Citation Nr: 18158594 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 16-04 447 DATE: December 18, 2018 ORDER Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance of another person or on account of being housebound, for accrued benefits purposes, is denied. REMANDED The issue of entitlement to a rating in excess of 20 percent for service-connected duodenal ulcer (ulcer) for the period prior to October 27, 2009, and a rating in excess of 40 percent from October 27, 2009 to January 16, 2014, for accrued benefits purposes, is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) prior to January 17, 2014, for accrued benefits purposes, is remanded. FINDING OF FACT The Veteran’s sole service-connected disability, an ulcer, did not result in the need for regular aid and attendance or cause him to be housebound. CONCLUSION OF LAW The criteria for SMC based on the need for regular aid and attendance or by reason of being housebound have not been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.350, 3.352. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1968 to April 1970. The Veteran died in June 2017. The Appellant is his surviving spouse and has been recognized as a valid substitute claimant in place of the Veteran for the issues on appeal. This matter is before the Board of Veterans’ Appeals (Board) on appeal of December 2009 (increased rating claim for the ulcer) and October 2015 (special monthly compensation) rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2014, the Board remanded the ulcer disability rating claim and entitlement to a TDIU for further development. In October 2014, the Agency of Original Jurisdiction (AOJ) granted a 60 percent rating for duodenal ulcer and a TDIU, effective January 17, 2014. This is the maximum benefit available for this disability. 38 C.F.R. §§ 4.16, 4.114, Diagnostic Code 7305. As such, the rating claim from January 17, 2014 forward has become moot and will no longer be addressed. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In January 2014, the Veteran appeared at a hearing before a Veterans Law Judge (VLJ), who has since retired from the Board. Pursuant to 38 C.F.R. § 20.707, the Appellant was advised in a letter dated in September 2018 of her right to a second Board hearing before another VLJ and to let VA know whether she wanted a second hearing within thirty days of the date of the letter. In October 2018, the Appellant, in writing, declined to have a second hearing. A transcript of the hearing before the prior VLJ is in the record. Special Monthly Compensation A veteran who as the result of service-connected disability is housebound or so helpless as to be in need of regular aid and attendance shall receive additional special monthly compensation. 38 U.S.C. § 1114(l); 38 C.F.R. §§ 3.350(b), 3.352(a). The need for aid and attendance is defined as helplessness or being so nearly helpless as to require the regular aid and attendance of another person. 38 C.F.R. § 3.351(b). Determinations as to the need for aid and attendance must be based on actual requirements of personal assistance from others. Under the provisions of 38 C.F.R. § 3.352(a), the following will be considered in determining the need for regular aid and attendance due to service-connected disability: the inability of the veteran to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances; inability to feed himself through loss of coordination of the upper extremities; inability to attend to the wants of nature; or incapacity, physical or mental, that requires assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. Special monthly compensation at the housebound rate provided by 38 U.S.C. 1114(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. 38 C.F.R. § 3.350(i). The Veteran maintained that he needed regular aid and attendance because of his service-connected ulcer disability. Two reports from the same physician were submitted which addressed the need for aid and attendance, one signed in August 2015 and the other in September 2015. The reports establish the Veteran needed aid and attendance; however, this need was due to nonservice-connected disabilities. Between the two reports the following conditions were noted in the diagnoses sections: congestive heart failure, diabetes with renal failure, atrial fibrillation, obesity, osteoarthritis/degenerative joint disease, gastroesophageal reflux disease, sleep apnea, and anemia. Neither report mentioned the only service-connected condition, the Veteran’s ulcer. The Board recognizes that anemia was noted as a diagnosis in the September 2015 report, and the Veteran had some anemia resulting from his duodenal ulcer. However, the ulcer, including anemia resulting therefrom, are not shown to result in the need for aid and attendance or to have caused the Veteran to be housebound. Notably, the first report noted essentially the same level of impairment as the second report and did not even mention anemia as a diagnosis. Moreover, none of the specific limitations in the 2015 reports mentioned anemia as the cause and other evidence of record establishes that the ulcer and anemia were not productive of the need for aid and attendance or to cause the Veteran to be housebound. For example, a VA examiner in October 2009 noted that blood tests demonstrated anemia. At the time the Veteran reported his ulcer did not cause incapacitation. The examiner specifically noted that the ulcer had a mild functional impact for working and moderate impact in the Veteran’s daily activities. The Veteran was hospitalized for five days in May 2011 for abdominal pain and anemia secondary to his duodenal ulcer. At discharge, the Veteran’s hemoglobin was stable and he did not have any abdominal pain. In a January 2012 letter, Dr. G. noted the Veteran’s ulcer caused epigastric pain and recurrent bleeding. He called the Veteran’s disability significant because of the pain and diet limitation. A VA examiner in December 2012 found that the Veteran did not have any incapacitating episodes resulting from his duodenal ulcer and that the condition did not cause any functional impact on the Veteran’s ability to work. The blood test reported low hemoglobin, and the VA examiner diagnosed anemia. A VA examiner in May 2014 found that the Veteran’s chronic abdominal pain due to duodenal ulcer/peptic ulcer disease made it difficult for him to stand or lift for any prolonged period of time, and that his abdominal pain with associated anemia resulted in reduced stamina making it difficult for him to stand or do any strenuous work for prolonged periods. He had two periods of incapacitating episodes per year due to his ulcer, each lasting 1 to 9 days. Overall, the Veteran’s ulcer resulted in occasional periods of incapacitation and some limitations on physical activities. As far as limitations, the evidence establishes no more than a mild functional impact for working and moderate impact in the Veteran’s daily activities. The Veteran could not stand, lift, or do strenuous work for prolonged periods. As such, the evidence is against a finding that the ulcer would have significantly affected the Veteran’s ability to dress, undress, or keep himself ordinarily clean and presentable; required the frequent need of adjustment of any special prosthetic or orthopedic appliances; affected coordination of the upper extremities; caused an inability to attend to the wants of nature; or put the Veteran at risk from hazards or dangers incident to his daily environment. This level of impairment does not otherwise require aid and attendance and also would not result in the Veteran being housebound. Simply put, while the Veteran required aid and attendance during his lifetime this was not because of the service-connected ulcer, which was his only service-connected disability. For these reasons, the claim for SMC must be denied. REASONS FOR REMAND The Board remanded the claims for a TDIU and higher ratings for the service-connected duodenal ulcer in March 2014. Subsequently, in October 2014, the AOJ granted a 60 percent disability rating for duodenal ulcer and granted a TDIU, both effective January 17, 2014. As this does not constitute an award of the maximum benefit allowed prior to January 17, 2014, those issues remain on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993); Harper v. Wilkie, 2018 U.S. App. Vet. Claims LEXIS 1618 (No. 16-3519, Dec. 6, 2018). Instead of issuing a supplemental statement of the case (SSOC) on the higher rating issue as required by 38 C.F.R. § 19.31(c), the AOJ issued a statement of the case addressing the effective dates for the award of a TDIU and the award of a 60 percent rating for the duodenal ulcer, presumably prompted by the Appellant’s notice of disagreement on these matters. To be clear, the issue of higher ratings for the duodenal ulcer, stemming from the December 2009 rating decision, remains in appellate status. That means that the AOJ needs to address the propriety of the 20 and 40 percent ratings assigned during the relevant period in an SSOC. There is no new claim for earlier effective dates. Instead, the assigned ratings and eligibility for TDIU need to be addressed as part of the original appeal which was previously remanded by the Board. In the Board’s March 2014 remand, the Board directed that if there was any period the Veteran did not meet the schedular requirements for a TDIU the case should be referred to the Director of VA’s Compensation Service for consideration of an extra-schedular TDIU. See 38 C.F.R. § 4.16(b). This does not appear to have happened for the period prior to January 17, 2014. If necessary, this should be accomplished on remand. The matter is REMANDED for the following action: Readjudicate the claims for a TDIU prior to January 17, 2014 and for higher ratings for the service-connected duodenal ulcer for accrued benefits purposes. This appeal stems from a September 2009 claim for a higher rating and encompasses the currently assigned ratings for the duodenal ulcer of 20 percent prior to October 27, 2009 and 40 percent from October 27, 2009 to January 16, 2014. If the schedular requirements for a TDIU are not met at any point prior to January 17, 2014, the case should be referred to the Director of Compensation Service for extra-schedular consideration prior to the AOJ’s adjudication of that matter. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel