, however, given the complex nature of the Veteran's service-connected psychiatric disorders and any relationship with his current unemployment and ongoing employability, the Board affords far greater weight to the conclusions of the medical professional of record. In essence, although the Board recognizes that lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), given the above individuals' lack of demonstrated medical expertise and the complexity of concluding that the Veteran's service-connected psychiatric disorders alone render him unable to secure and maintain gainful employment, the Board concludes that the above lay persons' statements regarding any such conclusions are not competent evidence and are significantly outweighed by the January 2013 VA examiner's conclusions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Thus, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to SMC at the housebound rate; therefore, the benefit-of-the-doubt rule does not apply. The claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to SMC at the housebound rate is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs