Citation Nr: 1320745 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 11-12 230 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an eye disorder, claimed as retinopathy. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for depression. 3. Entitlement to service connection for arthritis. 4. Entitlement to service connection for bone disease. 5. Entitlement to service connection for a disorder manifested by muscle cramps. 6. Entitlement to VA compensation for the residuals of a neck injury, under 38 U.S.C.A. § 1151. 7. Entitlement to service connection for an orthopedic disorder, claimed as subluxation of a joint. 8. Entitlement to service connection for a back disorder. 9. Entitlement to service connection for defective vision. 10. Entitlement to service connection for a lung disorder. 11. Entitlement to service connection for heart disease. 12. Entitlement to service connection for hypertension. 13. Entitlement to service connection for orthostatic hypotension. 14. Entitlement to service connection for a gastrointestinal disorder, claimed as constipation. 15. Entitlement to service connection for a sleep disorder, claimed as insomnia. 16. Entitlement to service connection for a disorder manifested by impaired sex drive. 17. Entitlement to service connection for a genitourinary disorder, claimed as anuria and uremia. 18. Entitlement to service connection for the residuals of Agent Orange exposure. 19. Entitlement to service connection for nerve damage. 20. Entitlement to service connection for a psychiatric disorder, manifested by suicidal ideation. 21. Entitlement to VA compensation for an eye disorder, claimed as visual impairment, under 38 U.S.C.A. § 1151. 22. Entitlement to VA compensation under 38 U.S.C.A. § 1151 for depression. 23. Entitlement to VA compensation under 38 U.S.C.A. § 1151 for hypotension. 24. Entitlement to special monthly compensation on the basis of the need for the regular aid and attendance of another person. 25. Entitlement to a total rating due to individual unemployability (TDIU) caused by service-connected disabilities. The Board will issue a separate decision with respect to the issue of whether the June 3, 2005 Board of Veterans' Appeals (Board) decision should be revised or reversed due to clear and unmistakable error (CUE) in dismissing the denial of entitlement to service connection for degenerative disc disease of the low back; entitlement to service connection for retinopathy, claimed as secondary to service-connected hepatitis C; entitlement to service connection for cirrhosis of the liver, claimed as secondary to service-connected hepatitis C; entitlement to service connection for cholecystitis, claimed as secondary to service-connected hepatitis C; entitlement to service connection for post-traumatic stress disorder (PTSD); entitlement to service connection for depression, claimed as secondary to service-connected hepatitis C; entitlement to an increased evaluation for service-connected membranoproliferative glomerulonephritis, currently evaluated as 60 percent disabling; entitlement to an increased evaluation for service-connected hepatitis C, currently evaluated as 30 percent disabling; entitlement to special monthly compensation based on aid and attendance/housebound status; and entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU). ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from December 1968 to July 1970. He is currently in receipt of a 100 percent combined disability evaluation for various service-connected disorders, effective September 2005. This matter came to the Board of Veterans' Appeals (Board) on appeal from determinations by the VA Regional Office (RO) in Cleveland, Ohio. After reviewing the record, the Board finds that further development of the record is warranted prior to further appellate consideration. Accordingly, the appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran seeks entitlement to VA compensation under 38 U.S.C.A. § 1151 for the residuals of a neck injury sustained in a June 2001 motor vehicle accident. Generally, where any veteran shall have suffered an injury as a result of hospitalization, medical or surgical treatment or examination, and such injury or aggravation results in additional disability to the veteran, disability compensation shall be awarded in the same manner as if such disability were service-connected. 38 U.S.C.A. § 1151 (West 2002). Medical services are not limited to care provided by medical professionals. Rather, they may include circumstances and the safety of facilities associated with that treatment. Viegas v. Shinseki, 705 F.3d 1374 (2013) (where a faulty grab bar in a VA restroom caused the Veteran additional injury during his aquatic therapy at a VA medical facility). In determining whether additional disability exists, the veteran's physical condition immediately prior to the disease or injury on which the claim for compensation is based is compared with the subsequent physical condition resulting from the disease or injury. The regulation further provides that compensation is not payable for "the continuance or natural progress" of a disease or injury for which VA care was authorized. 38 C.F.R. § 3.358(b)(2) (2012). In June 2001, the Veteran was riding in a VA van which rear-ended a car stopped in traffic. He was taken to St. Vincent's Charity Hospital complaining of back and neck pain, as well as tingling in his hands. Following a workup, the diagnosis was an acute paravertebral strain. X-rays of the cervical spine revealed mild disc space narrowing at C5 and C6 with a small ridge of posterior osteophytes. There was also a tiny ossification at the inferior aspect of the C6 vertebral body which was assessed as developmental in nature. In addition, there was uncovertebral joint hypertrophy, bilaterally, at C5-C6 resulting in bony encroachment on the neural foramina. There was no sign of fracture, subluxation, or prevertebral soft tissue swelling. The radiologist's impression was degenerative changes without any sign of an acute bony abnormality. VA outpatient treatment records and examination reports, dated in November and December 2002, show that the Veteran reported neck and shoulder pain, which he attributed to his motor vehicle accident. X-rays revealed degenerative joint disease at C5-C6. More recent records, such as the report of a June 2004 VA Orthopedic Consultation, show that the Veteran has a herniated nucleus pulposus at C5-C6. In its September 2004 decision denying the Veteran's claim of entitlement to VA compensation under 38 U.S.C.A. § 1151 for the residuals of a neck injury, the RO noted that there was no evidence that VA medical services were the proximate cause of any additional disability. Therefore, the RO denied the claim. The Veteran disagreed with that decision and perfected an appeal. However, in Viegas v. Shinseki, 705 F.3d 1374 (Fed.Cir. 2013), it was held that in order to obtain compensation benefits under 38 U.S.C.A. § 1151, a claimant would not need to show that an additional disorder was caused by VA medical care - only that the additional disability be shown to be caused by VA either by a VA employee or in a VA facility. There, the Veteran was injured when a VA bathroom handrail failed and the Veteran fell. Here, the Veteran alleges that he was injured as a passenger in a VA vehicle, when its driver struck another stopped vehicle - suggesting a similarity with the Viegas facts. To date, the Veteran has not been examined by VA to determine the nature and etiology of any neck disorder found. In addition to the residuals of a neck injury, the Veteran contends that he has multiple unresolved issues on appeal. In March 2002, the RO received the Veteran's claims of entitlement to service connection of PTSD, entitlement to a TDIU and entitlement to special monthly compensation due to the need for the regular aid and attendance of another person. In August 2002, the RO received the Veteran's claims of entitlement to an increased ratings for his service-connected hepatitis C and for membranoproliferative glomerulonephritis. The RO also received his claims of entitlement to service connection for the following disorders: depression, retinopathy, cirrhosis of the liver, and cholecystitis, each claimed as secondary to service-connected hepatitis C. In addition, the Veteran claimed entitlement to service connection for degenerative joint disease of the low back. In an October 2003 rating decision the RO denied all of the Veteran's claims. In November 2003, the Veteran filed a timely Notice of Disagreement (NOD), and in September 2004, the RO issued a Statement of the Case (SOC). In October 2004, the Veteran perfected a timely appeal with respect to the RO's October 2003 decisions. In May 2005, however, the Veteran requested that all of the issues on appeal be withdrawn. Under 38 U.S.C.A. § 7105 (West 2002), the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202 (2012). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204 (2012). In light of the Veteran's withdrawal of his appeal, there remained no allegations of error of fact or law for appellate consideration. In essence, a "case or controversy" involving a pending adverse determination that the veteran has taken exception to no longer exists. See Shoen v. Brown, 6 Vet. App. 456, 457 (1994). Accordingly, the Board was without jurisdiction to review the appeal, and in June 2005, the Board dismissed the appeal as to all of the issues addressed by the RO in its October 2003 decision. Thus, there was no final Board decision with respect to any of those issues. In November 2006, the Veteran applied to have VA reopen his claims of entitlement to service connection for an eye disorder, and depression. In December 2006, the Veteran also claimed entitlement to VA compensation for an eye disorder, claimed as visual impairment, under 38 U.S.C.A. § 1151. In August 2007, the RO denied the Veteran's application to reopen his claims of entitlement to service connection for an eye disorder, claimed as retinopathy and for depression. The RO found that the Veteran had not submitted new and material evidence to reopen either claim. The RO also denied the Veteran's claim of entitlement to VA compensation for an eye disorder, claimed as visual impairment, under 38 U.S.C.A. § 1151. In February 2008, the Veteran submitted statements in support of his claims of entitlement to VA compensation for an eye disorder, claimed as visual impairment, under 38 U.S.C.A. § 1151 and whether new and material evidence had been received to reopen a claim of entitlement to service connection for depression. Construed in a manner most favorable to the Veteran, those statements constituted a timely NOD with respect to those issues. Therefore, the RO was required to issue the Veteran a Statement of the Case (SOC). See Manlincon v. West, 12 Vet. App. 238 (1999). However, the RO did not do so; and therefore, those issues require additional development prior to further appellate consideration. From October 2007 through June 2008, the Veteran filed multiple service connection claims; a claim of entitlement to special monthly compensation on the basis of the need for the regular aid and attendance of another person; claims for VA compensation for depression and hypotension, under 38 U.S.C.A. § 1151; and entitlement to a TDIU. In November 2009, the RO denied the Veteran's claims of entitlement to service connection for the following disorders: a psychiatric disorder, manifested by suicidal ideation; a genitourinary disorder, claimed as anuria and uremia; a disorder manifested by impaired sex drive; a back disorder; a gastrointestinal disorder, claimed as constipation; the residuals of Agent Orange exposure; a sleep disorder, claimed as insomnia; an orthopedic disorder, claimed as subluxation; a lung disorder; defective vision; the residuals of a neck injury; muscle cramps; orthostatic hypotension; hypertension; heart disease; bone disease; and arthritis. The RO also denied the Veteran's claims for entitlement to compensation for depression and hypotension under 38 U.S.C.A. § 1151. In addition, the RO denied the Veteran's claim of entitlement to VA compensation under 38 U.S.C.A. § 1151 for an eye disorder, including visual impairment, because the Veteran had not submitted new and material evidence with which to reopen that claim. As noted above, however, that claim had not become final and the requirement to submit new and material evidence was not applicable. Finally, the RO denied the Veteran's claim of entitlement to a TDIU. The Veteran was notified of the RO's November 2009 decisions, as well as his appellate rights. In October 2010, he submitted a statement, which again construed in a manner most favorable to him, constituted a Notice of Disagreement with those decisions. Therefore, the RO was required to issue the Veteran a Statement of the Case (SOC). See Manlincon v. West, 12 Vet. App. 238 (1999). However, an SOC was not issued; and therefore, those issues also require additional development prior to further appellate consideration. Evidence submitted in support of the Veteran's various claims, such as a May 2002 statement from the Social Security Administration, shows that the Veteran has been receiving Social Security benefits since April 1980. The records supporting the award of those benefits have not been requested from the Social Security Administration. The Social Security Administration award was based on psychiatric disorders - a relevant inquiry to VA in this matter. In March 2012, the Veteran submitted medical records from the St. Elizabeth Boardman Health Center. To date, he has not waived his right to have those records considered by the RO prior to consideration by the Board. 38 C.F.R. § 20.1304(c) (2012). Therefore, they are referred to the RO for its review. On VA Form 21-22, dated in December 2006, the Veteran appointed the Blinded Veterans Association to represent him before VA. In October 2010, he suggested that he wanted to appoint a new representative for an Hispanic Service Organization. However, he has not submitted the appropriate applications to effect such an appointment. In May 2013, the Blinded Veteran Association contacted the Veteran. He informed the association that he had revoked his appointment of the Blinded Veterans Association to represent him. Therefore, it is unclear whether the Veteran desires representation. In light of the foregoing discussion, the case is REMANDED for the following actions: 1. Explain to the Veteran his options in obtaining someone to represent him before VA. Provide him with the necessary paperwork to complete should he desire representation. 2. Request that the Social Security Administration provide copies of the records supporting the Veteran's April 1980 award of Social Security benefits, as well as the records supporting the continuation of that award. Efforts to obtain such records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified by each Federal department or agency from whom they are sought. 38 U.S.C.A. § 5103A(b) (West 2002); 38 C.F.R. § 3.159(c)(2) (2012). 3. When the actions in parts 1 and 2 have been completed, schedule the Veteran for orthopedic and neurologic examinations to determine the nature and etiology of any neck disorder and back disorder. All indicated tests and studies must be performed, and any indicated consultations must be scheduled. The claims folder and a copy of this remand must be made available to each examiner for review in conjunction with the examination, and each examiner must acknowledge receipt and review of these materials in any report generated as a result of this remand. If a neck or back disorder(s) is(are) diagnosed, each examiner must identify and explain the elements supporting each diagnosis. The examiner must state whether the Veteran's neck and/or back disorder was present prior to the June 2001 VA van accident in which the Veteran sustained an acute paravertebral strain. In determining whether the Veteran sustained additional disability in that accident, the examiner must compare the level of impairment attributable to the Veteran's neck disorder prior to the injury with the Veteran's physical condition resulting from the disease or injury. The examiner must also state whether the Veteran's neck disability after the accident constituted the continuance or natural progress" of any neck disorder which had existed prior to the accident. In the case of all opinions, the examiner must state how and why he or she reached the opinion they did. The Veteran is advised that it is his responsibility to report for the examinations 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. § 3.655 (2012). If the Veteran does not report for the aforementioned examinations, a copy of the notice showing the date, time, and location of the examination must be associated with the claims folder. If such notice was returned by the Post Office as undeliverable, that fact must be noted in writing and associated with the claims folder. 4. When the actions requested in parts 1, 2, and 3 have been completed, undertake any other indicated development. Then readjudicate the issue of entitlement to VA compensation under 38 U.S.C.A. § 1151 for the residuals of a neck injury. If the benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative must be furnished a Supplemental Statement of the Case and afforded an opportunity to respond. Thereafter, if in order, the case should be returned to the Board for further appellate action. 5. Issue the Veteran an SOC concerning the following claims: a) Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an eye disorder, claimed as retinopathy; b) Whether new and material evidence has been received to reopen a claim of entitlement to service connection for depression; c) Entitlement to service connection for arthritis; d) Entitlement to service connection for bone disease; e) Entitlement to service connection for a disorder manifested by muscle cramps; f) Entitlement to service connection for the residuals of a neck injury; g) Entitlement to service connection for an orthopedic disorder, claimed as subluxation of a joint; h) Entitlement to service connection for a back disorder; i) Entitlement to service connection for defective vision; j) Entitlement to service connection for a lung disorder; k) Entitlement to service connection for heart disease; l) Entitlement to service connection for hypertension; m) Entitlement to service connection for orthostatic hypotension; n) Entitlement to service connection for a gastrointestinal disorder, claimed as constipation; o) Entitlement to service connection for a sleep disorder, claimed as insomnia; p) Entitlement to service connection for a disorder manifested by impaired sex drive; q) Entitlement to service connection for a genitourinary disorder, claimed as anuria and uremia; r) Entitlement to service connection for the residuals of Agent Orange exposure; s) Entitlement to service connection for nerve damage; t) Entitlement to service connection for a psychiatric disorder, manifested by suicidal ideation; u) Entitlement to VA compensation for an eye disorder, claimed as visual impairment, under 38 U.S.C.A. § 1151; v) Entitlement to VA compensation under 38 U.S.C.A. § 1151 for depression; w) Entitlement to VA compensation under 38 U.S.C.A. § 1151 for hypotension; x) Entitlement to special monthly compensation on the basis of the need for the regular aid and attendance of another person; and y) Entitlement to a TDIU. If, and only if, the Veteran completes his appeal by filing a timely substantive appeal on any or all of the aforementioned issues should those claims be returned to the Board. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 202 (2012). By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. The Veteran need take no action unless he is notified to do so. However, he is advised that he has the right to submit any additional evidence and/or argument on the matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369, 372-73 (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. 2007). _________________________________________________ VITO A. CLEMENTI 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).