Citation Nr: 1305411 Decision Date: 02/14/13 Archive Date: 02/21/13 DOCKET NO. 10-27 402 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to special monthly compensation based on the need for regular aid and attendance of the Veteran's spouse. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran had active military service from June 1970 to January 1972, and from February 2003 to October 2007. These matters come before the Board of Veterans' Appeals (Board) from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In June 2012, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The Board notes that the issue of entitlement to service connection for hypertension was characterized by the RO as an issue of whether new and material evidence had been received to reopen a previously-denied claim for entitlement to service connection for hypertension. In general, RO decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.200 (2012). An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. However, under 38 C.F.R. § 3.156(c)(1) (2012), if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. The provision does not apply to records that VA could not have obtained when it decided the claim because the records did not exist or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source. 38 C.F.R. § 3.156(c)(2). Here, the Veteran initially applied for entitlement to service connection for hypertension in January 2007. Submitted with his January 2007 claim was correspondence clearly explaining that he was not in receipt of retirement pay because he was still on active duty. Nonetheless, in a August 2007 decision, the RO denied his claim for hypertension, and incorrectly indicated that his active duty service dates were from June 1970 to January 1972, and from February 2003 to January 2006. Curiously, in rendering this decision, the RO indicated that they reviewed service treatment records dated from June 29, 1970, to October 12, 2006. However, the Veteran did not actually separate from active duty service until October 13, 2007. In a January 2008 rating decision, the RO acknowledged their mistake and amended all of the Veteran's previous grants of service connection to the new effective date of October 14, 2007, the first day following his discharge from active duty service. However, this rating decision did not indicate that the remaining service records generated since October 2006 had been reviewed, nor did it reconsider the Veteran's previously-denied hypertension claim. Later, in a June 2008 decision, the RO considered several claims unrelated to the Veteran's claim of service connection for hypertension. Significantly, the June 2008 rating decision indicated that additional service treatment records dated from October 19, 2006, to October 10, 2007, had since been added to the record and reviewed by the RO. At least some of the Veteran's additional service treatment records dated from October 2006 to October 2007, particularly those dated from October 2006 to August 2007, had existed but had not been associated with the claims file when VA first decided the hypertension claim in August 2007. As the service treatment records are also relevant to the Veteran's claim, the Board finds that this additional evidence falls into the exception created by 38 C.F.R. § 3.156(c) (2012). Accordingly, the claim will be reconsidered pursuant to his original claim for service connection in January 2007, without regard to finality of the August 2007 RO denial of the claim. See 38 C.F.R. § 3.156; Vigil v. Peake, 22 Vet. App. 63 (2008). The Board finds that the Veteran is not prejudiced in this regard as the matter is being remanded to the RO for consideration prior to appellate adjudication. The issue of entitlement to service connection for ischemic heart disease has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran seeks entitlement to service connection for hypertension. Specifically, he asserts that his hypertension preexisted his February 2003 to October 2007 period of active duty service, and that the condition was aggravated during that period. On the Veteran's June 1970 Report of Medical History at induction, he indicated that he never suffered from high or low blood pressure. His June 1970 Report of Medical Examination at induction confirmed that his heart and vascular system were within normal limits, and that his blood pressure was 130/70 millimeters of mercury (mmHg). Similarly, his January 1972 Report of Medical Examination at separation from service indicated that his heart and vascular system were within normal limits, and that his blood pressure was 120/60 mmHg. The report of an October 1972 VA examination indicated that his blood pressure was 110/70 mmHg. Upon the Veteran's return to active duty service in February 2003, it was noted that he was being treated for hypertension. In August 2003, the State Medical Evaluation Board placed him on a permanent P2 profile. The report of a May 2007 VA examination indicated that the Veteran had a history of labile hypertension dating back four years which was attributed to anxiety. The report stated that he was treated with lisinopril and hydrochlorothiazide, and that his response to these medications had been partial, with no side effects. With respect to functional impairment, the examiner indicated that the Veteran became lightheaded when he tried to overdo things or was nervous. While not explicitly raised by the Veteran, the Board notes that the May 2007 VA examination report suggests that his hypertension may be aggravated by his service-connected posttraumatic stress disorder (PTSD), as anxiety has been listed as a manifestation of his PTSD and has also been noted to be a contributing factor to his hypertension. Under 38 C.F.R. § 3.310, service connection may be granted for a disability that is proximately due to or the result of a service-connected disease or injury, or for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Board recognizes that a new etiological theory does not constitute a new claim. See Bingham v. Nicholson, 421 F.3d 1346, 1348-49 (Fed. Cir. 2005) (denial of a claim by the Board is a decision as to all potential theories of entitlement, not just those considered and rejected); Roebuck v. Nicholson, 20 Vet. App. 307, 313 (2006) (although there may be multiple theories or means of establishing entitlement to a benefit for a disability, if the theories all pertain to the same benefit for the same disability, they constitute the same claim); see also Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009). Courts have held that proceedings before VA are nonadversarial and VA's obligation to analyze claims goes beyond the arguments explicitly made. See Robinson v. Peake, 21 Vet. App. 545, 553 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); see also Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000) (Upon the filing of a claim for benefits, VA generally must investigate the reasonably apparent and potential causes of the Veteran's condition and theories of service connection that are reasonably raised by the record or raised by a sympathetic reading of the claimant's filing.). As such, although the RO has not addressed the issue of entitlement to service connection for hypertension under a secondary service connection theory of entitlement, the Board finds that such a theory is part and parcel of the Veteran's underlying claim of entitlement to service connection for hypertension and is currently within the Board's jurisdiction. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the May 2007 VA examination report in this case is inadequate for adjudication purposes. Although the report states that the Veteran's hypertension was attributed to anxiety, it does not provide an opinion as to the likelihood that the Veteran's hypertension was aggravated by his service-connected PTSD. In the examiner's defense, the RO did not grant the Veteran entitlement to service connection for PTSD until an August 2007 rating decision subsequent to the May 2007 examination; however, now that service connection for PTSD has been established, an opinion with respect to the relationship of the Veteran's hypertension to his PTSD symptomatology must be obtained. In addition, the Veteran seeks entitlement to special monthly compensation based on the need for regular aid and attendance of his spouse. With regard to the claim for special monthly compensation, a remand is required as it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2012). Under 38 C.F.R. § 3.351(a)(2), special monthly compensation is payable to a veteran by reason of the veteran's spouse being in need of aid and attendance. The authority for section 3.351(a)(2) is 38 U.S.C.A. § 1115(1)(E), which provides, in pertinent part, that any veteran entitled to compensation at the rates provided in 38 U.S.C.A. § 1114 and whose disability is rated not less than 30 percent, shall be entitled to additional compensation for dependents in certain specified amounts, including for a spouse who is a patient in a nursing home or who is blind, or so nearly blind or significantly disabled as to need or require the regular attendance of another person. In order to be entitled to compensation under section 1114, the Veteran must have a service-connected disability rated at least 30 percent. See, generally, 38 U.S.C.A. § 1114. Relevant factors for consideration as to the need for aid and attendance are inability of the 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 the hazards or dangers inherent in his/her daily environment. The term "bedridden" actually requires that the claimant remain in bed. The particular personal functions which the claimant is unable to perform should be considered in connection with the his/her condition as a whole. The evidence need only establish that the claimant is so helpless as to need regular aid and attendance, not constant need. Determinations that the claimant is so helpless as to need regular aid and attendance will not be based solely upon an opinion that the his/her condition requires the claimant to be in bed. They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352(a). The claimant must be unable to perform one of the enumerated disabling conditions, but his/her condition does not have to present all of the enumerated disabling conditions. Turco v. Brown, 9 Vet. App. 222, 224 (1996). Here, the Veteran and his representative asserted that the Veteran's spouse is entitled to special monthly compensation based on the need for aid and attendance because she is unable to feed herself, dress herself, bathe herself, use the restroom, or do household chores due to her arthritis and osteoporosis. The Veteran's combined evaluation for compensation is currently 100 percent, to include a 70 percent rating for PTSD, which certainly exceeds the 30 percent required minimum for the aid and attendance compensation for a spouse. However, when questioned at his June 2012 Board videoconference hearing, the Veteran seemed to indicate that his spouse did not meet many of the criteria for aid and attendance compensation. The Veteran indicated that he needed to help his spouse cut meat, but did not indicate an overall inability of his spouse to feed herself. The Veteran indicated that his spouse could take showers but not baths, and did not allow him to bathe her, although he helped her into and out of the shower, indicating an overall ability to bathe herself. The Veteran indicated that his spouse could not wear high-heeled shoes and required assistance buttoning shirts, tying shoes, and buckling belts, but did not indicate an overall inability to dress herself. The Veteran conceded that his spouse's main area of need was assistance with household chores. He testified that his spouse was not blind or bedridden and did not require assistance toileting, although she needed assistance going up and down stairs in the house. Significantly, the Veteran testified that his spouse was in receipt of Social Security Administration benefits for rheumatoid arthritis and osteoporosis since 2008 or 2009. The United States Court of Appeals for Veterans Claims has held that where there has been a determination that the claimant is entitled to Social Security Administration (SSA) benefits, the records concerning that decision are often needed by the VA for evaluation of pending claims, and must be obtained. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Therefore, the medical records from SSA pertaining to any original award of disability benefits and any continuing award of benefits should be requested and associated with the claims file. Here, the record shows that the Veteran's spouse is in receipt of SSA disability benefits due to her arthritis and osteoporosis, the same conditions which the Veteran claims prevent her from being able to care for herself. However, the Board observes that the record does not contain a copy of the determination granting such benefits or the clinical records considered in reaching the determination. The record also does not reflect that the VA has sought to obtain those records. Such records may be useful in adjudicating the aid and attendance claim and should be obtained. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain all available treatment records pertaining to the Veteran from Edith Nourse Rogers Memorial Veterans Hospital in Bedford, Massachusetts, and the Fitchburg Outpatient Clinic in Fitchburg, Massachusetts, from January 2008 to the present. If such records cannot be located, please so indicate in the record. 2. Contact the Veteran's spouse, (with a copy to the Veteran and his representative), and request that she provide written authorization necessary for VA to obtain all records associated with her award of SSA disability benefits. Thereafter, the SSA should be contacted and asked to furnish copies of all disability determinations pertaining to the Veteran's spouse and all clinical records that were considered in adjudicating her claim for SSA disability benefits. 3. Thereafter, the RO should schedule the Veteran for a VA examination with the appropriate specialist to determine the etiology of his diagnosed hypertension. Perform all necessary diagnostic tests and report all clinical manifestations in detail. The examiner is asked to opine as to whether it is at least as likely as not (50 percent or greater probability) that any hypertension is proximately due to, the result of, or chronically aggravated by, the Veteran's service-connected PTSD, and if aggravated, the examiner is asked to indicate to what extent. The examiner should reconcile his/her opinion with the report of the May 2007 VA examination which indicated that the Veteran's hypertension was attributable to anxiety. Rationale should be provided for the opinion proffered. 4. Thereafter, schedule the Veteran's spouse for a VA aid and attendance assessment, to include a field examination. Reports of such assessment should be included in the claims folder. If the Veteran's spouse declines to participate in any part of the assessment, the Veteran should be notified, and such should be noted in the claims folder. 5. Thereafter, readjudicate the issues on appeal, considering all evidence received since issuance of the June 2010 statement of the case. If any benefit sought is not granted, issue a supplemental statement of the case and afford the appellant and his representative an appropriate opportunity to respond. The case should be returned to the Board, as warranted. The appellant 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 Supp. 2012). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).