Citation Nr: 1328649	
Decision Date: 09/09/13    Archive Date: 09/17/13

DOCKET NO.  09-50 834	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Entitlement to service connection for posttraumatic stress disorder (PTSD).

2.  Entitlement to service connection for sleep apnea.

3.  Entitlement to service connection for residuals of a left wrist injury, claimed as secondary to a service-connected disability.

4.  Entitlement to a compensable rating for degenerative joint disease (DJD) of the thoracic spine prior to November 6, 2004.

5.  Entitlement to a rating in excess of 10 percent for degenerative disc disease (DDD) with DJD of the lumbar spine prior to November 6, 2004.

6.  Entitlement to a rating in excess of 40 percent for DDD with osteoarthritis of the thoracic and lumbar spine from November 6, 2004.  

7.  Entitlement to a rating in excess of 20 percent for a post-operative right knee disability.
8.  Entitlement to a rating in excess of 20 percent for left knee osteoarthritis.

9.  Entitlement to an effective date prior to August 24, 1998, for the grant of service connection for DJD of the thoracic spine.

10.  Entitlement to an effective date prior to July 13, 2009, for the grant of service connection for left knee osteoarthritis.  

11.  Entitlement to special monthly compensation (SMC ) based on the need for regular aid and attendance (A&A) or at the housebound rate.

12.  Eligibility for financial assistance in acquiring specially adapted housing.

13.  Entitlement to a special home adaptation grant.


REPRESENTATION

Appellant represented by:	Virginia A. Girard-Brady, Attorney


ATTORNEY FOR THE BOARD

K.S. Hughes, Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from August 1973 to March 1978.  This matter is before the Board of Veterans' Appeals (Board) on appeal from August 2005, November 2009, April 2010, May 2010, July 2010 and September 2010 rating decisions.  An August 2005 rating decision by the Department of Veterans Affairs (VA) Appeals Management Center Resource Unit in Bay Pines, Florida, granted service connection for DDD with DJD (lumbar spine), rated 10 percent, effective August 24, 1998, and 40 percent from November 6, 2004.  Rating decisions of the Atlanta, Georgia VA Regional Office (RO) in November 2009 (which granted service connection for degenerative arthritis, thoracic spine, rated 0 percent, effective August 24, 1998, and 40 percent combined with the lumbar spine from November 6, 2004), April 2010 (which denied an increased rating for post-operative lateral meniscectomy, right knee, service connection for sleep apnea and right wrist condition, and SMC), May 2010 (which granted service connection for left knee osteoarthritis, rated 20 percent from July 13, 2009), July 2010 (which denied specially adapted housing assistance and a special home adaptation grant), and September 2010 (which denied service connection for PTSD).  

In Clemons v. Shinseki, 23 Vet. App. 1, 8 (2009), the U.S. Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental health disability that could reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record.  That decision also held that where (as here) there is a final agency decision denying a claim based on a particular diagnosis and subsequently a new and different psychiatric disability is submitted for VA's consideration (PTSD), the new claim is distinct from those previously adjudicated by final decisions.  Here, an October 1994 Board decision denied service connection for a nervous disorder (affirmed by the Court in December 1995); and an unappealed January 1996 rating decision denied service connection for organic delusional syndrome.  Accordingly, the matter now before the Board is limited to the diagnosis of PTSD.

The matter of an earlier effective date for the grant of service connection for a left knee disability is being decided.  The remaining issues are being REMANDED to the RO.  VA will notify the appellant if action on his part is required.


FINDING OF FACT

The first communication to VA from the Veteran indicating that he was seeking service connection for left knee disability was received on July 13, 2009 (more than one year after his separation from active duty).
CONCLUSION OF LAW

An effective date prior to July 13, 2009, for the award of service connection for a left knee disability is not warranted.  38 U.S.C.A. §§ 5101(a), 5107, 5110 (West 2002); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  

As the rating decision on appeal granted service connection and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 472 (2006), aff'd. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  An April 2010 letter properly provided notice on the "downstream" issue of entitlement to an earlier effective date for the award of service connection for the left knee.  The Veteran has had ample opportunity to respond/supplement the record.  It is not alleged that notice in this case was less than adequate.  See Goodwin v. Peake, 22 Vet. App. 128 (2008). 

Regarding, VA's duty to assist, the Board observes that in a claim challenging the effective date of an award, the critical evidence is generally what was in the record when the award was made (and when it was received).  Generally, development of the evidentiary record is not indicated unless pertinent evidence constructively of [but not associated with the] record is identified.  The appellant has not identified any evidence pertinent to the instant appeal that is outstanding. 

Moreover, the Court has held that when the interpretation of a statute is dispositive of the issue on appeal, neither the duty to assist nor the duty to notify provisions of the VCAA are implicated.  The VCAA does not affect matters on appeal, as here, where the question is limited to statutory interpretation.  See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000).  Accordingly, the Board will address the merits of the claim.

Legal Criteria, Factual Background, and Analysis

The Board notes that it has reviewed all of the evidence in the Veteran's claims file, and in Virtual VA, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim.

Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 U.S.C.A. § 5110; 38 C.F.R. § 3.400.  This rule holds true in claims for service connection, except when such claim is received within one year after separation from service, in which case the effective date of the award is the day following separation from service.  38 C.F.R. § 3.400(b)(2)(i).

A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA.  38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a).  A "claim" or "application" is 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).  An informal claim must identify the benefit sought.  38 C.F.R. § 3.155(a).  If a formal claim is received within one year of an informal claim, it will be considered filed as of the date of receipt of the informal claim.  38 C.F.R. § 3.155. 

On July 13, 2009, more than 31 years after his discharge from service, VA received a submission from the Veteran's attorney, with a March 16, 2009 letter from G. N. Kadis, M.D., (stating that the Veteran "continues to have problems with both of his knees") and a cover letter explaining that the additional evidence was confirmation of "the severe and chronic nature" of the Veteran's condition.  Although there is no indication from this cover letter that the Veteran was filing a claim of service-connection for a left knee disability, the letter was accepted as an informal claim for compensation for a left knee disability.  A May 2010 rating decision granted service connection for left knee osteoarthritis, effective July 13, 2009.  

The July 13, 2009 effective date for the grant of service connection was determined on the basis that that was the date of receipt of the claim of service connection for a left knee disability.  There is no prior claim for service-connected compensation for a left knee disability, either formal or informal, in the record.  [Notably, statements from the Veteran received in April 2010 indicate that an "error was made," he was "not claiming for left knee" and request that VA "dis-regard the left knee."  Nonetheless, service connection was granted and an effective date of July 13, 2009 was assigned.]  The Veteran does not allege that he filed a claim of service connection for a left knee disability prior to July 13, 2009 (or explain why an earlier effective date is warranted).  [On April 14, 1978 VA Form 21-526, Veteran's Application For Compensation or Pension, the Veteran claimed service connection for a knee injury (left or right was not specified).  Service connection for a post-operative status lateral meniscectomy, right knee, was granted in an August 1978 rating decision.]

As none of the Veteran's earlier written communications includes a claim of service connection for a left knee disability, there is no evidentiary support or legal merit for his claim for an earlier effective date for the grant of service connection for such disability.  In the absence of a formal or informal claim for this benefit having been filed prior to July 13, 2009, the Veteran is not entitled to an effective date earlier than that date.  The Court has held that where the law not the evidence is dispositive, the Board should deny the appeal because of an absence of a legal merit or the lack of entitlement under the law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).
ORDER

An effective date prior to July 13, 2009, for the grant of service connection for a left knee disability is denied.


REMAND

The Veteran seeks an effective date prior to August 24, 1998, for the grant of service connection for thoracic spine DJD.  He also seeks increases in the staged ratings assigned for his thoracolumbar and bilateral knee disabilities and claims that SMC, specially adapted housing or a special home adaptation grant are warranted based on his service connected disabilities.  

The November 2009 rating decision assigned August 24, 1998 as the effective date for the grant of service connection for DJD of the thoracic spine on the basis that this was the date of receipt of the claim leading to the grant of service connection.  However, review of the record shows that a prior/original claim for service connection for a back condition was received on March 29, 1979 and a May 1979 decisional letter denied service connection for a back disability based on a finding that a back disability was not shown.  Review of the record further found that within one year following the May 1979 decisional letter, VA treatment records (constructively of record) suggested that the Veteran had a back disability (and under governing caselaw required reconsideration of the May 1979 rating decision).  See 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011).  [A March 1979 (about one year after service separation) VA treatment report notes the Veteran's complaints of low back pain and burning urination for the previous six months, X-rays of the lumbosacral spine were normal except for very minimal rotary scoliosis, and the assessments included an unstable low back.]  Accordingly, the determination of the effective date of the award of service connection requires review and reconsideration as to whether the Veteran had a claim of service connection for a back disability pending since his original (unadjudicated by a final rating decision) 1979 claim, and whether entitlement to service connection was then shown.  
Regarding the increased rating claims, in a December 2009 letter, the Veteran's attorney stated that the Veteran's service-connected disabilities have materially worsened and requested that he be afforded examinations to determine the current severity of his disabilities.  Given the length of the intervening period and that the Veteran is competent to observe worsening of his service connected disabilities, a contemporaneous examination to assess the severity of his back and knee disabilities is necessary.  Notably, on June 2010 VA spine examination, the examiner opined that the "examination yielded unreliable/inconsistent results."  The Veteran's "subjective complaints during the examination appeared, to this examiner, out of proportion to objective exam findings.  The Veteran was noted to display poor effort during the examination."  A May 2012 VA spine examination report notes that range of motion measurements could not be completed because the "Veteran refused to do any bending and refused all measurements."  The examiner noted that the "Veteran refused all testing of flexion, extension and rotation.  He reported that he was not willing to do anything to cause him pain."  In his November 2012 VA Form 9, the Veteran stated that the May 2012 VA examiner made false statements on the examination report and range of motion studies were not conducted.  On review of the examination report, the Board finds no reason to question the examiner's observations.  Notably, the Court has held that a veteran must be prepared to meet his obligations by cooperating with VA's efforts to provide an adequate medical examination.  Olson v. Principi, 3 Vet. App. 480 (1992).  As the Veteran may not have been fully aware of the consequences of a refusal to be examined, another attempt to obtain an adequate examination is necessary.  

[Regarding the lumbar and thoracic spine claims, it is noteworthy that the criteria for rating disabilities of the spine were amended twice while the appeal was pending, once effective September 23, 2002, then again effective September 26, 2003.  From their respective effective dates, each, the Veteran is entitled to ratings under the revised criteria, if such are found more favorable.  In the present case, the RO rated the Veteran's lumbar spine disability under the revised criteria for the entire appeal period (from the date of claim) under Diagnostic Code 5242 of the General Rating Formula, which became effective September 26, 2003.  VA's General Counsel, in a precedent opinion, has held that when a new regulation is issued while a claim is pending before VA, unless clearly specified otherwise, VA must apply the new provision to the claim from the effective date of the change as long as the application would not produce retroactive effects.  VAOPGCPREC 7-2003 (Nov. 19, 2003).  The revised versions may only be applied as of their effective date and, before that time, only the former version of the regulation may be applied.  VAOPGCPREC 3-2000 (Apr. 10, 2000).  Therefore, the RO was incorrect in applying the revised criteria in rating the disability for the period from August 24, 1998 through September 25, 2003 (although the Veteran does not appear to be prejudiced).]

SMC at the A&A rate is warranted if the Veteran as a result of service connected disability has suffered the anatomical loss or loss of use of both feet, or of one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to be in need of regular aid and attendance.  38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b). 

Determinations as to the need for aid and attendance must be based on actual requirements of personal assistance from others.  To establish entitlement to compensation at the aid and attendance rate the Veteran must show that the disabilities render him bedridden, or require the regular aid and assistance of another person.

Eligibility for assistance in acquiring specially adapted housing under 38 U.S.C.A. § 2101(a) may be granted if a veteran is entitled to compensation for permanent and total disability due to: (1) the loss, or loss of use, of both lower extremities such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; (2) blindness in both eyes, having only light perception, plus the anatomical loss or loss of use of one lower extremity; or, (3) the loss or loss of use of one lower extremity together with residuals of organic disease or injury that so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; or, (4) the loss or loss of use of one lower extremity together with the loss or loss of use of one upper extremity which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair.  38 C.F.R. § 3.809(b).  The term "preclude locomotion" means the necessity for regular and constant use of a wheelchair, braces, crutches or canes as a normal mode of locomotion although occasional locomotion by other methods may be possible.  38 C.F.R. § 3.809(d). 

Eligibility for assistance in acquiring a special home adaptation grant under 38 U.S.C.A. § 2101(b) may be granted if a veteran is entitled to compensation for permanent and total disability that (1) is due to blindness in both eyes with 5/200 visual acuity or less, or (2) includes the anatomical loss or loss of use of both hands.  38 U.S.C.A. § 2101(b); 38 C.F.R. § 3.809a.  In this regard, the Board also notes that revised versions of 38 C.F.R. §§ 3.809 and 3.809a became effective October 25, 2010; however, the amendments did not change any provisions relevant to the Veteran's appeal.

The term "loss of use" of a hand or foot is defined by 38 C.F.R. § 3.350(a)(2) as that condition where no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic appliance.  The determination will be made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc., in the case of the hand, or of balance, propulsion, etc., in the case of the foot, could be accomplished equally well by an amputation stump with prosthesis.  Examples under 38 C.F.R. § 3.350(a)(2), which constitute loss of use of a foot, include extremely unfavorable complete ankylosis of the knee, complete ankylosis of two major joints of an extremity, shortening of the lower extremity of 3 1/2 inches or more, or complete paralysis of the external popliteal nerve (common peroneal) nerve and consequent footdrop. 

The record suggests that the Veteran receives ongoing VA and private treatment for his claimed disabilities.  The most recent VA treatment records associated with the record are dated in January 2010 (the most recent record in Virtual VA is dated in 2003).  Although the October 2012 supplemental SOC (SSOC) notes that electronic treatment records from the VA Medical Center (VAMC) in Gainesville, Florida, from January 2009 to October 2012 were reviewed, such records are not associated with either the physical claims file or Virtual VA.  Further, the October 2012 SOC notes that a request for records from the Nightingale Clinic was returned as undeliverable (hence, no records were secured).  On remand, another attempt to obtain copies of relevant records from the Nightingale Clinic is necessary.

Regarding the claim of service connection for a right wrist disability, January 2007 VA treatment records show right wrist X-ray findings of ununited fracture at the radial styloid process.  These records were submitted by the Veteran and appear to be incomplete.  Updated/complete records of any VA and/or private treatment the Veteran may have received are likely to contain pertinent information (and VA records are constructively of record) and must be secured.  

As it is unclear whether the identified treatment records contain any information pertaining to the matters of service connection for residuals of a right wrist injury, sleep apnea and PTSD, adjudication of these claims must be deferred pending receipt of any additional records.  If such records show that the Veteran has residuals of a right wrist injury or sleep apnea which is/may be related to a service-connected disability or a diagnosis of PTSD, an examination to secure a medical nexus opinion may be necessary.  

Accordingly, the case is REMANDED for the following action:

1.  The RO should ask the Veteran to identify the providers of any (and all) treatment or evaluation he has had for his claimed disabilities and to provide releases for VA to secure complete private records of such evaluation or treatment (including from the Nightingale Clinic).  The RO should secure for the record complete clinical records of all such treatment and evaluation from all sources identified by the Veteran.  The RO must specifically secure for the record complete/updated VA treatment records (those not already associated with the claims file or in Virtual VA).  The Veteran should be notified if any private records identified are not received pursuant to the RO's request (and reminded that ultimately it is his responsibility to ensure that such records are received).
2.  Thereafter, the RO should arrange for an orthopedic examination of the Veteran to determine the current severity of (and associated functional limitations resulting from) his service-connected back and knee disabilities.  The Veteran's claims file (including this remand) must be reviewed by the examiner in conjunction with the examination.  Based on examination of the Veteran and review of his record, the examiner should:

(a)  Describe in detail all symptoms (and associated impairment of function) of the thoracolumbar spine and bilateral knee disabilities.  The examiner should ascertain the ranges of active and passive motion of the Veteran's thoracolumbar spine and bilateral knee.  If the Veteran is unable to participate in such studies, it must be noted whether such is based on the examiner's objective finding that the Veteran is incapable of participating, or simply a lack of cooperation.  

(b)  Provide opinions as to: (i) Whether the Veteran requires the regular assistance of another person with activities of daily living, to include dressing and/or undressing, keeping ordinarily clean and presentable; feeding himself, and attending to the wants of nature; if regular assistance with a function is needed, please identify the disability(ies) and related functional limitations that create the need for assistance; (ii) whether the Veteran requires the assistance of another in protecting himself from the ordinary hazards of daily living?  If he is deemed incapable of protecting himself from such hazards, please explain why that is so (identifying the disability(ies) responsible); (iii) whether the Veteran is restricted to his home or the immediate vicinity thereof; (iv) to what extent functional impairment reported in response to the above is due to the Veteran's service-connected disabilities; and (v) to what extent (if any) the limitations found are due to any nonservice-connected disabilities.

(c)  Provide an opinion as to whether the Veteran's service-connected disabilities have resulted in the loss of use (see definition above) of one or both lower extremities or one or both upper extremities.  If loss of use of either lower extremity is found, the examiner should comment on the extent to which assistive devices are required.  If the Veteran has loss of use of an extremity, but on account of nonservice-connected disability only, the examiner should so state for the record (with explanation). 

The examiner must explain the rationale for all opinions given, citing the objective medical findings leading to the examiner's conclusions, and (regarding degree of disability) indicate whether subjective complaints are consistent with objective clinical findings.

3.  The RO should undertake any other development suggested by the development ordered above (to include, if indicated, VA examinations to determine the presence, nature and etiology of a right wrist disability, a sleep disorder and/or PTSD.

4.  In accordance with 38 C.F.R. § 3.156(b), and the explanation above, the RO should then readjudicate the claim for an effective date prior to August 24, 1998, for the grant of service connection for DJD of the thoracic spine.

5.  The RO should then review the record and re-adjudicate the remaining claims.  If any remanded claim remains denied, the RO should issue an appropriate SSOC and afford the Veteran and his attorney the opportunity to respond.  The case should then be returned to the Board, if in order, for further review.

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).  These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or the Court 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).


______________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs