Citation Nr: 18155133 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 15-03 641A DATE: December 4, 2018 ORDER Entitlement to special monthly compensation at the housebound rate from October 1, 2013 to April 6, 2014 is denied. New and material evidence having been received, the appeal to reopen a claim of entitlement to service connection for a low back disability as secondary to service-connected residuals of a left femur fracture with total left knee replacement and total left hip arthroplasty is granted. REMANDED Entitlement to a compensable rating for erectile dysfunction is remanded. Entitlement to a rating higher than 20 percent for diabetes mellitus is remanded. Entitlement to a rating higher than 20 percent for peripheral neuropathy of the left lower extremity is remanded. Entitlement to a higher rating for peripheral neuropathy of the right lower extremity, currently rated as 20 percent prior to August 2, 2017, and 40 percent thereafter is remanded. Entitlement to a rating higher than 70 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to automobile or other conveyance and adaptive equipment or for adaptive equipment only is remanded. Entitlement to specially adapted housing is remanded. Entitlement to service connection for a low back disability, to include as secondary to service-connected residuals of a left femur fracture and total left hip arthroplasty, is remanded. FINDINGS OF FACT 1. The preponderance of evidence indicates that the Veteran was not permanently housebound by reason of his service-connected disabilities and did not have a single disability rated as 100 percent disabling and another disability rated as 60 percent or more disabling during the period from October 1, 2013 to April 6, 2014. 2. In a June 2002 rating decision, the RO denied, in relevant part, service connection for a low back condition secondary to the left femur fracture. This decision was not appealed nor was additional evidence received within the appeal period. 3. In a September 2005 rating decision, the RO declined to reopen the claim for service connection for a low back disability as secondary to service-connected residuals of a left femur fracture with a total left knee replacement. This decision was not appealed nor was additional evidence received within the appeal period. 4. In a January 2015 rating decision, the RO declined to reopen the claim for service connection for a low back disability as secondary to service-connected disability. This decision was not appealed nor was additional evidence received within the appeal period. 5. Evidence received since the January 2015 rating decision is new, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a low back disability, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The criteria for special monthly compensation based on being housebound due to service-connected disability have not been met from October 1, 2013, to April 6, 2014. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.350, 3.352. 2. A June 2002 rating decision, which in relevant part denied service connection for a low back condition secondary to the service-connected left femur fracture, is final. 38 U.S.C. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2001); currently 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2018). 3. A September 2005 rating decision, which in relevant part declined to reopen the claim for service connection for a low back condition as secondary to the service-connected left femur fracture, is final. 38 U.S.C. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2005); currently 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2018). 4. A January 2015 rating decision, which in relevant part declined to reopen the claim for service connection for a low back condition as secondary to service-connected disability, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2014); currently 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2018). 5. Evidence added to the record since the January 2015 denial is new and material, and the claim for entitlement to service connection for a low back disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1966 to August 1969. These matters come before the Board of Veterans’ Appeals (Board) on appeal from March 2014 and December 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Board recognizes that the RO did not certify the issues of entitlement to a higher rating for PTSD, entitlement to a higher rating for diabetes mellitus, entitlement to a higher rating for peripheral neuropathy of the left lower extremity, entitlement to a higher rating for peripheral neuropathy of the right lower extremity, entitlement to a compensable rating for erectile dysfunction, the claim to reopen entitlement to service connection for a low back disability, entitlement to automobile or other conveyance and adaptive equipment or for adaptive equipment only, and entitlement to specially adapted housing. However, these issues were the subject of an August 16, 2017 statement of the case and a VA Form 9 that was postmarked October 16, 2017. Although the VA Form 9 was not received until October 19, 2017, the postmark date of October 16, 2017, means that the VA Form 9 was filed within the 60-day appeal period and is thus timely. 38 C.F.R. § 20.305 (2018). Therefore, the Board takes jurisdiction over these issues. To the extent that the November 2016 notice of disagreement (NOD) with the December 2015 rating decision raises the issue of entitlement to an earlier effective date for the grant of service connection for diabetes mellitus, the Board notes that an effective date was not assigned by the December 2015 rating decision, and the November 2016 NOD is not timely to appeal the March 2015 rating decision that granted service connection for diabetes mellitus, effective April 6, 2014. 38 C.F.R. § 20.302(a) (2018). Additionally, the November 2016 NOD does not meet the requirements for a complete claim under 38 C.F.R. § 3.155 (2018), the Board does not find a pending claim of entitlement to an earlier effective date for service connection for diabetes mellitus. 1. Entitlement to special monthly compensation at the housebound rate from October 1, 2013 to April 6, 2014 The Veteran contends that he should be awarded special monthly compensation at the housebound rate because his service-connected left hip and left knee disabilities keep him in his home 80-90 percent of the time. Special monthly compensation at the housebound rate has already been assigned from September 20, 2012 to October 1, 2013, and from April 6, 2014, to the present. The claim for entitlement to special monthly compensation at the housebound rate was received in September 2013. Therefore, the only period discussed in this decision is the period from October 1, 2013, to April 6, 2014. The Board notes that it is remanding the Veteran’s service connection and increased rating claims for further development. However, as those claims were received on August 16, 2015, the appeal period for the remanded appeals is outside of the limited appeal period for the Veteran’s special monthly compensation claim. As such, the claims are not intertwined and adjudication of the special monthly compensation claim is proper at this time. See Harris v. Derwinski, 1 Vet. App 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on the resolution of the second issue). After reviewing the evidence of record, the Board finds that the Veteran does not meet the criteria for special monthly compensation at the housebound rate for the period from October 1, 2013, to April 6, 2014. If a veteran has a single service-connected disability rated as 100 percent disabling, he is entitled to compensation benefits at the "housebound" rate if he: (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or (2) is "permanently housebound" by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s) (2012); 38 C.F.R. § 3.350(i) (2018). The "permanently housebound" requirement is met when the veteran is substantially confined, as a direct result of service-connected disabilities, to his dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his lifetime. As such, entitlement to special monthly compensation on a housebound basis rests at least in part on the disability ratings assigned, to include any award of a TDIU rating. Entitlement to a TDIU was granted based upon the Veteran’s service-connected residuals of a left femur fracture with total left knee replacement, effective May 1, 2007, by a July 2007 rating decision. The Veteran’s residuals of a left femur fracture with total left knee replacement is thus considered 100 percent disabling because it is the sole basis of the grant of entitlement to a TDIU. Because the Veteran has a single disability rated at 100 percent, to meet the schedular criteria for special monthly compensation at the housebound rate he needs to be rated at least 60 percent for one or more disabilities other than the residuals left femur fracture with total left knee replacement combined during the period from October 1, 2013 to April 6, 2014. In the Veteran’s case, aside from the residuals of a left femur fracture with total left knee replacement, the Veteran was service-connected for total left hip arthroplasty, rated as 50 percent disabling from October 1, 2013, residual scar associated with residuals of the left femur fracture rated as noncompensable, and residual left hip scar rated as noncompensable. These disabilities are not rated as 60 percent disabling, either individually or combined, during the period in question. Therefore, the Veteran does not meet the schedular criteria for special monthly compensation at the housebound rate. The Board will next consider whether the Veteran was permanently housebound by reason of service-connected disability or disabilities. The March 2014 NOD states that the Veteran is afraid to leave his home due to fear of falling. The Veteran wrote in a July 2014 statement that it was virtually impossible for him to maneuver his walker up and down steps, and he was therefore stuck in his home most of the time. On his February 2015 VA Form 9, the Veteran reported that he is confined to his home 80-90 percent of the time, and has felt like a prisoner in his home since his August 2012 hip surgery. He wrote that he does not venture out much because he falls down a lot due to excruciating pain in his left hip and knee. He wrote that he attends his VA appointments, but struggles to walk from his front door to his car, and seldom drives himself. An October 2013 VA treatment note indicates that the Veteran reported attending an “Octoberfest” in his hometown. In a November 2013 VA treatment note, the Veteran reported that he was able to avoid stairs in his home. A December 2013 treatment note indicated that the Veteran ate out at restaurants 5-6 times a week. He reported eating out at restaurants 2-3 times a week in February 2014, and the treatment note indicates that he was eating out less frequently because he was trying to reduce the cholesterol content of his meals. The Board notes that the Veteran’s report of being stuck in his home most of the time was written in July 2014, and the Veteran wrote he was confined to his home 80-90 percent of the time in February 2015. While the Veteran’s assessment of being confined to his home may be accurate for July 2014 and February 2015, the Veteran has already been assigned special monthly compensation at the housebound rate effective April 6, 2014. The Board finds that the VA treatment notes are more probative evidence of the Veteran’s housebound status prior to April 6, 2014, because they are contemporaneous records and because statements made for treatment purposes are generally more probative than statements made for disability compensation purposes. See Pond v. West, 12 Vet. App. 341 (1999). Accordingly, the most probative evidence of record shows that during the period from October 1, 2013, to April 6, 2014, the Veteran regularly left his home for recreation and to eat at restaurants, and that he did not need to use the stairs in his home. Therefore, the Board finds that he was not substantially confined to his dwelling during this period, despite the fear of leaving his home discussed in the March 2014 NOD, and the Veteran’s claim must be denied. The Board reiterates that the Veteran has already been assigned special monthly compensation at the housebound rate from September 20, 2012 to October 1, 2013, and from April 6, 2014 to the present. This decision only applies to the period from October 1, 2013 to April 6, 2014. 2. Whether new and material evidence has been received to reopen entitlement to service connection for a low back disability, to include as secondary to service-connected residuals of left femur fracture with total left knee replacement and total left hip arthroplasty The Veteran has put forth new and material evidence relating to a nexus between the Veteran’s low back disability and a service-connected disability. The Board finds that this evidence meets the low threshold to be sufficient to reopen the claim. A claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period, in the absence of receipt of new and material evidence received within the one-year appeal period. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 3.160, 20.201, 20.302. A claim that is the subject of a prior denial may be reopened if new and material evidence is received with respect to that claim. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing 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 of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). A disability may be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or, if it is aggravated beyond its natural progress by a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310(a), (b). Service connection for a low back disability as secondary to the service-connected residuals of a left femur fracture with total knee replacement was initially denied by a June 2002 rating decision. The rating decision stated, in relevant part, that the sclerotic changes of the lumbar spine were age-related and likely not due to the old femur fracture. No appeal was taken from the determination, and new and material evidence was not received within the one-year appeal period. As such, the decision is final. 38 U.S.C. § 7105(c) (2002); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2001); currently 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2018). The RO declined to reopen service connection for a low back disability as secondary to the service-connected residuals of a left femur fracture with total knee replacement in a September 2005 rating decision. The RO declined to reopen the claim because VA had not received any new and material evidence. No appeal was taken from the determination, and new and material evidence was not received within the one-year appeal period. As such, the decision is final. 38 U.S.C. § 7105(c) (2002); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2005); currently 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2018). The RO declined to reopen service connection for a low back disability as secondary to service-connected disability in a January 2015 rating decision. The RO declined to reopen the claim because VA had not received any new and material evidence. No appeal was taken from the determination, and, although the Veteran filed a new claim to reopen in August 2015, new and material evidence was not received within one year of the January 2015 rating decision. As such, the decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2014); currently 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2018). Since the last final denial, VA has received a November 2016 notice of disagreement in which the Veteran stated that his low back problems were associated with his service-connected hip and left knee replacements. The service-connected left hip disability had not been considered as a potential cause or source of aggravation for the low back disability. This evidence is relevant to the existence of a nexus between the low back disability and a service-connected disability. Thus, the evidence relates to an unestablished fact necessary to substantiate the Veteran’s claim, and raises a reasonable possibility of establishing the claim. See 38 C.F.R. § 3.156, 4.125(a) (2018). Therefore, the evidence is new and material. Such new and material evidence having been received, the claim of entitlement to service connection for a low back disability is reopened. See 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2018). REASONS FOR REMAND 1. Entitlement to a compensable rating for erectile dysfunction is remanded. 2. Entitlement to a rating higher than 20 percent for diabetes mellitus is remanded. 3. Entitlement to a rating higher than 20 percent for peripheral neuropathy of the left lower extremity is remanded. 4. Entitlement to a higher rating for peripheral neuropathy of the right lower extremity, currently rated as 20 percent prior to August 2, 2017, and 40 percent thereafter is remanded. 5. Entitlement to a rating higher than 70 percent for posttraumatic stress disorder (PTSD) is remanded. The Board notes that VA treatment records after March 10, 2015, have not been associated with the claims file, and there is no indication that more contemporaneous records were requested. As the claims for a higher rating were received in August 2015, the Board lacks treatment records from the period on appeal, and thus cannot assess the severity of the Veteran’s disabilities. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. 6. Entitlement to automobile or other conveyance and adaptive equipment or for adaptive equipment only is remanded. 7. Entitlement to specially adapting housing is remanded. The issues of entitlement to automobile or other conveyance and adaptive equipment or for adaptive equipment only, and entitlement to specially adapting housing, may be decided based upon whether the Veteran has loss or permanent loss of use of one or both feet (automobile) and loss, or loss of use, of both lower extremities, such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair (specially adaptive housing). 38 C.F.R. §§ 3.808, 3.809 (2018). In this case, the Veteran has been service-connected for, and seeks a higher rating for, neuropathy of the lower extremities. The August 2017 VA examination noted that the Veteran’s loss of sensation in the bilateral lower extremities distal to the ankle precludes any and all physical work, and found absent position sense bilaterally as well as absent light touch of the foot/toes bilaterally, which raises a question about whether the Veteran’s bilateral peripheral neuropathy is so severe that it is the equivalent to loss of use of his bilateral feet or lower extremities. Upon remand, an examination should be scheduled to determine whether the Veteran’s service-connected disabilities, including peripheral neuropathy, results in functional impairment so severe as to be the equivalent of the loss of use of both foot or both lower extremities. 8. Entitlement to service connection for a low back disability. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a low back disability because no VA examiner has opined whether the low back disability was caused or aggravated by the service-connected total left hip arthroplasty. Additionally, the May 2002 VA examination of record considering the relationship between the low back and left knee disabilities does not contain a clear, separate aggravation opinion. See Atencio v. O’Rourke, 30 Vet. App. 74 (2018). Accordingly, a remand for a VA examination and opinion is warranted. The matters are REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed disabilities. After securing any necessary releases, the AOJ should request any relevant records identified. In addition, obtain updated VA treatment records from March 10, 2015 to the present. If any requested records are unavailable, the Veteran should be notified of such. 2. Schedule the Veteran for an appropriate VA examination to determine whether the Veteran meets the criteria for entitlement to automobile and adaptive equipment or adaptive equipment only, or entitlement to specially adaptive housing, based upon his service-connected disabilities. The Veteran is currently service-connected for PTSD, residuals of a left femur fracture with total left knee replacement, total left hip arthroplasty, peripheral neuropathy of the right lower extremity, peripheral neuropathy of the left lower extremity, diabetes mellitus, residuals scar associated with residuals of left femur fracture with total left knee replacement, residual left hip scar, and erectile dysfunction. After an appropriate examination, the examiner is to provide the following opinions: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s service-connected disabilities, including bilateral peripheral neuropathy, result in 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. (b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s service-connected disabilities, including bilateral peripheral neuropathy, result in the loss or permanent loss of use of use of one or both feet. A rationale should be provided for each opinion offered. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any low back disability. The examiner must provide an opinion as to whether any low back disability is at least as likely as not (50 percent or greater probability): (1) proximately due to service-connected residuals of left femur fracture with total left knee replacement and/or total left hip arthroplasty, or (2) aggravated beyond its natural progression by the service-connected residuals of left femur fracture with total left knee replacement and/or total left hip arthroplasty residuals of left femur fracture with total left knee replacement and/or total left hip arthroplasty. Any opinion offered must be supported by a complete rationale. 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If any benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. J. A. Anderson Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Budd, Counsel