Citation Nr: 1326102 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 12-09 042 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an effective date earlier than December 15, 2005, for the establishment of service connection for a left hip disability associated with post-operative fracture, right tarsal navicular. 2. Entitlement to an initial compensable rating for a left hip disability associated with post-operative fracture, right tarsal navicular. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) from January 11, 2002, to September 10, 2008. 4. Entitlement to a certificate of eligibility for financial assistance in the purchase of an automobile or other conveyance and adaptive equipment or for adaptive equipment only. REPRESENTATION Appellant represented by: Robert W. Legg, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Gielow, Counsel INTRODUCTION The Veteran served on active duty from May 1982 to September 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2002, July 2010, and March 2012 rating decisions of the San Diego, California, Regional Office (RO) of the Department of Veterans Affairs (VA). With regard to the issue of entitlement to a certificate of eligibility for financial assistance in the purchase of an automobile or other conveyance and adaptive equipment or for adaptive equipment only, the Board notes that Veterans Appeals Control and Locator System (VACOLS) reflects that this appeal was "closed per stipulated agreement dated 8/20/10" by the RO in November 2011. Of record is a November 2011 deferred rating decision by the RO wherein it was again explained that the "[s]tipulated agreement dated 08/20/10 notes that appellant agrees that his pending appeal shall be terminated as to all issues addressed in the 9/22/09 BVA decision. All issues regardless of the stage of development are terminated." The Board, however, has reviewed the August 2010 Joint Motion to Terminate the Appeal and corresponding Stipulated Agreement, and this agreement expressly provides that the Appellant "agrees that his pending appeal in the United States Court of Appeals for Veterans Claims . . . shall be terminated, with prejudice, as to all issues addressed in the September 22, 2009, BVA decision." (Emphasis added.) It is clear the dismissal is limited to his appeal before the U.S. Court of Appeals for Veterans Claims (CAVC), not before the Board generally. Significantly, the issue of entitlement to a certificate of eligibility for financial assistance in the purchase of an automobile or other conveyance and adaptive equipment or for adaptive equipment only was not decided by the Board in September 2009; rather, this issue was remanded for further development. Therefore, the Stipulated Agreement of August 2010 cannot be said to terminate the pending appeal before the Board for this matter. Accordingly, the Board concludes that this appeal was not properly withdrawn by the Veteran in August 2010 under the tenets of 38 C.F.R. § 20.204 (2012) and that the Board has jurisdiction over this claim at this time. Also, with regard to the issue of entitlement to a certificate of eligibility for financial assistance in the purchase of an automobile or other conveyance and adaptive equipment or for adaptive equipment only, a Board videoconference hearing was held in June 2009. A transcript of the hearing is of record. No hearing was requested for the remaining issues on appeal. See March 2012 VA Form 9 (Appeal to Board of Veterans' Appeals) and June 2012 VA Form 9. Moreover, with regard to the claim for TDIU, the Veteran's representative correctly notes that the CAVC has held that "a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or . . . as part of a claim for increased compensation." Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). As such, the claim for entitlement to TDIU, although not formally filed until October 2010 as part of the current appeal, has been reasonably raised by the record. See November 2007 Veteran statement ("I am 100% disabled as a result of the service connected ailments.") and earlier reports of unemployability. The Veteran's representative, however, has made clear that the Veteran is seeking TDIU for the limited time period from January 11, 2002, to September 10, 2008. See, e.g. June 2012 and July 2013 statements. Accordingly, the case or controversy for the appeal for TDIU has been expressly limited to the time period from January 11, 2002, to September 10, 2008. Cf. AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that claimants on both original claims and claims for increased disability are "presumed to be seeking the maximum benefit allowed by law and regulation"). 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 issues of entitlement to an initial compensable rating for a left hip condition and entitlement to TDIU from January 11, 2002, to September 10, 2008, are addressed in the REMAND portion of the decision below and are REMANDED to the RO for further action. FINDINGS OF FACT 1. An April 25, 2005 VA treatment record constitutes a written communication that indicated the Veteran's intent to apply for VA benefits and identified that the benefits sought were for a left hip injury. 2. Prior to April 25, 2005, there are no written communications that may be construed as a formal or informal claim for service connection for the left hip disability. 3. The Veteran has a service-connected disability that involves loss or permanent loss of use of one or both feet. CONCLUSIONS OF LAW 1. The criteria for an effective date of April 25, 2005, but no earlier, for the grant of service connection for a left hip disability associated with post-operative fracture, right tarsal navicular have been met. 38 U.S.C.A. §§ 5103, 5103A, 5107(b), 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1(p) and (r), 3.155, 3.400 (2012). 2. The criteria for a certificate of eligibility for financial assistance in the purchase of an automobile or other conveyance and adaptive equipment have been met. 38 U.S.C.A. §§ 3901, 3902 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.350, 3.808 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA applies to the instant appeal. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1) (2012). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court also made clear that such notice must inform the Veteran that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. With regard to the Veteran's claim for entitlement to a certificate of eligibility for financial assistance in the purchase of an automobile or other conveyance and adaptive equipment or for adaptive equipment only, the Board is granting in full the benefits sought on appeal. To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with adjudication of this claim given the favorable nature of the Board's decision herein. With regard to the Veteran's claim for an earlier effective date for the establishment of service connection for a left hip disorder, compliant notice was provided to the Veteran in May 2006. As to VA's duty to assist, all relevant evidence necessary for an equitable resolution of the Veteran's claim has been identified and obtained to the extent possible. The record contains communications from the Veteran prior to December 2005, as well as service treatment records, VA treatment and examination reports, and private records submitted by the Veteran. Moreover, there is no reasonable possibility that another VA examination or medical opinion or a remand for outstanding county/state disability records (despite the fact that that the Board finds a remand is necessary for these records in relation to his claims for an increased rating and TDIU) would aid in substantiating the Veteran's claim for an earlier effective date; because the Veteran seeks an earlier effective date for the grant of service connection, a current VA examination and county/state disability records would not provide potentially relevant evidence regarding when VA first received his claim for service connection. Further, to the extent that an early VA treatment record from December 2001 reflects a referral for Vocational Rehabilitation and Employment services, a subsequent February 2002 VA treatment record indicates that there was a delay in responding to his request and that another consultation would be initiated in February 2002. There is, however, no indication in the record that such consultation was accomplished and that he did, in fact, apply for Vocational Rehabilitation and Employment services such that there would be any reasonable possibility to believe that there are outstanding Vocational Rehabilitation and Employment records potentially relevant to this claim. In fact, the claims file is otherwise silent for any mention of the Veteran's participation in the program. Thus, the Board finds that all necessary development has been accomplished and that appellate review may proceed at this time without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Effective Date for Left Hip Service Connection The relevant regulations provide that the effective date of an award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance (where the reopening is not due to new service medical records), or a claim for increase will be the day of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. Any communication or action indicating an intent to apply for a benefit may be considered an informal claim. 38 C.F.R. § 3.155. "Application" is not defined in the statute; however, regulations consider "claim" and "application" as equivalent and they are defined broadly to include "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p). "Date of receipt" means the date on which a claim, information or evidence was received in the Department of Veterans Affairs, except as to specific provisions for claims or evidence received in the State Department (§ 3.108), or in the Social Security Administration (§§ 3.153, 3.201), or Department of Defense as to initial claims filed at or prior to separation. 38 C.F.R. § 3.1(r). The U.S. Federal Circuit Court of Appeals, in Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999), noted that for purposes of establishing the requirements and procedures for seeking veterans benefits, a claim, whether formal or informal, must be in writing in order to be considered a "claim" or "application" for benefits. The Federal Circuit also pointed out that all that was required was that the communication "indicat[e] an intent to apply for one or more benefits under the laws administered by the Department" and "identify the benefits sought." Id.; 38 C.F.R. § 3.155(a). "The requirement to identify the benefit sought means that a claimant must describe the nature of the disability for which he is seeking benefits." Brokowski v. Shinseki, 23 Vet. App. 79, 86 (2009). "A claimant may satisfy this requirement by referring to a body part or system that is disabled or by describing symptoms of the disability." Id. (citing Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009)). "[W]hile an informal claim must identify the benefit sought, the [VA] has a duty to fully and sympathetically develop the veteran's claim to its optimum in order to determine if an informal claim had been raised." Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed.Cir.2004) (citations and internal quotation marks omitted); Roberson v. Principi, 251 F.3d 1378, 1384 (Fed.Cir.2001). Furthermore, the Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the Veteran seeks an effective date earlier than December 15, 2005, for a grant of service connection for his left hip disability. For disability compensation for service connection, unless the claim is received within one year of the Veteran's discharge, the effective date is the "date of receipt of claim, or date entitlement arose, whichever is later." 38 C.F.R. § 3.400(b)(2)(i). The Board has carefully reviewed the claims file for any writing that may be considered a claim for benefits for the left hip prior to December 15, 2005. Indeed, the Board acknowledges that a statement received by VA on May 12, 2005, is sufficient to constitute a service-connection claim for the left hip. It portrays the Veteran's belief of entitlement to service connection for the left hip as secondary to his right foot disorder and sufficiently identifies the benefits sought, i.e. it sufficiently identifies a left hip injury that resulted from an August 2002 fall caused by his service-connected right foot disability. Additionally, there is an April 25, 2005 VA treatment record that documented the Veteran's disagreement with a denial of increased benefits and a belief that his service-connected disability caused him to fall and sustain the left hip injury, as well as the examining physician's opinion that the left hip injury was "more likely than not" caused by his service-connected disability. Notwithstanding the Veteran's assessment that he was denied "increased benefits" as a result of left hip rather than specifically identifying the benefits sought for "service connection," this record evidences the Veteran's believe that he was entitled to additional benefits as a result of his left hip. As such, the April 25, 2005 record is a written communication that supports an earlier effective date for the grant of service connection. In looking at the time period prior to April 25, 2005, there is nothing that can be construed as a formal or informal claim for service connection for the left hip disability. In this regard, the pertinent evidence includes numerous VA treatment records, multiple statements from the Veteran describing impairment of his left hip since the August 2002 injury, and a letter from a private provider. None of these written statements, however, include an intent to apply for VA benefits for the left hip, a requirement for a claim under 38 C.F.R. § 3.155(a). With regard to the VA treatment records, it is clear that the Veteran has consistently described a left hip injury resulting from the giving out of his right leg due to his service-connected disability. Although these statements rendered during the course of treatment reflect the Veteran's belief that his left hip disability was caused by a service-connected disability, it cannot be said that there was any simultaneous intent to apply for service-connection benefits for the left hip disability. See Brannon v. West, 12 Vet. App. 32, 35 (1998) ("The mere presence of the medical evidence does not establish an intent on the part of the veteran to seek . . . service connection."). Even though the RO's examination request instructions provided in September and December 2004 asked for an opinion as to whether the left hip disorder is related to a service-connected disability, which was discussed in the ensuing examination report, the request itself notes that this was "not specifically claimed by the Veteran." Moreover, the Board acknowledges the Veteran sent in evidence in December 2004 that he indicated was "in support of [his] claim for increased benefits." The enclosed private treatment letter stated that the Veteran was "essentially wheelchair bound after a fall in August 2002 damaging his left hip. He was already 30% disabled by . . . his Right Ankle." This evidence may be relevant to his then-pending claim for special home adaption/specially adapted housing, and perhaps even his pending appeal for an increased rating for his right ankle disability and automotive/adaptive equipment, but it fails to impart an intent of the Veteran to VA benefits as a result of his left hip. Even the most sympathetic reading of the above evidence fails to elicit an intent to apply for VA benefits necessary for an informal claim for service-connection benefits for the left hip. See Roberson, 252 F.3d at 1384. Finally, the Board recognizes that there is a notation in a September 2004 VA treatment record that "Disability Forms have been misplaced." A review of subsequent notations, however, reflects that this clearly refers to forms sent by the Veteran for VA to fill out regarding credit card payments made while the Veteran was on disability. See September 2004 Addendum. Thus, there is no indication that the Veteran submitted a claim prior to April, 25, 2005, for left hip benefits that was misplaced by VA. For all of these reasons, the Board finds that the earliest initial informal claim for service connection for the left hip was received by VA on April, 25, 2005. The Board emphasizes that the actual date that entitlement arose is of no issue in the present case, because even assuming that entitlement to a left hip arose at an earlier time, the law mandates that the effective date shall be the later of the date entitlement arose or the date his claim for service connection was received unless the claim is received within one year of the Veteran's discharge. 38 C.F.R. § 3.400(b)(2)(i). Thus, because the earliest communication from the Veteran that constitutes a claim for service connection was received by VA on April, 25, 2005, which is well beyond the one-year time period following his separation from service in 1989, the effective date of the grant of service connection cannot precede this date as a matter of law. In conclusion, the Board finds that the Veteran is entitled to an effective date of April, 25, 2005, but no earlier, for the grant of service connection for his left hip disability. To this extent, his appeal is granted. III. Financial Assistance for Automobile/Adaptive Equipment Section 3901 lists the definitions of certain terms relevant under the statutes governing automobiles and adaptive equipment for certain disabled veterans and members of the armed forces. To be eligible for financial assistance in the purchase of an automobile and adaptive equipment, a veteran must, in relevant part, have a service-connected disability that involves loss or permanent loss of use of one or both feet or hands, or permanent impairment of vision in both eyes. 38 U.S.C.A. §§ 3901, 3902. Pursuant to the authority established in § 3902, the Secretary promulgated 38 C.F.R. § 3.808, which reiterates the requirement that entitlement to automobile and adaptive equipment is warranted for "the loss or permanent loss of use of one or both feet." 38 C.F.R. § 3.808(b)(1). The regulation does not further define the phrase "loss or permanent loss of use." Although 38 C.F.R. § 3.808 does not further define the phrase "loss or permanent loss of use, the Board notes that there is a definition of "loss of use of a foot" found in 38 C.F.R. § 3.350(a)(2)(i) (2012), which states, Loss of use of a . . . foot will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below . . . knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether acts of . . . balance, propulsion, etc., . . . could be accomplished equally well by an amputation stump with prosthesis." A veteran is eligible for adaptive equipment only if there is ankylosis of one or both knees or one or both hips. 38 C.F.R. § 3.808(b)(4). In this case, the Board places high probative value on a September 2010 VA examination that was conducted pursuant to the September 2009 remand to assess loss of use of the feet. The September 2010 VA examiner noted that functional limitations included the inability to stand or walk and that the Veteran required the use of a wheelchair as a result of "[r]ight foot pain on standing [and] left lower extremity pain on movement of hip." The examiner reviewed the claims file and concluded that the Veteran has loss of effective function of both feet (i.e. he would be equally well served by an amputation stump at the site of the election below the knee with use of a suitable prosthetic appliance). Furthermore, the VA examiner opined that the loss of use is "at least as likely as not caused by or a result of his service connected residuals of a right tarsal navicular, left hip disability, fibromyalgia, anal cancer, depression, sleep apnea, and HIV infection." The Board notes that these are all service-connected disabilities. As rationale for this opinion, the examiner explained that the Veteran has long been wheelchair bound. Further, although it was noted that the musculoskeletal structures of the feet are intact, the complex regional pain syndrome, which is multi-factorial in origin (it is due to trauma, HIV-related neuropathy, traumatic arthritis of the right foot, left hip pain, and fibromyalgia), prevents the use of the feet for standing or ambulation. It was noted that acts such as balance, propulsion, etc. can be accomplished equally well by an amputation stump with prosthesis. As noted above, the evidence demonstrates that Veteran has loss of use of one or both feet. Further, the VA examiner has articulately related the loss of use to service-connected disabilities. Thus, the Board finds that the Veteran constitutes an eligible person to acquire an automobile or other conveyance and adaptive equipment. As such, the appeal is granted. ORDER An earlier effective date of April, 25, 2005, for the establishment of service connection for a left hip disability associated with post-operative fracture, right tarsal navicular is granted, subject to governing criteria applicable to the payment of monetary benefits. Entitlement to a certificate of eligibility for financial assistance in the purchase of an automobile or other conveyance and adaptive equipment is granted. REMAND With regard to the issues of entitlement to an initial compensable rating for a left hip condition and entitlement to TDIU from January 11, 2002, to September 10, 2008, additional development is warranted. As an initial matter, the Veteran indicated in an October 2010 statement that he was entitled to total disability by the state of California in October 2000. Further, a June 2003 VA treatment record reflected that the Veteran received aid assistance through the county. These records may contain potentially relevant information regarding the nature and severity of the Veteran's left hip disability and his ability to obtain and maintain gainful employment, but there has been no attempt to obtain county/state records. Accordingly, on remand, the RO should request that the Veteran provide a VA Form 21-4142 (Authorization and Consent to Release Information to the Department of Veterans Affairs) to obtain any relevant outstanding medical records from the county/state. See 38 C.F.R. § 3.159(c)(1). Further, to the extent that the Veteran has received any additional treatment from a VA facility related to his left hip disorder since July 2011, recent treatment records from the VA Medical Center should also be obtained on remand. Finally, the Board notes that there is a need to obtain a retrospective medical opinion in this case regarding the Veteran's claim for TDIU for the time period from January 11, 2002, to September 10, 2008. The Board notes that multiple records reflect that the Veteran was not working during this time period, but there is insufficient competent evidence to address the question of whether his service-connected disabilities alone were of such severity so as prevent him from obtaining and maintaining substantially gainful employment for that time. See Chotta v. Peake, 22 Vet. App. 80, 85 (2008) (explaining that the duty to provide a medical opinion or examination is not automatic, but if one is required, it may include obtaining a retrospective medical opinion). Given medical evidence of record indicating that the Veteran was not working during this time, the Board finds that a retrospective opinion is required to determine the extent that the Veteran's service connected disabilities affected his employability. Accordingly, the case is REMANDED for the following actions: (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. Obtain and associate with the claims file any relevant VA treatment records pertaining to the Veteran's left hip disability since July 2011. 2. Following receipt of authorization, obtain and associate with the claims file records from the state of California and the appropriate county entity responsible for providing aid assistance to the Veteran. Two attempts should be made to obtain relevant non-Federal records, unless a formal finding can be made that a second request for such records would be futile. See Pub. L. No. 112-154, § 505, 126 Stat. 1165, 1193 (2012). If such records are unavailable, the claims file should be clearly documented to that effect, and the Veteran must be notified of any inability to obtain these records in accordance with 38 C.F.R. § 3.159(e). 3. Forward the Veteran's claims file to an appropriate medical professional in order to obtain an opinion regarding his employability from January 11, 2002, to September 10, 2008. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. The examiner should take into account all evidence of record, to include both the lay and medical evidence. (a) Based on a review of the claims file, the examiner should provide an opinion as to whether it is at least as likely as not that Veteran's then service-connected disabilities alone rendered him unable to secure or follow a substantially gainful occupation from January 11, 2002, to September 10, 2008 (prior to April, 25, 2005, the Veteran's only service-connected disabilities were HIV infection, fibromyalgia, right tarsal navicular fracture, sinusitis, condyloma acuminatum, and pes planus of the left foot; as explained in the decision above, after April 25, 2005, his service-connected disabilities included the left hip; after December 19, 2007, depressive disorder and sleep apnea were added). To the extent possible, the examiner should indicate when exactly service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation. (b) In offering the foregoing opinions, the examiner should discuss the Veteran's employment history and educational attainment; however, the examiner must not take into consideration factors other than the Veteran's service-connected disabilities (i.e., age or nonservice-connected disabilities). All opinions provided must be explained, and an adequate rationale for any conclusions reached should be provided. If any requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 4. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues of entitlement to an initial compensable rating for the left hip and entitlement to TDIU from January 11, 2002, to September 10, 2008. If the benefit sought on appeal remains denied, in whole or in part, the Veteran and his representative should be provided with a supplemental statement of the case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter 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 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). ______________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs