Upcoming C&p

[Ricky]

36 months later, and 18 months after filing my form 9 the idiots at the VARO decided that they would send me for a C&P on my claim for loss of use of left upper and lower limbs.

My file contains 4 statements from my treating neurologist and two from my family doc stating that my residuals from my 2005 stroke are loss of use of left upper and lower limbs.

Now I know these dummies. They are going to send me to this 5 minute C&P, wait another year to issue a SSOC that will continue the denial and THEN send the file (finally) to the BVA. Why in the h(*&^& would they hold my file for 18 months after I sent in my form 9 then decide they wanted a C&P. They should have reviewed and certified the file to the BVA within a year. My understanding was that once the appeal had been perfected the RO was out of the picture. I guess not.

Oh well, I called the VAMC and they told me yep they had the request and I would be scheduled with Dr. H. Now she is a friendly doc but she is a family practice doc and not even a neurologist. She will have no ideal about my residuals cause Dejerine-Roussy is very rare and not many neurologist know of or understand it.

I guess I just shut up and continue to march on because there is really nothing I can do about it other than wait them out. Boy when I do get my BVA hearing I am going to give them a mouth full. No ranting but just a logical common sense approach which will hopefully make them go hmmmmmm what is wrong with this RO!~

[Wings]

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Ricky, It was also my understanding that the Form 9 initiated the claim to the BVA. My appeal has been gathering dust at the RO for 15 months ... What I just learned, after reading this BVA appeal, is that the RO is required to hold the claim for one year UNLESS the vet "specifically waive in writing any remaining response time". Hang in there! Have you (even better, your Doctor) filed for Aid and Attendence/Housebound? When you go to your C&P, tell the doctor you need this benefits:

Aid and Attendance/Housebound Status -- Disabled veterans in receipt of service-connected compensation or nonservice-connected disability pension who are determined by VA to be housebound or in need of regular aid and attendance services are eligible for additional monetary compensation or pension. These additional funds can be used to pay for home care services received through home care agencies or provided by family members.

Specially Adapted Homes -- Veterans who are permanently and totally disabled due to service-related conditions are eligible for a grant of up to $43,000 to purchase or remodel a home to assist with accessibility and independence. Veterans who are permanently and totally disabled due to service-connected blindness in both eyes or loss of use of both hands are also eligible for a grant of up to $8,250 to adapt a home to assist with accessibility and independence. The VA awarded 590 new grants in FY 2000, totaling over $22.5 million in benefits.

Automobiles -- Veterans who have, through their service, lost hands, feet or vision may be eligible for $8,000 toward the purchase of a specially-adapted automobile.

Clothing Allowance -- Veterans who have service-connected disabilities requiring use of prosthetic or orthopedic appliances that wear out or tear clothing are eligible to receive annual clothing allowances.

Aid & Attendance Allowance Additional benefit paid to veterans, their spouses, surviving spouses and parents. This allowance is paid in all Compensation, Dependency and Indemnity Compensation (DIC) and Pension Programs. It is paid based on the need of aid and attendance by another person or by specific disability. Special Monthly Compensation (L) can at times be designated an aid & attendance benefit. Eligibility criteria: see 38 CFR §§3.350, 3.351, 3.552; see also 38 U.S.C.A. §§ 1502, 1521

Special Monthly Compensation is a rate paid in addition to (i.e., SMC (K)) or in place of 0% to 100% combined degree compensation. To qualify, a veteran must be disabled beyond a combined degree percentage or due to special circumstances (i.e., aid and attendance, loss of use of one hand, etc.). SMCs are referred to by the letters (K) through (R.2). These alphabetic designations follow the paragraph numbering system in 38 U.S.C. §1114 (also see references to that in 38 CFR §3.350 below). Eligibility criteria, see 38 CFR §3.350

Special Monthly Pension (SMP) is either the aid and attendance or housebound allowance.

http://www.va.gov/vetapp03/Files/0336552.txt

Citation Nr: 0336552

Decision Date: 12/30/03 Archive Date: 01/07/04

DOCKET NO. 02-12 174 ) DATE

)

)

On appeal from the

Department of Veterans Affairs Regional Office in Togus,

Maine

THE ISSUE

Entitlement to special monthly compensation by reason of

needing regular aid and attendance or on account of being

housebound.

REPRESENTATION

Appellant represented by: Disabled American Veterans

WITNESSES AT HEARING ON APPEAL

Appellant and his wife

ATTORNEY FOR THE BOARD

N. T. Werner, Counsel

INTRODUCTION

The veteran served on active duty from June 1964 to February

1969.

This matter comes before the Board of Veterans' Appeals

(Board) on appeal from a September 2001 decision of the

Togus, Maine, regional office (RO) of the Department of

Veterans Affairs (VA) that denied claims of entitlement to

special monthly compensation based on needing regular aid and

attendance or on account of being housebound.

In April 2003, the veteran and his wife testified at a video

hearing before the undersigned. At this hearing the

appellant raised the issues of entitlement to service

connection for cervical and thoracic spine disabilities.

These issues have not, however, been developed for appellate

review. Accordingly, they are referred to the RO for

appropriate action.

REMAND

As indicated above, the veteran testified at an April 2003

video hearing. At that time, the veteran argued that one of

his theories of entitlement to special monthly compensation

by reason of being in need of regular aid and attendance or

on account of being housebound was the paralysis brought on

by his February 2001 cervical spine surgery. While the

veteran is not service connected for a cervical disability,

he argued that VA should have granted service connection for

cervical and thoracic spine disabilities at the same time it

granted service connection for his low back strain with

herniated nucleus pulposus because his service connected low

back disorder caused and/or aggravated these disorders.

As to the veteran's claim for special monthly compensation on

account of being housebound, controlling laws and regulations

provide, in part, that he is only entitled to be paid at the

housebound rate if he has a single permanent disability rated

100 percent disabling under VA's Schedule for Rating

Disabilities, 38 C.F.R. Part 4 (not including ratings based

upon unemployability under 38 C.F.R. § 4.17) and he: (1) has

additional disability or disabilities independently ratable

at 60 percent or more, separate and distinct from the

permanent disability rated as 100 percent disabling and

involving different anatomical segments or bodily systems; or

(2) is "permanently housebound" by reason of disability or

disabilities. See 38 U.S.C.A. § 1521(e) (West 2002); 38

C.F.R. § 3.351(d) (2003).

Accordingly, in view of the claims presented at the April

2003 video hearing, and because the veteran does not

currently meet the statutory criteria to qualify for

housebound status, the Board cannot adjudicate the claim of

entitlement to special monthly compensation by reason of

being housebound without the RO first adjudicating the claims

of entitlement to service connection for cervical spine and

thoracic spine disabilities. Harris v. Derwinski,

1 Vet. App. 180, 183 (1991). Therefore, the Board finds that

adjudication of the claim of entitlement to special monthly

compensation by reason of the veteran being housebound must

be stayed pending the RO's adjudication of his claims of

entitlement to service connection for cervical and thoracic

spine disabilities. Id.

As to both the claims of entitlement to special monthly

compensation by reason of being in need of regular aid and

attendance and on account of being housebound, the Board next

notes that prior to the veteran filling his claims in

February 2001, Congress enacted the Veterans Claims

Assistance Act of 2000 (hereinafter, "VCAA"), Pub. L. No.

106-475, 114 Stat. 2096 (2000). The VCAA and its

implementing regulations include notification provisions.

Specifically, they require VA to notify the claimant and his

representative, if any, of any information, and any medical

or lay evidence, not previously provided to the Secretary,

that is necessary to substantiate the claims. As part of the

notice, VA is to specifically inform the claimant and any

representative of which portion, if any, of the evidence is

to be provided by the claimant and which, part, if any VA

will attempt to obtain on behalf of the claimant.

38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159(b) (2003).

Despite the VCAA having been in effect for several years,

neither the veteran nor his representative were specifically

provided notification by the RO of the VCAA and the effect it

had on the claims. Moreover, in Disabled Am. Veterans v.

Principi, 327 F.3d 1339 (Fed. Cir. 2003), the United States

Federal Circuit Court of Appeals invalidated 38 C.F.R.

§ 19.9(a)(2)(ii) (2003) and thereby foreclosed the Board's

ability to remedy an RO's failure to provide the veteran with

adequate VCAA notice, such as was attempted at the April 2003

video hearing.

Therefore, remanding the issue on appeal is required for the

RO to undertake all necessary steps to insure that the

veteran is provided adequate VCAA notice as required by 38

U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b)

(2003). Quartuccio v. Principi, 16 Vet. App. 183 (2002). In

this regard, the RO should note that in Paralyzed Veterans of

America v. Secretary of Veterans Affairs, No. 02-7007, -7008,

-7009, -7010 (Fed. Cir. Sept. 22, 2003), the Federal Circuit

invalidated the 30-day response period contained in 38 C.F.R.

§ 3.159(b)(1) as inconsistent with 38 U.S.C.§ 5103(b)(1).

Therefore, since this case is being remanded for additional

development and to cure procedural defects, the RO must take

this opportunity to inform the veteran that a full year is

allowed to respond to a VCAA notice.

On remand, the RO should undertake any additional action

deemed necessary to ensure that the requirements of the new

law have been satisfied. That action should include, among

other things, obtaining any outstanding evidence identified

by the veteran and obtaining another VA examination to obtain

medical opinion evidence necessary to adjudicate the claims.

See 38 U.S.C.A. § 5103A (West 2002).

As to missing evidence, the Board notes that a review of the

record on appeal shows the following evidence filled by the

veteran and/or obtained by the RO in support of the

appellant's claims: treatment records from Edwin Maurin,

M.D., of Main Neurosurgery, dated from January 2001 to May

2001 (these records show his pre and post operative care

surrounding February 2001 cervical spine surgery); an April

2001 Aid and Attendance Questionnaire signed by Dr. Maurin,

with and without notes by the veteran; a July 2001 VA Aid and

Attendance examination report; and undated private treatment

records received by the RO in December 2001. A review of the

record on appeal also shows numerous contemporary letters

from John Scamman, M.D. At his video hearing, the veteran

identified the following health care providers who may have

records relevant to his claims that have not been associated

with the record on appeal: Dr. Martin Point; Dr. Erica Hal;

the physical therapist he had seen since his February 2001

cervical spine surgery; Dr. Edward Moore; South Portland

Neurology; The Maine Medical Center; and the Saco, Maine

satellite office of The Maine Medical Center. In addition,

while the veteran testified that, since the 1970's, he

received all of his medical care from either fee based health

care providers or other private physicians because he was not

permitted to obtain medical care at the VA medical center.

He did not, however, identify the names of the fee based

physicians he saw who could have medical evidence in support

of his claims. Therefore, on remand, the veteran needs to be

asked to provide the names and addresses of his fee based

physicians. Thereafter, the RO needs to obtain and associate

with the record on appeal copies of these physicians records

as well as the records held by the already identified private

doctors and hospitals. See 38 U.S.C.A. § 5103A(d).

As to obtaining medical opinion evidence, the Board notes

that, while the veteran was earlier afforded a VA examination

in connection with his current claim and he filled an Aid and

Attendance Questionnaire from his private physician, neither

examination report provided VA with sufficient medical

opinion evidence to determine if the appellant meets the

statutory requirements for special monthly compensation by

reason of being in need of regular aid and attendance or on

account of being housebound under 38 U.S.C.A. §§ 1502, 1521;

38 C.F.R. §§ 3.23, 3.351 solely because of his service

connected disabilities. Therefore, on remand, the veteran

should also be afforded a new VA examination.

Therefore, this case is REMANDED for the following:

1. The RO must review the claims file

and ensure that all VCAA notice

obligations have been satisfied in

accordance with the recent decision in

PVA, as well as 38 U.S.C.A. §§ 5102,

5103, and 5103A (West 2002), and any

other applicable legal precedent. Such

notification includes, but is not limited

to, sending the veteran a letter

notifying him that he has one year to

submit pertinent evidence needed to

substantiate his claims. The date of

mailing the letter to the veteran begins

the one year period. Inform the veteran

that the RO will hold the case in

abeyance until the one year period has

elapsed, or until he waives in writing

any remaining term. Inform him that

submitting additional evidence is

insufficient to waive the one year

waiting period. Further, regardless of

whether the veteran submits additional

evidence or argument in support of his

claims, if he desires to expedite Board

review of his claims, he must personally

and specifically waive in writing any

remaining response time. PVA.

2. Request that the veteran identify the

name, address, and approximate (beginning

and ending) dates of all VA and non-VA

health care providers that have treated

him since February 2001 for his claimed

disabilities. He should also identify

any health care provider who can offer an

opinion linking any current cervical

and/or thoracic disorder to his active

duty service. The RO should also inform

the veteran that VA will make efforts to

obtain relevant evidence, such as VA and

non-VA medical records, employment

records, or records from government

agencies, if he identifies the custodians

thereof. Obtain all records identified

by the veteran that have not already been

associated with the record on appeal,

including all treatment records from Dr.

Edwin Maurin of Maine Neurosurgery, Dr.

John Scamman, Dr. Martin Point, Dr. Erica

Hal, his physical therapist, Dr. Edward

Moore, South Portland Neurology, The

Maine Medical Center, the Saco, Maine

satellite office of The Maine Medical

Center, and all fee based physicians.

The aid of the veteran in securing all

identified records, to include providing

necessary authorization(s), should be

enlisted, as needed. If any of the

requested records are not available, or

if the search for any such records yields

negative results, that fact should

clearly be documented in the claims file,

and the veteran should be informed in

writing.

3. After associating with the record all

evidence obtained in connection with the

above development (to the extent

possible), the RO should make

arrangements with the appropriate VA

medical facility for the veteran to be

afforded a regular aid and attendance and

housebound examination. Send the claims

folder to the examiner for review. Based

on the results of the examination and a

review of the claims folder, the examiner

must address the following questions

based solely on his service-connected

disabilities:

(i). Is the veteran helpless or is

so nearly helpless as to require the

regular aid and attendance of

another person?

(ii) Is the veteran blind or is so

nearly blind as to have corrected

visual acuity of 5/200 or less, in

both eyes, or concentric contraction

of the visual field to 5 degrees or

less?

(iii). Is the veteran a patient in

a nursing home because of

incapacity?

(iv). Is the veteran unable to

dress or undress himself? Is the

veteran unable to keep himself

ordinarily clean? Does he require

frequent adjustment of any special

prosthetic or orthopedic appliances?

Is he unable to feed himself? Is he

unable to attend to the wants of

nature? Does he require assistance

on a regular basis to protect him

from hazards or dangers incident to

his daily environment?

(v). Is the veteran suffering from

a condition which, through its

essential character, actually

requires that he remain in bed?

(vi). Is the veteran substantially

confined to his dwelling and the

immediate premises or, if

institutionalized, to the ward or

clinical area? Is it reasonably

certain that the disability or

disabilities and resultant

confinement will continue throughout

his lifetime?

4. After associating with the record all

evidence obtained in connection with the

above development (to the extent

possible), the RO should also make

arrangements with the appropriate VA

medical facility for the veteran to be

afforded a VA orthopedic examination.

Send the claims folder to the examiner

for review. Based on the results of the

examination and a review of the claims

folder, the examiner must opine whether

it is at least as likely as not that any

diagnosed cervical and/or thoracic

disorder is related to his active duty

service. The examiner must also opine

whether it is at least as likely as not

that any current cervical and/or thoracic

disorder is caused or aggravated by the

appellant's service connected lumbar

disorder. A complete rationale must be

offered for any opinion expressed.

5. After the development requested has

been completed, the RO should review the

VA examination report to ensure that they

are in complete compliance with the

directives of this REMAND. If the report

is deficient in any manner, the RO must

implement corrective procedures at once.

6. The RO should adjudicate the claims

of entitlement to service connection for

cervical spine and thoracic spine

disabilities. Thereafter, the RO should

reconsider the claims of entitlement to

special monthly compensation by reason of

being in need of regular aid and

attendance or on account of being

housebound. If the determination remains

adverse to the veteran, he and his

representative should be provided a

supplemental statement of the case which

includes a summary of any additional

evidence submitted, applicable laws and

regulations, and the reasons for the

decision. They should then be afforded

an applicable time to respond.

The veteran has the right to submit additional evidence and

argument on the matter the Board has remanded to the regional

office. Kutscherousky v. West, 12 Vet. App. 369 (1999).

_________________________________________________

DEREK R. BROWN

Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the

Board is appealable to the Court. This remand is in the

nature of a preliminary order and does not constitute a

decision of the Board on the merits of your appeal.

38 C.F.R. § 20.1100(b) (2003).

Edited December 20, 2007 by Wings

[carlie]

Not wanting to put out negative here BUT .....

in my case ----- I finally got to BVA,

had a judge that shook his head regarding past decisions while reading evidence

previously submitted, and wound up remanding and or referring many issues back

to the RO and AMC.

Some of the issues he referred back to RO, in the decision the judge states --

"The veteran has also raised the issues of entitlement to

service connection for a back disorder and PTSD based on in-

service sexual trauma; service connection for depression, the

residuals of a right wrist laceration, gastroesophageal

reflux disease, and a dental disorder as secondary to her

service-connected seizure disorder; an increased rating and

earlier effective date for the grant of service connection

for right shoulder bursitis; clear and unmistakable error in

the RO's January 1981 failure to grant an increase in

compensation for a dependent child; and entitlement to

compensation pursuant to 38 U.S.C.A. § 1151 for a heart

disorder. These issues have not yet been adjudicated by the

RO and are referred to the RO for appropriate action. See

Godfrey v. Brown, 7 Vet. App. 398 (1995) (the Board does not

have jurisdiction of issues not yet adjudicated by the RO)."

On about eight of the above issues I have VARO decisions that have

become final. I filed the claim issues, they were denied, I

filed NOD's on them, had a DRO hearing, still denied ----

they are listed on my form 9 ------ and the BVA Judge states

these issues have not been adjudicated by the RO.

This leaves me with very little hope that I won't wind up having

to go to The COVA. If the BVA judge can't see that an issue

has already been adjudicated by the RO and is in appeal status through

the filing of a form 9, just how much hope can that leave of

getting a fair legal shake?

I went to my VARO last week and submitted a 21-4138 to

request a hearing.

jmho,

carlie

[Wings]

Carlie, What a quagmire! Personal Hearing sounds the best! You taking an attorney with you??? ~Wings

Not wanting to put out negative here BUT .....

in my case ----- I finally got to BVA,

had a judge that shook his head regarding past decisions while reading evidence

previously submitted, and wound up remanding and or referring many issues back

to the RO and AMC.

Some of the issues he referred back to RO, in the decision the judge states --

"The veteran has also raised the issues of entitlement to

service connection for a back disorder and PTSD based on in-

service sexual trauma; service connection for depression, the

residuals of a right wrist laceration, gastroesophageal

reflux disease, and a dental disorder as secondary to her

service-connected seizure disorder; an increased rating and

earlier effective date for the grant of service connection

for right shoulder bursitis; clear and unmistakable error in

the RO's January 1981 failure to grant an increase in

compensation for a dependent child; and entitlement to

compensation pursuant to 38 U.S.C.A. § 1151 for a heart

disorder. These issues have not yet been adjudicated by the

RO and are referred to the RO for appropriate action. See

Godfrey v. Brown, 7 Vet. App. 398 (1995) (the Board does not

have jurisdiction of issues not yet adjudicated by the RO)."

On about eight of the above issues I have VARO decisions that have

become final. I filed the claim issues, they were denied, I

filed NOD's on them, had a DRO hearing, still denied ----

they are listed on my form 9 ------ and the BVA Judge states

these issues have not been adjudicated by the RO.

This leaves me with very little hope that I won't wind up having

to go to The COVA. If the BVA judge can't see that an issue

has already been adjudicated by the RO and is in appeal status through

the filing of a form 9, just how much hope can that leave of

getting a fair legal shake?

I went to my VARO last week and submitted a 21-4138 to

request a hearing.

jmho,

carlie

[carlie]

No attorney -- no VSO -- just me and my evidence that VA, DRO and BVA have yet to list

and/or consider.

Wings, it's good to see you here - you & your daughter have a Merry, Merry.

carlie