Citation Nr: 1800013 Decision Date: 01/02/18 Archive Date: 01/19/18 DOCKET NO. 13-31 194 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to specially adapted housing. 2. Entitlement to a special home adaptation grant. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The Veteran appellant served on active duty in the United States Army from September 1969 to September 1971, including more than ten months in Vietnam; he was awarded the Combat Infantryman's Badge (CIB), the Army Commendation Medal with 'V' device and the Purple Heart Medal with oak leaf cluster. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. This appeal was processed using the VA paperless claims processing system. Accordingly, any future consideration of this appellant's case must take into account the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In this case, service connection has been granted for posttraumatic stress disorder (PTSD) for which a 100 percent rating has been assigned. Service connection has also been granted for diabetes mellitus (40 percent); chronic renal insufficiency due to diabetes mellitus (60 percent); peripheral neuropathy right upper extremity (20 percent (minor)); peripheral neuropathy left upper extremity (30 percent (major)); peripheral neuropathy right lower extremity (40 percent); peripheral neuropathy left lower extremity (40 percent); tinnitus (10 percent); and hearing loss (10 percent). A noncompensable service-connected disability rating is in effect for erectile dysfunction and for onychomycosis. The Veteran has also been awarded special monthly compensation for aid and attendance effective from February 2009. The Veteran contends that he is entitled to specially adapted housing or a special home adaptation grant because he has to use a wheelchair and because he needs renovations to accommodate his use of that wheelchair. He submitted his claims in February 2011. The RO denied his claims in a rating issued in March 2013. After the Veteran submitted his notice of disagreement (NOD) in April 2013, the RO issued a statement of the case (SOC) in September 2013. The case was certified to the Board in June 2016. However, the RO issued another rating decision, in October 2017, in which these same two issues were addressed and denied. The Board first notes that the RO has been treating the issues on appeal as new and material evidence claims. Entitlement to certificates of eligibility under 38 U.S.C. § 2101 and 38 C.F.R. §§ 3.809 and 3.809a is predicated on the severity of a Veteran's service-connected disabilities - similar to claims for increased ratings. As such, new and material evidence is not required to reopen a previously denied claim for specially adapted housing or a special home adaptation grant. See, e.g., Suttmann v. Brown, 5 Vet. App. 127, 136-37 (1993). Rather, such claims are to be considered on a de novo basis. Therefore, the issues on appeal are as listed on the title page. Second, the Veteran's claim of entitlement to specially adapted housing has been pending since February 2011, and the SOC was issued in September 2013. No supplemental statement of the case (SSOC) was ever issued. However, effective December 3, 2013, VA revised the criteria (under 38 C.F.R. § 3.809) for establishing entitlement to a certificate of eligibility for assistance in acquiring specially adapted housing. 78 Fed. Reg. 72573 (Dec. 3, 2013). The Veteran was never given notice of the new version of the regulation. In addition, effective September 12, 2014, VA revised the criteria (under 38 C.F.R. § 3.809a) for establishing entitlement to a special home adaptation grant. 79 Fed. Reg. 54608 (Sept. 12, 2014). But the SOC does not contain the text of 38 C.F.R. § 3.809a nor was the Veteran notified of the new version of that regulation. Third, the SOC indicated that the evidence reviewed by the AOJ included VA treatment records dated between December 2010 and March 2013. The case was thereafter transferred to the Board in August 2016. However, the record reflects that the Veteran received VA medical treatment between September 2013 and August 2016, and thereafter. Indeed, VA treatment records dated between April 2013 and June 2014 were in the evidence of record at the time of the transfer of the case to the Board in August 2016. Thus, the RO was in receipt of pertinent VA medical records prior to the transfer of the claims file to the Board. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). Regarding evidence received prior to such a transfer, 38 C.F.R. § 19.37 states that an SSOC will be furnished unless the additional evidence received duplicates evidence previously of record which was discussed in the SOC or a prior SSOC, or the additional evidence is not relevant to the issue, or issues, on appeal. In this case, pertinent VA medical information was newly obtained by the AOJ and was not addressed in the SOC and no SSOC was ever issued. An SSOC must be furnished to an appellant and his representative when additional pertinent evidence is received after a previous SOC or SSOC has been issued. 38 C.F.R. § 19.31. In this case, no SSOC addressed the additional pertinent VA medical evidence added to the evidence of record after the SOC was issued in September 2013. Since the additional evidence in question is neither duplicative of other evidence nor irrelevant, and since an SSOC pertaining to that evidence was not issued, this evidence must be referred back to the AOJ. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003); 38 C.F.R. § 20.1304. Fourth, while the October 2017 rating action indicates that VA treatment records dated between October 2013 and October 2017 were considered by the RO, the evidence of record is missing VA treatment records dated between June 2014 and June 2016. On remand, all outstanding VA treatment records must be added to the claims file. Finally, the Board notes that there is no medical opinion of record that addresses the question of the extent to which the Veteran's service-connected peripheral neuropathy is responsible for his documented need for a walker and a motorized scooter or wheelchair versus his nonservice-connected conditions. A February 2009 VA medical examination indicates that the Veteran has polyneuropathy in all four extremities due to the service-connected diabetes mellitus and that he also has cervical myelopathy secondary to nonservice-connected cervical disk disease. The report of the March 2009 VA examination states that the Veteran's problems with peripheral neuropathy are complicated by his morbid obesity and his spinal problem. The report of the July 2011 VA examination indicates that the Veteran has quadriparesis secondary to cervical disk disease. In addition, the Veteran was granted aid and attendance benefits, effective in February 2009, in a February 2010 rating decision based on the Veteran having weakness and numbness of all four extremities. On remand, an opinion that addresses the question of whether the Veteran's service-connected disabilities apart from his nonservice-connected conditions have caused his need for a walker and/or wheelchair/scooter must be obtained. To ensure that VA has met its duty to assist in developing the facts pertinent to the claims on appeal and to afford full procedural due process, the case is REMANDED for the following: 1. Assure that all notification and development action required by 38 U.S.C. A. §§ 5102, 5103, and 5103A, the implementing regulations found at 38 C.F.R. § 3.159 and any other applicable legal precedent has been completed. 2. Contact the Veteran and obtain the names and addresses of all VA, other government or private providers/facilities that have treated him since February 2011. After securing the necessary release(s), obtain such records. In particular, records from VA facilities dated from June 2014 to June 2016 must be obtained. 3. After the above development has been completed, obtain a medical opinion from an appropriate VA physician. The entire claims file must be reviewed. If the physician does not have access to the appellant's electronic file, any relevant treatment records contained in the electronic file must be otherwise made available to the physician for review. The physician must opine: a.) whether the Veteran's service-connected disabilities alone have resulted in loss or loss of use of both lower extremities so as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair. b.) whether the Veteran's service-connected disabilities alone have resulted in the loss or loss of use of one lower extremity together with residuals of organic disease or injury which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair. c) whether the Veteran's service-connected disabilities alone have resulted in the loss or loss of use of one lower extremity together with the loss of 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. d) whether the Veteran's service-connected disabilities alone have resulted in the loss or permanent loss of use of one or both feet; and e) whether the Veteran's service-connected disabilities alone have resulted in ankylosis of one or both knees or one or both hips. The physician must fully describe the objective findings to support any conclusions (e.g., with respect to range of motion, instability, weakness, atrophy, tone, callosities, etc.), and must provide a complete rationale for all opinions expressed. Note: The phrase 'preclude locomotion' is defined as 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. 4. If the physician determines that any type of physical examination is needed before any requested opinion can be rendered, schedule the Veteran for said examination(s). 5. Conduct a review to verify that all requested opinions have been included in the physician's report and if information was deemed lacking, refer the report to the VA physician for corrections or additions. 6. Thereafter, readjudicate the Veteran's claims. The readjudication must reflect consideration of all the evidence of record and be accomplished with application of all appropriate legal theories, case law, statutes and regulations, to include all versions in effect since the date of the claims. 7. If any benefit sought on appeal remains denied, provide a supplemental statement of the case (SSOC) to the appellant and his representative. The SSOC must contain notice of all relevant actions taken on the appellant's claims, to include a summary of the evidence and applicable law and all versions of regulations considered pertinent to the issues currently on appeal. An appropriate period of time for response must be allowed. The Veteran is advised that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. 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). Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. These claims 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). _________________________________________________ TANYA SMITH 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) (2017).