Citation Nr: 1329863 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 11-05 254 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to a higher level of special monthly compensation (SMC) based on the statutory rates payable under the provisions of 38 C.F.R. § 3.350 and 38 U.S.C.§ 1114(l) through (n) plus having an additional independent service-connected disability rated as 50 percent or more disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and D.M. ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from August 1966 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) from a March 2010 decisional letter and a June 2010 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Philadelphia, Pennsylvania. In October 2011, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. FINDINGS OF FACT 1. The Veteran is service-connected for bilateral peripheral neuropathy of the upper extremities, posttraumatic stress disorder, diabetes, bilateral peripheral neuropathy of the lower extremities, dermatitis, shell fragment wounds of the left elbow and knees, erectile dysfunction, hypertension, limitation of extension of the right knee, limitation of extension of the left knee, and bilateral knee posttraumatic arthritis. 2. The Veteran is in receipt of SMC at the "k" rate for loss of a creative organ, and SMC at the "s" rate on account of PTSD rated as 100 percent disabling and additional service-connected disabilities of peripheral neuropathy of the extremities and diabetes, independently ratable at 60 percent or more from February 6, 2007. 3. There has been no demonstration by competent medical evidence, or competent and credible lay evidence, that the Veteran has the anatomical loss or loss of use of both feet or one hand and one foot, blindness in both eyes, is permanently bedridden, is in need of regular aid or attendance, or has the anatomical loss or loss of use of both hands, both legs, one arm and one leg, both arms, or both eyes. CONCLUSION OF LAW The criteria for a higher level of special monthly compensation (SMC) have not been met. 38 U.S.C.A. §§ 1114, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.350, 3.352(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided to the Veteran in January 2010. VA also has a duty to assist the Veteran in the development of the claim. The claims file contains VA and private medical records, and the statements of the Veteran in support of his claim. The Board has considered the statements and perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim for which VA has a duty to obtain. The Board further finds that a VA examination and/or opinion is not warranted. The Veteran's contention is that, based on his disability ratings, he is entitled to a higher level of SMC. Thus, the issue is one of statutory interpretation. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim. Essentially, all available evidence that could substantiate the claim has been obtained. Legal Criteria Special monthly compensation (SMC) at the level or rate of "s" is payable where 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). Additional levels of SMC are provided in sections 1114(l), (m), (n), and (o), which state, in pertinent part: (l) if the veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both feet, or of one hand and one foot, or is blind in both eyes, with 5/200 visual acuity or less, or is permanently bedridden or with such significant disabilities as to be in need of regular aid and attendance, the monthly compensation shall be $3,075; (m) if the veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both hands, or of both legs at a level, or with complications, preventing natural knee action with prosthesis in place, or of one arm and one leg ..., or has suffered blindness in both eyes having only light perception, or has suffered blindness in both eyes, rendering such veteran so significantly disabled as to be in need of regular aid and attendance, the monthly compensation shall be $3,392; (n) if the veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both arms at levels, or with complications, preventing natural elbow action with prosthesis in place, has suffered the anatomical loss of both legs so near the hip as to prevent the use of prosthetic appliances, or has suffered the anatomical loss of one arm and one leg ..., or has suffered anatomical loss of both eyes, or has suffered blindness without light perception in both eyes, the monthly compensation shall be $3,860; (o) if the veteran, as the result of service-connected disability, has suffered disability under conditions which would entitle such veteran to two or more of the rates provided in one or more subsections ( l ) through (n) of this section, no condition being considered twice in the determination, ... the monthly compensation shall be $4,313. In sum, subsections (l) through (n) provide progressively increased rates of SMC based on the severity of the veteran's disability. Subsection (o) provides for an even higher rate of SMC for veterans who are entitled to two or more of the rates provided under one or more subsections (l) through (n). Subsection (p) provides for half- or full-step increases to the next higher rate in subsections (l) through (n) for a veteran whose condition exceeds the requirements of his current rate, but does not qualify for the next higher rate. 38 U.S.C. § 1114(p). Finally, if a veteran is entitled to compensation authorized under subsection (o), and is in need of regular aid and attendance, then in addition to compensation available under subsection (o), he is entitled to receive an additional "aid and attendance allowance" under section 1114(r)(1) and (2). Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence pertinent to the claim on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the U.S. Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The basic facts of this claim are not in dispute. In an August 2007 rating decision, the RO increased the Veteran's evaluations for his service-connected disabilities of peripheral neuropathy of the left upper extremity and right upper extremity from 10 percent disabling to 20 percent disabling, effective from February 6, 2007. At the time of the rating decision, the Veteran was service connected for posttraumatic stress disorder (PTSD) evaluated as 100 percent disabling from May 1995, diabetes evaluated as 20 percent disabling from May 2001, peripheral neuropathy of the lower right extremity evaluated as 10 percent disabling from October 2008, peripheral neuropathy of the left lower extremity evaluated as 10 percent disabling from October 2005, dermatitis evaluated as noncompensable, shell fragment wounds of the left elbow and knees evaluated as noncompensable, erectile dysfunction evaluated as noncompensable, and hypertension evaluated as noncompensable. The combined rating was 100 percent from May 18, 1995. The Veteran was also in receipt of SMC at the "k" level for loss of a creative organ, and SMC at the "s" level on account of PTSD rated as 100 percent disabling and additional service-connected disabilities of peripheral neuropathy of the extremities and diabetes, independently ratable at 60 percent or more from February 6, 2007. In a November 2008 rating decision, the RO granted service connection for tinnitus, evaluated as 10 percent disabling, and granted a corrected effective date of December 5, 2005 for the grant of service connection for hypertension, which was evaluated as 10 percent disabling from July 11, 2007. In a December 2009 rating decision, the RO granted service connection for limitation of extension of the right knee, evaluated as 40 percent disabling effective from October 5, 2009, and limitation of extension of the left knee evaluated as 40 percent disabling effective from October 5, 2009. The RO also granted an increased rating from 10 percent to 20 percent for both right knee posttraumatic arthritis and left knee posttraumatic arthritis, and an increase from 10 percent to 20 percent for both peripheral neuropathies of the right and left lower extremity. Subsequent to the December 2009 rating decision, the Veteran submitted the following request: an additional special monthly compensation under 38 C.F.R. § 3.350 for my additional service connections which was [sic] recently adjudicated in my favor. I am currently rated at 100 percent for PTSD and was rated in 1995. Recently I was awarded 40 % for each knee dated 17 dec. 2009. Also, note I have 20% for each knee, and 20% for peripheral neuropathy for each lower extremity. I also have 10% for hypertension since 7-07. Finally, I was awarded 10 % for tinnitus effective 2-06. All these are new service connections and total well over the 60% I need for SMR [sic]. So I'm asking for an additional SMC as per 38 C.F.R. § 3.350, over and above the 100% SCD for PTSD and the current 60% SCD rating for SMC. I'm currently rated at 160% SCD. I ask this be retroactive to the earliest effective date possible, such a when I was awarded these above listed new SCD. In a February 2011 statement, the Veteran stated that "VA's continued reference to 38 U.S.C.§ 1114 (s) has confused this claim, which is found in C.F.R., Title 38, 3.350 section starting with, '(i) Total plus 60 percent or housebound; 38 U.S.C. 1114 (s) . . . .' This is not claimed by me and should not be used in my claim." The Board has considered the Veteran's contentions but finds that additional compensation under SMC is not warranted. SMC is an additional level of compensation to Veterans above the basic levels of compensation for various types of losses or levels of impairment solely due to service-connected disabilities. It reflects recognition by VA that certain disabilities, either alone or in combination, have an impact on a Veteran beyond the impairment of earning capacity which is central to the Rating Schedule. 38 C.F.R. § 4.1. Because it considers the synergistic effects of multiple disabilities, a determination of the correct SMC award level requires layering of different entitlements. In the case of the Veteran, the RO, in its August 2007 rating decision, determined that he had established entitlement to SMC at the (s) level under 38 U.S.C.A. § 1114. The Board acknowledges the Veteran's statement, noted above, that SMC (s) is not claimed by him and should not be used in his claim. However, that is the applicable level at which he is in receipt of SMC. SMC at the (s) level is referred to as "housebound". There are two different ways to assign SMC(s): statutory housebound and housebound in fact. Statutory housebound is warranted where there is at least a single 100 percent rating, and separate and distinct disabilities independently ratable at 60 percent. In this Veteran's case, he has a 100 percent rating for PTSD, and multiple peripheral neuropathies which combine for at least an additional 60 percent. Thus, the SMC (s) level is warranted. The Board acknowledges that the Veteran is not "housebound" in fact; however, he is entitled to the "housebound" level of SMC due to the statutory level of his disabilities. The Veteran contends that, under 38 C.F.R. § 3.350(f), he should be entitled to another separate SMC rating for his disabilities other than the PTSD, peripheral neuropathies, and diabetes. He asserts that under 38 C.F.R. § 3.350(f)(3), his disabilities of limitation of extension of the right knee, limitation of extension of the left knee, arthritis of the right knee, arthritis of the left knee, tinnitus, and hypertension warrant an additional level of SMC. 38 C.F.R. § 3.350(f)(3) is inapplicable to the Veteran. 38 C.F.R. § 3.350(f) governs application of 38 U.S.C.A. §1114(p), which provides for a "bump up", or increase, in rates assigned. Under 38 C.F.R. § 3.350 (f)(3), in addition to the statutory rates payable under 38 U.S.C.§§ 1114 (l) through (n) and the intermediate or next higher rate provides outlined in 38 C.F.R. § 3.350, additional single permanent disability or combinations of permanent disabilities independently ratable at 50 percent or more will afford entitlement to the next higher intermediate rate or if already entitled to an intermediate rate to the next higher statutory rate under 38 U.S.C.§ 1114, but not above the (o) rate. In the application of this subparagraph the disability or disabilities independently ratable at 50 percent or more must be separate and distinct and involve different anatomical segments or bodily systems from the conditions establishing entitlement under 38 U.S.C.§ 1114(l) through (n) or the intermittent rate provisions. In order to warrant a "bump- up" or increase under 38 C.F.R. § 3.350(f)(3), the evidence would have to reflect that the Veteran had a disability at a level (l) through (n). In the present case, the Veteran does not have a service-connected disability that triggers entitlement to a (l) through (n) level of SMC. He does not have the anatomical loss or loss of use of both feet or one hand and one foot, blindness in both eyes, or the anatomical loss or loss of use of both hands, both legs, one arm and one leg, both arms, or both eyes. While he may have disabilities of the extremities, they have not been shown to be so severe as to constitute a loss of use such that the extremity function would be no better than if the extremity were amputated and replaced by a suitable prosthesis. Moreover, he is not permanently bedridden or in need of regular aid or attendance. (The record reflects that he has use of all his extremities and walks with the aid of knee braces.) The Board also notes that the Veteran's peripheral neuropathy of the lower limbs, which is considered in his SMC at the (s) level is part of the same anatomical segments of the body as his right and left knee arthritis and extension limitation. The statutes and regulations use hand/foot and arm/leg to distinguish levels of impairment of an extremity, not independent disabilities. Thus, the Veteran is already compensated for his lower extremity disabilities at an SMC rate. Finally, the Board notes that the regulations do not provide for more than one SMC level of "s" or "l through n". A veteran may be eligible for more than one SMC at the "k" level if he meets the criteria for that condition; however, the Veteran, in this case, does not meet the criteria for a "k" level other than his erectile dysfunction. (i.e. he does not have anatomical loss or loss of use of foot, hand, both buttocks, blindness in one eye, deafness in both ears, complete organic aphonia, loss of 25 percent or more of the tissue from a single breast or both breasts in combination, or breast tissue subjected to radiation treatment.) In addition, if a veteran, as the result of service-connected disability, has suffered disability under conditions which would entitle such veteran to two or more of the rates provided in one or more subsections (l) through (n) with no condition being considered twice in the determination, the veteran may be entitled to SMC at the "o" level. However, as noted above, in this case, the Veteran does not have a condition which would entitle him to SMC at the (l) through (n) level. In sum, the Veteran is not entitled to an increased SMC level under 38 C.F.R. § 3.350(f)(3) because he does not meet the prerequisite levels of 38 U.S.C. § 1114(l)-(n). The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2013), but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to a higher level of special monthly compensation (SMC) based on the statutory rates payable under the provisions of 38 C.F.R. § 3.350 and 38 U.S.C.§ 1114(l) through (n) plus an additional independent service-connected disability rated as 50 percent or more disabling, is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs