Citation Nr: 1322374 Decision Date: 07/12/13 Archive Date: 07/18/13 DOCKET NO. 07-08 284 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an effective date prior to December 30, 2003, for the grant of a total disability rating based on individual unemployability (TDIU). 2. Entitlement to special monthly compensation based on the need for aid and attendance, or being housebound. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. M. Kirby, Counsel INTRODUCTION The Veteran served on active duty from December 1994 to December 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2005 and June 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran testified at an October 2009 hearing by the undersigned held sitting at the RO. This case was previously remanded by the Board in March 2010 and in January 2012 for further development, which has been completed. FINDINGS OF FACT 1. The competent evidence of record does not demonstrate that the Veteran's service-connected disabilities precluded her from securing and maintaining a substantially gainful occupation prior to December 30, 2003. 2. The evidence does not establish that the Veteran's service-connected disabilities require the aid and attendance of other person, or result in her being housebound, and none of the Veteran's service-connected disabilities renders the Veteran unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an effective date for a TDIU prior to December 30, 2003, have not been met. 38 U.S.C.A. §§ 1154(a), 5107(b) 5110 (West 2002); 38 C.F.R. § 3.400 (2012). 2. The criteria for special monthly compensation based on the need for the regular aid and attendance of another person or being housebound are not met. 38 U.S.C.A. § 1114 (West 2002); 38 C.F.R. §§ 3.350, 3.352 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has met all statutory and regulatory notice and duty to assist provisions. See 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 (2012). A November 2005 letter satisfied the duty to notify provisions, to include notifying the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records, VA medical treatment records, and identified private medical records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran's Social Security Administration (SSA) records were associated with the claims file in September 2010. 38 C.F.R. § 3.159 (c) (2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). The May 2012 VA opinions were adequate for rating purposes because they answered the questions posed on remand, reflected review of the evidence of record, and provided a complete rationale for the view stated. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which she presented oral argument in support of her claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c) (2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ noted that basis of the prior determinations and noted the elements of the claims that were lacking to substantiate the claims for benefits. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Moreover, neither the Veteran nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c) (2) nor has identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims and the Veteran, through her testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate her claims for benefits. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c) (2) and that the Board can adjudicate the claims based on the current record. The record does not indicate that additional evidence pertinent to the issues on appeal is available, but not associated with the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication VA did not provide sufficient notice or assistance, such that it reasonably affects the outcome of the case, the Board finds that any such lack of sufficient notice is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Earlier Effective Date Issue The Veteran seeks entitlement to an earlier effective date for the assignment of a TDIU rating. Specifically, she asserts that a TDIU rating was warranted effective February 2000 on the basis that her service-connected disabilities were so severe as to preclude her from securing and maintaining gainful employment as of that date. The effective date of an award of benefits based on an original claim, a claim after final allowance or a claim for an increase (including claims for TDIU) is either (1) the date of receipt of the claim or (2) the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2012). Claim is defined in the VA regulations as a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p) (2012). An informal claim is any communication or action indicating intent to apply for one or more benefits. 38 C.F.R. § 3.155(a) (2012). TDIU may be assigned when service connection is in effect for one disability rated as 60 percent or more, or two or more service-connected disabilities with at least one rated as 40 percent or more such that there is a combined rating of at least 70 percent. 38 C.F.R. § 4.16(a). In calculating whether a Veteran meets that schedular criteria, disabilities resulting from a single accident are considered one disability. The record must also show that the service-connected disability or disabilities alone result in such impairment of mind or body that the average person would be precluded from securing or following a substantially gainful occupation. 38 C.F.R. § 4.16(a). The United States Court of Appeals for Veterans Claims (Court) has held that a request for a total disability rating based on individual unemployability is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (per curiam). The Veteran filed an informal claim for increase that was received by VA on December 30, 2003. Her formal claim for TDIU was received on January 5, 2004. In its September 2004 rating decision, the RO denied entitlement to TDIU, but granted the benefit in its May 2005 rating decision, effective October 28, 2004. However, in its June 2009 rating decision, the RO granted an earlier effective date for TDIU back to the date of the Veteran's informal claim (December 30, 2003). The issue before the Board, then, is whether an effective date prior to December 30, 2003, is warranted. After review of the record, the Board finds that it is not. Although the issue of entitlement to TDIU was not addressed, the Board's October 2003 decision denied increased ratings for the Veteran's service-connected right and left foot metatarsal bunionectomy residuals, and denied greater than a 50 percent rating for her service-connected migraine headaches. Thus, the October 21, 2003 Board decision implicitly denied entitlement to TDIU as it granted less than a 100 percent rating for headaches under Diagnostic Code 8100 and denied entitlement to greater than the currently assigned 20 percent ratings for the Veteran's feet disabilities, which was less than the 30 percent maximum rating for foot injuries under Diagnostic Code 5283. See Locklear v. Shinseki, 24 Vet. App. 311, 316 (2011) (holding that the award of a disability rating less than 100 percent generally provides notice as to how VA has rated a claimant's condition and serves as a final decision with regard to entitlement to any higher disability rating associated with the underlying disability, including TDIU); 38 C.F.R. §§ 4.71a, 4.124a, Diagnostic Codes 5283, 8100. The Veteran has not alleged clear and unmistakable error in that Board decision, and although there is some suggestion in the record that the Veteran may have intended to appeal that decision, a thorough search of the Court's case docket did not return any evidence that an appeal was ever filed. Because the October 2003 Board decision has a preclusive effect, consideration of whether TDIU was warranted prior to October 21, 2003, Board decision is not required. Locklear. In addition, although in the March 2010 remand the Board instructed the RO to consider the Board's grant of service connection for lupus in readjudicating the claim. In a September 2010 rating decision implementing the Board's favorable determination, however, the RO assigned October 31, 2005, as the effective date of service connection. Review of the record shows that there are no documents that could constitute a formal or informal claim for TDIU dated after the October 2003 Board decision, but before the December 30, 2003, informal claim for increase. Thus, the Board finds that December 30, 2003 is the date of claim. To that end, evidence dated since that time does not establish that, for the period October 21, 2003, to December 29, 2003, that the Veteran was precluded from securing and maintaining substantially gainful employment. In addition to the VA treatment records associated with the claims file which do not establish that the Veteran was unemployable prior to December 30, 2003, two opinions also find that she was capable of gainful employment during that time. In a May 2012 letter, a VA examiner concluded that the Veteran's PTSD did not preclude her from gainful employment for the period prior to December 30, 2003, because the evidence does not reflect any impact of the Veteran's PTSD on her employability, to include the Veteran's own assertions at the October 2009 hearing at which she testified that she could not work due to other conditions. Similarly, another May 2012 VA opinion concluded that despite the Veteran's service-connected thrombocytopenia, migraine headaches, status post metatarsal left foot bunionectomy and right foot bunionectomy, hypothyroidism, and asthma disabilities, either alone or in the aggregate, she was able to secure or follow a substantially gainful occupation for the period prior to December 30, 2003, as long as she was not required to lift more than 25 pounds regularly or 50 pounds occasionally, and sit no more than 6 hours in an 8-hour workday. These opinions are supported by the evidence of record. Accordingly, with entitlement to TDIU not arising within the period October 21, 2003, to December 29, 2003, the proper effective date is the date of claim, December 30, 2003. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2012). The preponderance of the evidence is against the claim. There is no doubt to be resolved, and an effective date prior to December 30, 2003, for the award of TDIU is not warranted. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Special Monthly Compensation Issue Special monthly compensation is payable where a veteran has a service-connected disability or disabilities that render him or her so helpless as to be in need of the regular aid and attendance of another person. 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b) (3). A veteran will be considered to be in need of regular aid and attendance if he or she (1) is blind or so nearly blind as to have visual acuity of 5/200 or less in both eyes, contraction of visual field of vision to five degrees or less; (2) is a patient in a nursing home due to physical or mental incapacity; or (3) establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.350(a). 38 C.F.R. § 3.350(c). The following criteria are used to determine whether a claimant is in need of the regular aid and attendance of another person: the inability of the claimant to dress himself or herself or to keep himself or herself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliance which, by reason of the particular disability, cannot be done without aid; the inability of the claimant to feed himself or herself through the loss of coordination of the upper extremities or through extreme weakness; the inability to attend to the wants of nature; or, a physical or mental incapacity that requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352(a). In Turco v. Brown, 9 Vet. App. 222 (1996), the Court determined that it is not required that all of the conditions enumerated in the provisions of 38 C.F.R. § 3.352(a) be found to exist in order to establish entitlement to aid and assistance, but that at least one of the enumerated factors must be present. The Court added that the particular function the claimant is unable to perform must be considered in connection with his or her condition as a whole and that it is only necessary to establish that the claimant is in need of regular aid and attendance, not that there be a constant need. If the veteran does not qualify for increased benefits for aid and attendance, increased compensation benefits may still be payable if the 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 the veteran is substantially confined as a direct result of service-connected disabilities to his or 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 his or her lifetime. 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i). In this regard, the Court has held that VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993). This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement special monthly compensation (SMC) under 38 U.S.C.A § 1114. See Bradley v. Peake, 22 Vet. App. 280 (2008) (finding that SMC "benefits are to be accorded when a Veteran becomes eligible without need for a separate claim" and remanding, pursuant to VA's duty to maximize benefits, for VA to determine whether the Veteran's posttraumatic stress disorder, rated 70 percent disabling, would entitle him to a TDIU and, therefore, to SMC). Subsection 1114(s) 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. Under the law, 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. The Court has held that although a TDIU may satisfy the "rated as total" element of section 1114(s), a TDIU based on multiple underlying disabilities cannot satisfy the section 1114(s) requirement of "a service-connected disability" because that requirement must be met by a single disability. The Court declared, however, if a Veteran were awarded a TDIU based on multiple underlying disabilities and then later receives a schedular disability rating for a single, separate disability that would, by itself, create the basis for an award of a TDIU, that the order of the awards was not relevant to the inquiry as to whether any of the disabilities alone would render the Veteran unemployable and thus entitled to a TDIU rating based on that condition alone. Buie v. Shinseki, 24 Vet. App. 242, 250 (2010). Here, the evidence does not establish that the Veteran has a need for aid and attendance, or that she is housebound as a result of her service-connected disabilities. While the impact of her service-connected disabilities is evident, the evidence does not establish a disability picture consistent with a need for aid and attendance, or that the Veteran is housebound. The record is replete with conflicting instances where the Veteran is completing daily activities independently, while her clinicians are reporting that she is unable to do so. The Board finds that these inconsistencies do not lend credibility to the statements that the Veteran is in need of aid and attendance or that she is housebound, especially when she herself denies such a disability picture. Although the record contains letters from the Veteran's professors indicating that she missed classes due to her migraine attacks, her SSA Form 3368, submitted in conjunction with her claim for SSA benefits, reflects her report that she had been a full-time student and completed her undergraduate degree in June 2003. The July 2002 opinion letter from her treating VA physician indicated that the Veteran's headaches were debilitating and severe, and left her bedridden, but the other evidence dated at this time does not support the premise that the Veteran was confined to her home. Further, to the extent that this July 2002 opinion letter indicated that the Veteran's headaches caused her to need help with her children, the Board notes that this is not a factor in determining the need for aid and attendance; it is only whether the individual clamant needs assistance in completing activities of daily living and/or protecting him/herself from danger in the given environment. 38 C.F.R. § 3.352(a). Records dated between 2003 and 2005 from the University of North Carolina Hospital system do not reflect evidence that the Veteran is in need of aid and attendance or is housebound. A December 2005 record notes that the Veteran had intermittent headaches but that they were without visual loss, confusion, or dizziness. Records from that time through March 2006 show continued treatment for lupus flare-ups. Although these records also reflect emergency room level treatment for lupus flare-ups, including for thrombocytosis, and that the headaches infrequently were associated with vertigo, this does not reflect either that this put her at risk for injury, or that it required her to remain housebound. A February 2007 VA record notes that the Veteran refused to attend a VA examination scheduled for early in the morning because she was driving her children to school; she requested that it be rescheduled; between September 2007 and November 2007, the Veteran attended weekly behavioral health group therapy sessions. This evidence establishes that the Veteran is still able to drive her vehicle and routinely leave her home safely to attend VA outpatient visits. While later records into 2010 reflect that the Veteran had requested shuttle service for periodic episodes of her migraines where her vision was affected, this appears to be the result of her being unwilling to drive a car, not that she was unable to navigate her home or protect herself from danger; indeed, she admitted in a March 2008 VA record noted that the Veteran had difficulty with night vision but denied having problem with navigating in a dim restaurant or at her home. Additionally, the March 2007 VA examination report noted that the Veteran went to school until 2003; while she sustained a severe knee injury in September 2003 and started having lupus symptoms in 2004, both of which precluded her from working, the lupus did not affect feeding, dressing, grooming, or toileting, only mildly affected bathing and moderately affected shopping, chores, exercise. Here, for special monthly compensation to be warranted, the evidence would have to establish that the Veteran was precluded from dressing, grooming, or toileting, and/or be unable to leave her home to complete routine shopping tasks. Similarly, a November 2007 VA record noted that that she was able to function independently with no recent falls. Further, an April 2008 VA opinion reflects that the Veteran could, without the assistance of another person, walk, leave her home, feed herself, toilet, dress, and handle her funds; however, if the Veteran was having a lupus flare, she could not walk without assistance and would stay in bed 8-12 hours per day. While two April 2008 notes indicated that the Veteran's headaches and weakness resulted in multiple days in bed which precluded her from taking care of her children, again, the focus of a special monthly compensation claim is on the claimant's independence in completing activities of daily living, not whether it impairs the claimant's abilities to care for others. Indeed, one of those notes indicated that while the Veteran spent time in bed, which ma[de] it hard to care for her kids," it also noted that "she manages." At a September 2008 VA visits, the Veteran denied being bed or wheelchair bound, or requiring assistance to transfer or change positions; November 2008 records noted that she was able to function independently with no recent falls in records. Comparison of records dated in December 2008 continues to reflect inconsistencies. Although December 2008 records noted that the Veteran's migraines forced her to spend much time in bed and is not able to perform normal activities of daily living, a January 2009 record noted that the Veteran was ambulatory but requested shuttle service to future appointments because there were times during lupus flare-ups where it was difficult for her to drive; the clinician noted that the Veteran was independent of all activities of daily living, did not require any assistive devices to include for transfers, drives a car regularly, and is the primary caregiver for her children. Similarly, a May 2010 VA record noted that while the Veteran had not worked since 2000 due to fatigue, headaches and medication side effects, she was independent in activities of daily living, does in-home chores, drives, and goes grocery shopping. Further, while stating at a September 2010 VA visit that her symptoms from her lupus and abdominal pain combined had become debilitating, September 2010, and October 2010 reflect her denial that she was bed- or wheelchair-bound or required assistance to transfer or change positions. These records noted her report that she was able to function independently with no recent falls, was the primary caregiver for her son who was in receipt of VA benefits as a disabled child, was ambulatory, and felt safe in her environment. Further, following the Board's January 2012 remand, the preponderance of the evidence is against a finding that any single service-connected disability alone renders the Veteran unable to secure or follow a substantially gainful occupation. In support of this determination the Board notes the evidence discussed above as well as the findings and conclusions set forth in the April 2012 VA examination reports. See Buie; Bradley. Ultimately, the Board finds that while the Veteran's migraine and lupus symptoms clearly result in occupational impairment, that impairment does not rise to the level that the Veteran requires assistance to complete activities of daily living or to protect herself from the dangers of her environment. The record also does not establish that as a result of her service-connected disabilities, the Veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises. Further, the preponderance of the evidence is against a finding that any of the Veteran's service-connected disability alone renders her unable to secure or follow a substantially gainful occupation. Thus, because the preponderance of the evidence is against the claim, special monthly compensation based on the need for aid and attendance or on being housebound must be denied. ORDER An effective date for TDIU prior to December 30, 2003, is denied. Special monthly compensation based on the need for aid and attendance or being housebound is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs