Veteranclaims’s Blog

July 28, 2020

Single Judge Application; special monthly compensation (SMC) based on aid and attendance; special monthly pension (SMP); specially adapted housing under certain circumstances. 38 U.S.C. § 2101(a); 38 C.F.R. § 3.809(b) (2020);

Filed under: Uncategorized — veteranclaims @ 12:56 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-6540
JOHN R. CERNE, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MEREDITH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MEREDITH, Judge: The self-represented appellant, John R. Cerne, appeals a
September 11, 2019, Board of Veterans’ Appeals (Board) decision that denied entitlement to
benefits for a low back disability; high cholesterol; hypothyroidism; and an acquired psychiatric
disorder, including bipolar disorder and depressive disorder; and denied entitlement to special monthly compensation (SMC) based on aid and attendance; special monthly pension (SMP);
specially adapted housing or special home adaptation; and a disability rating in excess of 20% for
type 2 diabetes mellitus (diabetes). Record (R.) at 5-24. The Board remanded a claim for benefits
for hypertension and a request for a total disability rating based on individual unemployability.
R. at 23-24. Those matters are not before the Court at this time. See Breeden v. Principi,
17 Vet.App. 475, 478 (2004) (per curiam order) (a Board remand “does not represent a final
decision over which this Court has jurisdiction”); Hampton v. Gober, 10 Vet.App. 481, 483 (1997)(claims remanded by the Board may not be reviewed by the Court).
This appeal is timely, and the Court has jurisdiction to review the Board’s decision pursuant
to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will vacate that part
of the Board decision that denied entitlement to SMC and SMP and remand those matters for
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further proceedings consistent with this decision. The Court will affirm that part of the Board
decision that denied entitlement to benefits for a low back disability, high cholesterol,
hypothyroidism, and an acquired psychiatric disorder; and denied entitlement to specially adapted
housing or special home adaptation and a disability rating in excess of 20% for diabetes.
I. BACKGROUND
The appellant served on active duty in the U.S. Army from June 1969 to January 1971.
R. at 3548. He was granted benefits for diabetes in May 2008 and assigned a 20% disability rating
with a January 8, 2008, effective date. R. at 3331.
In May 2013, the appellant filed claims for benefits for diabetes, high blood pressure, high
cholesterol, bipolar disorder, depression, a thyroid condition, and a back disability. R. at 3106-11.
He also indicated that he needed the assistance of another person or a cane to walk. R. at 3108.
The following year, a VA regional office (RO) continued the 20% disability rating for
diabetes, denied entitlement to SMC and SMP based on the need for aid and attendance, and denied
benefits for depressive disorder, bipolar disorder, a back condition, hypertension, high cholesterol,
and a thyroid condition. R. at 2679-88. The appellant filed a Notice of Disagreement (NOD) with
that decision, R. at 2654-57, and later perfected his appeal to the Board, R. at 1276.
In the meantime, the appellant filed an application for specially adapted housing or a
special home adaptation. R. at 2446-47. The RO denied his request in October 2017, R. at
2143-48; he filed an NOD, R. at 2122-23, and ultimately appealed to the Board, R. at 41-42.
The Board issued the decision on appeal in September 2019, denying entitlement to
benefits for a low back disability; high cholesterol; hypothyroidism; an acquired psychiatric
disorder, to include bipolar disorder and depressive disorder; SMC and SMP based on the need for
aid and attendance; specially adapted housing or special home adaptation; and a disability rating
in excess of 20% for diabetes. R. at 5-24. This appeal followed.
II. ANALYSIS
A. SMC and SMP
Although the pro se appellant does not explicitly state in his informal brief that he is
appealing the Board’s denial of SMC and SMP, the Secretary nevertheless concedes that remand is warranted for those matters. Secretary’s Brief (Br.) at 16-17. As he explains in his brief:
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The [r]ecord [b]efore the [a]gency contains 1,119 pages of VA treatment records
that display the same twenty-eight lines of text at the top of every page. Although
the treatment records appear to be complete, the records are confusing because the
dates and information on the top half of each page do not correspond with the
information provided at the bottom of the pages.
Secretary’s Br. at 16-17 (citing R. at 81-1199).1 As a result, the Secretary contends, the Board
misstated the dates of several pieces of evidence on which it relied to deny entitlement to SMC and SMP. Secretary’s Br. at 17. He therefore asks the Court to remand these matters to permit the Board to provide an adequate statement of reasons or bases, taking into account the correct dates of the evidence of record. Secretary’s Br. at 17.
The Board must provide a statement of the reasons or bases for its determination “adequate to enable a claimant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court.” Allday v. Brown, 7 Vet.App. 517, 527 (1995); see 38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). The Board’s reliance on medical evidence without accounting for the apparent anomaly contained in that evidence renders its reasons or bases inadequate. R. at 15-19. Because the appellant is pro se and the Court construes his informal brief liberally, De Perez v. Derwinski, 2 Vet.App. 85, 86 (1992), the Court will accept the Secretary’s
concession, vacate the Board’s decision denying entitlement to SMC and SMP, and remand those matters. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (“[W]here the Board . . . failed to provide an adequate statement of reasons or bases for its determinations, . . . a remand is the
appropriate remedy.”).
B. Specially Adapted Housing or Special Home Adaptation
The appellant states that he needs help getting into and out of the bathtub. Appellant’s
Informal Br. at 1, 4. Congress has provided that “the Secretary may assist” a veteran in obtaining specially adapted housing under certain circumstances. 38 U.S.C. § 2101(a). The statute defines “veteran” as one who “is entitled to compensation under chapter 11 of [] title [38] for a permanent and total service-connected disability.” 38 U.S.C. § 2101(a)(2)(A)(i). Further, the disability rated permanent and total must be due to
(1) [t]he loss or loss of use of both lower extremities, such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair[;]
1 The Court’s review of these pages of the record of proceedings reveals that each of these pages is dated
January 25, 2019, despite containing evidence with dates as early as July 2008.
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(2) [b]lindness in both eyes, having only light perception, plus the anatomical loss
or loss of use of one lower extremity[;]
(3) [t]he loss or loss of use of one lower extremity together with residuals of organic
disease or injury which so affect the functions of balance or propulsion as to
preclude locomotion without the aid of braces, crutches, canes, or a wheelchair[;]
(4) [t]he loss or loss of use of one lower extremity together with the loss or loss of
use of one upper extremity which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair[;]
(5) [t]he loss or loss of use of both upper extremities such as to preclude use of the
arms at or above the elbow[;] or
(6) [f]ull thickness or subdermal burns that have resulted in contractures with
limitation of motion of two or more extremities or of at least one extremity and
the trunk.
38 C.F.R. § 3.809(b) (2020). The requirements for special home adaptation are similar and, importantly, also require that a claimant have a disability rated permanent and total. See 38 C.F.R. § 3.809a(b)(1) (2020).
Here, the Board denied the appellant’s request for specially adapted housing or special
home adaptation because he did not meet the “threshold requirement” of a disability rated
permanent and total. R. at 22. Although the Court is sympathetic to the appellant’s circumstances, he has not demonstrated that the Board erred in any way in reaching this conclusion. See Hilkert
v. West, 12 Vet.App. 145, 151 (1999) (en banc), aff’d per curiam, 232 F.3d 908 (Fed. Cir. 2000)
(table); Berger v. Brown, 10 Vet.App. 166, 169 (1997).
C. Low Back Disability, High Cholesterol, Hypothyroidism,
Acquired Psychiatric Disorder, and Diabetes
On appeal to this Court, the appellant “always bears the burden of persuasion.” Berger,
10 Vet.App. at 169; see Hilkert, 12 Vet.App. at 151. When an appellant states that he or she is
appealing the Board’s decision on an issue, but then makes no arguments, or insufficient
arguments, challenging the Board’s determination, the Court generally affirms the Board’s decision
as a result of the appellant’s failure to plead with particularity the allegation of error and satisfy his
or her burden of persuasion on appeal to show Board error. See Coker v. Nicholson, 19 Vet.App.
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439, 442 (2006) (per curiam), rev’d on other grounds sub nom. Coker v. Peake, 310 F. App’x 371
(Fed. Cir. 2008) (per curiam order).
The appellant’s informal brief, even construed liberally, see De Perez, 2 Vet.App. at 86,
does not identify any specific errors in the Board’s decision. Although he appears to contend that
medical examiners may not have accurately recorded his ailments or symptoms, Appellant’s
Informal Br. at 1-2, 3, he does not identify—by date, physician, location, condition, or otherwise—
what records he believes are inaccurate. To the extent he may be alleging a general disagreement
with the Board’s decision, without argument, such a disagreement is insufficient to demonstrate
that the Board’s findings were clearly erroneous or otherwise inadequately explained. See Buckley
v. West, 12 Vet.App. 76, 81 (1998) (noting that the assignment of a disability rating is a factual
matter that the Court reviews under the “clearly erroneous” standard of review); Russo v. Brown,
9 Vet.App. 46, 50 (1996) (finding that whether the record establishes entitlement to service
connection is a finding of fact that the Court reviews under the “clearly erroneous” standard of
review set forth in 38 U.S.C. § 7261(a)(4)); see also Allday, 7 Vet.App. at 527. Thus, the Court
will affirm these parts of the Board’s decision.
D. Other Matters
Finally, to the extent that the appellant raises or refers to a claim for benefits for an eye
condition or headaches, see Appellant’s Informal Br. at 4-5, the Court lacks jurisdiction over those
matters because they are not the subject of the Board decision on appeal. See Ledford v. West,
136 F.3d 776, 779 (Fed. Cir. 1998) (“[T]he court’s jurisdiction is premised on and defined by the
Board’s decision concerning the matter being appealed.”).
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III. CONCLUSION
After consideration of the parties’ pleadings and a review of the record, that part of the
Board’s September 11, 2019, decision denying entitlement to SMC and SMP is VACATED and
the matters are REMANDED for further proceedings consistent with this decision. That part of
the Board’s decision denying entitlement to benefits for a low back disability, high cholesterol,
hypothyroidism, and an acquired psychiatric disorder; and denying entitlement to specially
adapted housing or special home adaptation and a disability rating in excess of 20% for diabetes,
is AFFIRMED.
DATED: July 27, 2020
Copies to:
John R. Cerne
VA General Counsel (027)

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