Citation Nr: 1803753 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 13-27 830 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to specially adapted housing. 2. Entitlement to special home adaptation. 3. Whether new and material evidence has been received to reopen a claim for service connection for a back disorder and, if so, whether the claim should be allowed. 4. Whether new and material evidence has been received to reopen a claim for service connection for a disorder of the right and left hip and, if so, whether the claims should be allowed. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Brendan Garcia, Esq. WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran had active service from July 1967 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran and his wife testified at a hearing before a Decision Review Officer (DRO) in May 2013. In April 2016, they also testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ). Written transcripts of these hearings are of record. A June 2016 Board decision denied service connection for a traumatic brain injury (TBI) as secondary to service-connected status post (SP) total right knee replacement with history of arthritis and chondromalacia patella, and denied entitlement to a total rating based on hospitalization. The issues of entitlement to specially adapted housing and to special home adaptation were remanded because there was a question as to a claim for a TDIU rating (as will be explained in the Remand section below). Thereafter, a July 2016 rating decision denied service connection for diabetic related stage 3 chronic kidney disease (claimed as renal disease/failure), of which the Veteran was notified by RO letter of July 7, 2016. However, no Notice of Disagreement (NOD) was filed within one year of that notification which would have initiated an appeal and, thus, that decision is final. A supplemental statement of the case (SSOC) was issued in April 2017 as to the claims for specially adapted housing and special home adaptation because of receipt of additional VA medical records. The Veteran was notified by RO letter of September 5, 2017 of an August 30, 2017 rating decision which (a) denied a TDIU rating because new and material evidence had not been submitted; and (b) denied reopening of a claim for service connection for a back disorder (as secondary to service-connected disorders of the knees) because new and material evidence had not been submitted; and (c) denied service connection for disorders of the left and right hips (claimed as a bilateral hip condition) because new and material evidence had not been submitted. In October 2017 an NOD, executed by the Veteran's attorney, was received as to the adjudications in the August 2017 rating decision and in which a review was elected by a Decision Review Officer (DRO). This appeal was processed using the Veteran's Benefits Management System (VBMS) and, in addition there is a Virtual VA paperless claims electronic file (now described as Legacy Content Manager Documents). Accordingly, any future consideration of this appeal should take into consideration the existence of these electronic records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Historically, an unappealed December 2007 rating decision granted service connection for SP total right knee replacement with a history of arthritis and chondromalacia patella, and also granted service connection for a left knee strain with degenerative arthritis and a history of chondromalacia patella. That rating decision also denied service connection for a back disorder and a bilateral hip disorder on the basis that these were neither incurred during service nor related to the service connection disorders of the knees. The June 2016 Board decision denied service connection for traumatic brain injury (TBI), claimed as secondary to service-connected disability of SP total right knee replacement with history of arthritis and chondromalacia patella, and also denied entitlement to a temporary total rating based on hospitalization. At that time the claims for specially adapted housing and for special home adaptation were remanded. In the remand portion of the 2016 Board decision it was noted that the Veteran testified at his 2016 hearing that his bathroom door has since been widened under the HISA (Home Improvements and Structural Alterations) program with VA's Rehabilitation and Prosthetic Services. However, it was further noted that the requirements for a grant under the HISA program were different from those for specially adapted housing and for special home adaptation (setting forth the requirements for each) and that he did not currently meet the criteria for specially adaptive housing and special home adaptation as a threshold requirement had not been met. Specifically, he did not have service connected disability rated as permanent and total. He was service-connected for status post right knee replacement (rated as 60 percent disabling), adjustment disorder associated with service connected status post right knee replacement (rated as 30 percent disabling), and left knee strain with degenerative arthritis (rated as 10 percent disabling), for a combined disability evaluation of 80 percent. Moreover, he was denied entitlement to a TDIU rating in an April 2010 rating decision. However, receipt of a TDIU rating could satisfy the prerequisite of a permanent and total rating for purposes of eligibility for the acquisition of specially adapted housing and special home adaptation. See VAOPGCPREC 94-90. It was further noted that in August 2010, VA received a statement from the Veteran that he desired reconsideration of VA's April 2010 decision. In pertinent part, the April 2010 rating decision denied reopening of claims for service connection for disorders of the back and each hip, as well as a TDIU rating. The record did not reflect that any further action was taken by the RO in response to this. At the April 2016 Board hearing, the Veteran stated that he had a pending claim for a TDIU rating. Thus, in 2016 the Board deferred disposition of the Veteran's claims for specially adapted housing and for special home adaptation until the RO rendered a determination as to whether (a) the August 2010 statement constituted a NOD to the April 2010 denial of a TDIU rating, or (b) whether the August 2010 statement and any other evidence was considered new and material evidence filed within a year of the April 2010 rating decision thereby triggering application of 38 C.F.R. § 3.156(b) and readjudication of the TDIU claim, or (c) whether the August 2010 statement constitutes a new claim for a TDIU rating. See Smith (Daniel) v. Gober, 236 F.3d 1370, 1373 (Fed. Cir. 2001) (providing that where the facts underlying separate claims are "intimately connected," the interests of judicial economy and avoidance of piecemeal litigation require that the claims be adjudicated together); see also Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a 'significant impact' on a veteran's claim for the second issue). It was further noted that in the event of a negative determination as to all three of the above, the RO was advised that entitlement to TDIU rating was raised at the April 2016 Board hearing. Thereafter, the Veteran was notified by RO letter of September 5, 2017 of an August 30, 2017 rating decision which (a) denied a TDIU rating because new and material evidence had not been submitted; and (b) denied reopening of a claim for service connection for a back disorder (as secondary to service-connected disorders of the knees) because new and material evidence had not been submitted; and (c) denied service connection for disorders of the left and right hips (claimed as a bilateral hip condition) because new and material evidence had not been submitted. Then, in October 2017, VA Form 21-0958, Notice of Disagreement (NOD), executed by the Veteran's attorney, was received as to each of the claims adjudicated in the August 2017 rating decision and in which a review was elected by a Decision Review Officer (DRO). By RO letter of November 22, 2017, the RO acknowledged receipt of the October 2017 NOD and the election of the DRO process to handle his appeal, and stated that a DRO would, after a review of the record, make a new decision. However, as yet no DRO decision has been rendered nor has a Statement of the Case (SOC) been issued. Generally, when claims have been placed in appellate status by the filing of an NOD, the Board must remand the claims to the RO for preparation of an SOC as to such claims. Godfrey v. Brown, 7 Vet. App. 398, 408-410 (1995) and Archbold v. Brown, 9 Vet. App. 124, 130 (1996); Manlincon v. West, 12 Vet. App. 238, 240-241 (1999); see also 38 C.F.R. § 19.9. The Board notes that in Manlincon, Id., the Court found that the RO had not acknowledged the existence of an NOD but that in this case the RO has acknowledged the NOD. Nevertheless, any possible grant of entitlement to service connection, following reopening, for a back disorder or a disorder of either or both hips could impact a determination of the Veteran's claimed entitlement to a TDIU rating; in turn, and as noted in the 2016 Board remand, this could impact upon the Veteran's possible entitlement to specially adapted housing or special home adaptation. In view of these circumstances, adjudication of the claims for specially adapted housing or special home adaptation must be deferred pending adjudication by a DRO of the claims for a TDIU rating and whether new and material evidence has been received to reopen claims for service connection for a back disorder, and a disorder of the right and left hip and, if so, whether those claims should be allowed. Accordingly, remand is necessary for a DRO to adjudicate the claims for a TDIU rating and whether new and material evidence has been received to reopen claims for service connection for a back disorder, and a disorder of the right and left hip and, if so, whether those claims should be allowed; and if the claim for a TDIU rating is denied, the issuance of an SOC. See Manlincon, Id. Accordingly, the case is REMANDED for the following action: 1. The RO should facilitate the DRO adjudication of the claims for a TDIU rating and whether new and material evidence has been received to reopen claims for service connection for a back disorder, and a disorder of the right and left hip and, if so, whether those claims should be allowed. 2. If any of the foregoing claims remain denied, the RO must issue to the Veteran and his attorney an SOC addressing the claims which remained denied. Along with the SOC, the RO must furnish to the Veteran and his attorney a VA Form 9 (Appeal to Board of Veterans' Appeals), and afford them the applicable time period for perfecting an appeal as to this issue. The Veteran and his attorney are hereby reminded that appellate consideration of any of the matters identified above, i.e., entitlement a TDIU rating and whether new and material evidence has been received to reopen claims for service connection for a back disorder, and a disorder of the right and left hip and, if so, whether those claims should be allowed, may be obtained only if a timely appeal is perfected. 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). _________________________________________________ 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).