Citation Nr: 1334357 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 94-29 322 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in White River Junction, Vermont THE ISSUES 1. Entitlement to an effective date earlier than July 19, 2010 for the currently assigned initial 10 percent rating for peripheral neuropathy of the left lower extremity. 2. Entitlement to an effective date earlier than July 19, 2010 for the currently assigned initial 10 percent rating for peripheral neuropathy of the right lower extremity. 3. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance of another person or on account of being housebound. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Emily L. Tamlyn, Counsel INTRODUCTION The Veteran served on active duty from January 1965 to February 1968, including combat service in the Republic of Vietnam and his decorations include the Combat Infantryman Badge. These matters come before the Board of Veterans' Appeals (Board) from September 1999 and March 2008 rating decisions of the Department of Veterans' Affairs (VA) Regional Office (RO) in White River Junction, Vermont. In the September 1999 decision, the RO denied entitlement to SMC based on the need for regular aid and attendance of another person or on account of being housebound. In the March 2008 decision, the RO granted service connection for Type II diabetes mellitus and assigned an initial 20 percent disability rating, effective September 27, 2007. In September 1993, the Veteran testified before a Veterans Law Judge who is now retired; issues discussed at that hearing at the time are now part of the SMC claim. A transcript of that hearing is in the file. The Veteran declined another hearing. In February 2001, the Board remanded the SMC issue for further development. In June 2002, the Board denied the claim for SMC based on the need for regular aid and attendance of another person or on account of being housebound. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In a March 2006 memorandum decision, the Court vacated the Board's June 2002 decision, in part, and remanded the case for readjudication in compliance with directives specified in the Court's decision. In November 2006, the Board remanded the SMC issue for further development in compliance with the Court's decision. In a February 2011 decision, a decision review officer (DRO) granted service connection for peripheral neuropathy of the right and left lower extremities as secondary to diabetes mellitus and assigned initial 10 percent disability ratings, both effective July 19, 2010. As compensable complications of diabetes are to be rated separately when rating the underlying diabetes, these determinations were continued on appeal because the diabetes mellitus was also on appeal. In September 2011, the Board remanded the diabetes and SMC issues for further development. In February 2012, the Board denied initial ratings higher than 10 percent each for peripheral neuropathy of the bilateral lower extremities. Also, the Board denied the claim for SMC. In December 2012, the Court granted a November 2012 Joint Motion for Partial Remand. Pursuant to the Joint Motion, the only issues currently before the Board are SMC based on the need for regular aid and attendance of another person or on account of being housebound and entitlement to effective dates earlier than July 19, 2010 for the currently assigned initial 10 percent staged ratings for peripheral neuropathy of the bilateral lower extremities. In September 2013, the Veteran clarified that he wished to continue prosecuting this appeal pro se, i.e., he wished to represent himself. The issue of SMC based on the need for regular aid and attendance of another person or on account of being housebound is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran's favor, since May 19, 2010, the Veteran's peripheral neuropathy of the left lower extremity has been manifested by mild sciatic neuritis. 2. Resolving all reasonable doubt in the Veteran's favor, since May 19, 2010, the Veteran's peripheral neuropathy of the right lower extremity has been manifested by mild sciatic neuritis. CONCLUSIONS OF LAW 1. The criteria for an effective date for an initial rating of May 19, 2010, but no earlier, for peripheral neuropathy of the left lower extremity has been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.21, 4.123, 4.124, 4.124a, Diagnostic Code (DC) 8520 (2013). 2. The criteria for an effective date for an initial rating earlier than May 19, 2010, but no earlier, for peripheral neuropathy of the right lower extremity has been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.21, 4.123, 4.124, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duty to notify and assist In the November 2012 joint motion for remand that was granted by the Court, the parties agreed that the Board failed to provide adequate reasons and bases for why an effective date two months prior to July 19, 2010, was warranted for separate 10 percent ratings for the Veteran's right and left lower extremity neuropathy in light of the July 19, 2010, VA examination report stating that his bilateral lower extremity neuropathy occurred within the last two months. In this decision, the Board finds that an effective date of May 19, 2010, is warranted for the separate 10 percent ratings for the Veteran's right lower extremity and left lower extremity neuropathy, which represents a complete grant of the benefit sought on appeal. In any event, under the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). As for the appeal for a higher initial rating for peripheral neuropathy which stemmed from the higher initial rating for diabetes mellitus, the claim arises from the Veteran's disagreement with the initial rating assigned after the grant of service connection (as explained above, the claim for a higher rating for diabetes mellitus itself is no longer before the Board). Courts have held, and VA's General Counsel has agreed, that where an underlying claim has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or address prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA obtained the Veteran's service treatment records and all of the identified post-service VA treatment records. In addition, he was afforded a VA examination in July 2010 for diabetes mellitus and peripheral neuropathy of the lower extremities. The Board finds this examination report to be fully adequate. As explained further below, the Board is remanding the SMC claim for all available Social Security Administration (SSA) disability hearing transcripts. However, all other SSA records are in the file (see January 2008 SSA response to VA). Further, these transcripts (dated from December 11, 1990 and December 15, 1998) would not be relevant to the peripheral neuropathy because the Veteran was not diagnosed with diabetes mellitus when they were created (which the peripheral neuropathy is associated with) until 2006 at the earliest (see August 2006 VA record). Even so, he did not file a claim for service connection for diabetes mellitus until February 23, 2007; he could not receive an effective date earlier than that date in any case. See 38 C.F.R. § 3.400(b)(2) (2013). Finally, the Board does not find that the Veteran complained of peripheral neuropathy of the bilateral lower extremities prior to 2007. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that VA is required to obtain service treatment records in all initial or increase ratings claims so that the entire history of the claim may be reviewed. Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009) (holding that VA had a duty to obtain service treatment records even in an appeal involving a rating period long after service). However, the Federal Circuit has also held that it is not required to seek SSA records where there is no evidence they would be relevant to the pertinent disability on appeal See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). In this case, the Board finds that any potentially available transcripts potentially in the possession of the SSA at this time are not relevant, and need not be obtained before this adjudication. The January 1999 SSA decision noted the Veteran alleged he was unable to work due to PTSD, a pin in the left knee, limited use of the right arm and chronic low back pain; he was found disabled due to PTSD. The March 1991 SSA decision similarly does not show peripheral neuropathy was raised. While the Veteran filed a claim of service connection for peripheral neuropathy in 1997, all evidence shows it was for the upper and not lower extremities. As a result, the Board finds there is no need to delay adjudication of this claim. The Board finds substantial compliance with all of the Board's remand instructions regarding this issue because the Veteran received a VA examination in July 2010 to evaluate the manifestations of his diabetes mellitus, to include peripheral neuropathy. See Stegall v. West, 11 Vet. App. 268 (1998). Effective Date for the Initial Ratings Disability evaluations are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002). Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability, and above all, coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2013). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10 (2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100 percent rating. Noncompensable complications are deemed part of the diabetic process under DC 7913. 38 C.F.R. § 4.119, DC 7913, Note (1) (2013). The peripheral neuropathy of the Veteran's lower extremities is rated under 38 C.F.R. § 4.124a, DC 8520 as paralysis of the sciatic nerve; the percentage of that rating is no longer on appeal (See November 2011 Joint Motion). When deciding claims for increased disability ratings, the Board must consider the credibility of claimants' statements report of symptoms. See Tatum v. Shinseki, 23 Vet. App. 152, 155 (2009) (noting that the Board's failure to discuss a veteran's report of symptoms, combined with a failure to address her credibility, rendered its statement of reasons or bases inadequate). At a June 2001 VA examination, no sensory deficits of the bilateral lower extremity were found. An August 2006 VA record reflects that the Veteran reported a new diagnosis of diabetes mellitus. In his February 2007 claim for diabetes mellitus, he mentioned several conditions he believed were caused by diabetes, including erectile dysfunction. He did not mention peripheral neuropathy or such symptoms. In September 2007, the Veteran was seen by VA primary care. He denied numbness and tingling in extremities. At a March 2008 VA examination, he reported left knee pain, but not numbness or tingling of the lower extremities. The same month, the RO granted service connection for diabetes mellitus based on the prior diagnosis of diabetes mellitus in VA records. In June 2008, a VA primary care record noted the Veteran had normal feet. In April 2010, a VA primary care record noted twice that the Veteran had no complaints or active complaints. An extremities examination showed that sensation was intact and the neurology portion of the review of systems examination stated: "No falls, dizzyness (sic), numbness or tingling of extremities." In July 2010, at the VA examination for diabetes mellitus, the Veteran stated that peripheral neuropathy was a "new, more recent problem." He "just recently started to have some tingling in all of the toes on both of his feet over the last two months." He stated he had it in both feet in all toes but was on no treatment for it. "He says it is a numbness and tingling in the toes on both feet, not painful, just kind of always noted to be there." He was "just conscious" of it and hoping it would not worsen. An examination was totally normal, with no objective sensory findings. The diagnosis was bilateral lower extremity peripheral neuropathy which "has occurred within the last two months." It was noted he was diagnosed with diabetes mellitus since 2007 and there is an association of neuropathies with diabetes. In February 2011, the RO granted peripheral neuropathy of the bilateral lower extremities and assigned an effective date of July 19, 2010, the date of the examination. The Board finds that the correct date is two months prior to the July 19, 2010 VA examination based on the competent and credible report of the Veteran and in consideration of all of the evidence in the file. 38 C.F.R. §§ 4.1, 4.2, 4.10; Fenderson, 12 Vet. App. at 125-126. Prior to that time, the Board does not find that an earlier effective date for the separation evaluation for peripheral neuropathy would be appropriate. The evidence does not show and the Veteran does not allege the numbness and tingling of the lower extremities started before two months prior to July 19, 2010. Thus, resolving all reasonable doubt in the Board's favor, the Board agrees with the Veteran that an effective date of May 19, 2010 for peripheral neuropathy of the bilateral lower extremities is warranted. ORDER Subject to the law and regulations governing payment of monetary benefits, An effective date of May 19, 2010, for the currently assigned initial 10 percent rating for peripheral neuropathy of the left lower extremity is granted. Subject to the law and regulations governing payment of monetary benefits, an effective date of May 19, 2010, for the currently assigned initial 10 percent rating for peripheral neuropathy of the right lower extremity is granted. REMAND In the November 2012 Joint Motion, the Board was directed to request a December 1998 hearing transcript from SSA. Upon review of the file, the Board finds two SSA hearing transcripts outstanding; one from December 11, 1990 and another from December 15, 1998. On remand, both transcripts should be requested and associated with the file. If the transcripts are available, the Veteran has requested a copy (see October 2002 request). If they are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e) (2013). Additionally, in Howell v. Nicholson, 19 Vet. App. 535, 540 (2006), cited in the November 2012 Joint Motion, the Court held that leaving one's house for medical purposes cannot, by itself, serve as the basis for finding that one is not substantially confined for purposes of SMC benefits on account of being housebound. In the October 2011 VA examiner's opinion, she stated that because the Veteran was attending his psychotherapy sessions, he did not appear to be confined to his home. On remand, the Board finds that the Veteran must be afforded another VA examination. In addition, in the November 2012 joint motion for remand, the parties agreed that the Board failed to discuss whether special monthly compensation could be granted based on aid and attendance under 38 U.S.C.A. § 1114(r) or based on being rendered housebound under 38 U.S.C.A. § 1114(s) during a staged period and pointed out that the appeal stems from an initial evaluation "dating back to the April 1989 effective date of the award of service connection for posttraumatic stress disorder ("PTSD"). As such, on remand, the Board finds that a retrospective medical opinion addressing the impact of the Veteran's PTSD on his ability to perform his activities of daily living and to leave his home is necessary to adjudicate this appeal. See Chotta v. Peake, 22 Vet. App. 80 (2008); see also Vigil v. Peake, 22 Vet. App. 63 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the relevant time period). In addition, VBMS shows that the Veteran has a pending claim seeking a higher rating for his diabetes mellitus. As noted above, his PTSD has been rated as 100 percent disabling since April 26, 1989. Service connection is in effect for several other service-connected disabilities, including diabetes mellitus, including manifestations of that disability, as well as hypertension and tinnitus. The combined rating for the Veteran's service-connected disabilities other than PTSD is 49 percent, which rounds up to a separate, combined 50 percent rating. See 38 C.F.R. §§ 4.25, 4.26 (2013). SMC is payable at the housebound rate where the Veteran has a single service-connected disability rated as 100 percent and, in addition: (1) has a service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability, and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i). Subsection 1114(s) requires that a disabled Veteran whose disability level is determined by the ratings schedule must have at least one disability that is rated at 100 percent in order to qualify for the special monthly compensation provided by that statute. Here, service connection is currently in effect for PTSD rated at 100 percent. Thus, if a higher rating were granted for the Veteran's diabetes mellitus and/or its manifestations, SMC at the housebound rate would be warranted. Id. Accordingly, the case is REMANDED for the following action: 1. Request December 11, 1990 and December 15, 1998 hearing transcripts from SSA. If they are found and associated with the file, send the Veteran copies of the transcripts (see October 2002 request). If the transcripts are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e) (2013). 2. Schedule the Veteran for a VA aid and attendance/housebound examination to determine whether his service connected disabilities render him housebound or unable to independently perform the daily functions of self-care on a regular basis. The examiner should review the claims file and note such review in the examination report or in an addendum. The examiner should opine whether, as a result of service connected disabilities, the Veteran requires assistance on a regular basis to: dress or undress himself, or keep himself ordinarily clean and presentable; adjust frequently any special prosthetic or orthopedic appliances; feed himself through to loss of coordination of upper extremities or through extreme weakness; attend to the wants of nature; or to protect himself from the hazards or dangers incident to his daily environment. The examiner should also opine as to whether the Veteran is substantially confined to his dwelling or the immediate premises as a direct result of his service connected disabilities, that is, do these disabilities would cause him to be unable leave his home in order to earn an income. The examiner must also provide a retrospective medical opinion addressing the impact of the Veteran's PTSD on the Veteran's ability to perform his activities of daily living and leave his home since April 1989. The examiner should reference: * An August 1989 VA examination report noting he mostly lived with his wife, but could occasionally go to a restaurant; * A November 1989 statement to SSA where the Veteran stated he stayed inside most of the time and his wife's statement where she said he used to like to go dancing but now never leaves the house; * A June 1991 VA examination report noting the Veteran had low tolerance for people; * A December 1993 letter from Dr. R.P. noting that the Veteran expressed a desire to move to a less populated area; * A July 1998 letter from T.B., a counselor, stating the Veteran isolates himself and often sleeps in his vehicle to avoid his wife; * And July 2008, May 2009, June 2010, and September 2010 VA records showing the Veteran taking part in trips and recreational activities. The examiner should provide a rationale for this opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered or whether the inability was based on the limits of medical knowledge. The examiner is advised that Veteran and other laypersons are competent to report personal observations of the Veteran's symptoms and treatment, and such reports must be considered in formulating any opinions. If the examiner rejects the lay reports of the Veteran and other laypersons, he or she should provide the reason(s) for doing so. 3. Schedule the Veteran for a VA examination to determine the nature, extent and severity of his diabetes mellitus. The examiner must identify all manifestations of the disease and report on the severity of any peripheral neuropathy found to be present. The examiner must state whether it is at least as the Veteran's diabetes mellitus requires insulin, regulation of activities and a restricted diet. The examiner must state whether the Veteran has neuropathy of his upper extremities and the extent and severity of the neuropathy of his lower extremities. All findings and conclusions must be set forth in a legible report. 4. Adjudicate the Veteran's claim of entitlement to an increased rating for his diabetes mellitus and thereafter readjudicate the appeal. If any benefit is not granted in full, issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, 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 that are remanded by the Board or by 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. 2013). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs