Citation Nr: 1313797 Decision Date: 04/25/13 Archive Date: 05/03/13 DOCKET NO. 12-03 253 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUES 1. Entitlement to an evaluation greater than 50 percent for the service-connected left shoulder impingement syndrome with traumatic arthritis status post prosthetic implant. 2. Entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of a stroke. 3. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance or at the housebound rate. 4. Entitlement to a total disability evaluation based on individual unemployability (TDIU) by reason of service-connected disability. 5. Entitlement to automobile and adaptive equipment or for adaptive equipment only. 6. Entitlement to specially adapted housing or a special home adaptation grant. REPRESENTATION Appellant represented by: Colin E. Kemmerly, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from June 1973 to June 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the RO. In December 2009, the RO continued a 50 percent evaluation for left shoulder disability and a noncompensable evaluation for bilateral hearing loss and denied service connection for memory loss, entitlement to SMC based on the need for aid and attendance, and entitlement to compensation under 38 U.S.C.A. § 1151 for a left knee condition and for the residuals of a stroke. In January 2010, the RO denied entitlement to automobile and adaptive equipment or adaptive equipment only and a special home adaption grant and specially adapted housing. In January 2010, the Veteran submitted a Notice of Disagreement and referenced both the December 2009 and January 2010 rating decisions. In March 2011, the RO denied entitlement to TDIU rating and again denied entitlement to a special home adaptation grant and specially adapted housing. In September 2011, the RO sent the Veteran a letter advising that it had received his appeal referencing the December 2009 and January 2010 rating decisions, but that clarification was needed regarding what issues he wished to appeal. In October 2011, the Veteran responded by indicating that he wished to appeal claim for a TDIU rating, shoulder injury, "housing aid," and adaptive equipment for vehicle. He also stated that the medication VA prescribed caused his stroke and heart attack. In January 2012, the RO furnished three separate Statements of the Case that addressed the following issues: (1) entitlement to automobile and adaptive equipment or for adaptive equipment only; (2) left shoulder evaluation, entitlement to SMC based on the need for aid and attendance, and entitlement to compensation under 38 U.S.C.A. § 1151 for stroke; and (3) entitlement to a TDIU rating. The Veteran subsequently submitted multiple VA Form 9's and the issues addressed in the Statements of the Case appear to have been perfected for appeal. The Board notes that the RO readjudicated the automobile claim in June 2012; however, the Veteran had submitted a timely Form 9 prior to this date. The issues of entitlement to specially adapted housing or a special home adaptation grant will be discussed in further detail below. In February 2013, a videoconference hearing was held before the undersigned Veterans Law Judge. The Board notes that in his VA Form 21-22a, the attorney referenced representation agreements signed in February 2012. These agreements referred only to the left shoulder evaluation and TDIU rating. At the hearing, however, the attorney provided argument on the additional issues. The Virtual VA eFolder has been reviewed. The issue of service connection for an acquired psychiatric disorder, to include a petition to reopen the claim of service connection for posttraumatic stress disorder (PTSD), 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 and refers this matter to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to an evaluation greater than 50 percent for a left shoulder disability is decided herein. The remaining issues are being remanded to the RO. FINDING OF FACT The Veteran is currently receiving the maximum schedular evaluation assignable for his service-connected left shoulder disability manifested by the prosthetic replacement of the shoulder joint in the absence of an additional shoulder replacement or a related loss of use that would be equally well served by an amputation stump with suitable prosthesis. CONCLUSION OF LAW The criteria for the assignment of an evaluation greater than 50 percent for left shoulder impingement syndrome with traumatic arthritis status post prosthetic implant are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a including Diagnostic Codes 5051, 5124, 5125 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met with regard to the issue decided herein. There is no issue as to providing an appropriate application form or completeness of the application. By correspondence dated in July 2009, November 2009, December 2009, and October 2010, VA notified the Veteran of the information and evidence needed to substantiate and complete a claim for increase on his left shoulder, to include notice of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain. The Veteran was provided notice of how disability ratings and effective dates are determined. The claim was most recently readjudicated in the January 2012 statement of the case. The claims folder contains service treatment records, private medical records, and medical records and other documents pertaining to the Veteran's Social Security claim. Voluminous VA medical records are also contained in the claims folder. The Veteran underwent VA examinations which assessed the severity of his left shoulder disability in November 2010 and June 2011. The claims folder was reviewed and both examinations contain findings adequate for rating purposes. Additional examination is not necessary. The Board acknowledges that it is remanding other issues for additional records. As discussed below, however, the Veteran is currently receiving the maximum schedular evaluation for his left shoulder disability under the assigned diagnostic code absent additional shoulder replacement. Although his spouse testified that his prosthetic needed to be replaced, she did not indicate this procedure had been scheduled. Under the circumstances of this case, the Board does not find it necessary to defer this issue pending additional records. On review, there is no there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. See 38 C.F.R. § 3.159. Analysis The Veteran was originally granted service connection for left shoulder impingement syndrome with arthritis in April 1998. He was assigned a 20 percent evaluation beginning on September 24, 1992. In October 1998, the Veteran underwent a left shoulder hemiarthroplasty. His disability was evaluated as 100 percent disabling beginning on October 13, 1998 and as 50 percent disabling beginning on December 1, 1999. In a December 2009 rating decision, the RO continued the 50 percent evaluation assigned for the service-connected left shoulder disability. The Veteran disagreed with the assigned rating and subsequently perfected this appeal. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Evaluation of a service-connected disorder requires a review of the Veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1 , 4.2 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, in Hart v. Mansfield, 21 Vet. App. 505 (2007), the United States Court of Appeals for Veterans Claims (Court) held that staged ratings are appropriate for an increased rating claim that is not on appeal from the assignment of an initial rating when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. VA regulations, set forth at 38 C.F.R. §§ 4.40, 4.45, 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. The Court has held that a higher rating can be based on "greater limitation of motion due to pain on use." DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Any such functional loss must be "supported by adequate pathology and evidenced by the visible behavior of the claimant." 38 C.F.R. § 4.40. The Veteran's left shoulder disability is currently evaluated under Diagnostic Code 5051. Under this provision, a 100 percent evaluation is assigned for prosthetic replacement of the shoulder joint for 1 year following implantation of prosthesis. 38 C.F.R. § 4.71a, Diagnostic Code 5051. With chronic residuals consisting of severe, painful motion or weakness in the affected extremity, a 60 percent evaluation is assigned for the major extremity and a 50 percent evaluation for the minor extremity. Id. Intermediate degrees of residual weakness, pain or limitation of motion are to be rated by analogy to diagnostic codes 5200 and 5203. Id. The minimum rating that can be assigned is 30 percent for the major extremity and 20 percent for the minor extremity. Id. At the hearing, the Veteran testified that he had very little strength and had lost the feeling in his fingers. He reported having a lot of pain and taking pain medication. The Board acknowledges the Veteran's contentions and has considered the examination reports of record, which show continued complaints related to the left shoulder. The X-ray studies taken in July 2010 showed that the left shoulder prosthesis was in satisfactory position and no acute abnormality was seen. On VA examination in November 2010, the Veteran's left shoulder range of motion was: forward flexion from 0 to 110 degrees; abduction from 0 to 90 degrees; external rotation from 0 to 50 degrees; and internal rotation from 0 to 45 degrees. The range of motion was limited by pain and stiffness. There was slight shoulder asymmetry with slight drooping of the left shoulder. Strength was +4/5. The functional limitation resulting from the left shoulder disability was described as moderate. On VA examination in June 2011, the Veteran's range of motion of the left shoulder was: forward flexion from 0 to 110 degrees; abduction from 0 to 160 degrees; external rotation from 0 to 60 degrees; and internal rotation from 0 to 30 degrees. The range of motion was noted to be limited by pain. Notwithstanding, it appears the Veteran is currently receiving the maximum schedular evaluation for the minor extremity under the applicable diagnostic code absent evidence of a further shoulder replacement or a related loss of use that would equally well served by an amputation with a suitable prosthesis. The Board finds no basis for assigning a greater evaluation based on functional impairment due to pain on motion. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (if a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. § 4.40 and 4.45 are applicable). The Board notes that Diagnostic Code 5202 provides for a 70 percent evaluation when there is loss of head of the humerus (flail shoulder) in the minor extremity. 38 C.F.R. § 4.71a. In this case, however, the Veteran has undergone a hemiarthroplasty and this code is not for application. The Board further notes that Diagnostic Code 5051 specifically references Diagnostic Codes 5200 and 5203 for intermediate degree of residuals, but does not reference 5202. At no time during the appeal has the Veteran's left shoulder disability been more than 50 percent disabling and staged ratings are not warranted. See Hart. The Board acknowledges the attorney's arguments presented at the hearing that a 60 percent evaluation is warranted. A 60 percent evaluation under Diagnostic Code 5051, however, applies to the major extremity. While the Veteran's spouse testified that he was ambidextrous, a longitudinal review of the record confirms that he is right hand dominant. As such, his left extremity is considered the minor extremity. See 38 C.F.R. § 4.69 (2012). The Board has considered the February 2013 testimony of the Veteran's spouse that his shoulder needed to be replaced again because it was clicking. There is no indication in the record that the Veteran has undergone additional shoulder replacement or that such a procedure has been scheduled. If and when this is accomplished, the Veteran should notify the RO. Finally, the Board has considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). As discussed, the applicable rating criteria reasonably describe the Veteran's disability level and symptomatology. That is, it specifically considers chronic residuals to include severe painful motion or weakness. As the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral for consideration of extraschedular evaluation is in order. Id. The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. 38 C.F.R. § 3.102 (2012). ORDER An increased evaluation greater than 50 percent for the service-connected left shoulder impingement syndrome with traumatic arthritis status post prosthetic implant is denied. REMAND Under VCAA, VA has a duty to assist the Veteran in the development of a claim. This includes assisting with procuring relevant treatment records and providing a VA examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. At the hearing, the Veteran testified that he continues to receive VA medical treatment. Information in the claims folder shows a VA social worker statement dated in July 2012 and a VA home health statement dated in November 2011. On review, however, it appears that the most recent VA outpatient record was printed in May 2011. Additional relevant records should be obtained on remand. See 38 C.F.R. § 3.159(c)(2). At the hearing, the attorney indicated that he looked through 4,300 pages of this record and found little from the Social Security Administration and could not find the decision. Information in the claims folder shows that Social Security records were requested in October 2010. The response indicates that the request was directed to another Social Security office. On review, the claims folder contains numerous medical records and exhibits, which appear to be from the Social Security Administration. Various rating decisions and other documents reference these records as being received. The Board, however, is unable to find the actual decision awarding disability benefits. Given the concerns expressed by the attorney, additional efforts should be made to obtain the Social Security decision. 38 C.F.R. § 3.159(c)(2). In October 2012, the Veteran submitted an authorization for release of records from Jackson Medical Center and Jackson Home Health. It does not appear that these records were requested. On remand, efforts should be made to obtain the identified records. 38 C.F.R. § 3.159(c)(1). Compensation under 38 U.S.C.A. § 1151 The Veteran contends that he suffered a stroke because of VA negligence. An appellant may be awarded VA compensation for qualifying additional disability caused by VA medical care in the same manner as if such disability were service-connected. 38 U.S.C.A. § 1151 (West 2002 & Supp. 2012). A disability is considered a qualifying disability if it was not the result of the Veteran's willful misconduct, and if it was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by VA and the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or, an event not reasonably foreseeable. Id. An October 2009 report of contact shows that the Veteran was contacted regarding his claim. At that time, he reported that a VA physician prescribed Clonidine for his blood pressure and that the medication caused a heart attack and stroke. He indicated that he was not claiming the heart attack. He further stated that this was the first time he took the medication and it caused a reaction. This was in October 2007. In various statements submitted by the Veteran and his spouse, they appear to argue that he was prescribed Clonidine, when he did not even have high blood pressure, and that this resulted in a stroke. At the hearing, the spouse testified that the Veteran's private physician said the medication caused him to have a stroke because he had an infarct. In support of his claim, the Veteran submitted copies of medication information sheets for Clonidine, which includes a handwritten note stating "do not take with Levetra (sic) deadly." A review of VA records shows that, in October 2007, the Veteran's spouse called VA because she thought he was having a stroke. She was instructed to take him to the emergency room at his own expense because he could not be evaluated for a stroke on the phone as time was very important. The records from Athens Regional Medical Center dated in October 2007 show that the Veteran was brought in to the emergency room by his wife, who stated he was having a stroke. The short stay summary notes a prior medical history of cerebrovascular accident times two. The Veteran was discharged in less than 48 hours with the following diagnoses: (1) suspected pneumonia; (2) vertigo; and (3) EKG changes consistent with myocardial ischemia. On review, it does not appear that a stroke was confirmed at the time of the October 2007 admission. Notwithstanding, the record does not contain a medical opinion that addresses the Veteran's assertions. The Board is not in a position to make an independent medical judgment regarding whether the Veteran suffered any qualifying additional disability as a result of being prescribed Clonidine and if so, whether such disability was caused by the medical treatment and the proximate cause of the disability was VA negligence, or an event not reasonably foreseeable. See 38 C.F.R. § 3.361 (2012); Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991). Under the circumstances of the case, the Board finds that a VA medical opinion is needed. See 38 C.F.R. § 3.159(c)(4). TDIU rating, SMC based on the need for aid & attendance, and automobile and adaptive equipment or for adaptive equipment only These issues are inextricably intertwined with the issue addressed hereinabove and/or with the referred issue of entitlement to service connection for an acquired psychiatric disorder. Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). In this regard, the Board observes that compensation awarded pursuant to section 1151 "as if" it was service connected is not always the legal equivalent of compensation awarded as service connection. See Kilpatrick v. Principi, 327 F.3d 1375 (Fed. Cir. 2003); Alleman v. Principi, 349 F.3d 1368 (Fed. Cir. 2003). Current the regulations pertaining to eligibility for automobile and adaptive equipment, however, include consideration of disabilities awarded under 38 U.S.C.A. § 1151. See 38 C.F.R. § 3.808 (2012). Specially adapted housing or a special home adaptation grant As discussed, in January 2010, the RO denied entitlement to specially adapted housing or a special home adaptation grant. The Veteran submitted a Notice of Disagreement, but was asked to clarify the issues he was appealing in September 2011. He responded in October 2011. At that time, he referenced several issues including "housing aid." The RO appears to have construed this as expressing disagreement with the denial of entitlement to SMC based on the need for aid and attendance. A liberal reading of this statement, however, could also include the issues of entitlement to specially adapted housing or a special home adaptation grant. See 38 C.F.R. § 20.201 (2012). Having found a Notice of Disagreement that might apply to these issues, they must be remanded so that a Statement of the Case can be furnished. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, these remaining matters are 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) (2012). Expedited handling is requested.) 1. The RO should take appropriate action in order to obtain copies of all VA medical center records for the period beginning on May 2011. All records obtained should be associated with the claims folder or Virtual VA eFolder. 2. The RO should take all indicated steps to request from the Social Security Administration a copy of any decision awarding disability benefits to the Veteran. All records obtained should be associated with the claims folder or Virtual VA eFolder. 3. If the RO cannot locate any Federal records requested herein, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO should then: (a) notify the claimant of the specific records that it was unable to obtain; (b) explain the efforts VA made to obtain that evidence; and (c) describe any further action it would take with respect to the claim. The claimant must then be given an opportunity to respond. 4. The RO should then take appropriate action to request copies of records from the Jackson Medical Center and Jackson Home Health as identified in an October 2012 authorization for release of information. If a current authorization is needed from the Veteran, it should be requested. Any records obtained should be associated with the claims folder or Virtual VA eFolder. 5. The RO should undertake to have the Veteran for a VA examination to address his § 1151 claim. The claims folder must be available for review by the examiner. Additionally, all relevant medical records must be made available to the examiner for review, either in the Virtual VA eFolder, or if the eFolder is not available, then via paper copies. The examiner is requested to provide an opinion on the following questions: (a) is it at least as likely as not that the Veteran has additional qualifying disability, to include the residuals of a stroke, that was caused, or permanently worsened beyond normal progression by the use of medication, to include Clonidine, prescribed by VA. (b) if the Veteran has additional qualifying disability that was caused or permanently worsened by medication prescribed by VA, did VA, in prescribing such medication, (i) fail to exercise the degree of care that would be expected of a reasonable health care provider, or (ii) prescribe the medication without the Veteran's informed consent; or (iii) was the event not reasonably foreseeable. A complete medical rationale should be provided for the opinions expressed. 6. After the development requested has been completed, the RO should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, the RO must implement corrective procedures. 7. The Veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 8. After completing the requested action and any additional development deemed appropriate, the RO must readjudicate the issues of entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of a stroke, entitlement to SMC based on the need for aid and attendance or at the housebound rate; entitlement to a TDIU rating; and entitlement to automobile and adaptive equipment or for adaptive equipment only in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. 9. The RO also should issue a Statement of the Case addressing entitlement to specially adapted housing or a special home adaptation grant. The Veteran is advised that the Board will not consider these issues on the merits unless a timely Substantive Appeal is filed. 38 U.S.C.A. § 7104 (West 2002). 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 (West Supp. 2012). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs