Citation Nr: 1537663 Decision Date: 09/03/15 Archive Date: 09/10/15 DOCKET NO. 09-18 836 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for peripheral neuropathy, to include as secondary to leukopenia and/or schizophrenia. 2. Entitlement to service connection for multiple myeloma, to include as secondary to leukopenia and/or schizophrenia. 3. Entitlement to service connection for chronic fatigue syndrome (CFS), to include as secondary to leukopenia and/or schizophrenia. 4. Entitlement to an evaluation in excess of 10 percent for a left foot scar. 5. Entitlement to a compensable evaluation for leukopenia. 6. Entitlement to special monthly compensation based on housebound status. 7. Entitlement to special monthly compensation based on the need for aid and attendance. 8. Entitlement to special adaptive housing. 9. Entitlement to a special home adaptation. 10. Entitlement to automobile and adaptive equipment or for adaptive equipment only. 11. Entitlement to recognition of B.E.D., the Veteran's adopted child, as a helpless child for the purpose of VA benefits, on the basis of permanent incapacity for self-support before attaining the age of 18 years. 12. Entitlement to recognition of T.H.D., the Veteran's adopted child, as a helpless child for the purpose of VA benefits, on the basis of permanent incapacity for self-support before attaining the age of 18 years. 13. Entitlement to recognition of D.S.D., the Veteran's adopted child, as a helpless child for the purpose of VA benefits, on the basis of permanent incapacity for self-support before attaining the age of 18 years. REPRESENTATION Appellant represented by: Lewis C. Fichera, Attorney at Law ATTORNEY FOR THE BOARD M. Peters, Counsel INTRODUCTION The Veteran had active duty service from June 1954 to July 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from several rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Board awards special monthly compensation for housebound status to the Veteran in the decision below; the Board has separated that issue from the aid and attendance issue as special monthly compensation for aid and attendance is a greater benefit than special monthly compensation for housebound status. The aid and attendance issue as well as all the other issues on appeal, with the exception of the housebound status issue, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT The Veteran is substantially confined to his house by reason of his service-connected schizophrenia and such condition is reasonably certain to remain throughout his lifetime. CONCLUSION OF LAW The criteria for an award of special monthly compensation by reason of being housebound have been met. 38 U.S.C.A. §§ 1114(s), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.350(i) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has certain duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). Regarding the claim of entitlement to special monthly compensation based on housebound status, as the instant decision grants that benefit and remands the special monthly compensation for aid and attendance claim for further development, no further discussion of VCAA compliance of the special monthly compensation issues on appeal are required at this time. Special Monthly Compensation (SMC) is payable in addition to the basic rate of compensation otherwise payable on the basis of degree of disability for service-connected disability. See 38 U.S.C.A. § 1114 (West 2014); 38 C.F.R. § 3.350 (2015). The Veteran seeks SMC based on the need for regular aid and attendance of another person and on account of housebound status. SMC may be awarded at the housebound rate if a veteran has a single service-connected disability rated as total and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) by reason of service-connected disability or disabilities, is permanently housebound. See 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i) (2015). A veteran will be determined to be permanently housebound when he is substantially confined to his house (or ward or clinical areas, if institutionalized) or immediate premises due to disability or disabilities when it is reasonably certain that such a condition will remain throughout his lifetime. Id. While the Veteran is totally disabled as a result of his service-connected schizophrenia, the Veteran does not have any other service-connected disabilities that individually are evaluated at 60 percent disabling, nor do the aggregated disability evaluations of his other service-connected disabilities combine to an additional 60 percent evaluation. Thus, SMC for housebound rate is not warranted on that basis. After review of the record, the Board notes that the Veteran underwent a VA aid and attendance/housebound examination in December 2008. After examination of the Veteran and review of the claims file, that VA examiner opined as follows: Based on review of the Veteran's [claims] file, medical record, and interview, it appears that since 1979 multiple psychiatrists have filed letters and reports to indicate that the Veteran is housebound due to his service-connected schizophrenia, specifically due to the danger of assaultive/aggressive behavior that the Veteran would likely engage in if unsupervised. Since that time, the Veteran's report of multiple incarcerations for such behavior (despite attempts to always have supervision when outside of his home) is consistent with the opinion of these psychiatrists. It is unclear why the Veteran was not awarded housebound status in the past despite significant evidence in support of the Veteran's claim. Given that beginning in 2006 the Veteran developed a number of medical conditions that further impair his ability to leave his home, his current housebound status is not due "solely to his service-connected schizophrenia"; however, it is important to note that had these medical conditions not developed, it is likely that the Veteran would still be housebound due to solely his schizophrenia (as he has been per psychiatric reports over the past nearly 30 years). Additionally, there appears to be some evidence from reports and letters submitted by Drs. [D.S.S., C.N.B., and R.G.M.] in 2008 that suggest that the Veteran's physical conditions may be related to his psychiatric condition. Thus, both medical and psychiatric conditions impact the Veteran's current ability to leave his home and further these conditions may be related. The relative influence that these factors have on his ability to leave his home cannot be quantified and any attempt to do so would be resorting to mere speculation. Based on the above opinion and review of the claims file which indicates several letters from private psychiatric providers throughout the years which confirm the December 2008 examiner's statements, the Board resolves all doubt in the Veteran's favor as to the question of whether the Veteran is substantially confined to his house due to his schizophrenia, and that such confinement is reasonably certain to remain throughout his lifetime. The Board thus finds that the Veteran's schizophrenia results in substantial confinement to his home and that such condition is reasonably certain to remain throughout his lifetime. Accordingly, the Board finds that entitlement to special monthly compensation at the housebound rate is warranted in this case. See 38 U.S.C.A. § 1114(s); 38 C.F.R. §§ 3.102, 3.350(i). In so reaching that conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). While entitlement to SMC at the housebound rate has been awarded in this case, the Board notes that the aid and attendance rate is a greater compensation benefit. Therefore, the claim of entitlement to SMC for aid and attendance is further discussed below in the REMAND section below. ORDER Entitlement to special monthly compensation based on housebound status is granted. REMAND As an initial matter, the AOJ denied service connection for peripheral neuropathy in a May 2009 rating decision. The Veteran timely submitted a notice of disagreement with "all adjudicative decisions" in a June 2009 correspondence. As of this time, no statement of the case respecting the peripheral neuropathy issue has been sent to the Veteran. As a timely notice of disagreement with the issue of service connection for peripheral neuropathy has been received, the Veteran has appropriately initiated the appellate process respecting that claim, and VA has a duty to issue a statement of the case as to that issue so that the Veteran may complete an appeal by filing a Substantive Appeal. See Manlincon v. West, 12 Vet. App. 238 (1999). Therefore, the claim of service connection for peripheral neuropathy is remanded at this time. As another initial matter, the Board notes that the Veteran requested a hearing before a Veterans Law Judge on his June 2009 substantive appeal, VA Form 9, which addressed solely the issues of increased evaluation for his left foot scar and special monthly compensation for aid and attendance. As of this time, it does not appear that the Veteran has withdrawn that request for a hearing, nor does it appear that the requested hearing has been scheduled for the Veteran. Those issues are therefore remanded at this time in order to schedule the Veteran for a hearing as to those issues. Despite the need to remand the left foot scar and aid and attendance claims for a hearing, as noted above, the Board finds those claims as well as the increased evaluation claim for the Veteran's leukopenia must be remanded as the last VA examinations associated with those claims were in May 2008, November 2013, and August 2006, respectively. On remand, the Board finds that the Veteran must be afforded new VA examinations of those disabilities in order for the current severity of those disabilities to be adequately assessed. See Palczewski v. Nicholson, 21 Vet. App 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995). With regards to the service connection claims for CFS and multiple myeloma, the Board notes that several letters from his private physicians indicate that the Veteran's leukopenia and/or psychiatric disabilities-or the same disease process that caused his leukopenia, namely, the medications used to treat the Veteran's schizophrenia in the remote past-may be a cause of his CFS and/or multiple myeloma. While there is a VA examiner's opinion of record, that opinion does not address the Veteran's full contentions, nor does it address the several private physicians' letters in the claims file. The Board therefore finds that a remand of the multiple myeloma and CFS issues is necessary in order to obtain a comprehensive examination of the Veteran and a comprehensive medical opinion regarding the etiology of those claimed disorders. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). In light of the need to remand the preceding issues for the reasons noted above, the Board finds that the special adaptive housing, special home adaptation, and automobile adaptive equipment claims are all intertwined with those remanded claims and must also be remanded at this time. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The Board also notes that it is possible that there are missing private treatment records, particularly from Hackensack Hospital, with regards to the Veteran's continued treatment for multiple myeloma. Accordingly, on remand, any ongoing private and VA treatment records should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Regarding the Veteran's claims for helpless child benefits, the claims file contains an August 2012 letter from the Veteran's attorney, addressed to his children, which reads as follows: You [the Children of the Veteran] are now notified that beginning August 1, 2012 you are required to contribute the sum of $350.00 per month on the first day of each month for having a roof over your head. This does not mean you have the right to do as you wish. There are still rules to be followed as long as you are living in your father's house such as no extended visits by females. If you are not happy with this arrangement you are free to get a room elsewhere but rest assured you will not find a better arrangement than home. Please give the $350.00 to your father on the first day of each month. Very truly yours, [signed the Veteran's attorney, F.X.K.]. Based on review of the claims file-including the numerous medical records sent with respect to each of the Veteran's claimed children, B.E.D., T.W.D., and D.S.D. indicating that they required constant supervision while in school at young ages but, generally, were working towards career development prospects while in high school-particularly the above noted attorney letter, the Board finds that the helpless child claims must be remanded in order for a social/industrial field examination of the Veteran's household, to include the claimed three helpless children (B.E.D., T.H.D., and D.S.D.) to be performed. See 38 U.S.C.A. § 5103A(d) (West 2014); McLendon v. Nicholson, 20 Vet App. 79, 81 (2006). Also, the Veteran should be asked to explain the August 2012 attorney letter to his children, particularly where the money requested in that letter is coming from; the Veteran and/or his claimed three helpless children (B.E.D., T.H.D., and D.S.D.) should also be asked to submit information regarding to each child's monthly finances. As a final matter, in order to assure that the Veteran has been provided adequate notice with all of the above noted appellate issues, on remand, the Veteran should be sent the appropriate VCAA notice with respect to all issues that remain on appeal so as to allow efficient adjudication of those issues. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The AOJ should issue the Veteran and his representative a statement of the case concerning the issue of service connection for peripheral neuropathy. The AOJ should inform the Veteran and the representative of the remaining time period in which to submit a substantive appeal as to that matter. 2. Send the Veteran notice that is compliant with 38 U.S.C.A. § 5103(a) with respect to the claims of service connection for multiple myeloma and chronic fatigue syndrome, increased evaluation for a left foot scar and leukopenia, special monthly compensation based on the need for aid and attendance, claims for special adaptive housing, special home adaptation, automobile and adaptive equipment or for adaptive equipment only, and claims for recognition of B.E.D., T.H.D., and D.S.D., as helpless children for the purposes of VA benefits. 3. Obtain any relevant VA treatment records from the New York VA Medical Center, or any other VA medical facility identified by the Veteran or apparent from the record, since August 2012 and associate those documents with the claims file. 4. The AOJ should contact the Veteran, through his representative, and request that the Veteran identify any sources of private treatment that he may have had for his multiple myeloma, chronic fatigue syndrome, leukopenia, and left foot scar, for which records are not already on file, to include any records from Hackensack Hospital or any other private treatment facility that may have treated the Veteran for the above noted disorders. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. 5. Contact the Veteran, through his representative, and request that the Veteran explain the August 2012 letter from a private attorney to his adopted children regarding the payment of $350.00 a month and abiding by the Veteran's household rules, or their choice to find another living arrangement. Specifically, the Veteran should explain why the letter was sent, and the basis for his expectation that the recipients received at least $350 per month from a source other than his own funds. 6. Contact the Veteran, through his representative, and request that he provide, or that he have his children (B.E.D., T.H.D., and D.S.D.) provide, information with respect to B.E.D.'s, T.H.D.'s, and D.S.D.'s monthly finances, particularly to include any sources of income. 7. Schedule the Veteran's household for a VA social and industrial survey (field examination) by an appropriate examiner/social worker to interview the members of the Veteran's household, to specifically include the Veteran, B.E.D., T.H.D, and D.S.D., to determine whether the referenced children are permanently incapable of self-support. The field examiner should develop information from each of the above individuals as to the educational and occupational histories of B.E.D., T.H.D., and D.S.D. All observations and the summary of the interviews should be associated with the field examination report. If any authorizations for the release of information are required, the Veteran should be requested to accomplish those authorizations. The field examiner should offer an opinion, following the conclusion of the survey, and after review of the claims files, as to whether B.E.D., T.H.D., and D.S.D. are currently incapable of self-support and if so, whether such inability for self-support began prior to their 18th birthday. All opinions must be accompanied by an explanation. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 8. Schedule the Veteran for a VA examination with a hematologist or oncologist in order to determine whether his claimed multiple myeloma and/or chronic fatigue syndrome are related to service or his service-connected disabilities. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. After review of the claims file and examination of the Veteran, the examiner must state the disorders found, to include multiple myeloma. The examiner should specifically address whether the Veteran has a separate and distinct diagnosis of chronic fatigue syndrome, or whether the Veteran's claimed fatigue symptoms are merely symptoms associated with either his multiple myeloma or his service-connected leukopenia. If the examiner determines that the Veteran does not have a diagnosis of chronic fatigue syndrome but rather his claimed fatigue symptoms are related to either multiple myeloma and/or leukopenia, the examiner need not address chronic fatigue syndrome further. For any disorders found, including multiple myeloma, the examiner should then opine whether those disorders found more likely, less likely, or at least as likely as not (50 percent or greater probability) began in or are otherwise related to military service. Next, the examiner should then opine whether the Veteran's disorders found on examination are (1) caused by; or, (2) aggravated (i.e., permanently worsened beyond the normal progression of that disease) by his service connected schizophrenia and/or leukopenia disabilities, to include any medications taken in the remote past for his schizophrenia. If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. The examiner should specifically address the Veteran's contentions and lay statements regarding onset of symptomatology and any continuity of symptomatology since discharge from service and/or since onset. The examiner should additionally address the several private physicians' letters from Drs. V.K., J.L., R.G.M., D.S.S., C.N.B., et. al., in the claims file with respect to the etiological cause of the Veteran's multiple myeloma and/or its relationship to either service or service-connected leukopenia or schizophrenia. The examiner should also address any relevant treatise evidence, and internet/newspaper articles that has been submitted. The examiner is to take as conclusive fact that the Veteran has never served in the Republic of Vietnam or during the period of the Vietnam War, and therefore is not presumed to be exposed to Agent Orange or any other tactical herbicides during his period of service. The Board requests the examiner give a comprehensive medical opinion that is accompanied by an explanation. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 9. Schedule the Veteran for a VA examination to determine the current severity of his left foot scar. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. Following review of the claims file and examination of the Veteran, the examiner should comment as to the number of scars that are present with respect to the Veteran's left foot. The examiner should also describe the area of each such scar (in square inches or square centimeters), and whether such scars are painful, unstable, superficial and nonlinear, or deep and nonlinear. The examiner should also state whether such scarring causes limited motion, or any other functional impairment. 10. Schedule the Veteran for a VA examination to determine the current severity of his leukopenia. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. After review of the claims file and examination of the Veteran, the examiner should specifically discuss each of the following: (a) The amount of hemoglobin (gm/ml), and/or analogous blood protein for leukopenia, present. (b) Whether there is the presence of any of the following symptoms: weakness, easy fatigability, headaches, lightheadness, shortness of breath, dyspnea on mild exertion, cardiomegaly, tachycardia (100-120 beats per minute), syncope (three episodes in the last six months), high output congestive heart failure, or dyspnea at rest. (c) Whether the Veteran requires continuous medication for his leukopenia. (d) Whether the Veteran requires a bone marrow transplant. (e) Whether the Veteran requires a transfusion of platelets or blood cells to treat his leukopenia, and if so, the frequency of such transfusions. (f) Whether the Veteran has recurring infections, and if so, the frequency of those episodes. All opinions must be accompanied by an explanation. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 11. Schedule the Veteran for a VA examination to determine whether the Veteran requires aid and attendance as a result of his service-connected disabilities. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. After review of the claims file and examination of the Veteran, the examiner should opine whether the Veteran's service-connected disabilities-at present, schizophrenia, leukopenia, and a left foot scar-render the Veteran helpless or so nearly helpless that he requires the regular aid and attendance of another person. The examiner should also address each of the following: (a) Whether the Veteran's service-connected disabilities render him blind or so nearly blind as to have a visual field of 5 degrees or less or visual acuity of 5/200 or less. (b) Whether he is a patient in a nursing home as a result of mental or physical incapacity resulting from his service-connected disabilities. (c) Whether the Veteran's service-connected disabilities render him unable to perform the following activities: dress, undress, keep ordinarily clean and presentable, feed oneself through loss of coordination of the upper extremities or through extreme weakness, requires frequent adjustment of a special prosthetic or orthopedic appliance, or is otherwise unable to attend to the wants and needs of nature, including being incapable due to either physical or mental incapacity to protect himself against the hazards and dangers incident in his daily environment. (d) Whether the Veteran is bedridden as a result of his service-connected disabilities. All opinions must be accompanied by an explanation. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 12. Following any additional indicated development, the AOJ should review the claims file and readjudicate the claims remaining on appeal. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. 13. Following all of the above development, clarify with the Veteran and his representative whether he wishes to have a hearing before a Veterans Law Judge. If the Veteran still wishes to have a hearing before a Veterans Law Judge, the Veteran and his representative should indicate which type of hearing is desired (videoconference, travel Board, or at the Board's offices in Washington, DC), and specifically indicate which issues they intend to address in that hearing. If the Veteran indicates that he desires a Board hearing held at the RO (either videoconference or travel Board), schedule the Veteran for the hearing, and notify the Veteran and his representative of the date, time and location of this hearing. 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). 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 2014). ______________________________________________ THOMAS H. O'SHAY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs