Citation Nr: 1506363	
Decision Date: 02/11/15    Archive Date: 02/18/15

DOCKET NO.  13-28 632A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in Bay Pines, Florida


THE ISSUES

1.  Entitlement to a clothing allowance due to the use of a wheelchair.

2.  Entitlement to compensation under 38 U.S.C.A. § 1151 for seizures, as secondary to an initial surgery for which such benefits have been granted.

3.  Entitlement to compensation under 38 U.S.C.A. § 1151 for cervical spine degenerative joint disease.

4.  Entitlement to compensation under 38 U.S.C.A. § 1151 for right shoulder degenerative joint disease.

5.  Entitlement to compensation under 38 U.S.C.A. § 1151 for left shoulder degenerative joint disease.

6.  Entitlement to compensation under 38 U.S.C.A. § 1151 for a left forearm disorder.

7.  Entitlement to compensation under 38 U.S.C.A. § 1151 for left elbow degenerative arthritis.

8.  Entitlement to a temporary total evaluation because of hospital treatment in excess of 21 days and due to surgery necessitating convalescence.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

David Gratz, Counsel


INTRODUCTION

The Veteran served on active duty from March 1945 to June 1946.

This matter comes before the Board of Veterans' Appeals (Board) from an August 2013 rating decision by the Department of Veterans Affairs (VA) Medical Center (MC) in Bay Pines, Florida.

The Veteran originally requested a Travel Board hearing in an October 2013 letter.  However, in a September 2014 statement, the Veteran withdrew his request for a Board hearing.  The hearing request is therefore deemed withdrawn.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The issues of 1) entitlement to compensation under 38 U.S.C.A. § 1151 for seizures, as secondary to an initial surgery for which such benefits have been granted; 
2) entitlement to compensation under 38 U.S.C.A. § 1151 for cervical spine degenerative joint disease; 3) entitlement to compensation under 38 U.S.C.A. § 1151 for right shoulder degenerative joint disease; 4) entitlement to compensation under 38 U.S.C.A. § 1151 for left shoulder degenerative joint disease; 
5) entitlement to compensation under 38 U.S.C.A. § 1151 for a left forearm disorder; 6) entitlement to compensation under 38 U.S.C.A. § 1151 for left elbow degenerative arthritis; and 7) entitlement to a temporary total evaluation because of hospital treatment in excess of 21 days and due to surgery necessitating convalescence are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The wheelchair that VA provided to the Veteran for his service-connected entrapment of the ilio-inguinal nerve on the right with neuralgia, currently diagnosed as right ilio-inguinal neuropathy, tends to wear and tear clothing.


CONCLUSION OF LAW

The criteria for entitlement to a clothing allowance have been met.  38 U.S.C.A. § 1162 (West 2002); 38 C.F.R. § 3.810 (2014).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

The Veteran contends in his October 2013 substantive appeal that he was issued a wheelchair for his service-connected disability.  In an accompanying statement, he reports that a clinician stated that he observed the Veteran's torn clothing.

In pertinent part, 38 C.F.R. § 3.810(a) authorizes a clothing allowance if the Under Secretary for Health or a designee certifies that a veteran, because of a service-connected disability or disabilities, wears or uses one qualifying prosthetic or orthopedic appliance which tends to wear or tear clothing.  See 38 C.F.R. § 3.810(a)(1)(ii)(A).

Here, the most probative evidence of record demonstrates that a clothing allowance is warranted based on the Veteran's use of a wheelchair.  First, the record demonstrates that VA issued the Veteran a wheelchair for his service-connected right ilio-inguinal neuropathy.  Specifically, in October 2011, a VA physician recorded that the Veteran sought a wheelchair "because of his inability to move about in public."  Similarly, a March 2012 VA nurse recorded that the Veteran "fell 2.5 months ago due to neuropathy [when his right] leg gave out."  In April 2013, the VA physician explained that the Veteran "uses his wheel chair for mobility."  These statements all tend to show that the Veteran's service-connected right leg neuropathy has caused or contributed to his loss of mobility.

Second, the record shows that the wheelchair damages the Veteran's clothing.  In an October 2013 statement, the Veteran informed VA that a clinician had stated that he observed the torn clothing during an evaluation of his wheelchair.  The Veteran is competent to establish this fact when reporting a contemporaneous medical finding.  Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  Further, the Board finds that the Veteran is credible in his reporting based on the internal consistency of his statements.  Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007).  In this regard, the Board observes that the Veteran had previously been approved for a clothing allowance under the same standard in 2012.  Although an October 2013 VA clinician stated that the Veteran's clothing was frayed "from laundering," he provided no rationale for that conclusion, and the opinion therefore warrants no probative weight.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).

As the most probative evidence of record demonstrates that because of a service-connected disability the Veteran uses an orthopedic appliance which tends to wear and tear clothing, the claim for a clothing allowance is granted.  38 C.F.R. § 3.810.




ORDER

Entitlement to a clothing allowance due to use of a wheelchair for entrapment of the ilio-inguinal nerve on the right with neuralgia, currently diagnosed as right ilio-inguinal neuropathy, is granted.


REMAND

Remand is required because, following the RO's September 4, 2014 rating decision, the Veteran submitted a timely notice of disagreement on September 12, 2014 as to the issues of 1) entitlement to compensation under 38 U.S.C.A. § 1151 for seizures, as secondary to an initial surgery for which such benefits have been granted; 2) entitlement to compensation under 38 U.S.C.A. § 1151 for cervical spine degenerative joint disease; 3) entitlement to compensation under 38 U.S.C.A. § 1151 for right shoulder degenerative joint disease; 4) entitlement to compensation under 38 U.S.C.A. § 1151 for left shoulder degenerative joint disease; 5) entitlement to compensation under 38 U.S.C.A. § 1151 for a left forearm disorder; 6) entitlement to compensation under 38 U.S.C.A. § 1151 for left elbow degenerative arthritis; and 7) entitlement to a temporary total evaluation because of hospital treatment in excess of 21 days and due to surgery necessitating convalescence.  As the rating decision is not final, the CUE claim as to the final issue is construed as a notice of disagreement, which is most favorable to the Veteran.  To date, the RO has not issued a statement of the case as to those claims.

Where, as here, there has been an initial AOJ adjudication of a claim and a notice of disagreement as to its denial, the claimant is entitled to a statement of the case.  See 38 C.F.R. § 19.26.  Thus, remand for issuance of a statement of the case on those issues is needed.  Manlincon v. West, 12 Vet. App. 238 (1999).

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)
Provide the Veteran with a statement of the case regarding the issues of 1) entitlement to compensation under 38 U.S.C.A. § 1151 for seizures, as secondary to an initial surgery for which such benefits have been granted; 2) entitlement to compensation under 38 U.S.C.A. § 1151 for cervical spine degenerative joint disease; 3) entitlement to compensation under 38 U.S.C.A. § 1151 for right shoulder degenerative joint disease; 4) entitlement to compensation under 38 U.S.C.A. § 1151 for left shoulder degenerative joint disease; 5) entitlement to compensation under 38 U.S.C.A. § 1151 for a left forearm disorder; 6) entitlement to compensation under 38 U.S.C.A. § 1151 for left elbow degenerative arthritis; and 7) entitlement to a temporary total evaluation because of hospital treatment in excess of 21 days and due to surgery necessitating convalescence.

Please advise the Veteran of the time period in which to perfect his appeal.  If the Veteran perfects his appeal of any of these issues in a timely fashion, then return the case to the Board for its review, as appropriate.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  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 2014).

______________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs