Citation Nr: 18150615 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 09-21 731 DATE: November 15, 2018 ORDER Entitlement to a temporary total evaluation due to hospital treatment in excess of 21 days due to a service-connected disability is denied. REMANDED Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a bilateral foot disorder is remanded. Entitlement to service connection for hypertension, to include as secondary to service-connected degenerative disc disease and degenerative joint disease of the thoracolumbar spine, is remanded. Entitlement to service connection for diabetes mellitus, to include as secondary to service-connected degenerative disc disease and degenerative joint disease of the thoracolumbar spine, is remanded. Entitlement to service connection for residuals of stroke, to include as secondary to service-connected degenerative disc disease and degenerative joint disease of the thoracolumbar spine, is remanded. Entitlement to service connection for right foot and right leg disorder, to include as secondary to service-connected degenerative disc disease and degenerative joint disease of the thoracolumbar spine, is remanded. Entitlement to an increased evaluation in excess of 40 percent for degenerative disc disease and degenerative joint disease of the thoracolumbar spine is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is remanded. Entitlement to special monthly compensation is remanded. FINDING OF FACT 1. The Veteran did not undergo a period of hospitalization lasting longer than 21 days due to a service-connected disability. CONCLUSION OF LAW 1. The criteria for a temporary total evaluation because of hospitalization for a service-connected disability have not been met. 38 U.S.C. § 1155 (2014); 38 C.F.R. § 4.29 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1973 to June 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2008, December 2011, January 2015, and July 2015 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In November 2016, the Board remanded the issues of entitlement to service connection for hypertension, stroke residuals, diabetes mellitus, a right leg and right foot disorder; entitlement to an increased rating for the Veteran’s low back disability; and denied entitlement to TDIU. The actions requested in the prior remand have been undertaken. Accordingly, the Board finds that there has been substantial compliance with the November 2016 remand instructions. See D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). In February 2018, the AOJ granted service connection for major depressive disorder. Thus, because the Veteran was granted the full benefit he sought, and has not filed a Notice of Disagreement (NOD) regarding his assigned effective date or rating, his claim of entitlement to service connection for major depressive disorder is no longer on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings liberally does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Law and Analysis Temporary Total Evaluation A total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established that a service-connected disability has required hospital treatment in a VA or an approved hospital for a period in excess of 21 days or hospital observation at VA expense for a service-connected disability for a period in excess of 21 days. 38 C.F.R. § 4.29. Subject to the provisions of paragraphs (d), (e), and (f), this increased rating will be effective the first day of continuous hospitalization and will be terminated effective the last day of the month of hospital discharge (regular discharge or release to non-bed care) or effective the last day of the month of termination of treatment or observation for the service-connected disability. Id. In July 2014, the Veteran filed a claim for temporary total disability due to inpatient medical care. The record shows the Veteran was hospitalized in a VA medical facility for alcohol abuse. While the Veteran was hospitalized for over 21 days, the hospitalization must be for a service-connected disability. See 38 C.F.R. § 4.29. The Veteran’s major depressive disorder and lumbar spine disorder are his only service connected-disabilities. The record does not show, and the Veteran has not alleged, that he was hospitalized for a service-connected disability. Therefore, the requirement for a hospitalization over 21 days for a service-connected disability is not met. Accordingly, there is no legal basis for the allowance of a temporary total rating, despite the Veteran’s inpatient treatment, and his claim must be denied. REASONS FOR REMAND Right knee, Left knee, Bilateral foot disorder Regarding the Veteran’s claims for service connection for right knee, left knee, and bilateral foot disorders, the Veteran has not been afforded a VA examination in connection with the claims. However, there is evidence in the claims file suggesting the Veteran may have right knee and left knee disorders as well as a bilateral foot condition. Therefore, these claims should be remanded for a VA examination to determine the nature and etiology of any such disorders. Hypertension, residuals of stroke, diabetes The Veteran was most recently afforded a VA examination in connection with his claims for service connection for hypertension, residuals of a stroke, and diabetes in January 2018. The examiner opined that the Veteran’s disabilities were not incurred in or caused by his military service. Additionally, he opined that it is less likely than not the Veteran’s disabilities were proximately due to or aggravated beyond normal progression by his service-connected lumbar spine disorder. In reaching this conclusion, the examiner stated that it was impossible to state unequivocally what caused the Veteran’s hypertension, residuals of stroke, and diabetes. The Board finds the opinion to be inadequate. To substantiate the claim for service connection, the medical evidence need not indicate that the Veteran’s claimed disability is “unequivocally” related but, rather, that it is at least as likely as not that the claimed disability is related to service. Therefore, the Board finds that an addendum opinion must be obtained. Right leg/right foot disorder The Veteran was afforded a VA examination in April 2013 in connection with his claim for service connection for a right leg/right foot disorder. In July 2015, an addendum opinion was provided. The examiner indicated the Veteran had right lower extremity hemiparesis with weakness, sensory loss, and gait impairment due to his strokes. The Board finds the right leg/right foot disorder issue is inextricably intertwined with his claim for entitlement to service connection for residuals of a stroke. Lumbar spine disorder The Veteran was last afforded a VA examination in connection with his lumbar spine disorder in April 2013. However, on review, the VA examination report does not include all of the necessary joint testing required under Correia v. McDonald, 28 Vet. App. 158 (2016). In particular, it does not provide the range of motion for testing on passive motion or non-weight bearing. Therefore, another VA examination is required Special Monthly Compensation With regard to the claim for special monthly compensation, the Veteran was afforded a VA examination in January 2015 however, it is dated October 2014. The examination report indicates the Veteran did require significant assistance in take care of his basic needs, including assistance with all of his activities of daily living. However, it appears that at that point, the need for this assistance resulted from his stroke, which is being remanded herein. Moreover, it is not clear if the Veteran is currently housebound due to his service-connected disabilities. Given the number of years that have passed since the January 2015 VA examination and given that it is not entirely clear if the Veteran is currently housebound or in need of aid and attendance due to his service-connected disabilities, a remand is necessary to afford the Veteran with an updated VA examination. TDIU The Board finds that the issue of entitlement to TDIU is inextricably intertwined with the issue of entitlement to an increased evaluation for degenerative disc and joint disease of the lumbar spine. SSOC Lastly, the Board notes that relevant evidence has been has been added to the claims file that was not previously considered by the Agency of Original Jurisdiction (AOJ), including additional VA treatment records. There is no waiver of the AOJ’s initial consideration of the evidence, and a supplemental statement of the case (SSOC) has not been issued. As such, on remand, the AOJ should review the additional evidence and prepare an SSOC if the benefits are not granted. The matters are REMANDED for the following action: 1. Obtain an opinion from a different examiner than the examiner who conducted the January 2018 examination to determine the nature and etiology of any current hypertension, residuals of stroke, and diabetes that may be present. An additional examination of the Veteran should be performed if deemed necessary by the individual providing the opinion. The examiner is requested to review all pertinent records associated with the electronic claims file. The examiner should note that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should address the following: (a) For each diagnosis identified, the examiner should opine as to whether it is at least as likely as not that the disorder manifested in service or is otherwise causally or etiologically related to his military service. (b) Is it at least as likely as not the disorder is either caused by or aggravated by the Veteran’s service-connected degenerative disc disease or degenerative joint disease of the lumbar spine. A complete rationale for all opinions must be provided. 2. Then, schedule a VA examination to determine the nature and etiology of any currently diagnosed left knee, right knee, bilateral foot disorder, right foot disorder, or right leg disorder. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should note the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should address the following: (a) Does the Veteran have a currently diagnosed left knee disorder, right knee disorder, bilateral foot disorder, right foot disorder, or right leg disorder? (b) For each diagnosis identified, the examiner should opine as to whether it is at least as likely as not that the disorder manifested in service or is otherwise causally or etiologically related to service. (c) For any right foot or right leg disorder, the examiner should opine as to whether it is at least as likely as not that the disorder is caused or aggravated by any stroke residuals. A complete rationale for all opinions must be provided. 5. Schedule a VA examination to ascertain the current severity and manifestations of the Veteran’s service-connected degenerative disc disease and degenerative joint disease of the lumbar spine. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In particular, the examiner should provide the range of motion of the thoracolumbar spine in degrees on active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should provide an explanation for that determination in the report. The examiner should also indicate whether there is any form of ankylosis. He or she should also state the total duration of any incapacitating episodes over the past 12 months and identify any neurological manifestations of the disability. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors (including any additional loss of motion). The examiner is asked to address the functional impact that the Veteran’s service-connected disabilities have on his ability to secure or follow a substantially gainful occupation. When addressing the functional effects the examiner should consider the Veteran’s education and occupational history, but must not consider the Veteran’s age or any non-service connected disabilities. A complete rationale for all opinions is required. 6. After the above development is completed, schedule the Veteran for a VA examination to determine whether he is housebound due to service-connected disability. The claims folder must be made available to the examiner for review. The examiner is requested to provide an explanation as to all medical conclusions rendered, which is supported by references to evidence in the file and clinical findings. In addressing whether the Veteran is housebound due to his service-connected disabilities, the examiner should consider that housebound is defined as when the veteran is substantially confined as a direct result of service-connected disability to his dwelling and the immediate premises, and it is reasonably certain the disability or disabilities and resultant confinement will continue throughout his lifetime. The examiner should be advised of all the Veteran’s service-connected disabilities, to include headaches. All opinions must be accompanied by a complete rationale. 8. Then, the case should be reviewed by the AOJ on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. REBECCA N. POULSON Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Walker, Associate Counsel