Citation Nr: 1327767 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 08-34 170 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to special monthly compensation (SMC) on account of being housebound. ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran served on active duty from November 1968 to November 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. In January 2013, the Board remanded the claim for additional development. The Board notes that, while the Veteran previously was represented by Darla J. Lilley, Attorney, in June 2013 Ms. Lilley revoked the power of attorney by way of a letter sent to VA and the Veteran. As the Veteran has not obtained another representative, the Board now recognizes the Veteran as proceeding pro se in this appeal. 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 appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Unfortunately the Board finds that further RO action on the claim on appeal is warranted, even though such will, regrettably, further delay an appellate decision on the matter on appeal. A veteran may receive housebound-rate special monthly compensation if he or she has a service-connected disability rated as permanent and total and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) by reason of disability or disabilities, is permanently housebound but does not qualify for special monthly pension at the aid and attendance rate. 38 U.S.C.A. § 1114(s) (West 2002); 38 C.F.R. § 3.350(i) (2012). A veteran will be determined to be permanently housebound when he or she is substantially confined to the house (or ward or clinical areas, if institutionalized) or immediate premises due to disability or disabilities which it is reasonably certain will remain throughout his or her lifetime. 38 U.S.C.A. § 1502(c) (West 2002); 38 C.F.R. § 3.351(d)(2) (2012). In this case, service connection has been awarded for posttraumatic stress disorder (PTSD) (rated as 100 percent disabling), and residuals of a fractured nose (rated as noncompensably disabling). The Veteran is also receiving compensation under the provisions of 38 U.S.C.A. § 1151 for arachnoiditis (rated as 60 percent disabling), left leg radiculopathy (rated as 40 percent disabling), and right leg radiculopathy (rated as 30 percent disabling). In denying the Veteran SMC at the housebound rate, the RO acknowledged that the Veteran had a service-connected disability rated as 100 percent disabling (namely, PTSD). However, the RO stated that the Veteran did not have additional service connected disabilities that were independently rated as 60 percent disabling, as the majority of the Veteran's other disabilities had been awarded compensation under the auspices of 38 U.S.C.A. § 1151, and were thus not "service connected." In support of this premise, the RO included in the claims file a computer screen printout which reads, in pertinent part: NOTE: "As if" service connection under 38 U.S.C. 1151 establishes entitlement to compensation only, not to service-connection or ancillary benefits other than Specially Adapted Housing and Automobile and Adaptive Equipment, which was effective on December 10, 2004. The original source of the material on the computer screen printout is unclear. It does not appear to have come from the VA Adjudication Procedure Manual, M21-1 Manual Rewrite (M21-1MR) or from a General Counsel Precedential Opinion. Indeed, case law from the Federal Circuit suggests that an award of benefits under 38 U.S.C.A. § 1151 qualifies a veteran to consideration of special monthly compensation on account of being housebound, as both benefits pertain to compensation awarded under the auspices of 38 U.S.C.A. Title 38, Part II, Chapter 11. See Kilpatrick v. Principi, 327 F.3d 1375 (Fed. Cir. 2003); Alleman v. Principi, 349 F.3d 1368 (Fed. Cir. 2003). Consequently, on remand, the RO or the AMC should clarify the source of the computer screen print which apparently formed a basis of the denial of the claim. The Board further notes that in addition to the aforementioned disabilities, the Veteran has numerous non-service-connected disabilities, such as multiple transitional ischemic attacks and melanoma. Further analysis and development is needed to assess the separate effects of the Veteran's service-connected and nonservice-connected disabilities in determining entitlement to SMC. The question of whether service-connected disabilities alone render the Veteran housebound must therefore be addressed in a VA examination. The Board further notes that to this point, the Veteran has not been afforded a VA examination in connection with his claim for SMC on the basis of being housebound. 38 C.F.R. § 3.159(c)(4) (2012). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO or the AMC should identify the source of the computer screen printout referenced above. The hard copy of the printout is currently located in Volume 8 of the claims file and is marked with a white tab labeled "Computer Screen Printout." 2. Then, with consideration of the Federal Circuit's decisions in Kilpatrick, supra, and Alleman, supra, the RO or the AMC should identify which of the Veteran's disabilities should be considered as "service connected" for the purpose of establishing SMC on the basis of being housebound. 3. After completion of the above, the Veteran should also be afforded a VA medical examination, with an appropriate examiner, to determine whether his service-connected disorders render him housebound. The examiner is requested to cite to the appropriate documentation of record in noting which disorders are service connected. In this regard, attention should be directed to the Veteran's service-connected disorders (PTSD and any other disorders which may be considered to be "service connected" through the aforementioned development). All tests and studies deemed necessary by the examiner should be performed. The examiner is requested to provide an opinion as to whether the Veteran's service-connected disabilities alone cause him to be housebound. A complete rationale should be given for all opinions and conclusions expressed in a typewritten report. 4. After completion of the above development, the Veteran's claim should be readjudicated. If the determination of the claim remains adverse to the Veteran, he should be furnished with a Supplemental Statement of the Case and given an opportunity to respond. The appellant 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). This claim must be afforded expeditious treatment. 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). _________________________________________________ N. RIPPEL Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).