Citation Nr: 1643795 Decision Date: 11/17/16 Archive Date: 12/01/16 DOCKET NO. 97-34 168A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for right shoulder tendonitis/bursitis. 2. Entitlement to an initial rating in excess of 10 percent for cervical strain. 3. Entitlement to an initial rating in excess of 10 percent for dorsolumbar strain. 4. Entitlement to special monthly compensation (SMC) based on need for aid and attendance or housebound status. REPRESENTATION Appellant represented by: Joshua Whitehill, Attorney WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from May 1982 to October 1982 and from December 1988 to December 1994. The appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from a March 1997 rating decision of the VA Regional Office in San Juan, Puerto Rico (RO). The Veteran currently resides within the jurisdiction of the St. Petersburg, Florida RO. The Veteran was afforded a hearing at the RO in April 1998. The transcript is of record. The case was remanded for further development in February 2005. By decision in January 2008, the Board denied evaluations in excess of 10 percent for right shoulder bicipital tendonitis and bursitis, cervical strain, and dorsolumbar strain. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In November 2008, the Court vacated the decision, and remanded the case to the Board consistent with a Joint Motion for Remand. The Veteran was awarded a 100 percent disability evaluation for service-connected depressive disorder by RO rating decision in January 2009, effective from December 27, 2005. The Board remanded the case for further development in December 2010. The issues of entitlement to a total rating based on individual unemployability prior to December 27, 2005 and special monthly compensation based on need for aid and attendance or housebound status were subsumed on appeal. By decision in June 2013, the Board confirmed and continued the 10 percent ratings for right shoulder bicipital tendonitis and bursitis, cervical strain, and dorsolumbar strain, and denied entitlement to a total rating based on individual unemployability prior to December 27, 2005. The issue of entitlement to special monthly compensation (SMC) based on need for aid and attendance or housebound status was remanded for further development. The Veteran appealed the denials of the claims to the Court. In an October 2014 Memorandum Decision, the Court vacated the prior Board decision pertaining to the claims for higher ratings, and remanded the case to the Board for further adjudication. The case was remanded by Board decision in July 2015 for issuance of a statement of the case on the issue of entitlement to SMC and to schedule the appellant for a videoconference hearing. The Veteran was afforded a videoconference hearing in March 2016 before a VA Veterans Law Judge who subsequently resigned from the Board before disposition of the issues on appeal. The transcript of that proceeding is of record. By correspondence dated in August 2016, VA offered the Veteran the opportunity to have another hearing in accordance with 38 U.S.C.A. § 7197(c) (West 2014); 38 C.F.R. § 20.707 (2016). He did not respond within 30 days from the date of the letter as requested. Therefore, it must be presumed that the appellant does not desire another hearing. The Board will still consider the March 2016 testimony and the evidence presented since that time. However, following review of the record, the appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran asserts that the symptoms associated with his service-connected right shoulder, neck and back are more severely disabling than reflected by the currently assigned 10 percent disability evaluations and have warranted higher ratings since the inception of the claim. He also maintains that he is in need of aid and attendance and/or is housebound due to service-connected disability for which special monthly compensation is warranted. The record reflects that the appellant has not had a VA compensation and pension examination of his lumbar/dorsal/cervical spine and right shoulder since July 2012, more than four years as of this writing. The Court of Appeals for Veterans Claims has held that when the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination. See Snuffer v. Gober, 10 Vet. App. 400, 403; Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992). As such, the appellant should be scheduled for a VA orthopedic examination to ascertain the status of the service-connected right shoulder, neck and back bilateral disabilities. He should also be afforded an evaluation for SMC purposes. Additionally, the record indicates that the Veteran receives VA outpatient treatment for service-connected orthopedic disorders but that the most evidence in this regard is dated through August 2013. As VA has notice of the potential existence of additional records, they must be retrieved and associated with other evidence already on file. See Bell v. Derwinski, 2 Vet.App. 611 (1992). Therefore, pertinent VA outpatient clinical data should be requested from September 2013 and associated with the electronic record. Accordingly, the case is REMANDED for the following actions: 1. Request VA outpatient records dating from September 2013 through the present and associate with Virtual VA/VBMS. The request to secure this information must be documented in the claims folder. 2. After a reasonable time for receipt of any additional records, the Veteran should be scheduled for a VA orthopedic examination by an appropriate VA practitioner, to include a functional capacity evaluation to assess the severity of the service-connected right shoulder, cervical spine and dorsal/lumbar spine. Access to Virtual VA/VBMS must be made available to the examiner in connection with the examination. All indicated tests and studies should be conducted and clinical findings should be reported in detail. The examination report should reflect consideration of the Veteran's documented medical history, current complaints, and other assertions, etc. The examiner should indicate whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the service-connected right shoulder, cervical spine, and dorsal/lumbar spine. In addition, the examiner should indicate whether, and to what extent, the Veteran experiences functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use. 3. Schedule the Veteran for a VA examination to determine whether he is in need of aid and attendance. The examiner must be afforded access to Virtual VA/VBMS and provided a copy of this remand. Following examination, a determination should be made as to whether the Veteran is blind or so nearly blind as to have corrected visual acuity of 5/200 or less in both eyes, or concentric contraction of the visual field to five degrees or less; the ability to dress or undress himself, or to keep himself ordinarily clean and presentable; in frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; unable to feed himself through loss of coordination of upper extremities or through extreme weakness; or unable to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis for protection from hazards or dangers to daily environment DUE TO SERVICE CONNECETED DISORDERS ALONE. The examiner must also address whether it is at least as likely as not the Veteran is permanently housebound by reason of disability or disabilities. This requirement is met when the Veteran is substantially confined to his dwelling and the immediate premises DUE TO SERVICE CONNECETED DISORDERS ALONE. The examiner is advised that the appellant is service connected for a depressive disorder, evaluated as 100 percent disabling, and right shoulder bicipital tendonitis, cervical strain, dorsolumbar strain, each rated 10 percent disabling, as well as prostatitis and scar residuals of right inguinal hernia repair and right hand injury, each rated as noncompensably disabling. In addressing the questions posed above and in considering the evidence of record, the examiner is reminded that only the impact of the appellant's service connected disorders may be considered in determining whether he is entitled to special monthly compensation. The appellant's age and ALL nonservice connected disorders may not be considered. A complete and fully reasoned rationale must be provided for the opinions offered. 4. The RO should ensure that the clinical reports requested above comply with this remand and its instructions. If a report is insufficient, or if any requested action is not taken or is deficient, it must be returned for correction. 5. After taking any further development deemed appropriate, readjudicate the claims. If a benefit is not granted, issue a supplemental statement of the case before returning the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ DAVID WIGHT Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).