Citation Nr: 1802204	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  14-06 907A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to service connection for a right ankle disorder.

2.  Entitlement to service connection for bilateral hearing loss. 

3.  Entitlement to service connection for degenerative joint disease of the shoulders, hands, knees, and hips.

4.  Entitlement to service connection for a left eye disorder.

5.  Entitlement to specially adapted housing.

6.  Entitlement to a special home adaptation grant.


REPRESENTATION

Veteran represented by:	North Carolina Division of Veterans Affairs


WITNESSES AT HEARING ON APPEAL

The Veteran, M.S.C, and S.J.C


ATTORNEY FOR THE BOARD

H. Yoo, Counsel


INTRODUCTION

The Veteran had active service from September 1955 to March 1962. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 and April 2012 rating decisions of the Department of Veterans Affairs (VA), in the Winston-Salem, North Carolina, Regional Office (RO).

In August 2017, the Veteran appeared at a Board hearing via videoconference before the undersigned Veterans Law Judge.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).

Initially, this appeal included the following issues - entitlement to service connection for chronic obstructive pulmonary disease, posttraumatic stress disorder, urinary incontinence, bowel incontinence, enlarged prostate, dental disorder, and sleep apnea, and increased evaluations for right leg scar and residuals of a nasal fracture.  However, in a July 2017 statement, these issues were withdrawn from the appeal.

The issues of entitlement to service connection for a right ankle disorder, for bilateral hearing loss, and for degenerative joint disorder of the shoulders, hands, knees, and hips, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  In August 2017, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran of his desire to withdraw the appeal pertaining to his claim of entitlement to service connection for a left eye disorder.

2.  The Veteran is entitled to compensation for permanent and total disability due to multiple service-connected disabilities, including the loss or loss of use of the left lower extremity, from radiculopathy, together with residuals of organic disease or injury, from lumbar degenerative disc disease, that so affect the functions of balance or propulsion as to preclude locomotion without the aid of a combination of a brace, cane, walker, wheelchair, and scooter.

3.  The issue of entitlement to a special home adaptation grant is moot, due to the award of specially adapted housing in the present Board decision.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of the Veteran's substantive appeal from the denial of service connection for a left eye disorder have been met.  38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202 , 20.204 (2017).

2.  The criteria are met for entitlement to specially adapted housing.  38 U.S.C. 
§§ 2101 (b), 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.350(a)(2), 3.809, 4.63 (2017). 

3.  The claim for entitlement to a special home adaptation grant is dismissed as moot.  38 U.S.C. §§ 2101 (b), 7105 (2012); 38 C.F.R. § 3.809a (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. The Veterans Claims Assistance Act of 2000

As the Board is dismissing the withdrawn issue of entitlement to service connection for a left eye disorder, granting entitlement to specially adapted housing rendering the Veteran's entitlement to special home adaptation moot, and is remanding the remaining issues, no discussion of VA's duties to notify and assist is necessary.

II. The Merits of the Claims

Withdrawn Claim

Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing.  38 C.F.R. § 20.204.  Withdrawal may be made by the appellant or by his/her authorized representative.  38 C.F.R. § 20.204.

At the August 2017, hearing before the undersigned Veterans Law Judge, the Veteran expressly withdrew his appeal for entitlement to service connection for left eye disorder, as documented in the hearing transcript.  Thus, there remain no allegations of errors of fact or law for appellate consideration with respect to these issues.  Accordingly, the Board does not have jurisdiction to review the appeal on these matters, and these issues are dismissed.

Specially Adapted Housing/ Special Home Adaptation Grant

Specially adapted housing is available to a veteran who has a permanent and total service-connected disability due to: (1) the loss, or loss of use, of both lower extremities, such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair, or (2) blindness in both eyes, having only light perception, plus the anatomical loss or loss of use of one lower extremity, or (3) 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, or (4) the loss or loss of use of one lower extremity together with the loss or 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, or (5) the loss or loss of use of both upper extremities such as to preclude use of the arms at or above the elbow, or (6) full thickness or subdermal burns that have resulted in contractures with limitation of motion of two or more extremities or of at least one extremity and the trunk.  38 U.S.C. § 2101(a) (2012); 38 C.F.R. § 3.809 (b) (2017).

The term "preclude locomotion" means 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.  38 C.F.R. § 3.809 (c). "Loss of use of a hand or foot" is defined as no effective function remaining other than that which would be equally well served by an amputation stump at the site of election below the elbow or knee with use of a suitable prosthetic appliance.  The determination will be made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc., in the case of the hand, or of balance, propulsion, etc., in the case of a foot, could be accomplished equally well by an amputation stump with prosthesis.  38 C.F.R. §§ 3.350 (a)(2), 4.63. 

Examples under 38 C.F.R. § 3.350 (a)(2) which constitute loss of use of a foot include extremely unfavorable ankylosis of the knee, complete ankylosis of two major joints of an extremity, shortening of the lower extremity of 3 1/2 inches or more, and complete paralysis of the external popliteal (common peroneal) nerve and consequent foot-drop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of that nerve.  See also 38 C.F.R. § 4.63.

The Veteran is currently in receipt of a 100 percent combined disability rating, effective from March 6, 2017.  Service connection has been established for degenerative joint disease (DJD) with severe scoliosis and degenerative disc disease (DDD) with intervertebral disc syndrome (IVDS) of the thoracolumbar spine (lumbar spine disability), at a 40 percent disability rating; urinary incontinence, at a 60 percent rating; bowel incontinence, at a 30 percent rating; sciatic nerve radiculopathy of the left lower extremity, at a 40 percent rating; sciatic nerve radiculopathy of the right lower extremity, at a 40 percent rating; external popliteal (common peroneal), internal popliteal (tibial) and posterior tibial, lower extremity radiculopathy, at a 20 percent rating; femoral nerve radiculopathy of the left lower extremity, at a 10 percent rating, effective January 14, 2014 to May 26, 2016; femoral nerve radiculopathy of the right lower extremity, at a noncompensable rating; erectile dysfunction, at a noncompensable rating; scar, status post infected bruise of the left leg, at a noncompensable rating; and a deviated septum, at a noncompensable rating.

He is also receiving compensation for special monthly compensable on account of loss of use of a creative organ from November 10, 2016, and of being so helpless as to be in need of regular aid and attendance from March 6, 2017.  The Veteran maintains that his service-connected conditions require modifications to his home and therefore, he is entitled to special adapted housing or a special housing adaptation grant. 

Upon review of the evidence of record, the Board finds that entitlement to specially adapted housing is warranted.  First, there is total disability as the Veteran is rated at 100 percent.  Second, the likelihood of improvement is not significant as the most recent June 2017 VA examination shows moderately severe bilateral incomplete paralysis due to the nerve damage.  Each of the Veteran's service-connected disabilities has worsened since service connection was granted.  Resolving all doubt in favor of the Veteran, the Board finds that these disabilities are permanent and total. Furthermore, the Veteran's service-connected lumbar spine disability and sciatic nerve radiculopathy of the bilateral lower extremities together cause 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.  See 38 C.F.R. § 3.809(b)(3).  

The Veteran's wife testified at the Board hearing that he used a standard walker for the ability to stand long enough for her to bathe him below the waist.  She stated she used a Hoyer lift in order to transport and lift him while at home.  He had a hospital bed for mobility and is also current using a brace.  In addition, prior to his strokes in February and March 2017 and a heart attack, the Veteran was using a scooter and a walker.  However, the use of a scooter became complicated due to his dementia.  She testified that she had ramps installed on every entrance of their home as well as grab bars installed for assistance with toileting and washing.  She stated additional adaptation is needed such as door widening, bathroom reconstruction, and other safety features.

Furthermore, S.J.C. testified that she assisted the Veteran's wife in bathing, washing, dressing, feeding, medicating, and assisting with other duties she needs done in the house.  She testified that he is very limited and required assistance in every aspect.  

A June 2017 VA examination as provided.  Upon examination, the examiner determined the use of the wheelchair was due to the Veteran's stroke and dementia and the use of the left brace was due to the stroke.  The Veteran's gait was noted as abnormal as he is unable to walk and sits in a wheelchair due to his stroke, low back pain and radiculopathy.  Regarding the functional impact of the Veteran's nerve condition, the VA examiner stated the Veteran is unable to stand or walk due to a recent stroke.  Furthermore, the examiner stated he was "unable to make the judgement of functional impact due to solely the radiculopathy diagnosis, as the stroke and dementia is severe enough, that carving out the limitations from the bilateral radiculopathy is not possible."

After reviewing the evidence of record in a light most favorable to the Veteran, the Board finds that the foregoing facts show that the Veteran meets the criteria for specially adapted housing.  38 U.S.C. § 2101(a); 38 C.F.R. § 3.809(b).  The medical and lay evidence of record establishes that the Veteran requires the constant use of a combination of a brace and wheelchair as normal modes of locomotion due to service-connected disability, or at least that the cause is unable to be separated out from non-service-connected disability.  38 C.F.R. § 3.809(c).  In such cases, the benefit of the doubt is resolved in favor of the Veteran.  

With respect to the issue of special home adaptations, the Board notes that such benefit is only provided when entitlement to specially adapted housing is not established.  38 C.F.R. § 3.809a.  Here, for the reasons detailed above, the Board has determined the Veteran is entitled to specially adapted housing.  Therefore, the claim for special home adaptations is dismissed as a matter of law.  Sabonis v. Brown, 6 Vet. App. 426 (1994) (when the law and not the evidence is dispositive, a claim for entitlement to VA benefits should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law).
	

ORDER

The appeal as to the issue of entitlement to service connection for a left eye disorder is dismissed.

Entitlement to specially adapted housing is granted.

 Entitlement to special home adaptation is dismissed.


REMAND

Regarding the Veteran's claim for entitlement to service connection for a right ankle disorder, remand is required for an adequate examination.  Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical opinion must clearly consider direct service connection and support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.  Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  Generally, a medical opinion should address the appropriate theories of entitlement.  Stefl v. Nicholson, 21 Vet. App. at 123-24.  The Veteran's wife asserted that his service-connected disabilities of the bilateral lower extremities, which include right and left lower extremity sciatic nerve radiculopathy, external popliteal, internal popliteal, and posterior tibial lower extremity radiculopathy, and right and left femoral nerve radiculopathy, caused right ankle arthritis.  The Veteran was afforded a VA examination in April 2011.  The examiner diagnosed osteoarthritis, despite negative x-rays, and opined that the Veteran's right ankle arthritis was not directly related to his military service.  The opinion is thus unclear.  Additionally, there is no opinion addressing whether a disorder is secondary to his service-connected disabilities of the bilateral lower extremities.  Remand is thus required.

Regarding the Veteran's claim for entitlement to service connection for bilateral hearing loss, remand is required for an adequate examination.  See Barr v., 21 Vet. App. at 311.  The absence of in-service evidence of hearing loss is not fatal to a claim for service connection.  Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 159 (1993).  If there is insufficient evidence to establish that a claimed chronic disability was present during service, the evidence must establish a nexus between his current disability and his in-service exposure to loud noise.  Godfrey v. Derwinski, 2 Vet. App. 352 (1992).  A September 2010 VA audiological examination was conducted.  The examiner diagnosed bilateral hearing loss for VA purposes but opined that it was less likely as not caused by the Veteran's military noise exposure as he had "excellent hearing" at separation and that his hearing loss was more related to presbycusis than noise exposure.  The Board finds the September 2010 VA opinion is inadequate as the examiner's rationale focused on the absence of bilateral hearing loss at separation, without further discussion to include explaining the effects of the Veteran's in-service noise exposure, post-service occupational/recreational noise exposure, and his lay statements regarding onset and continuity of his symptoms, etc.  Based on the foregoing, remand is required for an additional examination and opinion.

Regarding the Veteran's claim for a bilateral hip disorder, remand is warranted for an initial VA examination.  An examination is necessary in a service connection claim where the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains:  (1) competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability.  38 C.F.R. § 3.159(c)(4) (2017); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including credible lay evidence of continuity of symptomatology).  Post-service VA treatment records indicate a disability of the hips, and that the Veteran has complained of pain in his hips during and since service.  

Regarding the claims for a bilateral hand disorder, a knee disorder, and a left shoulder disorder, remand is required for adequate VA examinations.  An October 2012 examination regarding the knees only provided an opinion regarding the scars, but not regarding his arthritis.  There is a January 2015 letter from a private physician noting a diagnosis of DJD of the bilateral knees.  Given this diagnosis a new VA examination is warranted to determine the etiology.  

Finally, the medical treatment records from Farmville Internal Medicine, and any other outstanding records identified by the Veteran, must be obtained and associated with the record.

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.  Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment.  If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file.  Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile.  The non-existence or unavailability of such records must be verified and this should be documented for the record.  Required notice must be provided to the Veteran and his or her representative.  

2.  Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records, specifically from Farmville Internal Medicine.  Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file.  All information obtained must be made part of the file.  All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative.

3.  After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his right ankle disorder.  The entire claims file must be made available to and be reviewed by the examiner.  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.  

The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that each diagnosed right ankle disorder had onset in, or is otherwise related to, active military service.  

The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected bilateral lower extremity disorders caused or aggravated each diagnosed right ankle disorder.  

4.  After any additional records are associated with the claims file, schedule the Veteran for an examination to determine the nature and etiology of the Veteran's hearing loss.  The claims folder must be thoroughly reviewed by the examiner in connection with the examination.  A complete history should be elicited from the Veteran.  Any tests and studies deemed necessary by the examiner should be conducted.  All findings should be reported in detail. An explanation for each opinion shall be provided. 

The examiner must provide an opinion as to whether any current hearing loss is at least as likely as not (50 percent probability or greater) etiologically related to conceded in-service noise exposure (i.e., did in-service noise exposure cause the Veteran to progressively lose his hearing over the years) during active service.

In rendering the above opinion, the examiner is advised that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim.  Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service.  

5. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his claimed orthopedic disorders.  The entire claims file must be made available to and be reviewed by the examiner.  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.  

First, the examiner must provide all diagnoses of the bilateral hips, bilateral knees, bilateral hands, and bilateral shoulders.

Second, regarding each diagnosed hip disorder, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the disorder had onset in service, or is otherwise related to service.

Third, regarding each diagnosed knee disorder, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the disorder had onset in service, or is otherwise related to service.

Fourth, regarding each diagnosed hand disorder, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the disorder had onset in service, or is otherwise related to service.

Fifth, regarding each diagnosed shoulder disorder, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the disorder had onset in service, or is otherwise related to service.

The examiner must consider the relevant evidence of record, to include the Veteran's lay statements, to include those provided at the Board hearing, and the prior VA examinations of record.

5.  Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims.  38 C.F.R. §§ 3.158, 3.655 (2017).  In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address.  It must also be indicated whether any notice that was sent was returned as undeliverable.

6.  Ensure compliance with the directives of this remand.  If the report is deficient in any manner, the AOJ must implement corrective procedures.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  

7.  After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated.  If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative.  After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

The Veteran 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 (2012).




______________________________________________
K. MILLIKAN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs