Citation Nr: 1807750 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 12-30 603A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an effective date earlier than June 25, 2007 for the award of special monthly compensation benefits (SMC) based on housebound status. 2. Whether the reduction of the disability ratings for the Veteran's right knee, (previously evaluated as limited extension, right knee evaluated at 50 percent disabling and degenerative joint disease, right knee status post-surgical procedures with limitation of flexion evaluated at 10 percent disabling) to 20 percent was proper, to include entitlement to a disability rating higher than 20 percent for right knee osteoarthritis with dislocated semilunar cartilage after March 1, 2015. 3. Entitlement to a continued award of special monthly compensation (SMC) based on housebound status after March 1, 2015. WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran served on active duty from September 1967 to October 1970, to include service in the Republic of Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal of several rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, including a February 2011 rating decision, granting service connection for a right knee disability and assigning an effective date of June 25, 2007; an April 2012 rating decision, granting entitlement to special monthly compensation based on housebound criteria being met, effective June 25, 2007; and a December 2014 rating decision that discontinued a 50 percent rating for the right knee limited extension, effective March 1, 2015 and established a separate 20 percent rating for right knee osteoarthritis, effective March 1, 2015; found clear and unmistakable error in the granting of a 10 percent rating for degenerative joint disease of the right knee, status post-surgical procedure, and discontinued this rating, effective March 1, 2015; and found that entitlement to special monthly compensation was no longer shown, effective March 1, 2015. In July 2011, the Veteran appeared at a hearing at the RO held before a Decision Review Officer (DRO). A transcript of that hearing is in the claims file. In June 2013, the Veteran appeared at a Board hearing before a Veterans Law Judge (VLJ). A transcript of that hearing is also in the claims file. The VLJ who presided at the Veteran's hearing has since retired. The Veteran was offered the opportunity for another hearing before a VLJ who would issue the decision with respect to his appeals, but he declined the offer. As such, the undersigned VLJ will decide the issue based on the evidence of record. This case was previously before the Board in June 2013, November 2013, and January 2017, when it was remanded for further development. The case is now returned for appellate review. The issue of entitlement to an earlier effective date for a TDIU was remanded by the Board in January 2017 after implementation of the Board's decision to grant of an earlier effective date for PTSD of August 23, 1991. During the course of the remand, in a May 2017 rating decision, the RO granted an effective date of August 23, 1991 for the assignment of a TDIU based on the effective date of the assignment of a 70 percent rating for PTSD. The RO noted that the benefits were granted in full. The Board agrees. The issue of entitlement to a TDIU was raised on a derivative basis as part of his claim for an increased rating for PTSD, which was effective no earlier than August 23, 1991. The Board has adjudicated the matter of the effective date for PTSD in the January 2017 decision, which has not been appealed. The Veteran submitted a statement in July 2017 requesting another Board decision granting an effective for PTSD in 1984, but has not appealed the Board's January 2017 decision to the U.S. Court of Appeals for Veterans Claims. The only other service-connected disabilities in effect prior to August 23, 1991 were the right knee disability rated as 10 percent disabling, and a thumb disability rated as 0 percent disabling. Increased rating claims for these disabilities were not filed prior to August 23, 1991; nor was any formal claim for a TDIU filed prior to August 23, 1991. As there is no legal basis for any earlier effective date for entitlement to a TDIU, this matter is considered resolved and no longer on appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board remanded the right knee reduction and increased rating claim in January 2017 for a VA examination to consider "pain on both active and passive motion, in weight bearing and nonweight-bearing," pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016). An examination provided in March 2017 did not address these considerations or state why they could not be accounted for. For this reason another examination for the right knee is warranted. As noted in the Board's January 2017 remand, as the Veteran has filed an appeal of the rating decision in December 2014 which reduced the disability rating for his right knee and thereby resulted in a discontinuation of entitlement to SMC benefits based on housebound status, entitlement to these benefits rests on the Veteran's total combined benefits, which is thus inextricably intertwined with the assignment of ratings and the question of the dates of initial eligibility for SMC benefits. Therefore, the issue of entitlement to continued SMC benefits should be re-adjudicated on remand in conjunction with the other issues which have been remanded. As for the claim for SMC including earlier effective date for SMC, the record does not reflect that the Veteran was ever provided with a notice letter explaining the criteria for assigning entitlement to SMC, including an earlier effective for SMC. Given that the Veteran is unrepresented, additional efforts should be made to ensure the Veteran understands the evidence and information needed to substantiate his claim prior to the Board's adjudication of the matter. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Ask the Veteran to identify any additional treatment for this right knee. 2. Send the Veteran a notice letter explaining the information and evidence necessary to substantiate a claim for entitlement to SMC based on housebound criteria, and a claim for an earlier effective date for entitlement to SMC based on housebound criteria. 3. The Veteran should be scheduled for a VA examination or asked to submit a Disability Benefits Questionnaire prepared by his physician which addresses the current nature and severity of his right knee disability. The evaluation of the right knee should include all necessary testing, specifically range of motion studies. The examiner should address the range of motion in degrees of flexion and extension and any functional loss due to pain or painful motion as well as weakness, excess fatigability, incoordination, or pain on movement, swelling or atrophy. The examiner must address at what point pain begins. Any additional functional loss should be expressed in terms of the degree of additional limitation of motion. In addition, with respect to range of motion testing, this must be conducted on active and passive motion and in weight-bearing and nonweight-bearing conditions (pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016)). 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 clearly explain why that is so. The examiner should determine whether there is instability or recurrent subluxation of the right knee; and if so, this determination should be expressed in terms of slight, moderate, or severe due to either the lateral instability or recurrent subluxation. The examiner must also address whether there is a dislocated semilunar cartilage in the right knee, whether there is effusion, whether the knee locks and, if so, the frequency of the locking. 4. Provide an analysis of all of the evidence with respect to the nature and severity of the Veteran's right knee disability picture, to include all possible ratings. The analysis should specifically include the impact of the December 2014 findings of clear and unmistakable error in the prior ratings on the reduction decision. 5. Then address any other outstanding issues or development necessary in light of the development ordered above. If the benefits sought on appeal are not granted in full, then issue a supplemental statement of the case (SSOC) and provide the Veteran an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).