Citation Nr: 18158041 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 15-31 962 DATE: December 14, 2018 ORDER New and material evidence having been submitted, the claim of entitlement to service connection for headaches is reopened. Entitlement to an effective date prior to August 23, 2002 for the grant of service connection for bilateral pes planus is denied. Entitlement to an effective date prior to December 13, 2013 for the grant of special monthly compensation based on loss of use of both feet is denied. Entitlement to an effective date prior to May 15, 2006 for the grant of special monthly compensation based on the need for regular aid and attendance is denied. REMANDED Entitlement to service connection for headaches, to include due to an undiagnosed illness or secondary to service connected disabilities is remanded. Entitlement to a higher level of special monthly compensation based on loss of use of both feet and need for regular aid and attendance is remanded. REFERRED ISSUE The issue of entitlement to service connection for peripheral neuropathy, to include secondary to chronic fatigue syndrome was raised by the record. This issue, however, is not currently developed or certified for appellate review. Accordingly, this matter is referred to the Regional Office (RO) for appropriate consideration. FINDINGS OF FACT 1. An unappealed April 2002 rating decision denied entitlement to service connection for headaches. 2. Evidence received since the April 2002 rating decision relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for headaches. 3. No communication or document was received by VA prior to August 23, 2002 that can be construed as a claim for entitlement to service connection for bilateral pes planus. 4. Prior to December 13, 2013, the Veteran’s chronic fatigue syndrome and bilateral pes planus were not so severe that no effective foot function remained other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. 5. Prior to May 15, 2006, the Veteran was not a patient in a nursing home because of a service-connected mental or physical incapacity, and he did not require the regular assistance of another person to perform the activities of daily living or to protect himself from the dangers of his environment as a result of his service-connected disorders. CONCLUSIONS OF LAW 1. The April 2002 rating decision is final; new and material evidence has been received to reopen the claim of entitlement to service connection for headaches. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 3.159, 20.1103. 2. The criteria for entitlement to an effective date prior to August 23, 2002, for the grant of service connection for bilateral pes planus have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.1(p), 3.155, 3.157 (2014); 38 C.F.R. § 3.1(r), 3.400 (2017). 3. The criteria for an effective date prior to December 13, 2013, for the grant of special monthly compensation based on loss of use of both feet are not met. 38 U.S.C. §§ 1114, 5107, 5110; 38 C.F.R. §§ 3.350, 3.400, 4.63. 4. The criteria for an effective date prior to May 15, 2006, for the grant of special monthly compensation based on the need of aid and attendance have not been met. 38 U.S.C. §§ 1114, 1502, 5107, 5110; 38 C.F.R. §§ 3.350, 3.352, 3.400, 3.401. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1985 to August 1985, from June 1986 to August 1986, and from October 1986 to June 1992. In July 2016 correspondence the Veteran withdrew his pending hearing request. Entitlement to a 50 percent rating for bilateral pes planus was awarded in a June 2018 rating decision, effective from August 23, 2002, i.e., the entire period on appeal. The Board observes that the highest schedular rating has been assigned for this disability, as well as the rating expressly sought in the Veteran’s December 2016 notice of disagreement. As such, the issue of entitlement to an increased rating for pes planus is not before the Board. A.B. v. Brown, 6 Vet. App. 35 (1993). The issue of entitlement to service connection for peripheral neuropathy of the lower extremities was addressed in an August 2015 statement of the case, and the Veteran submitted a timely VA Form 9 indicating an intent to perfect an appeal of that issue. However, a review of the appellant’s files shows that no rating decision has ever addressed the issue of entitlement to service connection for peripheral neuropathy, and, by extension, no notice of disagreement was filed regarding that claim. Jurisdiction matters and it is not “harmless” error when VA, during the claims adjudication process, fails to address threshold jurisdictional issues. In this case, to perfect an appeal to the claim of entitlement to service connection for peripheral neuropathy, the Veteran was first required to file a timely notice of disagreement in response to a rating decision addressing the issue. 38 U.S.C. § 7105. The absence of a rating decision, and a timely perfected appeal following that rating decision, deprives the Board of jurisdiction to address this claim. Id. Therefore, the claim for service connection for peripheral neuropathy is referred to the RO for appropriate consideration. Claim to reopen entitlement to service connection for headaches Entitlement to service connection for tension headaches was denied in a January 1997 rating decision on the basis that the disorder was not shown to be related to service. The appellant did not perfect a timely appeal to that decision, and it is final. 38 U.S.C. § 7105. A claim to reopen service connection was denied in an April 2002 rating decision. The appellant did not thereafter perfect a timely appeal to that decision. It also is final. Id. The Veteran has submitted a claim to reopen the issue of entitlement to service connection for headaches. A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Evidence is new if it has not been previously submitted to agency decision makers. Id. Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative or 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. Id. The phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In a December 2014 letter, the Veteran’s brother reported that soon after separation from service the claimant started complaining about recurrent headaches, and that such headaches had been chronic since that time. Additionally, numerous VA treatment records associated with the record since the April 2002 rating decision have noted that the Veteran reported increased headaches due to various psychiatric medications. See, e.g., December 2012 VA treatment record. The Veteran is service connected for a major depressive disorder and adjustment disorder. The Board finds that the evidence received since the April 2002 rating decision is new and material. That is, it relates to the unestablished etiological element necessary to substantiate the appellant’s claim. As this evidence raises a reasonable possibility of substantiating the claim, it is new and material. The claim of entitlement to service connection for tension headaches is therefore reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). Effective Dates The statutory and regulatory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. The effective date of an evaluation and an award of compensation based on an original claim, a claim reopened after a final disallowance, a claim for increase, or a claim for special monthly compensation will be the date the claim was received or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. Effective date prior to August 23, 2002 for the grant of service connection for bilateral pes planus The Veteran asserts that he is entitled to an effective date prior to August 23, 2002 for the grant of entitlement to service connection for bilateral pes planus. Specifically, he asserts that he submitted a claim for “foot conditions” on February 19, 1998, and that the effective date of service connection for pes planus should be established as of that date. Prior to March 25, 2015, and applicable to the present case, a “claim” was defined as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1 (p). “Date of receipt” of a claim, information, or evidence means the date on which a claim, information, or evidence was received by VA. See 38 C.F.R. § 3.1 (r). Prior to March 25, 2015, any documented communication from, or action by, a veteran indicating intent to apply for a benefit under laws administered by VA could be considered an informal claim. See 38 C.F.R. § 3.155 (b). After a complete review of the record, the Board finds that VA did not receive an earlier claim, either formal or informal, for service connection for pes planus or any other foot disorder. In this regard, there is no document of record that can be construed as an informal or formal claim for service connection for a foot condition prior to the August 23, 2002 claim. June and July 2002 VA treatment records reported treatment for foot pain and a diagnosis of pes planus, but do not contain any claim of entitlement to service connection for a foot disorder. In this regard, medical evidence reflecting treatment for and diagnosis of a disorder does not constitute, by itself, an informal original claim for service connection under 38 C.F.R. § 3.155 (a). Simply put, “the mere presence of the medical evidence does not establish an intent on the part of the veteran to seek” service connection for that condition. See MacPhee v. Nicholson, 459 F.3d 1323, 1326 (Fed. Cir. 2006). As these medical records do not reflect any intent to seek benefits for a foot disorder, they do not constitute an earlier informal claim. The Board acknowledges that the Veteran has asserted that February 19, 1998 is the correct effective date for service connection for bilateral pes planus. However, a thorough review of the record reveals no such earlier claim. At a March 1998 hearing before the RO, the Veteran reported joint pain, but specified only pain in his back, shoulders and wrists. The preponderance of the evidence is against finding that a claim, either formal or informal, alleging entitlement to service connection for a foot disorder was received any time prior to August 23, 2002. Accordingly, the Board is precluded by law from assigning an effective date prior to August 23, 2002 for the grant of service connection for bilateral pes planus. The claim is denied. Effective date prior to December 13, 2013 for the grant of special monthly compensation based on loss of the use of both feet The Veteran asserts that he is entitled to an effective date prior to December 13, 2013 for the grant of special monthly compensation based on loss of the use of both feet. He argues that the November 2009 rating decision which awarded entitlement to specially adapted housing and automobile and adaptive equipment essentially conceded that his service connected disorders approximated loss of use of the feet. The effective date of an award of special monthly compensation, based on an original claim, is either the day following separation from active service or the date entitlement arose, provided the claim was received within one year after separation from service. Otherwise, the effective date is the date of receipt of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (o). Loss of use of a foot will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the 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 balance, propulsion, etc., could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. §§ 3.350 (a)(2), 4.63. After a complete review of the record, the Board finds that, prior to December 13, 2013, manifestations due to the Veteran’s service-connected disabilities did not approximate a loss of use of the feet, and entitlement to special monthly compensation on that basis is not warranted. Pertaining to his feet, prior to December 13, 2013 the Veteran was service-connected for chronic fatigue syndrome, rated 100 percent disabling, and bilateral pes planus rated 50 percent disabling. On a March 2005 certification of disability form, Dr. B.W. indicated that the Veteran was permanently unable to walk one hundred feet without stopping to rest. In August 2005, the Veteran was provided bilateral forearm crutches due to gait difficulty, although the appellant was noted to ambulate without any significant gait deviations at the time. At an August 2006 VA examination, the Veteran reported that his wife had to help him out of bed some mornings, and occasionally had to help him into the shower because he tended to lose his balance. The examiner described the Veteran’s gait as “normal” using Canadian crutches, though he leaned forward slightly at the waist, held his back in a stiff position, and complained of discomfort while walking. The examiner stated that there was evidence of painful motion, but that “no sensory or motor deficits could be clearly demonstrated, although there [was] equivocal loss of pin prick perception on the lateral right leg.” In a September 2006 medical statement for consideration of aid and attendance, Dr. B.W. stated that the Veteran was not able to walk unaided due to joint pain and chronic fatigue, that he needed assistance with bathing and hygiene, and was confined to his bed “at times” due to fatigue. At a March 2007 VA examination, the Veteran reported the use of Canadian crutches due to leg weakness and throbbing pain. The Veteran reported that if he did not use his braces, his legs would give way. The examiner noted that the Veteran walked “slowly using the crutches for balance,” but was able to stand on his toes and heels without the crutches. An August 2007 VA treatment record noted that the Veteran requested a wheelchair due to problems walking. At a March 2009 VA examination, the Veteran reported that he was unable to walk without assistance since about 2002. He reported that “on a good day” he could walk 50 to 100 feet without stopping, but that on days when his balance was poor he needed to confine himself to a wheelchair. He reported that he “usually takes care of activities of daily living and can shower unassisted most days.” He was noted to exhibit progressive weakness and instability in the lower extremities, such that he was “unable to move about without the aid of crutches and sometimes a wheelchair.” The Veteran was able to rise from his wheelchair and get on his Canadian crutches without assistance. Motor evaluation revealed generalized weakness demonstrated by difficulty dorsiflexing and plantar flexing the feet against resistance. Lower extremity strength was estimated as “3/5” bilaterally. At an August 2011 VA examination, the Veteran’s feet were noted to exhibit mild tenderness across the arches, with flexion of the great toes from zero to 45 degrees, extension of the great toe of zero to 70 degrees, and a normal range of motion of the other toes. The arches were reportedly “normal” with “mild flatfoot abnormality noted.” The examiner reported that the Veteran did wear orthotics. The Veteran’s ankles were noted to exhibit tenderness in “a sleeve-like distribution.” Dorsiflexion was from zero to 20 degrees bilaterally, plantar flexion was from zero to 45 degrees, inversion was from zero to 30 degrees, and eversion was from zero to 10 degrees. Mild discomfort throughout the range of motion was noted. A February 2013 VA treatment record noted that the Veteran walked with a cane. A November 2013 VA emergency treatment record reported the Veteran as “ambulatory” on arrival. In summary, prior to December 13, 2013 the medical evidence reflects that the feet retained significant function, although limited by symptoms such as pain, weakness and fatigue. Neither symptoms consistent with an anatomical loss of the feet were demonstrated, nor did any examiner attest to this observation. While the evidence does suggest that the Veteran requested a wheelchair, subsequent medical records indicate that he was generally able to ambulate with crutches or with a cane. Under the law, the term “loss of use” for VA purposes is very specific and the standard is high. Basically, the Veteran must be left with so little function that he would be equally well off with a below-the-ankle amputation and the use of a suitable prosthetic appliance. The medical evidence discussed above shows that prior to December 13, 2013, the Veteran maintained some use of the ankles, feet and toes. At no time prior to December 13, 2013 did any physician opine that no effective foot function remained other than that which would be equally well served by amputation. The Board acknowledges the reports of the Veteran that chronic fatigue syndrome and pes planus were productive of severe pain, weakness and instability prior to December 13, 2013. However, the question whether no effective function remained other than that which would be equally well served by an amputation stump with use of a prosthetic appliance is a medical determination. Thus, the Board attributes greater probative value to the medical evidence of record which preponderates against finding that the Veteran’s service-connected foot disorders were of such severity as to approximate loss of use of either foot prior to December 13, 2013. The Board also acknowledges the Veteran’s argument that the November 2009 rating decision which awarded entitlement to specially adapted housing and automobile and adaptive equipment essentially conceded that the Veteran had loss of use of his feet. To the extent that the November 2009 rating decision’s grant of entitlement to specially adapted housing and automobile and adaptive equipment are contrary to the above analysis, the Board will not disturb that favorable finding, but the favorable findings of the November 2009 rating decision which do not themselves confer entitlement to benefits are not binding. See Murphy v. Shinseki, 26 Vet. App. 510 (2014) (a rating decision increasing a rating is binding on the Board, as distinguished from other favorable findings that are not binding). The totality of the clinical evidence preponderates against finding that, prior to December 13, 2013, the severity of the Veteran’s service-connected disorders approximated loss of use of the feet. As such, entitlement to special monthly compensation based on loss of use prior to December 13, 2013 is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. 5107(b); See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Effective date prior to May 15, 2006 for the grant of special monthly compensation based on the need for regular aid and attendance The Veteran asserts that he is entitled to an effective date prior to May 15, 2006 for the grant of special monthly compensation based on the need for regular aid and attendance. Special monthly compensation at the aid and attendance rate is warranted if the Veteran, as a result of service-connected disability, has suffered the anatomical loss or loss of use of both feet, or of one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). Determinations as to the need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to: inability of a claimant to dress or undress himself; to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliance which by reasons of the particular disability cannot be done without aid; inability to feed himself through the loss of coordination of upper extremities or through extreme weakness; inability to tend to the wants of nature; or incapacity, physical or mental, that requires care and assistance on a regular basis to protect claimant from the hazards or dangers incident to his daily environment. “Bedridden” will be a proper basis for the determination and is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that the 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. It is not required that all the disabling conditions enumerated above be found to exist before a favorable rating may be made. The particular personal functions that the claimant is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establishes that the claimant is so helpless as to need regular aid and attendance, not that there is a constant need. 38 C.F.R. § 3.352 (a). After a complete review of the record, the Board finds that the Veteran’s service-connected disabilities did not render him so helpless as to need regular aid and attendance prior to May 15, 2006. Prior to May 15, 2006, the Veteran was service connected for chronic fatigue syndrome, rated 60 percent disabling; major depressive disorder and adjustment disorder with mixed disturbance of emotions and conduct rated 70 percent disabling; bilateral pes planus rated 50 percent disabling; hiatal hernia rated 20 percent disabling; blood in urine due to an undiagnosed illness rated 10 percent disabling; and internal hemorrhoids rated noncompensable. Social Security Administration records contain an April 27, 2006 application for disability benefits, in which the Veteran reported that his wife cared for their children, the house and himself. This included cooking, cleaning, taking the children to school and doctors’ appointments, and paying bills. The Veteran stated that he had difficulty dressing himself due to chronic fatigue, joint pain, and back pain, and “often” required assistance with bathing due to medication which made him weak and drowsy and affected his coordination. The Veteran reported that he needed assistance with shaving due to medication making him nervous, drowsy and weak. He stated that he needed special reminders to take care of personal needs and grooming, and was unable to pay bills, handle a savings account, or use a checkbook or money order due to difficulty concentrating and forgetfulness. A subsequent May 2006 Social Security disability medical evaluation noted that the Veteran exhibited “trouble with personal care,” resulting from both physical and mental disability. An August 2006 evaluation reported that the Veteran required assistance with self-care. A July VA 2006 examiner noted that over the prior year, the Veteran had “sometimes” been so incapacitated that he was unable to leave his bed and had to use a bedpan. The examiner opined that the Veteran’s symptoms “occasionally” would preclude self-care. An August 2006 VA examiner also concluded that the Veteran’s symptoms only “occasionally” precluded self-care. In September 2006 Dr. B.W. reported that the Veteran needed assistance with bathing and tending to other hygiene needs, and was “at times” confined to a bed due to fatigue. The totality of the evidence preponderates against finding that the Veteran met the criteria for special monthly compensation based on the regular need for aid and attendance prior to May 15, 2006. Most significantly, there is no medical evidence of record was received by VA prior to that date indicating that the Veteran was unable to dress or undress or maintain basic hygiene, required assistance in adjusting any special prosthetic or orthopedic appliances, was unable to feed himself or attend to the wants of nature, or otherwise required protection from hazards or dangers incident to his or her daily environment. The Board acknowledges the Veteran’s April 27, 2006 report that he “often” required assistance with bathing and taking medication, as well as his general contention that he was severely disabled prior to May 15, 2006. However, the question whether the Veteran’s service-connected disabilities rendered him so helpless as to require the regular aid and attendance of another person is a medical determination. Thus, the Board attributes greater probative value to the medical evidence of record. In this regard, while the May 2006 medial report contained in the Social Security records noted some interference with self-care, the physician did not indicate a need for the aid and attendance of another person. The July and August 2006 VA examinations noted that the Veteran’s chronic fatigue symptoms would only “occasionally” preclude self-care. The August 2006 Social Security medical evaluation and the September 2006 letter of Dr. B.W. do support that the Veteran’s service-connected disabilities precluded self-care. However, the Board finds that the earlier reports, being more contemporaneous to the period prior to May 15, 2006 are more probative as to this issue. Thus, the most probative medical evidence preponderates against the Veteran’s claim. The totality of the clinical evidence preponderates against finding that, prior to May 15, 2006, the severity of the Veteran’s service-connected disorders rendered him so helpless as to require the regular aid and attendance of another person. As such, the claim is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. 5107 (b); See Gilbert, 1 Vet. App. at 55. REASONS FOR REMAND Headaches, to include due to an undiagnosed illness or secondary to service connected disabilities At his March 1998 RO hearing, the Veteran argued that his headaches were, in part, related to his depression. VA treatment records also contain numerous reports that the Veteran believed his psychiatric medications may have caused or aggravated his headaches. See, e.g., December 2012 VA treatment record. No VA examiner has specifically addressed whether the Veteran’s headaches are related to his other service-connected disorders, to include major depressive disorder and adjustment disorder with mixed disturbance of emotions and conduct. Accordingly, remand is necessary to obtain a medical opinion addressing this issue. Higher level of special monthly compensation The issue of entitlement to a higher level of special monthly compensation must be deferred pending the development requested herein. 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 an appellant’s claim for the second issue). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from August 2018 to the present. If the RO cannot locate such records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his headaches. The examiner is to indicate whether the Veteran’s headaches are due to a known clinical diagnosis or whether they are due to an undiagnosed illness or medically unexplained chronic multisymptom illness. If the headaches are related to a known clinical diagnosis, the examiner must opine whether it is at least as likely as not that any diagnosed headache disorder is related to active service or events therein, to include the Veteran’s report of inservice headaches. The examiner must discuss the Veteran’s July 1997 hearing testimony that he has had headaches ever since service, and his brother’s December 2014 statement that the Veteran began complaining of headaches shortly after service and ever since service. If the headaches are related to a known clinical diagnosis the examiner must opine whether it is at least as likely as not that any diagnosed headache disorder is proximately due to any service-connected disability, to include major depressive disorder and adjustment disorder with mixed disturbance of emotions and conduct, to include any medication taken for a service-connected disorder. If not, the examiner must opine whether it is at least as likely as not that any diagnosed headache disorder is aggravated beyond its natural progression by any service-connected disorder, to include major depressive disorder and adjustment disorder with mixed disturbance of emotions and conduct, to include any medication taken for a service-connected disorder. A complete, well-reasoned rationale must be provided for any opinion offered. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Paul J. Bametzreider, Associate Counsel