Citation Nr: 0814353 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 06-03 649A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for vertigo, to include whether new and material evidence has been received to reopen the previously-denied claim. 2. Entitlement to special monthly compensation (SMC) based on the need for the regular aid and attendance of another person. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The veteran had active military service from July 1973 to July 1993. These matters come before the Board of Veterans' Appeals (Board) on appeal from an RO rating action issued in January 2004, denying the veteran's petition to reopen a previously denied claim for Ménière's disease, also claimed as vertigo. Also on appeal is an August 2004 RO rating decision denying SMC for aid and attendance. The RO subsequently found that new and material evidence had been received in regard to the claim for service connection for vertigo, variously diagnosed. As reflected in the Statement of the Case (SOC) in January 2006 and the Supplemental SOC (SSOC) in June 2007 the RO reopened the claim and denied it on the merits. The Board is neither required nor permitted to analyze the merits of a previously denied claim if new and material evidence has not been submitted. Butler v. Brown, 9 Vet. App. 167, 171 (1996). Even when, as here, the RO reopens the claim and adjudicates on it merits, Board must first determine if claim was properly reopened, and only thereafter may review the merits. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 26 5 F.3d 1366 (Fed. Cir. 2001). The Board has accordingly characterized that issue as reflected on the title page. The veteran recently submitted medical and lay evidence directly to the Board, with a waiver of original RO review. The Board has accepted that evidence for inclusion in the record. See 38 C.F.R. § 20.800. The Board's decision regarding entitlement to SMC for aid and attendance or at the housebound rate is set forth hereinbelow. The issue of service connection for vertigo is addressed in the REMAND portion of this document and is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran when further action is required on his part. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the issue herein decided has been accomplished. 2. The RO denied service connection for Ménière's disease by a rating decision in July 1999 and denied service connection for labyrinthitis in August 1999. The veteran did not appeal either decision. 3. The additional evidence received since the rating decisions in July 1998 and August 1999 is neither cumulative nor redundant of evidence of record at the time of the prior denial, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for vertigo, variously diagnosed. 4. The veteran currently has service connection for one disability rated as 100 percent disabling, two disabilities each rated as 60 percent disabling, two disabilities each rated as 40 percent disabling, two disabilities each rated as 30 percent disabling, one disability rated as 20 percent disabling, two disabilities each rated as 10 percent disabling, and three disabilities each rated as noncompensable. 5. The veteran has had combined evaluation for compensation of 100 percent since January 1998. 6. The veteran currently receives SMC for loss of use of one foot, for loss of use of a creative organ, and for having one service-connected disability rated as 100 percent disabling and at least one additional disability rated as 60 percent disabling. 7. The service-connected disabilities are shown to render the veteran unable to care for his daily needs without requiring the aid and attendance of another person. CONCLUSIONS OF LAW 1. The RO's rating decision in July 1998 denying service connection for Ménière's disease is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2007); 38 C.F.R. §§ 20.302, 20.1103 (2007). 2. The RO's rating decision in August 1999 denying service connection for labyrinthitis is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2007); 38 C.F.R. §§ 20.302, 20.1103 (2007). 3. As evidence received since August 1999 is new and material in regard to vertigo, variously diagnosed, the claim for service connection for that claimed disability is reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2007); 38 C.F.R. § 3.156 (2007). 4. The criteria for the assignment of special monthly compensation based on the need for the regular aid and attendance of another person are met. 38 U.S.C.A. § 1114, 1502, 1521, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.350, 3.351, 3.352 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Initially, the Board notes that, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2003). VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Considering the claims on appeal in light of the duties imposed by VCAA and its implementing regulations, the Board finds that all notification and development action needed to fairly adjudicate the issues herein decided. In light of the Board's favorable action granting the veteran's petition to reopen a previously-denied claim for service connection for vertigo, and also granting SMC for aid and attendance, the Board finds that no further notification or assistance is required as to those issues. There is specifically no prejudice to the veteran regarding notice to reopen a previously-denied claim under Kent v. Nicholson, 20 Vet. App. 1 (2006) or Boggs v. Peake, No. 2007- 7137 (Fed. Cir. March 26, 2008). II. Analysis A. Petition to Reopen a Previously-Denied Claim for Vertigo The RO denied service connection for Ménière's syndrome, also claimed as vertigo, by a rating decision in July 1998. The denial was continued by a rating decision in February 1999. The veteran did not file an appeal in regard to either rating decision. The RO issued a rating decision in August 1999 denying service connection for labyrinthitis. The veteran did not file an appeal. As the veteran did not appeal the RO's July 1998 decision in regard to Ménière's syndrome, or the RO's August 1999 decision in regard to labyrinthitis, those decisions are final as to the evidence then of record, and are not subject to revision on the same factual basis. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103. Under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the claimant. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The veteran filed the instant petition to reopen the claim in April 2003. Regarding petitions to reopen filed on or after August 29, 2001, as in this appeal, Title 38, Code of Federal Regulations, Section 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. See 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim(s) sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether new and material evidence has been received, VA must initially decide whether evidence associated with the claims file since the prior final denial is, in fact, new. As indicated by the regulation cited above, and by applicable case law, "new" evidence is that which was not of record at the time of the last final disallowance (on any basis) of the claim, and is not duplicative or "merely cumulative" of other evidence then of record. This analysis is undertaken by comparing the newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). For purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Evidence associated with the record since August 1999 includes a February 2004 VA outpatient neurology note showing an impression of dizziness, with possible contributing factors including proprioceptive deficit from cervical spondylosis, repeated head injuries, and/or unsteadiness from knee pain. The February 2004 neurological note is material because it shows a number of possible etiologies not previously considered; i.e., vertigo due to trauma and vertigo as secondary to a service-connected disability. The Board notes in that regard that the United States Court of Appeals for the Federal Circuit recently held that a claim for one diagnosed disease or injury cannot be prejudiced by a prior claim for a different diagnosed disease or injury; rather, the two claims must be considered separately. See Boggs v. Peake, No. 2007-7137 (Fed. Cir. March 26, 2008). New evidence also includes a VA outpatient note by nurse DRG, dated in January 2005, in which DRG personally supports that vertigo is service-connected, "as did [the VA primary care neurologist] in his notes." The January 2005 note is material, because it asserts a relationship between the claimed disability and military service, thus relating directly to an element required for service connection. The Board notes that neither new item of evidence described above is adequate to serve as a basis for service connection. However, "new and material evidence" can be construed as that which would contribute to a more complete picture of the circumstances surrounding the origin of a veteran's disability or injury, even when it would not be enough to convince the Board to grant the claim. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The Board accordingly finds that new and material evidence has been received to reopen the claim for service connection for vertigo, variously diagnosed. II. Entitlement to SMC for Aid and Attendance SMC is payable where a veteran has a service-connected disability that renders him so helpless as to be in need of regular aid and attendance. 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b)(3). The veteran has service connection for depressive disorder, rated as 100 percent disabling; for bladder dysfunction and for degenerative back disorder with severe limitation of motion, each rated as 60 percent disabling; for fibromyalgia and for right foot drop, each rated as 40 percent disabling; for residuals of right knee injury with degenerative joint disease and for status post left knee arthropathy, each rated as 30 percent disabling; for prostatitis, rated as 20 percent disabling; for flat feet and for tinnitus, each rated as 10 percent disabling; and for Mallory-Weiss syndrome, hemorrhoids, and impotency, each rated as noncompensable. Effective on January 9, 1998, the veteran has received SMC at the S-1 rate for having one service-connected disability rated as 100 percent disabling and at least one additional disability rated at 60 percent, under the provisions of 38 U.S.C.A. § 1114(s) and 38 C.F.R. § 3.351(d). The veteran also receives SMC at the K-1 rate from two disabilities: for loss of one foot (effective from September 12, 2002) and for loss use of a creative organ (effective from October 22, 2003). A veteran will be considered to be in need of regular aid and attendance if he or she (1) is blind or so nearly blind as to have visual acuity of 5/200 or less in both eyes, contraction of visual field of vision to five degrees or less; (2) is a patient in a nursing home due to physical or mental incapacity; or (3) establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.350(a). 38 C.F.R. § 3.350(c). The veteran does not have service connection for a vision disorder. The criteria of 38 C.F.R. § 3.350(c)(1) are accordingly not met. The evidence does not show, and the veteran has not asserted, that he is a resident in a nursing home. The criteria of 38 C.F.R. § 3.350(c)(2) are accordingly not met. The question accordingly is whether the veteran has established a factual need for aid and attendance, under the criteria of 38 C.F.R. § 3.350(a) as the result of his service-connected disabilities. The following criteria are used to determine whether a claimant is in need of the regular aid and attendance of another person: the inability of the claimant to dress himself or herself or to keep himself or herself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliance which, by reason of the particular disability, cannot be done without aid; the inability of the claimant to feed himself or herself through the loss of coordination of the upper extremities or through extreme weakness; the inability to attend to the wants of nature; or, a physical or mental incapacity that requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.350(a). In Turco v. Brown, 9 Vet. App. 222 (1996), the Court determined that it is not required that all of the conditions enumerated in the provisions of 38 C.F.R. § 3.350(a) be found to exist in order to establish entitlement to aid and assistance, but that at least one of the enumerated factors must be present. The Court added that the particular function the claimant is unable to perform must be considered in connection with his or her condition as a whole and that it is only necessary to establish that the claimant is in need of regular aid and attendance, not that there be a constant need. The RO previously denied SMC for aid and attendance by an unappealed rating decision issued in March 2003. The current claim is based on a VA examination for housebound status executed by a VA physician in April 2003 that recorded that the veteran complained of pains in the knees, back, neck and shoulders. The veteran was unable to raise his arm above his head due to limited range of motion of both shoulder joints; there was also limited motion of the bilateral knees and pain in the lumbar and cervical spine. The examiner stated that the veteran was not able to walk without the assistance of another person and could leave his home or immediate premises 2 to 3 times per week with the assistance of a motorized wheelchair. The veteran's acquaintance submitted a statement in October 2003 attesting that the veteran's pain medications were no longer effective in controlling pain, and those medications caused the veteran to become incoherent on occasion. The veteran's wife submitted a statement in November 2003 attesting that the veteran would soil his sheets up to six times per day due to the service-connected bladder disability. The veteran's daughter submitted a statement in December 2003 attesting that the veteran had been restricted to his bed more than 6 weeks during the year by his service-connected back and knee pain. A VA outpatient treatment note dated in March 2004 states that the veteran complained of joint pain to the point where he was having trouble getting out of bed. The veteran had VA examinations in May 2004 and stated that he would not get out of bed two or three days a week due to pain; he reported that he performed no recreational activities and was very sedentary. The examination report is silent in regard to any limitation of daily activities such as toileting, dressing, grooming, eating, or bathing. The veteran also had a VA examination of the peripheral nerves in May 2004. The examination report is silent in regard to any limitation of daily activities. However, the veteran had a VA evaluation for adaptive equipment in June 2004 in which it was noted that the veteran was able to operate a motor vehicle safely on the highway with conventional gas and brakes, but was not able to load and unload his motorized scooter. The veteran's wife submitted a statement in December 2004 asserting that she had to help the veteran to dress and bathe due to his service-connected back pain, knee pain and fibromyalgia and that the veteran was also unable to cook for himself because he almost burned the house down on several occasions (the veteran is judge incompetent by VA). She asserted that the veteran required more than five absorbent pads per day due to his service-connected bladder dysfunction and had been bedridden for more than six weeks that year due to his various joint pains. The veteran had VA psychiatric and neurological examinations in November 2005. Neither examination report cites any reported problem with self-care. The veteran also had a VA aid and attendance examination in November 2005. The veteran required an attendant in reporting for the examination, although he reported that he was able to drive somewhat. He could probably manage his own benefits, but allowed his wife to do so for convenience. He was not bedridden and had vision better than 5/200. The veteran complained of dizziness, vertigo and poor balance. He reported being able to perform some self care (feeding, toileting, and dressing except for his shoes and socks). The veteran was able to leave his house (typically for church on Sunday) but usually preferred to stay indoors. The examiner noted no restrictions of the upper or lower extremities or any anatomical loss. A VA field examination in January 2006 noted that the veteran needed assistance to take his medications, but noted no physical limitations. The examiner stated that the veteran was unable to pay monthly expenses due to dementia and recommended that he continue to be classified as incompetent. The veteran was noted to rarely leave the house (the examiner cited dining out and haircuts). The veteran's wife submitted a letter in February 2006 asserting that she had to administer the veteran's medications, due to his forgetfulness; she also had to help him dress and undress, cleanse himself, and adjust his orthopedic and prosthetic appliances (ankle supports for drop foot). The veteran's wife submitted a letter in July 2007 asserting that the veteran was periodically unable to fasten or button his shirt or shoes due to chronic pain and swelling of the hands and feet. In summary, the veteran's wife has testified in her correspondence to VA that the veteran's service-connected joint pain, together with his service-connected psychiatric disorder, renders him unable to perform daily self-care without the assistance of another person. The Board finds that the veteran's wife is competent to testify in regard to the onset and continuity of symptomatology, to include the care that she administers to the veteran. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Further, her account is consistent with the VA outpatient treatment records showing joint pain, weakness, and dementia. The Board notes at this point that the veteran's nonservice- connected vertigo no doubt contributes to his need for aid and attendance. However, the numerous service-connected disabilities, in and of themselves, currently are shown to require aid and attendance, and the role of additional nonservice-connected disorders is not relevant. In summary, the totality of the evidence shows that the veteran's service-connected disabilities do cause the veteran to require the aid and attendance of another person in order to perform the functions of daily living. Based on the evidence, the Board finds that the criteria for SMC for aid and attendance are met. ORDER Special monthly compensation based on the need for regular aid and attendance is granted. As new and material evidence has been submitted to reopen the veteran's claim of service connection for vertigo, the appeal to his extent is allowed and subject to further action as discussed hereinbelow. REMAND The Board finds that further development action is required before the Board can adjudicate the issue of service connection for vertigo, variously diagnosed. The RO's last adjudication of the claim was the SSOC in June 2007. Subsequently, the veteran submitted evidence directly to the Board in the form of a July 2007 letter from DAG, a nurse practitioner in the neurology department of the VA Medical Center in Fayetteville, North Carolina, asserting an opinion that DAG agrees with two VA physicians that the veteran's vertigo or Ménière's disease is more likely than not related to military service. (DAG also asserted that the veteran's cervical spondylosis and tinnitus are more likely than not related to military service, but those disorders are already service-connected.) DAG's statement is not adequate in and of itself to support service connection, in that DAG's opinion is conclusory (devoid of any clinical rationale) and in that the unsupported citation of several VA physicians' opinions is hearsay. However, DAG is a nurse in the VA neurology clinic, and her statement raises a possibility that merits examination and competent medical opinion. A medical examination in a service connection case is required, inter alia, when there is evidence indicating the claimed disability or symptoms may be associated with an established event, injury, or disease in service or with another service-connected disability, and when the medical evidence currently of record is insufficient for VA to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 84-86 (2006). The RO is accordingly directed to afford the veteran a VA medical examination and to thereafter readjudicate the claim. The veteran is hereby advised that failure to report to the scheduled examination(s) may result in denial of the claim. See 38 C.F.R. § 3.655. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant or the death of an immediate family member. If the veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file copy(ies) of the notice(s) of the examination sent to him by the pertinent VA medical facility at which the examination is to take place. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2007); 38 C.F.R. § 3.159 (2007). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with VCAA and its implementing regulations. Hence, in addition to the actions requested hereinabove, the RO should also undertake any other development and/or notification action deemed warranted by VCAA prior to adjudicating the claim on appeal. Accordingly, this remaining matter is REMANDED to the RO for the following action: 1. The RO should send to the veteran and his representative a letter requesting that the veteran provide sufficient information, and, as necessary, signed authorization, to enable it to obtain any additional evidence that is pertinent to the claims on appeal. The RO should ask the veteran to submit all pertinent evidence in his possession that is not already of record, and explain the type of evidence that it is his ultimate responsibility to submit. The RO should ensure that its letter meets the requirements of the Court's recent decision in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The RO's letter should clearly explain to the veteran that he has a full one- year period to respond, although VA may decide the claim within the one-year period. 2. If the veteran responds, the RO should assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the veteran and his representative of the records that were not obtained, of the efforts that were made to obtain them, and describe the further action to be taken. 3. Whether or not the veteran responds, the RO should obtain any VA medical treatment records documenting treatment since July 2007. 4. The RO should schedule the veteran for as VA examination by a neurologist at an appropriate VA medical facility. The entire claims file, including service treatment records (STR), must be made available to the physician designated to examine the veteran, and the examiner should indicate in the report that the entire file was reviewed. The examination report should include discussion of the veteran's documented medical history regarding his symptoms of vertigo as shown in STR and post-service medical records, as well as the veteran's subjective assertions regarding his history and symptomology. All appropriate medical diagnostics should be accomplished, and all clinical findings should be reported in detail. Any current diagnosed disorder(s) consistent with symptoms of vertigo should be identified. The examiner should state an opinion as to whether it is at least as likely as not (i.e., 50 percent or more likely) that the veteran has a disability manifested by vertigo that is due to or aggravated by military service or by any of the veteran's service-connected disabilities, to include medications for those disabilities. The examiner should provide a clinical rationale for his or her opinion. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should so indicate. 5. To help avoid future remand, the RO must ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is undertaken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After accomplishing the requested actions, and any additional notification and/or development action deemed warranted, the RO should adjudicate the claim on appeal in light of all pertinent evidence, to specifically include the evidence received after the issuance of the SSOC in June 2007. If any benefit sought on appeal remain denied, the RO should furnish to the veteran and his representative an SSOC that includes citation to and discussion of any additional legal authority considered, as well as clear reasons and bases for all determinations, and afford them the appropriate time for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The veteran has the right to submit additional evidence and argument on the matter or 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. ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs