Robert L. Howell v. R. James Nicholson

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO . 04-0624

ROBERT L. HOWELL, APPELLANT ,

V.

R. JAMES NICHOLSON ,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Decided March 23, 2006 )

Kenneth M. Carpenter, of Topeka, Kansas, and Allan T. Fenley, of Schenectady, New York,

were on the brief for the appellant.

Tim S. McClain, General Counsel; R. Randall Campbell, Assistant General Counsel; Carolyn

F. Washington, Deputy Assistant General Counsel; Edward V. Cassidy, Jr., Deputy Assistant

General Counsel; Gayle E. Strommen, Senior Appellate Attorney, and Levinia A. Derr, all of

Washington, D.C., were on the brief for the appellee.

Before KASOLD, LANCE, and SCHOELEN, Judges.

KASOLD, Judge: Korean conflict era veteran Robert L. Howell appeals through counsel a

February 2, 2004, decision of the Board of Veterans' Appeals (Board) that denied entitlement to

special monthly compensation (SMC) based on the need for regular aid and attendance or upon

housebound status. For the reasons set forth below, the decision of the Board will be set aside and

the matter remanded for readjudication.

I. BACKGROUND

Mr. Howell served in the U.S. Army from April to September 1951. Record (R.) at 16. In

April 1981, a VA regional office (RO) issued a rating decision that granted service connection for

schizophrenia, chronic paranoid type, and awarded a 70% disability rating. R. at 22-24. In April

1982, Mr. Howell's disability rating was increased to 100%. R. at 26.

In January 2000, Mr. Howell submitted to the RO a handwritten letter inquiring whether he

was "eligible for aid and attendance benefits." R. at 38-39. Thereafter, Mr. Howell submitted to the

RO the handwritten note of Dr. Jose H. Duque, who stated that Mr. Howell was "not able to take

care of himself without help because [of] his mental and physical disability." R. at 47. In May 2000,

the RO notified Mr. Howell that he was scheduled for compensation examinations in support of his

claim. R. at 49. In response, Mr. Howell requested that the RO cancel the examinations and stated

that he was unable to attend them because his "mental health has deteriorated due [to] old age." R.

at 55. In August 2000, the RO construed Mr. Howell's letter as a claim for SMC benefits based on

his being permanently housebound in addition to his claim for SMC benefits based on the need for

aid and attendance, and it denied the claims. R. at 76-78. Mr. Howell filed a Notice of

Disagreement with the RO's decision. R. at 80.

In June 2002, after the RO determined that a medical examination was necessary to decide

the claim, Mr. Howell was afforded a VA medical examination. R. at 97. In the examination report,

the examiner, Dr. Padma Raghavan, noted that Mr. Howell's claims file was not available for review.

R. at 104. Dr. Raghavan further noted that Mr. Howell presented himself in a wheelchair at the

examination, but that Mr. Howell reported that he did not use a wheelchair at home. R. at 104. The

report indicated that Mr. Howell's wife stated that she helped him with bathing, eating, and dressing.

R. at 105. Dr. Raghavan diagnosed Mr. Howell with (1) a history of disc disease in lumbosacral

spine with hyperreflexia and left-sided sciatic pain; (2) emotional problems; and (3) hypertension.

R. at 106. Dr. Raghavan noted: "As per the wife and also as per the veteran because of a

combination of his emotional problems and probable spine disease and loss of balance, veteran is

unable to take care of his activities of daily living." Id. After additional development, in February

2003 the RO issued a Supplemental Statement of the Case that denied Mr. Howell's claim for SMC.

On appeal, the Board denied Mr. Howell's claim for SMC on the basis that his schizophrenia,

as his "sole service-connected disability, alone, does not render him housebound or in need of the

regular aid and attendance of another person." R. at 12. Regarding Mr. Howell's housebound status,

the Board specifically found that "the record reflects that the veteran is able to leave his house to

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attend to regular treatment appointments . . . and to attend VA examinations when motivated." R.

at 10. The Board concluded that "the record clearly reflects that he is able to leave his house when

desired, and there is otherwise no evidence suggesting that it is his psychiatric disability, rather than

his numerous physical disabilities, which interferes with his ability to leave home." R. at 10-11.

Regarding Mr. Howell's need for regular aid and attendance, the Board specifically found that Dr.

Duque and Dr. Raghavan "both concluded that it was only from a combination of the veteran's

service-connected psychiatric, and non-service-connected physical, disabilities, that the veteran

required the assistance of another person in the performance of his daily activities." R. at 11

(emphasis in original).

In his appeal to the Court, Mr. Howell argues that the Secretary failed in his duty to assist

under 38 U.S.C. § 5103A by failing to conduct an adequate medical examination, and failed to

provide adequate notice as required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) (2005). The

Secretary argues that there is a plausible basis in the record for the Board's decision and that the

Board properly found that the Secretary complied with his duties to assist and to notify, and he urges

the Court to affirm. In response to the Court's request, the parties provided supplemental briefing

on the statutory and regulatory requirements for SMC benefits on the basis of the need for regular

aid and attendance or for being permanently housebound.

II. ANALYSIS

SMC may be granted to a veteran of a period of war1 who, inter alia, is in need of aid and

attendance or is permanently housebound. See generally 38 U.S.C. §§ 1114(l), (s). Under section

1114(l), SMC on the basis of the need for regular aid and attendance (SMC-AA) is paid when a

wartime veteran, inter alia, is so helpless as to be in need of regular aid and attendance as a result

of service-connected disability. See 38 U.S.C. § 1114(l); see also 38 C.F.R. §§ 3.350(b)(2), 3.352(a)

(2005). Under section 1114(s), SMC on the basis of being permanently housebound (SMC-HB) is

paid when, inter alia, a wartime veteran, by reason of service-connected disability, is permanently

housebound. See 38 U.S.C. § 1114(s); see also 38 C.F.R. § 3.350(i)(2).

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Service, such as Mr. Howell's, during the Korean conflict between June 27, 1950, and January 31, 1955, is

statutorily defined as service during a period of war. See 38 U.S.C. § 101(9), (11); see also 38 C.F.R. § 3.2 (e) (2005).

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A. Regular Aid and Attendance of Others – 38 U.S.C. § 1114(l)

In the decision on appeal, the Board determined that SMC-AA is available when the need

for the aid and attendance of others arises solely from a wartime veteran's service-connected

disabilities. The parties agree with this interpretation of 38 U.S.C. § 1114(l) and 38 C.F.R.

§§ 3.350(b)(2), 3.352(a) (2005), as does the Court. See Jackson v. Nicholson, 19 Vet.App. 207, 209

(2005) (citing Lane v. Principi, 339 F.3d 1331, 1339 (Fed. Cir. 2003)) (correct interpretation of a

law or regulation is a question of law, which the Court reviews de novo); Cropper v. Brown,

6 Vet.App. 450, 454 (1994). The plain and unambiguous language of section 1114(l) requires that

a claimant be in need of regular aid and attendance "as the result of service-connected disability."

See 38 U.S.C. § 1114(l); see also Gardner v. Brown, 5 F.3d 1456, 1456 (Fed. Cir. 1993) [hereinafter

Gardner II] ("The starting point in interpreting a statute is its language, for 'if the intent of Congress

is clear, that is the end of the matter.'"), aff'd, 513 U.S. 115 (1994). The plain language of section

1114(l) is consistent with the statutory scheme of which it is a part. See Gardner v. Derwinski,

1 Vet.App. 584, 586 (1991) [hereinafter Gardner I] ("Determining a statute's plain meaning requires

examining the specific language at issue and the overall structure of the statute."), aff'd sub nom.

Gardner II, 5 F.3d 1456 (Fed. Cir. 1993), aff'd, 513 U.S. 115 (1994). Section 1114 is contained

within chapter 11, title 38, U.S. Code, which sets forth the benefits payable on the basis of a veteran's

service-connected disability or death. See generally 38 U.S.C. §§ 1101-1163.

Based solely on the medical opinions of Dr. Raghavan and Dr. Duque, the Board determined

that Mr. Howell was not entitled to SMC-AA benefits because "it was only from a combination of

his service-connected and non-service-connected disabilities" that Mr. Howell required the assistance

of others. R. at 11 (emphasis in original). However, these medical opinions lacked the proper

foundation to be given any weight.

Dr. Raghavan relied solely on the statements of Mr. Howell and his wife that Mr. Howell's

need for assistance was a result of the combination of his disabilities; Dr. Raghavan provided no

medical assessment of his needs or the specific basis for those needs. Although Mr. and Mrs.

Howell may state their activities and opine as to their needs as they related to Mr. Howell's

disabilities, they are not qualified to provide the medical nexus between their disabilities and the

perceived needs, see Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992) (holding that lay person is

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not competent to offer evidence that requires medical knowledge), and their recorded statements,

"unenhanced by any additional medical comment" by Dr. Raghavan are not competent medical

evidence, LeShore v. Brown, 8 Vet.App. 406, 409 (1995) (internal quotation omitted) (holding as

incompetent medical evidence where the examiners had not "filtered, enhanced, or added medico-

evidentiary value to the lay history through their medical expertise"). Similarly, Dr. Duque's opinion

regarding Mr. Howell's need for aid and attendance is nothing more than a handwritten note on a

blank form used for prescriptions that states: "He is not able to take care of himself because [of] his

mental and physical disability." R. at 47. This statement is unenhanced by any medical comment

and is not competent medical evidence. See LeShore, supra. Inasmuch as the opinions of Dr.

Raghavan and Dr. Duque do not constitute competent medical evidence because they are not

enhanced by any additional medical comment by the medical examiner, the Board erred by relying

on them in support of its conclusion that Mr. Howell was not entitled to SMC-AA benefits.

In disability compensation claims, the Secretary's duty to assist requires him to provide a

medical examination or obtain a medical opinion "when such an examination or opinion is necessary

to make a decision on the claim." 38 U.S.C. § 5103A(d)(1); see Wells v. Principi, 326 F.3d 1381,

1384 (Fed. Cir. 2003) (holding that section 5103A(d) places a duty on the Secretary to provide a

medical examination or opinion where such opinion is necessary to make a decision on the veteran's

claim for disability compensation); Charles v. Principi, 16 Vet.App. 370, 375 (2002) (Board erred

in failing to obtain medical nexus opinion that was necessary to make a decision on the claim);

38 C.F.R. § 3.159(c)(4)(i)(C); see also Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991) (Board

must consider all relevant evidence of record and address in its decision all potentially applicable

provisions of law and regulation). In light of the holding that both of the medical opinions upon

which the Board relied were incompetent as a matter of law, the state of the evidence as to the SMC-

AA claim reverts to that as it existed prior to the examination, that is, to the point when the Secretary

determined that a medical examination was required to make a decision on the claim. Therefore, on

remand the Board must ensure that Mr. Howell is provided with a medical examination that will

enable it to make a decision on his claim for SMC-AA benefits. See 38 U.S.C. § 5103A(d)(1);

Wells, Charles, and Schafrath, all supra.

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B. Permanently Housebound Status – 38 U.S.C. § 1114(s)

SMC-HB benefits will be paid to a veteran who, "by reason of such veteran's service-

connected disability or disabilities, is permanently housebound." 38 U.S.C. § 1114(s); see also

38 C.F.R. § 3.350(i)(2). The term "permanently housebound" is further defined as being

"substantially confined to such veteran's house . . . or immediate premises due to a service-connected

disability or disabilities which it is reasonably certain will remain throughout the veteran's lifetime."

Id. The term "substantially confined" is not defined by statute or regulation. See id.

Because the meaning of the term "substantially confined" is ambiguous and there is no

regulatory interpretation, "the Court must determine the meaning" of the term "and the Board's

obligation" thereunder. Thompson v. Brown, 8 Vet.App. 169, 175 (1995); see also Jackson and

Cropper, both supra. The Secretary submits that the clear implication of this term is that the

requirement that one be "substantially confined" is met when the claimant is restricted to his house

except for medical treatment purposes. The Secretary, citing to Senate Report No. 1745 (June 27,

1960), notes that in passing section 1114(s) Congress intended to provide additional compensation

for veterans who were unable to overcome their particular disabilities and leave the house in order

to earn an income as opposed to an inability to leave the house at all. Mr. Howell does not contest

this interpretation.

To the extent substantial confinement does not include departures for medical purposes, we

agree that the interpretation that the Secretary presents in his supplemental briefing is reasonable and

consistent with statute and regulations. See Jackson, Thompson, and Cropper, all supra.

Accordingly, we hold that leaving one's house for medical purposes cannot, by itself, serve as the

basis for finding that one is not substantially confined for purposes of SMC-HB benefits, and the

Board's interpretation of section 1114(s) to preclude the grant of SMC benefits on the basis of Mr.

Howell's leaving his house in order to attend VA medical appointments was erroneous as a matter

of law.

C. Other Considerations

We also note that the Board erred when it failed to discuss or assess the separate effects of

Mr. Howell's service-connected and non-service-connected disabilities, and whether, standing alone,

his service-connected disabilities would have warranted the grant of SMC-AA or SMC-HB benefits.

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See Mittleider v. West, 11 Vet.App. 181, 182 (1998) (holding that when claimant has both service-

connected and non-service-connected disabilities, Board must attempt to discern the effects of each

disability and, where such distinction is not possible, attribute such effects to the service-connected

disability); Schafrath, supra. The fact that Mr. Howell suffered from both service-connected and

non-service-connected disabilities does not mean that he would not have required support sufficient

to warrant aid and attendance or otherwise been permanently housebound based on his service-

connected disabilities alone. Moreover, if is not possible to evaluate separately the effects of each

disability, application of the benefit-of-the-doubt doctrine requires the Secretary to attribute those

inseparable to his service-connected disability. See Mittleider, supra. This issue should be

addressed on remand.

In light of our holding here today and the fact that this matter is being remanded for

readjudication, the Court need not address the various notice-error arguments raised by Mr. Howell.

These purported errors, which were not raised to the Board, can be addressed on remand. See

Maggitt v. West, 202 F.3d 1370, 1377 (Fed. Cir. 2000) (with regard to a claim properly before it,

Court is not compelled to hear legal issues raised to it in the first instance). Moreover, on remand,

Mr. Howell will have the opportunity to present any additional evidence and argument in support

of his claim, including the notice arguments raised to the Court, and any evidence and argument so

presented must be considered. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Court expects

that the Board will provide expeditious treatment of this matter on remand. See 38 U.S.C. § 7112.

III. CONCLUSION

Upon consideration of the foregoing, the February 2, 2004, decision of the Board is SET

ASIDE and the matter is REMANDED for readjudication consistent with this opinion.

SET ASIDE and REMANDED.

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