Citation Nr: 1510104 Decision Date: 03/11/15 Archive Date: 03/24/15 DOCKET NO. 12-33 780 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to special monthly compensation (SMC) based on aid and attendance (A&A). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from September 1968 to December 1969, and from April 1971 to January 1974. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in February 2011; a statement of the case was issued in October 2012; and a substantive appeal was received in November 2012. The Veteran presented testimony at a Board hearing in September 2014. A transcript of the hearing is associated with the Veteran's claims folder. FINDING OF FACT 1. The evidence shows that the Veteran's right wrist disability alone has rendered him unable to secure or follow a substantially gainful occupation. 2. Separate from his right wrist disability, the Veteran has additional service-connected disabilities independently ratable at 60 percent or more disabling. CONCLUSION OF LAW The criteria for special monthly compensation at the housebound rate have been met. 38 U.S.C.A. §§ 1114(s), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.350 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) There is no need to undertake any review of compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations in this case since there is no detriment to the Veteran as a result of any VCAA deficiency in view of the fact that the full benefit sought by the Veteran is being granted by this decision. See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014). The Board notes that an RO letter dated April 2010 informed the Veteran of the manner in which disability ratings and effective dates are assigned. The RO will take such actions in the course of implementing this grant of special monthly compensation, and the Veteran may always file a timely notice of disagreement if he wishes to appeal from those downstream determinations. Special Monthly Compensation (SMC) The 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 to special monthly compensation (SMC ) under 38 U.S.C.A. § 1114. See Bradley v. Peake, 22 Vet. App. 280, 294 (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 TDIU and, therefore, to SMC). Indeed, as noted in Bradley, VA must consider a TDIU claim despite the existence of a schedular total rating and award SMC under 38 U.S.C.A. § 1114(s) if VA finds the separate disability supports a TDIU rating independent of the other 100 percent disability rating. See Bradley, 22 Vet. App. 280, 294 (2008); see also DVA Sum. Op. Gen. Counsel Prec., 75 Fed. Reg. 11229 -04 (March 10, 2010) (withdrawing VAOPGCPREC 6-99, 64 Fed. Reg. 52375 (1999) (the logic of Bradley suggests that if a Veteran has a schedular total rating for a particular service-connected disability and subsequently claims TDIU for a separate disability, VA must consider the TDIU claim despite the existence of the schedular total rating and award SMC under section 1114(s) if VA finds the separate disability(ies) support a TDIU rating independent of the other 100 percent disability rating). Special monthly compensation 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). 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). The Veteran here is service connected for PTSD, rated 70 percent disabling; and a right wrist disability, rated as 70 percent disabling. In a January 2009 rating decision, the RO granted a TDIU effective June 18, 2008 (the date that the Veteran's right wrist rating increased to 50 percent). The Veteran's representative has argued that the Veteran's PTSD would, by itself, create the basis for an award of a TDIU. It has also been argued that the Veteran's right wrist disability, by itself, would create the basis for an award of a TDIU. If a TDIU is warranted on the basis of either disability, it satisfies the "rated as total" element of section 1114(s). In this case, the Veteran underwent a VA examination in June 2008. The examiner stated that the Veteran's working capacity was considerably reduced in the upper right extremity. He was limited to light activities with the right hand. The examiner opined that considering the Veteran's disabilities and his age, his present work status probably amounted to disability retirement. The examiner noted that the Veteran had worked in construction until the late 1990s, despite the disability to his right wrist; but the examiner opined that the Veteran could not do that heavy work anymore. The examiner submitted an addendum opinion in December 2008. He noted that the Social Security Administration has determined that the Veteran has a permanent and total disability. He opined that the Veteran's chronic disability at the right wrist and hand makes any regular, manual labor impossible. He further stated that casino work has become impossible because it involves manual labor in both hands. He reiterated that the Veteran is limited to very light work that has to be mostly sitting. Considering his age and disabilities, the examiner found it appropriate to consider him as having a permanent and total disability. Additionally, a May 2010 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance (VA Form 21-2680) reflects that the Veteran has a crippled right hand and that motion in his right hand and wrist is "severely impaired." The examiner noted that the Veteran could feed himself, but that he could not prepare his own meals. He could not open a can or tie his shoes, and the examiner noted that it is difficult for him to do household chores. He noted that the Veteran does not need nursing home care, but that "he needs help with running his household." A March 2014 outpatient VA treatment report (VVA, 9/19/14, p. 29) reflects that the Veteran needed help with activities of daily living, including meal preparation, laundry, and light housekeeping. He reported that he had paid a private caregiver to come to the house twice per week for three hours each time, but she graduated from school and relocated. The examiner stated that she would authorize nine hours of care per week. The Veteran also underwent a VA psychiatric examination in November 2008. The examiner reviewed the claims file in conjunction with the examination. Following a thorough examination, the examiner diagnosed the Veteran with PTSD, major depression, and anxiety. She assigned a Global Assessment of Functioning (GAF) score of 50. The Board notes that a GAF score of 41-50 indicates serious symptoms (e.g. suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) (Fourth Edition); see 38 C.F.R. § 4.130 (2014). Moreover, the examiner opined that it was more likely than not that the Veteran had chronic symptoms of PTSD and would not be able to find feasible employment. At the Veteran's September 2014 Board hearing, he testified that his doctor had filed the paperwork to get him a caregiver. When he was contacted regarding his needs, he was asked if he needed help with bathing. He said no (his representative pointed out that the Veteran has panic attacks if people touch him). He was initially informed that he could have someone help with cooking, cleaning, and housework; but later he was told that if he did not accept help with bathing, then he would be denied (Hearing Transcript, pgs. 4-5). The Veteran also testified that he is not exactly housebound, but he stated that he does not go out often because he does not want to interact with people. Going into a busy city would cause him to have emotional problems. Additionally, he stated that he does not drive because his hand prevents it. He stated that he does not go to the movies or anywhere else (Hearing Transcript, pgs. 7-10). The Board finds that each of these Veteran's service connected disabilities (PTSD and right wrist disability) would be sufficient to yield entitlement to a TDIU. Consequently, each of these disabilities it satisfies the "rated as total" element of section 1114(s). Since the Veteran has a single service-connected disability rated as total, and an additional service-connected disabilities that is independently rated at 60 percent (70 percent in this case), the criteria for SMC at the housebound rate under 38 U.S.C.A. § 1114(s) are met. Therefore it follows that in light of the Court's decisions in Bradley and in Buie, entitlement to SMC at the housebound rate under 38 U.S.C.A. § 1114(s) is granted. ORDER Entitlement to special monthly compensation based on aid and attendance is granted. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs