Citation Nr: 1801671 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-11 235 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent prior to July 22, 2011, and in excess of 30 percent thereafter, for left femur, status post gunshot wound, with left hip osteoarthritis. 2. Entitlement to an initial rating in excess of 20 percent for status post gunshot wound right upper extremity (RUE). 3. Entitlement to an initial rating in excess of 50 percent for anxiety disorder, not otherwise specified (NOS). 4. Entitlement to special monthly compensation benefits based on aid and attendance/housebound status. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. L. Burroughs, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1968 to November 1968. These matters come before the Board of Veterans' Appeals (Board) from March 2009, May 2013, and March 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In September 2014, the Veteran confirmed that he no longer desired a Board hearing. See VA 21-0820 Report of General Information. His earlier request for a hearing is deemed withdrawn. The RO has been contradictory in its consideration of a January 2012 VA Form 9. Specifically, the RO has been unclear as to whether this Form 9 constituted timely perfection of the Veteran's appeal of a March 2009 decision that assigned 20 percent ratings for the residuals of gunshot wound of the left femur and RUE, after granting service connection for the same. In pertinent part, within a February 2014 statement of the case (SOC), the RO indicated that the Veteran's current claim was filed on July 22, 2011 and first adjudicated in a May 2013 rating decision. However, in an August 2014 Supplemental SOC and August 2016 Appeal Checklist, the RO indicated that the claim stemmed from the March 2009 initial grant of service connection. That said, the conflicting determinations appear to be the result of two SOCs being sent to the Veteran on January 5, 2012. One SOC addressed his claims for increase rating and the other addressed a claim for total disability individual unemployability (TDIU) (a subsequently granted claim). In affording the Veteran the benefit of the doubt, the Board will construe his January 2012 VA Form 9 as a timely response to his January 2012 SOC. The Board acknowledges that the Veteran did not specifically discuss his claim for RUE increase rating within this Form 9. However, this Form 9 was timely filed, indicated a desire to appeal on all issues presented on the SOC, and as indicated above has been construed by the RO as perfecting the Veteran's initial appeal. See Evans v. Shinseki, 25 Vet. App. 7 (2011). In light of the aforementioned procedural history, the period on appeal for initial rating now extends to the original date of service connection, November 10, 2008. To that end, during the pendency of the appeal the RO increased the Veteran's left femur rating from 20 percent disabling to 30 percent. See May 2013 Rating Decision. The effective date for this increase was July 22, 2011, not November 10, 2008. Therefore, the claim is now stylized as entitlement to an initial rating in excess of 20 percent prior to July 22, 2011, and in excess of 30 percent thereafter, for left femur, status post gunshot wound, with left hip osteoarthritis.. To the extent that an increase was awarded, the Board presumes that the Veteran seeks the maximum benefit allowable. As this benefit has not yet been awarded, the claim is still in controversy and on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). Finally, as indicated on the title page of this decision, the Board has incorporated a claim for increase rating for an anxiety disorder. The RO granted service connection for anxiety disorder, NOS in a May 2013 rating decision. The RO awarded a 30 percent rating effective May 24, 2011, the Veteran's date of claim. Thereafter, in July 2014, while pending Board adjudication the RO made a finding of clear and unmistakable error in its original grant of a 30 percent rating and assigned a 50 percent rating from 30 to 50 percent disabling from May 24, 2011.The RO indicated that the increase to a 50 percent rating constituted a full grant of the benefits sought on appeal. As rationale, the RO noted the Veteran requested only a 50 percent rating in his March 2014 VA Form 9. However, the Board does not consider this a grant of the full benefit sought on appeal as the Veteran within his Form 9 requested to be "rated at least 50%" for his anxiety condition. (emphasis added). Therefore, the appeal remains with the Board. See AB v. Brown, supra. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In February 2014, the Veteran requested the RO obtain treatment medical records from a Dr. E. B. See VA 21-4142 Authorization for Release of Information. The Veteran specifically indicated that such records supported his claim for increased ratings. The record is silent for an indication that the RO considered or even requested these records. Under 38 U.S.C. § 5103A (b)(1), VA is required to make reasonable efforts to obtain relevant records that the claimant has adequately identified and authorized VA to obtain. On remand, an attempt to obtain these records must be made. Additionally, as the most recent clinical records in evidence are dated in 2012, on remand, all other outstanding treatment medical records should also be associated with the claims file. In October 2013 correspondence, the Veteran reported worsening in his psychiatric symptomatology to include almost daily panic attacks. He also reported experiencing reoccurring nightmares and taking hydrocodone four times daily to control his pain symptomatology. See February 2014 VA 21-4142. Later, in his October 2014 VA Form 9, the Veteran clarified that his service-connected disabilities alone were the cause of his inability to care for himself and his inability to leave his home. Given these statements along with the time that has passed since the examinations were conducted, the Board finds that new VA examinations are required. See Snuffer v. Gober, 10 Vet. App. 400 (1997); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating). Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA and private medical records and associate the documents with the claims file. All attempts to obtain these records must be documented in the claims file. The Board is specifically interested in treatment records from Dr. E. B. See February 2014 VA 21-4142 Authorization for Release of Information. 2. After any additional available records are associated with the claims file, provide the Veteran with an appropriate examination(s) to determine the nature and severity of the service-connected fracture left femur status post gunshot wound, status post gunshot wound right upper extremity, and anxiety disorder NOS. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. 3. Arrange for a VA aid and attendance examination. a. An appropriate examiner must determine whether the Veteran requires the actual regular aid and attendance of another person, due to his service-connected disabilities, which consist of anxiety disorder, NOS; left femur, status post gunshot wound, with left hip osteoarthritis; and status post gunshot wound right upper extremity. This includes, but is not limited to, assessment of the following: i. inability of the veteran to dress or undress himself or to keep himself ordinarily clean and presentable; ii. Frequent need to adjust prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; iii. inability to feed himself through loss of coordination of upper extremities or through extreme weakness; iv. inability to attend to the wants of nature; v. incapacity, physical or mental, which requires care and assistance on a regular basis to protect the veteran from hazards or dangers incident to his daily environment. b. The examiner should also address whether the Veteran is substantially confined to his premises, i.e., restricted to his residence except for medical treatment purposes. The claims folder must be made available to the examiner for review in conjunction with the examination. A complete rationale for all opinions expressed must be provided. This rationale must address the Veteran's lay assertions of disability, needing aid, and being rendered housebound. See generally, October 2013 and February 2014 Correspondence. 4. After the AOJ completes all of the development requested above to the extent possible, it should again readjudicate the claims on the basis of all additional evidence associated with the claims file. If the benefits sought on appeal are not granted, then furnish the Veteran and his representative with a supplemental statement of the case, and afford a reasonable opportunity for response before returning the record to the Board for further review. 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. §§ 5109B, 7112 (West 2014). _________________________________________________ MICHAEL A. HERMAN 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).