Citation Nr: 1805152 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 09-19 037A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a higher level of special monthly compensation (SMC) than the rate under 38 U.S.C. § 1114(l). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Postek, Counsel INTRODUCTION The Veteran served on active duty from June 1967 to April 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In that decision, the RO effectuated a prior Board decision granting a total (100 percent) evaluation for service-connected bilateral eye retinitis pigmentosa effective from February 24, 2003, and granted SMC for bilateral eye blindness under 38 U.S.C. § 1114(l) (L level) effective from the same date. The Veteran appealed the level of SMC assigned. The Board remanded the case for further development in July 2013, September 2015, and April 2017. That development was completed, and the case has since been returned to the Board for appellate review. This appeal was processed using the Veterans Benefits Management System (VBMS). FINDING OF FACT The Veteran's service-connected bilateral eye retinitis pigmentosa has been productive of blindness in both eyes with the equivalent of 5/200 visual acuity, but not blindness having only light perception or blindness having no light perception in either eye, or anatomical loss of either eye. His bilateral eye disability has not rendered him so helpless as to be in need of regular aid and attendance. CONCLUSION OF LAW The criteria for a higher level of SMC than the rate under 38 U.S.C. § 1114(l) have not been met. 38 U.S.C. § 1114 (2012); 38 C.F.R. §§ 3.350, 3.352 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Initially, the Board finds that VA's duty to notify has been met. In the July 2013 remand, the Board found that the AOJ had not provided the Veteran with notice of the evidence necessary to substantiate the claim and of the division of responsibilities in obtaining such evidence. The AOJ sent an adequate notice letter later that same month and subsequently readjudicated the claim in multiple supplemental statements of the case. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (noting that VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating the claim and notifying claimant of such readjudication in the statement of the case). The Veteran has also demonstrated actual knowledge of this information based on the content of his submissions during the course of the claim. The Board also finds that VA's duty to assist has been met as to obtaining post-service treatment records. The VA treatment records show that the Veteran has received non-VA treatment. The Agency of Original Jurisdiction (AOJ) sent letters in July 2013, March 2016, and May 2017 in response to the Board's remands requesting that the Veteran identify and provide authorization forms for any non-VA treatment. The Veteran submitted a release for one non-VA treatment provider, and the AOJ obtained those treatment records. He has not otherwise identified or authorized VA to obtain any outstanding records pertinent to the claim decided herein. Therefore, all identified and available post-service medical records have been obtained in relation to this claim. Finally, the Board finds that VA's duty to assist has been met as to obtaining a VA examination or medical opinion. In the October 2017 written brief, the Veteran's representative asserted that an additional VA aid and attendance examination is necessary to determine the current severity of the bilateral eye disability and how it impacts the Veteran's activities of daily living. The need for a more contemporaneous examination occurs when the evidence indicates that the current rating may be incorrect or when the evidence indicates that there has been a material change in the disability. See 38 C.F.R. § 3.327(a) (2017); Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. The Board acknowledges the representative's argument on the Veteran's behalf, as well as the Veteran's contentions during the course of his claim that the disability is progressive in nature and continually worsening (see, e.g., July 2017 VA examination report); however, he has been provided multiple VA examinations that contain his reported effects, including the most recent July 2017 VA examination. The record also contains VA and non-VA treatment records (including visual impairment services and blind rehabilitation notes) and a VA vocational rehabilitation folder that reflects the severity of the disability and the Veteran's reported effects. The record does not suggest, nor does the Veteran contend, that he now has light perception only or that either eye has been removed. See, e.g., July 2017 VA treatment record (most recent VA eye appointment). Based on the foregoing, there is adequate medical evidence of record to decide the case. Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Law and Analysis SMC is available when, as the result of service-connected disability, a veteran suffers additional hardships above and beyond those contemplated by VA's Schedule for Rating Disabilities. 38 U.S.C. § 1114 (2012); 38 C.F.R. §§ 3.350, 3.352 (2017); see also VAOPGCPREC 5-89 (Mar. 23, 1989) (explaining that SMC is a supplementary statutory benefit based on noneconomic factors such as personal inconvenience, social inadaptability, or the profound nature of a disability). The rate of SMC varies according to the nature of the veteran's service-connected disabilities. Basic levels of SMC are listed at 38 U.S.C. § 1114(k). Higher levels of SMC are provided at 38 U.S.C. § 1114(l), (m), (n), (o), and (r). SMC is payable in addition to the basic rate of compensation otherwise payable for the degree of disability. The Veteran is service-connected for bilateral eye retinitis pigmentosa, evaluated as 100 percent disabling effective from February 24, 2003, which is the date of the claim for an increased evaluation. He has also been awarded SMC at the L level (38 U.S.C. § 1114(1)) based on his constricted visual field effective from that same date. See January 2008 Board decision and February 2008 rating decision. He is not service-connected for any other disabilities. SMC at the L level is payable when a veteran, due to service-connected disability, has anatomical loss or loss of use of both feet, or one hand and one foot; has blindness in both eyes with visual acuity of 5/200 or less; is permanently bedridden; or, is so helpless as to be in need of regular aid and attendance. Concentric contraction of the field of vision beyond 5 degrees in both eyes is the equivalent of 5/200 visual acuity. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). SMC at the M level is payable when a veteran, as a result of service-connected disability, has anatomical loss or loss of use of both hands; anatomical loss or loss of use of both legs at a level, or with complications, preventing natural knee action with prosthesis in place; anatomical loss or loss of use of one arm and one leg at a level, or with complications, preventing natural elbow and knee action with prosthesis in place; has blindness in both eyes having only light perception; or, has blindness in both eyes leaving the veteran so helpless as to be in need of regular aid and attendance. With visual acuity of 5/200 or less or the vision field reduced to 5 degrees of concentric contraction in both eyes, entitlement on account of the need for regular aid and attendance will be determined on the facts in the individual case. 38 U.S.C. § 1114(m); 38 C.F.R. § 3.350(c). Loss of use or blindness of one eye, having only light perception, will be held to exist when there is inability to recognize test letters at 1 foot and when further examination of the eye reveals that perception of objects, hand movements, or counting fingers cannot be accomplished at 3 feet. Lesser extents of vision, particularly perception of objects, hand movements, or counting fingers at distances less than 3 feet is considered of negligible utility. 38 C.F.R. § 3.350(a)(4). SMC at the N level is payable when a veteran, as the result of service-connected disability, has anatomical loss or loss of use of both arms at a level, or with complications, preventing natural elbow action with prosthesis in place; has anatomical loss of both legs so near the hip as to prevent the use of a prosthetic appliance; has anatomical loss of one arm so near the shoulder and one leg so near the hip as to prevent the use of a prosthetic appliance; has the anatomical loss of both eyes; or, has blindness having no light perception in both eyes. 38 U.S.C. § 1114(n); 38 C.F.R. § 3.350(d). SMC at the O level is payable when a veteran, as the result of service-connected disability, has the anatomical loss of both arms so near the shoulder as to prevent the use of a prosthetic appliance; certain combinations of service-connected blindness and deafness; paraplegia with loss of bowel and bladder control; or, when the veteran is entitled to two or more rates under 38 U.S.C. § 1114(1)-(n), no condition being considered twice. There are whole and intermediate (half) steps of increased SMC between the different subsections based on anatomical loss or loss of use of extremities, certain bilateral eye loss of vision (requiring, at a minimum, one eye having light perception only), and blindness in connection with deafness and/or loss or loss of use of a hand or foot, as well as for the presence of additional disabilities not involved in prior SMC determinations. 38 U.S.C. § 1114(p); 38 C.F.R. § 3.350(f). There are also higher levels of SMC based on special aid and attendance (R-1) and a higher level of special aid and attendance (R-2), both of which require a threshold requirement of entitlement to SMC at the O level or at the N 1/2 plus K levels. 38 U.S.C. § 1114(r); 38 C.F.R. §§ 3.350(h), 3.352. The following will be accorded consideration in determining the need for regular aid and attendance: inability of a claimant to dress or undress him or herself, or to keep him or herself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of a claimant to feed him or 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 a claimant from hazards or dangers incident to his or her daily environment. "Bedridden" will be a proper basis for the determination. For the purpose of this paragraph bedridden will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. It is not required that all of the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made. The particular personal functions which the veteran is unable to perform should be considered in connection with his or her condition as a whole. It is only necessary that the evidence establish that the veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that the veteran is so helpless, as to be in need of regular aid and attendance, will not be based solely upon an opinion that the claimant's condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352(a); see also Turco v. Brown, 9 Vet. App. 222, 224 (1996) (providing that eligibility for SMC by reason of regular need for aid and attendance requires that at least one of the factors set forth in VA regulation is met, but not all). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that a higher level of SMC than the rate permitted under 38 U.S.C. § 1114(l) is not warranted. The Veteran has contended that he is entitled to SMC at the M level because his blindness renders him so significantly disabled as to be in need of regular aid and attendance. Specifically, he has requested that he receive that higher level of SMC effective from June 2005, when he was no longer able to drive, or alternatively, from November 2006, when he was granted Special Transportation Service (STS) status. He has indicated that, without the help of his co-workers and STS, he would not be able to protect himself from the hazards and dangers of his daily environment. See, e.g., July 2008 notice of disagreement with copy of STS card issued in November 2006; June 2009 substantive appeal; October 2013 written statement. Initially, the record shows that the Veteran has been determined to be legally blind from constricted visual fields as a result of his bilateral eye retinitis pigmentosa. The record does not show, nor does the Veteran contend that he has blindness having only light perception or blindness having no light perception in either eye, or anatomical loss of either eye. See, e.g., March 2006 STS application; January 2008 Board decision; July 2008 VA Rehabilitation Needs Inventory form (Veteran reported that he was happy that he still had some sight left); September 2013 VA examination report and June 2016 clarifying opinion as to visual field testing; December 2014 private treatment record; July 2017 VA treatment record. Therefore, entitlement to SMC at the M level cannot be established on the basis of blindness in both eyes having only light perception. Regarding the factors for consideration as to the need for regular aid and attendance, the Veteran has not been shown to be unable to: dress or undress himself; keep himself ordinarily clean and presentable; feed himself; or, attend to the wants of nature, nor has he become bedridden as the result of his bilateral eye disability. For example, the VA aid and attendance/housebound examinations show that the Veteran is able to perform all functions of self-care. He is able to prepare and eat his own meals, bathe and dress himself, and has not become permanently bedridden. He has remained able to get himself ready for full-time work as a supervisory administrative law judge (a position that he started in June 2005 after working as a private sector attorney), going outside his residence to meet his regular STS transportation provider in the morning, and again in the evening after work to be taken home. See VA examination reports from April 2009, September 2013, November 2015, and July 2017. The VA treatment records also reflect this level of functionality as to his daily self-care. See, e.g., VA treatment records from January 2009 and July 2015 (noting that Veteran appeared to be independent in all activities of daily living; July 2015 record based on annual visual impairment services review); February 2013 (blind rehabilitation note following 1.5 hour assessment) and May 2016 (visual impairment services review). The reviews and blind rehabilitation treatment records contain detailed reports from the Veteran as to his abilities in multiple areas. The May 2016 review shows that the Veteran had accepted his visual impairment, tried to be as independent as possible, and was motivated to learn new skills. It was also noted that he felt that he was able to meet his personal needs at that time. In addition, the record shows that the Veteran has been able to care for himself at his home in Florida, as he reported that his roommate provides limited support in the few evenings he is present. See July 2008 notice of disagreement. The Board acknowledges the February 2008 written statement from J.P. (the Veteran's secretary from 2000 to 2005) in which she reported that he would occasionally come to work with his shirt buttoned incorrectly or something similar, as well as the March 2008 written statement from B.G. (the Veteran's paralegal) in which she reported that the Veteran would sometimes have food or spilled coffee on his shirt. Nevertheless, the record does not suggest that the Veteran was unable to keep himself ordinarily clean and presentable aside from these occasional incidents. For example, the Veteran reported during the February 2013 VA blind rehabilitation appointment that he had no difficulty with shaving and used a disposable razor, independently trimmed his fingernails and toenails, and did his own laundry. During the May 2016 VA visual impairment services review, he was noted to be able to perform personal grooming, general hygiene, and shaving independently, and he was able to choose his own clothes. It was noted that his clothing care was done only with assistance and that he had a paid helper for laundry and for regular household chores; however, it was also noted that he could perform the cleaning and the laundry if he wanted to, but that he felt that he did not have the time to do so with his full-time job. A March 2017 VA treatment record shows that the Veteran presented for a mental health appointment with appropriate grooming and hygiene, an observation that had been noted in previous mental health appointments as well (e.g., January 2016 VA treatment record). To the extent that the VA treatment records appear inconsistent with the July 2017 VA examination report as to the Veteran's ability to independently do his own laundry and clean, the Board finds that the findings in the VA treatment records are more probative. The treatment records contain a self-report of abilities in connection with treatment, along with a detailed explanation that the Veteran was able to do such activities, but he had a paid helper to save himself time. Similarly, although the July 2017 VA examination report shows that the Veteran needed help to organize his pill box in the earlier part of the report, the May 2016 review, as well as the July 2015 VA visual impairment services appointment, show that the Veteran reported performing his medication management independently and that he declined a scrip talk scanner to identify the medications. Indeed, the Veteran's primary contention is that he requires regular assistance to protect him from the hazards and dangers of his daily environment. He has indicated that he experiences various difficulties since his vision has deteriorated, including being unable to: drive, take public transportation, grocery shop, go to a restaurant alone, and navigate unfamiliar areas without getting lost. He has also indicated that he had to stop working as a litigator after losing clients and income because he was unable to perform that work due to his blindness and that he continues to need help with his current work, such as having his paralegal organize his cases for hearings following an agreed set of document organization that he can still follow. In addition, the record shows that he has experienced dizziness, and he has reported having falls due to his issues with depth perception. See, e.g., July 2008 notice of disagreement; October 2013 written statement; July 2017 VA examination report. Initially, the Board notes that the Veteran undoubtedly has industrial impairment (such as needing a system coordinated with his paralegal to process cases) as a result of his service-connected bilateral blindness, as evidenced by the 100 percent total evaluation. See 38 C.F.R. § 4.1 (ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations). He is also in receipt of SMC due to the significant decrease in his vision that is an acknowledgement of the noneconomic factors he faces, such as the personal inconvenience of having to be driven by another person or having assistance navigating an unfamiliar area. However, he has not been shown to have incapacity which requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. In this regard, the Veteran has been shown to require assistance at times, such as with transportation, crossing the street, shopping, and navigating unfamiliar areas. Nevertheless, he has also been shown to have established a daily fixed routine that enables him to progress through his days. He is able to prepare himself for work each day and for weekend travel to see his wife at their home in Indiana. He is also able to independently manage his finances, use computers at work and at home with adaptive software, and is able to call to order groceries to his home and for a guide to take him through the airport when he travels on the weekends. See, e.g., July 2008 notice of disagreement (Veteran reported using another route in his work building to get from chambers to the courtroom after falling three times in last seven months on staircase between those two rooms); February 2013 VA blind rehabilitation note (noting Veteran declined additional orientation and mobility training) and May 2016 VA visual impairment services review; VA examination reports from September 2013 (Veteran reported daily routine very fixed and when walking or traveling in unfamiliar places, he got lost because he could not see) and November 2015 (Veteran reported that he was able to navigate around to reach his office from where STS dropped him off because he was familiar with the environment). More recently, he indicated willingness to and then engaged in some exercise, and he has been able to continue with hobbies, such as reading and building dollhouses in his workshop at home. See, e.g., VA treatment records from February 2013 (blind rehabilitation note and follow-up note that Veteran would like to have a tandem bicycle to use with his wife); July 2015 (visual impairment services review with hobbies); October 2015 (noting hobbies included the gym three days a week). The VA treatment records also indicate that the Veteran's treatment providers found that he would be able to have improved functionality with training to cope with hazards confronting the blind, as opposed to being unable to be successfully trained in this regard. See, e.g., April 2009 VA vocational rehabilitation notes (indicating public transportation unsafe since Veteran had not yet learned how to be fully independently mobile); February 2013 VA blind rehabilitation note (indicating Veteran did not want to refresh on street crossing skills; offered bicycle); July 2015 visual impairment services note (noting that Veteran declined recommended low vision devices; noting that he would be an excellent candidate to attend the Blind Rehabilitation Center and would gain a great deal by attending, but he refused); see also, e.g., July 2007 Individual Plan for Employment; February 2016 vocational rehabilitation and employment letter finding Veteran rehabilitated based on maintaining his current job since 2005. Regarding dizziness and falls, the record shows that the Veteran's dizziness was relieved when he decreased his alcohol intake or that it could be associated with medication for a nonservice-connected disorder. The record also shows that the Veteran may have had falls due in part to other problems besides his issues with depth perception. See, e.g., VA treatment records from November 2014 (noting no more falls since last visit, decreased drinking alcohol, which helped with dizziness; fall clinic recommended exercises for recurrent falls) and November 2015 VA (physical therapy note showing a primary treatment diagnosis of an impaired gait onset in 2014, with tremors on use of blind cane); VA examination reports from November 2015 and July 2017 (noting VA treatment records as to dizziness and falls, with July 2017 report showing Veteran ambulated with an unsteady gait pattern with decreased arm motions and increased trunk flexion). In any event, even acknowledging that the Veteran may have falls as a result of his bilateral eye disability, the record shows that he remains physically able to ambulate on his own. See, e.g., February 2013 VA blind rehabilitation note (Veteran described several falls slipping on a throw rug and falling on stairs; now avoids stairs if possible). The Board also acknowledges the November 2015 VA examiner's determination that, because of the Veteran's inability to drive, he requires care or assistance on a regular basis to protect him from the hazards or dangers incident to his daily environment; however, the Board finds that, given the Veteran's overall level of functionality as discussed in this decision, this determination alone does not provide a basis for entitlement to SMC at the M level. Based on the foregoing, the Board finds that the weight of the evidence is against a finding that the Veteran's bilateral eye disability has rendered him so helpless as to be in need of regular aid and attendance to meet the requirements for SMC at the M level. The Board has carefully considered the Veteran's contentions, as well as the written statements from his co-workers and representative in reaching this determination, but finds that the record shows that, overall, he is able to perform his daily activities, including working a full-time job, and he has not been shown to be so significantly disabled as to need someone else to take care of or assist him in the majority of his daily activities. Based on his demonstrated abilities, he still has useful functionality remaining in his eyes. See Turco, supra. He is also in receipt of compensation for impairment at work, as well as an additional amount that contemplates nonfinancial factors, as noted above. The Board acknowledges the Veteran's report that he is effectively housebound without help due to limitations from his bilateral eye disability; however, he is currently in receipt of an SMC rate that is greater than the rate under 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i) for a veteran with a single service-connected disability rated as 100 percent that is permanently housebound by reason of service-connected disability or disabilities. In addition, the Board has considered entitlement to SMC at the L 1/2 level, as well as the levels of SMC higher than the M level, but the record does not reflect, nor does the Veteran contend that he meets the requirements for these levels. In this regard, the L 1/2 level requires that the combination of loss of vision is visual acuity of 5/200 in one eye and light perception in the other eye (and the higher rates require greater visual impairment). Moreover, the bilateral eye disability is the Veteran's one service-connected disability. 38 U.S.C. § 1114(p); 38 C.F.R. § 3.350(f). Based on the foregoing, the Board finds that the weight of the evidence is against the Veteran's claim. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. Gilbert, 1 Vet. App. 49, 53. ORDER Entitlement to a higher level of SMC than the rate under 38 U.S.C. § 1114(l) is denied. ____________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs