Citation Nr: 0001339 Decision Date: 01/14/00 Archive Date: 01/27/00 DOCKET NO. 96-37 779 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to an initial disability evaluation in excess of 10 percent for acne vulgaris with facial scarring. 2. Entitlement to special monthly compensation based on the need for aid and attendance or being housebound. REPRESENTATION Appellant represented by: Mark A. Venuti, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M.G. Mazzucchelli, Counsel INTRODUCTION The veteran served on active duty from October 1985 to July 1988. This appeal arises from August 1995 and subsequent rating decisions of the Department of Veterans Affairs (VA), Buffalo, New York, regional office (RO), which denied special monthly compensation based on the need for aid and attendance or being housebound, and assigned a 10 percent evaluation for service connected acne vulgaris. In November 1998, the Board of Veterans' Appeals (Board) remanded the case for additional development. Subsequently, a rating action of April 1999 again denied the claims for special monthly compensation and an evaluation in excess of 10 percent for acne vulgaris. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's claims; the veteran failed to report for scheduled VA dermatology examination in January 1999. 2. The veteran's service connected acne vulgaris with facial scarring is not shown to be more than moderately disfiguring; the examination findings and photographs do not demonstrate a severe disability, and there is no evidence of a marked and unsightly deformity of the eyelids, lips or auricles, or of a marked level of discoloration or color contrast. 3. The veteran's service-connected disabilities do not render him unable to provide for his own daily self-care or protect himself from the hazards or dangers incident to his daily environment or so disabled as to need the regular aid and assistance of another person. 4. The veteran is not shown to be confined to his dwelling or immediate premises as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for service-connected acne vulgaris with facial scarring since May 1995 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Code 7800 (1999). 2. The criteria for an award of special monthly compensation based on the need for regular aid and attendance of another person or at the housebound rate have not met. 38 U.S.C.A. §§ 1114(l) and 5107(a) (West 1991); 38 C.F.R. §§ 3.350(b)(3), (i)(2), and 3.352(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claims are well-grounded, within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, he has presented claims which are plausible. All relevant facts have been properly developed and no further assistance is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a) (West 1991). In this regard, the Board notes that pursuant to the previous remand the RO scheduled the veteran for a dermatologic examination in January 1999, however the veteran failed to report for that examination. Acne Vulgaris Service connection for acne vulgaris with facial scarring was granted in March 1996. A 10 percent rating was assigned from May 16, 1995. The veteran has disagreed with this initial disability evaluation. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). The veteran's acne vulgaris with facial scarring is rated in accordance with the rating schedule for disfiguring scars of the head, face, or neck. 38 C.F.R. § 4.118, Part 4, Diagnostic Code 7800 (1999). Where there are disfiguring scars of the head, face, or neck, resulting in complete or exceptionally repugnant deformity of one side of the face or marked or repugnant bilateral disfigurement, a 50 percent evaluation will be assigned. Where the disfiguring scars of the head, face, or neck are severe, especially if producing a marked and unsightly deformity of eyelids, lips, or auricles, a 30 percent evaluation will be assigned. Where the scars are moderate and disfiguring, a 10 percent evaluation will be assigned. 38 C.F.R. Part 4, Diagnostic Code 7800 (1999). When, in addition to tissue loss and cicatrization, there is marked discoloration, color contrast, or the like, the 50 percent rating may be increased to 80 percent, the 30 percent rating may be increased to 50 percent, and the 10 percent rating may be increased to 30 percent. 38 C.F.R. Part 4, Diagnostic Code 7800 (1999). A VA general medical examination conducted in April 1995 noted acne vulgaris and some active pimples on the veteran's back. A November 1995 dermatology evaluation noted the presence of acneform eruption with icepick scars on the face and neck. The veteran was advised to see the VA dermatology clinic for a thorough evaluation. Photographs of the veteran's facial scars were received in 1996. The veteran has contended that he has marked discoloration and color contrast; however, the photographs of record do not support his contention. As noted above, the RO scheduled the veteran for a dermatology examination in January 1999, however he did not report for that examination. The available evidence does not demonstrate that the veteran meets the criteria for the 30 percent evaluation for his acne vulgaris with facial scarring. The examination findings and photographs do not demonstrate a severe disability, and there is no evidence of a marked and unsightly deformity of the eyelids, lips or auricles. There is also no demonstration of the marked level of discoloration or color contrast which would entitle the veteran to a 30 percent evaluation. The available examination report and the photographs provide a preponderance of evidence which outweighs the veteran's statements and establishes no more than the moderate disfigurement contemplated by the current evaluation. 38 C.F.R. Part 4, Code 7800 (1999). Accordingly, the Board finds that the veteran is not entitled to an evaluation in excess of 10 percent for acne vulgaris with facial scarring at any time from May 1995 to the present. 38 C.F.R. Part 4, Code 7806 (1999). In this regard, see Fenderson v. West, 12 Vet. App. 119 (1999) (at the time of an initial rating, separate, or staged, ratings can be assigned for separate periods of time based on the facts found). The facts in this case do not raise a reasonable doubt which could be resolved in the veteran's favor. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.102 (1999). Special Monthly Compensation The veteran contends that his service-connected disabilities are so severe that he is housebound and requires the regular aid and attendance of another person. His service connected disabilities consist of: pigmented villonodular synovitis, left hip, status post partial resection, with left extensor hallucis longus weakness, rated as 100 percent disabling; acne vulgaris with facial scarring, rated as 10 percent disabling; and scoliosis, rated as 10 percent disabling. Statements received in May 1996 from the veteran's mother, father and sister indicated that they had helped the veteran with his daily needs, including cleaning his house and doing dishes. They also assisted him to tie his shoes and dress himself, and with grocery shopping and getting in and out his mother's automobile. The veteran submitted a statement dated in December 1997 in which he described a typical day in his life. He reported that he required Canadian crutches to get out of bed, which could take up to an hour and a half. He described the hardship of dressing, washing dishes and preparing food. He reported that he was unable to keep his household in a clean and tidy state. The veteran reported that his sister was no longer able to help him with his daily activities, and that his nephew accompanied him on trips to the grocery store twice per month. The veteran stated that he had to withdraw from the school he was attending due to his inability to travel the eighth of a mile to that institution. In a May 1998 affidavit, the veteran reported that he had fallen several times due to his service connected hip disorder. He also submitted photographs of his dish-filled sink, which he stated indicated that he was unable to do any household cleaning. The veteran reported for a VA orthopedic examination in May 1998. At that time, the veteran was ambulatory with the use of crutches, and he reported that he received treatment from the VA for his back pain. The veteran stated that he was occasionally incontinent of urine, but had no significant bowel disturbances. On examination, the strength of the extensor hallucis longus muscles were adequate and equal on both sides. The right calf measured 15 and one half inches, and the left calf measured 15 inches. Ranges of lumbosacral spine motion were good. The diagnosis was degenerative joint disease of the left hip, a pigmented villoma, nodular synovitis of the left hip, and mild scoliosis of the lumbosacral spine. A statement dated in November 1999 from [redacted] stated that in the 11 years he had known the veteran, the veteran's physical condition and ability to care for himself had steadily worsened. Mr. [redacted] had been attending to the personal and daily needs of the veteran in his home for the past year and continued to do so. VA compensation for aid and attendance is warranted where a veteran, "as the result of service- connected disability . . . is permanently bedridden or so helpless as to be in need of regular aid and attendance." 38 U.S.C.A. § 1114(l) (West 1991). Pursuant to 38 C.F.R. § 3.352(a), the following criteria are accorded consideration in determining the need for regular aid and attendance: inability of claimant to dress or undress himself (herself), or to keep himself (herself) ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; inability of the claimant to feed himself (herself) through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. It is not required that all of the disabling conditions enumerated above be found to exist before a favorable rating may be made. The particular personal functions which the veteran is unable to perform should be considered in connection with his or her condition as a whole. It is only necessary that the evidence establish that the veteran is so helpless as to need regular aid and attendance, not that there be a constant need. 38 C.F.R. § 3.352(a) (1999). A person will also meet the criteria for aid and attendance if he is bedridden. 38 C.F.R. § 3.352(a) (1999). Bedridden is that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that the claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. 38 C.F.R. § 3.352(a) (1999). To so qualify, the appellant must have a single disability rated 100 percent disabling under the Schedule for Rating Disabilities and have 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. 38 C.F.R. § 3.350(i)(1) (1999). The appellant can also meet the criteria for special monthly compensation if he has a single permanent disability rated 100 percent and is "permanently housebound" by reason of his service-connected disability or disabilities. This requirement is met when the appellant is substantially confined to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical area, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 C.F.R. § 3.350(i)(2) (1999). In this case, the veteran does not have disabilities independently ratable at 60 percent or more, separate and distinct from the permanent disability rated as 100 percent disabling. Nor is he shown to be confined to his dwelling; the evidence shows that the veteran is able to leave his premises to shop, to receive medical treatment and attend hearings. The Board readily acknowledges that the veteran is severely disabled, as reflected in his high disability rating, and it is undisputed that he has very disabling symptoms that tend to deny to him the ability to care for himself as adequately as is desirable. The question in this case, however, concerns the extent of his ability to perform the specific functions involved in daily personal self-care. The record simply does not contain medical evidence of inability to provide adequate care for himself. In his lay statements, the veteran stated that he needed help with his daily basic needs such as cooking, shopping, laundry, and housecleaning. However, although the veteran may benefit from assistance with these tasks, that is not to say that he is incapable of handling such matters himself. Indeed, none of the medical evidence of record indicates that he is unable to dress or undress himself; that he is unable to keep himself ordinarily clean and presentable; that he is unable to attend to the wants of nature; that he is unable to feed himself through loss of coordination of upper extremities or through extreme weakness; or that he is unable to protect himself from the hazards or dangers incident to his daily environment. Moreover, the veteran is not "bedridden" due to his service-connected disabilities. The fact that he voluntarily remains in bed for a substantial part of each day does not mean that his service-connected disabilities require that he do so. In fact, he is clearly capable of conducting activities outside of bed such as walking with crutches, going to the store, and attending medical appointments and hearings. In summary, the preponderance of the evidence shows that the veteran's service- connected disabilities do not render him bedridden, substantially confined to his dwelling, or unable to care for his daily personal needs or protect himself from the hazards of daily living without assistance from others. Accordingly, the veteran is not entitled to special monthly compensation by reason of being in need of regular aid and attendance or being housebound. ORDER The appeal is denied. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals