Citation Nr: 1525148 Decision Date: 06/11/15 Archive Date: 06/19/15 DOCKET NO. 12-02 383 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Whether the discontinuation of special monthly compensation (SMC) under 38 U.S.C.A. § 1114(s) (housebound) from May 1, 2009, was proper. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Bridgid D. Houbeck, Counsel INTRODUCTION The Veteran served on active duty from April 1968 to May 1969. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Chicago, Illinois, Department of Veterans Affairs (VA) Regional Office (RO). In November 2012, the Board denied the Veteran's appeal on the question of propriety of the disability rating reduction for prostate cancer and remanded the issue of discontinuation of SMC for further development. Subsequent to this remand, the Veteran's rating for prostate cancer was increased to 100 percent effective January 8, 2015, and SMC housebound benefits were reinstated effective January 8, 2015. See April 2015 rating decision. This subsequent award of SMC under 38 U.S.C.A. § 1114(s) is separate and distinct from the issue on appeal, which is limited to whether the reduction that took effect May 1, 2009, was proper. FINDINGS OF FACT 1. The Veteran was in receipt of SMC benefits under 38 U.S.C.A. § 1114(s) for less than five years at the time of the February 2009 reduction. 2. At the time of the February 2009 reduction, the Veteran did not meet the statutory threshold percentage requirements for SMC (s) and was not substantially confined, as a direct result of a service-connected disability or disabilities, to his dwelling or the immediate premises. CONCLUSION OF LAW At the time of the 2009 reduction, the criteria for SMC under 38 U.S.C.A. § 1114(s) were not met, and so discontinuation of these benefits effective May 1, 2009, was proper. 38 U.S.C.A. §§ 1114(s), 5101, 5103, 5103A, 5107, 5121 (West 2014); 38 C.F.R. § 3.350 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014). In an October 2008 notice letter, the RO informed the Veteran of the proposal to terminate his SMC housebound benefits. The RO attached a copy of the September 2008 rating decision that made the proposal. The Veteran was provided with detailed reasons for the proposed reduction and the type of information or evidence he could submit in response. He was informed of his right to a personal hearing on this matter. This letter also informed the Veteran that if no additional evidence was received within 60 days, the rating would be reduced effective on the first day of the third month following notice of the final decision. The Veteran did not request a hearing. The February 2009 rating decision on appeal discontinued the Veteran's SMC housebound benefits effective May 1, 2009. The Board finds that VA has complied with the notice procedures of 38 C.F.R. § 3.105(e). Neither the Veteran nor his representative has alleged prejudice with respect to notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). As such, the pertinent notice requirements have been met. VA also has a duty to assist the Veteran in the development of the claim, which includes assisting in the procurement of service treatment records and pertinent treatment records and, when necessary, providing an examination. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record. The Board has reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also reviewed 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. In compliance with the Board's November 2012 remand, VA obtained additional recent VA treatment records and scheduled the Veteran for a VA examination in February 2015. This examination contained all information needed to determine whether SMC was warranted. This examiner reviewed the objective evidence of record, documented the Veteran's current complaints, and performed a thorough clinical evaluation, then offered an opinion as to whether the Veteran was housebound or in need of regular aid and attendance, accompanied by a rationale. Therefore, this examination is adequate for VA purposes. Thus VA has complied with the November 2012 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis As an initial matter, the Board notes that greater protections have been established for benefits which have been in effect for five years or more. 38 C.F.R. § 3.344(c). In this case, however, the Veteran was in receipt of SMC housebound benefits from December 14, 2006, to May 1, 2009, which is less than five years. Thus, these provisions do not apply. The Veteran was originally granted SMC under 38 U.S.C.A. § 1114(s) in a June 2007 rating decision. Entitlement was discontinued effective May 1, 2009, because the Veteran failed to meet the statutory threshold percentage requirements. See February 2009 rating decision. In order to qualify for SMC at the § 1114(s) level, the Veteran must have a single service-connected disability rated 100 percent and either: (1) has an additional service-connected disability or disabilities 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 a service-connected disability or disabilities. Permanently housebound means the Veteran is substantially confined, as a direct result of a service-connected disability or disabilities, to his dwelling or the immediate premises (or, if institutionalized, to the ward or clinical areas), and it is reasonably certain that the service-connected disability or disabilities and resultant confinement will continue throughout his lifetime. 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i). At the time of his original grant of SMC, the Veteran had a 100 percent rating for posttraumatic stress disorder (PTSD) and another 100 percent rating for prostate cancer. As explained in the November 2012 Board decision, the reduction of the Veteran's rating for prostate cancer effective May 1, 2009, was proper based on cessation of treatment without recurrence or metastasis since the October 2007 surgery. After that rating reduction, the Veteran no longer had two 100 percent ratings and while he remained rated at 100 percent for PTSD, he no longer had additional disabilities rated at 60 percent or more. His remaining service connected disabilities included a left hand disability rated 10 percent disabling and noncompensable ratings for a left eye disability, malaria, and erectile dysfunction. Thus, these disability ratings combined fell short of the required 60 percent, and he no longer met the statutory threshold percentage requirements. See 38 C.F.R. §§ 4.26, 3.350(i)(1). Nevertheless, this level of SMC may still be awarded if the record shows one disability rated 100 percent and that the Veteran was permanently housebound by reason of service-connected disabilities. See 38 C.F.R. § 3.350(i)(2). The Board has considered the evidence of record and finds that the Veteran was not housebound at the time of this termination of SMC benefits or at any time since. In his July 2009 notice of disagreement, the Veteran stated that he remained housebound in that he was "still confined to a nursing home." Later VA treatment records note that he is domiciled in a nursing home since November 2007. See e.g., August 2012 nursing progress note. The record, however, does not show that the Veteran was substantially confined as a direct result of a service-connected disability or disabilities, to this nursing home. Indeed, the Veteran appears to have been able to regularly leave that facility in order to see his VA healthcare providers and to attend events such as his daughter's wedding. See October 2012 psychiatry attending note. The January 2015 examiner noted that the Veteran was able to travel beyond his current domicile and had done so by traveling to the examination alone. His description of typical daily activities included leaving home for appointments, preparing his own food, doing his own cleaning and laundry, and general handling his activities of daily living independently. He was living independently and had declined help in his home. This examiner specifically found that despite the Veteran's cognitive disorder and multiple medical issues, he was not permanently bedridden or currently housebound. Thus, the record does not show that the Veteran was housebound at the time of this termination of SMC benefits or at any time since. Based on the above, the Veteran did not satisfy the criteria for entitlement to SMC under 38 U.S.C.A. § 1114(s) at the time of their discontinuation on May 1, 2009. Thus, this discontinuation was proper and the Veteran's appeal of the propriety of the reduction is denied. ORDER The discontinuation of SMC under 38 U.S.C.A. § 1114(s) effective May 1, 2009, was proper; the appeal of this issue is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs