Citation Nr: 0804247
Date: 02/06/08 Archive Date: 02/13/08
DOCKET NO. 05-40 979 )
On appeal from the Department of Veterans Affairs Regional Office in Reno,
special monthly compensation based on the need for regular aid and attendance or at the housebound rate.
Appellant represented by:
Nevada Office of Veterans' Services
ATTORNEY FOR THE BOARD
N. Moats, Associate Counsel
The veteran had active duty service from June
1980 to April 1981.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision
by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received
in July 2005, a statement of the case was issued in December
2005, and a substantive appeal was received in December 2005. In his substantive appeal, the veteran requested
a Board hearing at the local RO. However, he subsequently withdrew his request in a September 2006 statement.
The appeal is REMANDED
to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further
action is required.
The veteran is seeking entitlement to
special monthly compensation based on the need for the regular aid and attendance of another person or on the basis of being
housebound. He was afforded a VA examination in January 2006 for his service-connected left knee disability. This evidence is pertinent to the special monthly
compensation issue on appeal.
However, although the RO considered the January 2006 examination report in connection with a separate increased
rating claim, it does not appear that the RO has considered this additional medical evidence in connection with the special
monthly compensation issue. The appellate scheme set forth in 38 U.S.C.A. § 7104(a) (West 2002) contemplates
that all evidence will first be reviewed at the RO so as not to deprive the claimant of an opportunity to prevail with his
claim at that level. See generally Disabled
American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). When the agency of
original jurisdiction receives evidence relevant to a claim properly before it that is not duplicative of evidence already discussed in the statement of the case or a supplemental statement
of the case, it must prepare a supplemental statement of the case reviewing that evidence. 38 C.F.R. §
19.31(b)(1). Further, when evidence is received prior to the transfer of a case to the Board a supplemental
statement of the case must be furnished to the veteran, and his or her representative, if any, as provided in 38 C.F.R. §
19.31 unless the additional evidence is duplicative or not relevant
to the issue on appeal. 38 C.F.R. § 19.37(a). There is no legal authority for a
claimant to waive, or the RO to suspend, this requirement. 38 C.F.R. § 20.1304(c).
Accordingly, this issue must be returned to the RO for
review of the additional medical evidence.
Further, the Board notes that Social Security Administration (SSA) records from 1994 to 1997 are
associated with the claims file. Further, a SSA inquiry dated October 2004 showed that the veteran was
no longer receiving SSA disability benefits. Nevertheless, in a July 2006 statement, the veteran indicated
that he was currently receiving SSA disability benefits. However, it does not appear that the veteran's
current SSA records have been requested. Thus, the RO should obtain the administrative decisions pertaining
to the veteran's claim and any underlying medical records from the SSA since 1997. See Hayes v. Brown,
9 Vet.App. 67, 74 (1996) (VA is required to obtain evidence from the SSA, including decisions by the administrative law judge); Murincsak v. Derwinski, 2 Vet.App. 363 (1992).
Lastly, the Board also notes that during
the pendency of this appeal, on January 30, 2008, the United States Court of Appeals for Veterans Claims (Court) issued a
decision in Vazquez-Flores v. Peake, No. 05-0355, (U.S. Vet.App. January 30, 2008), which held that with respect to increased rating claims, the VCAA notice requirements of 38 U.S.C.A. §
5103(a) and 38 C.F.R. § 3.159(b) required, at a minimum, that the Secretary notify the claimant that, to substantiate
a claim, the claimant must provide, or ask the Secretary to
obtain, medical or lay evidence demonstrating a worsening or
increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life.
Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant
demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test
result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally,
the claimant must be notified that, should an increase in disability
be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range
in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which
disability compensation is being sought, their severity and duration, and their impact upon employment and daily life.
As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the
notice must also provide examples of the types of medical and lay evidence
that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation,
e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing
an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores,
slip op. at 5-6. Although the present appeal
involves the issue of special monthly compensation, VA believes that the Vazquez-Flores analysis must be analogously applied.
Since the Board is remanding this case for other matters, it is reasonable for the RO to give additional VCAA notice
to comply with Vazquez-Flores.
Accordingly, the case is REMANDED for the following actions:
1. The RO should furnish the veteran a VCAA notice letter
in compliance with the guidance set forth in Vazquez-Flores v. Peake, No. 05-0355, (U.S. Vet.App.
January 30, 2008).
2. The RO should contact
the Social Security Administration and obtain copies of all
administrative decisions (with associated medical records) since 1997
pertaining to any claim for disability benefits by the veteran.
3. The RO should review the record, to specifically include all evidence received since the statement of the case, and determine whether special monthly
compensation is warranted. Unless the benefit
is sought, the veteran and his
representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the
case should be
to the Board for appellate review.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has
Kutscherousky v. West, 12 Vet.App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all
claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims
for additional development or other appropriate action must
be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
ALAN S. PEEVY
Veterans Law Judge, Board of
38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans
Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your
38 C.F.R. § 20.1100(b) (2007).
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