Citation Nr: 18147424 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 16-34 982 DATE: November 5, 2018 ORDER New and material evidence has been received to reopen a previously denied claim of service connection for a back disability, and the application to reopen is allowed; to this extent only, the claim is granted. Special monthly compensation (SMC) based on the Veteran’s need for aid and attendance is granted. An effective date of August 7, 2016, but not earlier, for the assignment of the 100 percent rating for the schizoaffective disorder, is granted. REMANDED Entitlement to service connection for a low back disability, to include as secondary to service-connected left knee disability, is remanded. Entitlement to service connection for sleep apnea, to include as secondary to the service-connected schizoaffective disorder, is remanded. Entitlement to service connection for hypertension, to include as secondary to the service-connected schizoaffective disorder, is remanded. FINDINGS OF FACT 1. In an unappealed February 2011 rating decision, the RO denied the Veteran’s original claim for service connection for a back disability, and in an unappealed August 2013 rating decision, the RO denied reopening the claim. 2. Evidence received since the last final rating decision in August 2013 is new and material, and raises a reasonable possibility of substantiating the claim of service connection for a back disability. 3. The evidence demonstrates that the Veteran requires the regular aid and attendance of another as a result of his service-connected schizoaffective disorder. 4. VA received the Veteran’s claim for SMC based on the need for aid and attendance due to his schizoaffective disorder on August 7, 2017, and no unadjudicated claim for increase was reasonably raised prior to that date of claim. 5. Entitlement to benefits for a 100 percent rating for schizoaffective disorder became factually ascertainable on August 7, 2016, but not earlier. CONCLUSIONS OF LAW 1. The February 2011 and August 2013 rating decisions denying service connection for a back disability are final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.105(a), 20.302, 20.1103 (2017). 2. The additional evidence received since the August 2013 rating decision is new and material, and the claim of service connection for a back disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria to establish SMC based on the need for aid and attendance have been met. 38 U.S.C. §§ 1502, 1521 (2012); 38 C.F.R. §§ 3.350, 3.352 (2017). 4. The criteria for an effective date of December 1, 2016, but no earlier, for the assignment of the 100 percent rating for schizoaffective disorder are approximated. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 2009 to June 2010. Throughout the pendency of this appeal, the Veteran filed multiple motions to advance this case on the docket (AOD) due to financial hardship. Appeals must be considered in docket number order, but may be advanced if sufficient cause is shown. See 38 U.S.C. § 7107(a)(2) (2012); 38 C.F.R. § 20.900(c) (2017). Here, the Board finds that good cause was shown, and as such, the undersigned Veterans Law Judge grants the Veteran’s motion to have his case advanced on the docket. New and Material Evidence Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a NOD with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.201, 20.302 (2017). If the Board issues a decision on appeal, confirming the RO’s decision, then the Board’s decision subsumes the RO’s decision on the same issue at hand. 38 C.F.R. § 20.1104. Moreover, if the Board’s decision is not timely appealed, then it, too, is final and binding based on the evidence then of record. 38 C.F.R. § 20.1100. An exception to the finality rule is found in 38 U.S.C. § 5108, which provides that, if new and material evidence is received with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Here, the RO denied the Veteran’s service connection claim for a back disability in a February 2011 rating decision, finding that there was no evidence of a current disability despite treatment in-service. The evidence considered at the time included the Veteran’s original application for compensation, service treatment records, and an August 2010 VA general medical examination. The Veteran did not appeal the decision, and new and material evidence was not received within one year of the decision. Thus, the February 2011 rating decision became final. See 38 U.S.C. § 7105 (d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Thereafter, in September 2012, the Veteran sought to reopen his claim, and in an August 2013 rating decision, the RO denied reopening the Veteran’s claim. The evidence considered at the time included the Veteran’s petition to reopen, post-service VA treatment records, and the evidence previously considered. The Veteran did not appeal the decision, and new and material evidence was not received within one year of the decision. Although the Board notes that a report of contact dated in September 2013 indicate that the Veteran asked that the RO reconsider the August 2013 denial along with new evidence he submitted, the evidence in question was specific to his service-connected psychiatric disorder and made no mention of his claimed back disability. Thus, the August 2013 rating decision became final. See 38 U.S.C. § 7105 (d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Relevant evidence received since the August 2013 denial of the claim includes the Veteran’s November 2014 petition to reopen and additional VA and private treatment records. This evidence, specifically an August 2017 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance showing back pain with limited range of motion and VA treatment records dated in August 2017 showing functional limitation due to back pain relates to the unestablished element of a current disability in the prior denial. Notably, in April 2018, the Federal Circuit Court issued a precedential decision, holding that pain alone, even without an underlying pathology or diagnosis, can constitute a disability under VA law where such pain results in functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that a “disability” under 38 U.S.C. § 1110 refers to functional impairment of earning capacity; pain need not be diagnosed as connected to a current underlying condition to function as an impairment). The additional evidence received since the August 2013 final denial is therefore new and material. The criteria for reopening the claim for service connection for a back disability are therefore met. SMC Based on Aid and Attendance SMC is payable under 38 U.S.C. § 1114(l) if, as the result of service-connected disability, the Veteran is permanently bedridden or is so helpless as to be in need of regular aid and attendance of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). Need for aid and attendance means being so helpless as to require the regular aid and attendance of another person. 38 C.F.R. § 3.350(b). As it pertains to the present case, criteria for establishing such need include whether the Veteran is permanently bedridden or is so helpless as to be in need of regular aid and attendance as determined under criteria enumerated under 38 C.F.R. § 3.352(a). Under 38 C.F.R. § 3.352(a), the following factors will be accorded consideration in determining whether the Veteran is in need of regular aid and attendance of another person: (1) inability of the Veteran to dress or undress himself, or to keep himself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without such aid; (3) inability of the Veteran to feed himself because of the loss of coordination of upper extremities or because of extreme weakness; (4) inability to attend to the wants of nature; or (5) physical or mental incapacity which requires care or assistance on a regular basis to protect the Veteran from the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). It is not required that all of the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found to exist before a favorable rating may be made. The particular personal functions which the Veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance not that there is a constant need for aid and attendance. 38 C.F.R. § 3.352(a); see Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in § 3.352(a) must be present to grant SMC based on the need for aid and attendance). For the purposes of 38 C.F.R. § 3.352(a), “bedridden” will be a proper basis for the determination of whether the Veteran is in need of regular aid and attendance of another person. Bedridden will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. 38 C.F.R. § 3.352(a). In order for the Veteran to prevail in the claim, the evidence must show that it is a service-connected disability or disabilities that has or have resulted in the need for regular aid and attendance. Prejean v. West, 13 Vet. App. 444 (2000). Here, service connection is currently in effect for schizoaffective disorder, right shoulder impingement syndrome, left knee patellofemoral pain syndrome, and tension headaches. With resolution of any reasonable doubt in the Veteran’s favor, the Board finds that the evidence supports a grant of SMC based on aid and attendance. The Veteran’s submitted a “Medical Source Statement – Mental” dated on December 1, 2016 and authored by his treating physician. It was noted that due to the Veteran’s schizoaffective disorder, his understanding and memory, sustained concentration and persistence, adaptation, and social interaction were extremely limited. This included his ability to be independent in many of his activities of daily living. The Veteran additionally provided an August 2017 examination for housebound status or permanent need for regular aid and attendance also authored by his treating physician. It was noted that the Veteran was able to feed himself, but was unable to prepare his own meals due to his inability to plan well. He needed assistance with bathing and tending to other hygiene. He also required medication management and his wife helped him with it. It further noted that he was able to manage his own financial affairs, but only with the assistance of his wife. Lower extremity limitation was noted as “left knee lockup.” Lastly, while it was noted that the Veteran had no restriction on leaving his home, he was unable to plan, had uncontrollable anger and problems dealing with others, and could not concentrate. VA mental health treatment records dated in October 2017 state that the Veteran is: unable to plan or pay bills and his wife does it for him; needs help taking his medications and his wife is the reminder; cannot plan to adequately bath or groom and needs constant help from his wife; tends to isolate from family and needs help to stay engaged; and, requires some guidance regarding household chores. The mental health professional concluded, “In short, he needs a caregiver and his wife is functioning as the caregiver.” Thereafter, in November 2017, a caregiver program support note indicates that the Veteran’s son applied to become his primary caregiver. The son indicated that he drove the Veteran to all appointments and noted that both him and his mother were equal partners in caring for the Veteran. The son further discussed with the provider many of the Veteran’s symptoms, and the provider noted that although only the Veteran’s wife was listed as a primary caregiver, the son demonstrated knowledge of the Veteran’s signs and symptoms, medications, providers, appointments, and intervention techniques. Although the December 2017 ADL scoring indicated that the Veteran did not need any assistance with eating; grooming; bathing; dressing; toileting; mobility; and, prosthetics, it was noted that he needed maximal help with planning and organizing; moderate assistance in controlling hallucinations and delusions; and, maximal assistance with affective/behavioral dysregulation (self-regulation). The clinical assessment determined that the Veteran required assistance from a family caregiver to be able to manage personal care functions required in everyday living. Importantly, as noted above, a Veteran need only show one of the enumerated factors identified in 38 C.F.R. § 3.352(a) to establish entitlement to aid and attendance. Turco, 9 Vet. App. at 224. And the Veteran’s need for aid and attendance does not need to be constant; rather, the regulation requires only that there be a “regular” need. See id. See also 38 C.F.R. § 3.352(a). Accordingly, given the above-mentioned evidence, concerning limitations imposed by his service-connected schizoaffective disorder, and taking into account the evidence indicating that he requires regular aid and attendance to assist in the majority of his daily living activities, the Board finds that SMC based on the need for regular aid and attendance is warranted. The Board is so finding, in this case, under 38 C.F.R. 3.352(a). Earlier Effective Date for the Assignment of 100 Percent Disability Rating for Schizoaffective Disorder The effective date of an increased rating is either the date of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(1). The exception to the rule allows for the earliest date as of which it was factually ascertainable that an increase in disability had occurred if the claim was received within one year from such date; otherwise, the effective date is the date of receipt of the claim. 38 C.F.R. § 3.400(o)(2). In determining when an increase is “factually ascertainable,” VA should look to the record as a whole, including testimonial evidence and expert medical opinions, to determine when the increase took place. VAOPGCPREC 12-98 at 5. Further, “it is the information in a medical opinion, and not the date the medical opinion [that] was provided that is relevant when assigning an effective date.” Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (discussing assignment of an effective date for a reduction in disability rating under DC 7528); DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011). An effective date for an increased rating should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that the disability first manifested. The Board notes that the Veteran’s increased rating claim was previously on appeal after the VA received his claim for entitlement to a TDIU in September 2013. However, subsequent to his June 2015 DRO hearing, at which time it was agreed that TDIU and increased rating for migraine headaches will be granted, the Veteran withdrew the remaining claims, to include his increased rating claim for schizoaffective disorder. This was confirmed in writing by the Veteran’s attorney who confirmed this in an email dated on June 17, 2015. Although the Board notes that the attorney later communicated that they never received a statement of the case for the withdrawn issues, this correspondence cannot be construed as a formal or informal claim for increase. Furthermore, it is clear that the Veteran later submitted a formal claim for increase. Nevertheless, after a careful review of the record, the Board finds that an effective date of August 7, 2016, but not earlier, is warranted. Here, in a January 2018 rating decision, the RO increased the Veteran’s disability rating for schizoaffective disorder to 100 percent, effective October 10, 2017, the date VA received his VA 21-0966 Intent to File form. While the date of the intent to file is considered the date of claim, which was followed by the Veteran’s formal claim for increased rating on November 5, 2017, the Board notes that VA received the Veteran’s claim for SMC based on the need for aid and attendance on August 7, 2017. Notably, the Veteran’s claim for SMC was specifically as due to his service-connected schizoaffective disorder, and review of the evidence at the time of his claim supports entitlement to 100 percent disability rating. After review of the evidence, the Board finds that beginning August 7, 2016, it became factually ascertainable that the Veteran’s schizoaffective disorder increased in severity as to warrant 100 percent disability rating. Specifically, the Board notes that since that time, and to the present, the Veteran endorsed symptoms of persistent visual and auditory hallucinations, which are contemplated by the 100 percent rating criteria. As noted above, under the law, this is the earliest possible effective date, namely, a year prior to the Veteran’s claim. Accordingly, an effective date of August 7, 2016, but not earlier, for the assignment of a 100 percent disability rating for schizoaffective disorder is warranted. REASONS FOR REMAND The Board finds that a remand is necessary to provide the Veteran with a VA examination for his claim for a back disability and to obtain addendum medical opinions for his claims for sleep apnea and hypertension. Back Disability As previously noted, an August 2017 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance noted back pain with limited range of motion and VA treatment records dated in August 2017 show functional limitation due to back pain. Notably, in April 2018, the Federal Circuit Court issued a precedential decision, holding that pain alone, even without an underlying pathology or diagnosis, can constitute a disability under VA law where such pain results in functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that a “disability” under 38 U.S.C. § 1110 refers to functional impairment of earning capacity; pain need not be diagnosed as connected to a current underlying condition to function as an impairment). Accordingly, a remand is necessary to determine the nature and etiology of any currently diagnosed back disability. Sleep Apnea The Veteran underwent a VA examination for sleep apnea in December 2014, at which time the examiner opined that his sleep apnea was due to his obesity and not to his service or a service-connected disability. However, the examiner failed to address probative evidence in support of the Veteran’s claim and failed to provide an opinion regarding any possible aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (held that an opinion will be considered inadequate unless it addresses both the caused by and aggravation avenues for secondary service-connection). The Veteran submitted medical literature showing a relationship between psychiatric disorders and sleep apnea as well as argued that he was less active due to the physical limitation of his service-connected left knee disability that led to his weight gain. Furthermore, the Veteran’s treating psychiatrist at the VA noted weight gain as related to his service-connected schizoaffective disorder and medications prescribed for treatment of the disorder. Accordingly, an addendum opinion supported by a rationale is necessary prior to making a decision on the merits. Hypertension For similar reasons, the Board finds that an addendum opinion is also necessary for the Veteran’s claim for hypertension. Notably, the December 2014 VA examiner opined that the Veteran’s hypertension is not related to service or a service-connected disability but rather likely due to his obesity and weight gain since his discharge from service. Here again, the examiner failed to provide an opinion regarding any potential aggravation. Furthermore, for the same reasons mentioned-above, the examiner failed to address whether the evidence shows that the Veteran’s weight gain resulted from his service-connected disabilities. The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records since the May 2018 SSOC are associated with the claims file. 2. Provide the Veteran with a VA examination to determine the nature and etiology of his back disability. After a review of the claims file and examination of the Veteran, the examiner is asked to respond to the following: (a) Identify any currently diagnosed back disabilities. In doing so, elicit from the Veteran the history of his symptoms and statements as to how his back disabilities impact his activities. In other words, what are the functional limitations caused by pain. Please note new case law: Pain alone, even without an underlying pathology or diagnosis, can constitute a disability under VA law where such pain results in functional impairment. Saunders v. Wilkie, No. 2017-1466, 2018 U.S. App. LEXIS 8467 (Fed. Cir. Apr. 3, 2018) (holding that a “disability” under 38 U.S.C. § 1110 refers to functional impairment of earning capacity; pain need not be diagnosed as connected to a current underlying condition to function as an impairment). (b) For each currently diagnosed disability (to include pain resulting in functional impairment of earning capacity), provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) had its onset during service and/or is otherwise causally or etiologically related to it. in doing so, address the Veteran’s competent lay assertions that he had back pain during service and that the pain was continuously present since service. Please note: lack of contemporaneous medical records does not serve as an “absolute bar” to the service connection claim and cannot be used as a rationale in explaining why the current disability is not related to service. (c) For each currently diagnosed disability (to include pain resulting in functional impairment of earning capacity), provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) was caused by or aggravated by his service-connected left knee disability. The examiner should provide a complete rationale for all opinions on direct, causation, and aggravation. 3. Obtain an addendum opinion from an appropriate VA examiner as to the nature and etiology of the Veteran’s sleep apnea. The claims file and a copy of this Remand must be made available to the reviewing examiner, and the examiner shall indicate in the addendum report that the claims file was reviewed. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. After a review of claims file, the examiner is asked to respond to the following: Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea was caused by or aggravated by any of his service-connected disabilities. In doing so, please specifically address: (i) medical literature VBMS entry titled “Correspondence” on 09/06/2015, (ii) lay assertions within VBMS entry titled “Third Party Correspondence” on 09/06/2015, and (iii) medical evidence and argument VBMS entry titled “Medical Treatment Record – Non-Government Facility” on 10/26/2016. The examiner should provide a complete rationale for all opinions on both causation AND aggravation. 4. Obtain an addendum opinion from an appropriate VA examiner as to the nature and etiology of the Veteran’s hypertension. The claims file and a copy of this Remand must be made available to the reviewing examiner, and the examiner shall indicate in the addendum report that the claims file was reviewed. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. After a review of claims file, the examiner is asked to respond to the following: Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension was caused by or aggravated by any of his service-connected disabilities. In doing so, please specifically address: lay assertions within VBMS entry titled “Third Party Correspondence” on 09/06/2015. The examiner should provide a complete rationale for all opinions on both causation AND aggravation. (Continued on the next page)   5. Then, readjudicate the claims on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel