Citation Nr: 21002369 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 19-25 549 DATE: January 13, 2021 ORDER Entitlement to an effective date earlier than March 30, 2017 for lumbar spine surgical scar is denied. Entitlement to spousal aid and attendance is denied. REMANDED Entitlement to a rating in excess of 20 percent for lumbar spine disability is remanded. Entitlement to a rating in excess of 30 percent for neurological impairment of the lateral aspect of the right calf and dorsum of the right foot is remanded. Entitlement to a rating in excess of 20 percent for radiculopathy of the left lower extremity is remanded. Entitlement to a compensable rating for lumbar spine surgical scar is remanded. Entitlement to a rating in excess of 10 percent for hypertension is remanded. Entitlement to a rating in excess of 10 percent for left knee disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. Entitlement to service connection for left arm closed fracture of the humerus status post surgical repair is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression, is remanded. FINDINGS OF FACT 1. On March 30, 2017, VA received the Veteran’s claim for an increased rating for her lumbar spine disability; there was no pending or unadjudicated claim relating to the lumbar spine or lumbar surgical scar prior to that date. 2. The preponderance of the evidence is against a finding that the Veteran’s spouse requires regular aid and attendance of another. CONCLUSIONS OF LAW 1. The criteria for assignment of an effective date earlier than March 30, 2017, for service connection for lumbar surgical scar have not been met. 38 U.S.C. §§ 5110, 7105; 38 C.F.R. § 3.400. 2. The criteria for spousal aid and attendance benefits have not been met. 38 U.S.C. §§ 1115, 1502; 38 C.F.R. §§ 3.351, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1981 to September 2003. This case comes before the Board on appeal from July 2017, November 2017, and February 2018 rating decisions. Although the Board’s remand directives below include instructions to obtain the Veteran’s outstanding treatment records from August 2017 forward, the issue of an effective date earlier than March 30, 2017 for lumbar spine surgical scar and the issue of entitlement to spousal aid and attendance are decided below. As the outstanding records are dated August 2017 and later, the outstanding records are not relevant to whether an effective date prior to March 30, 2017 is warranted. The Veteran’s outstanding treatment records are not relevant to her claim for aid and attendance for her spouse as the determination of the claim depends upon his medical condition rather than hers. Accordingly, these claims are ready for adjudication. 1. Entitlement to an effective date earlier than March 30, 2017 for lumbar spine surgical scar is denied. Unless specifically provided otherwise, the effective date of an evaluation and grant of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The effective date for a grant of service connection is the day following the date of separation from active service or the date entitlement arose, if the claim is received within one year after separation from active service; otherwise, it is the date of receipt of claim, or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). Prior to March 24, 2015, a “claim” was either 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). Any documented communication from, or action by, a veteran indicating intent to apply for a benefit under laws administered by VA may be considered an informal claim. See 38 C.F.R. § 3.155(b). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Effective March 24, 2015, all claims must be submitted on a form prescribed by the Secretary of VA. The Veteran was granted service connection for lumbar spine disability and assigned a 10 percent rating in an October 2003 rating decision. The Veteran filed a notice of disagreement and a September 2005 statement of the case was issued but the Veteran did not perfect an appeal. A September 2005 rating decision assigned temporary 100 percent ratings for periods of convalescence and continued the 10 percent ratings. The September 2005 rating decision also granted service connection for residual laminectomy scar, effective October 1, 2003. A June 2006 rating decision assigned a temporary 100 percent rating for a period of convalescence and a 40 percent rating after such period. The June 2006 rating decision assigned a 10 percent rating for residual laminectomy scar, effective April 17, 2006, the date of surgery. An unappealed October 2011 rating decision decreased the rating for lumbar spine disability to 20 percent. The Veteran filed a claim for an increased rating for her lumbar spine disability which was received by VA on March 30, 2017. Service connection for the Veteran’s lumbar spine surgical scar was granted as part of her lumbar spine disability as the Veteran’s May 2017 lumbar spine VA examination noted a low back scar related to her lumbar spine disability. Accordingly, the Veteran was granted service connection for lumbar spine surgical scar with an effective date based on the date VA received her claim for an increased rating for her lumbar spine disability. There was no pending or unadjudicated claim relating to the lumbar spine or lumbar surgical scar at the time the Veteran filed the March 2017 claim for an increased rating. There is no basis for an earlier effective date for service connection for the lumbar spine surgical scar. Neither the Veteran nor her attorney has made any argument as to why an earlier effective date is warranted. Therefore, an effective date prior to March 30, 2017, for the grant of service connection for lumbar spine surgical scar is denied for the purposes of this appeal because there is no basis to grant an earlier effective date for service connection. However, the Board notes that it appears the Veteran is receiving compensation for the same lumbar spine surgical scar with a 10 percent rating under Diagnostic Code 7804, effective April 17, 2006, the date of surgery, pursuant to a June 2006 rating decision. To the extent that there is any confusion regarding these ratings, the Regional Office should provide clarification. 2. Entitlement to spousal aid and attendance is denied. The Veteran seeks special monthly compensation (SMC) based on aid and attendance for her spouse. Under 38 C.F.R. § 3.351(a)(2), SMC is payable to a veteran by reason of the veteran’s spouse needing aid and attendance. 38 U.S.C. § 1115. The need for aid and attendance means helplessness or being so nearly helpless as to require the regular aid and attendance of another person. 38 C.F.R. § 3.351(b). In this regard, the veteran’s spouse will be considered in need of regular aid and attendance if he: (1) is blind or so nearly blind as to have corrected visual acuity of 5/200 or less in both eyes, or concentric contraction of the visual field to 5 degrees or less; (2) is a patient in a nursing home because of mental or physical incapacity; or (3) establishes a factual need for aid and attendance under the criteria set forth in § 3.352(a). 38 C.F.R. § 3.351(c). Under 38 C.F.R. § 3.352(a), the following is accorded consideration in determining the need for regular aid and attendance: inability of claimant to dress or undress himself or herself, or to keep himself or herself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; inability of claimant to feed himself (herself) through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; and incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. It is not required that all of these disabling conditions be found to exist before a favorable rating may be made. The particular personal functions which a claimant is unable to perform should be considered in connection with his or her condition as a whole. It is only necessary that the evidence establish that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that a claimant is so helpless as to need regular aid and attendance are based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352(a). In her March 2017 claim, the Veteran reported that she has been her husband’s caretaker since his heart surgery in October 2016. She reported that he is a disabled veteran suffering from health conditions and PTSD. In May 2017, VA sent the Veteran a letter with the requirements for a claim for spousal aid and attendance. The letter attached a questionnaire for a claim for aid and attendance for a medical professional to complete. In the July 2017 rating decision on appeal, the Regional Office denied entitlement to spousal aid and attendance as the Veteran failed to submit any medical documentation of her husband’s medical conditions or evidence showing that he medically requires a caretaker or aid and attendance. The Veteran filed a notice of disagreement in April 2018 but did not submit any information or evidence related to the claim. The Veteran has not submitted medical evidence to support her contention that her spouse requires aid and attendance. The Veteran has been afforded ample opportunity to submit supporting evidence such as her husband’s medical records, authorization forms allowing VA to obtain such medical records, an aid and attendance medical questionnaire, and statements from the Veteran’s husband, family, friends, or others regarding the witnessed impact of his disabilities related to the claim. The Board notes that it is the responsibility of the Veteran to present and support a claim for VA benefits. See 38 U.S.C. § 5107(a). The record contains only the Veteran’s original report that she has been her husband’s caretaker since his heart surgery and that he suffers from health conditions, including PTSD. The Veteran did not provide additional information or medical evidence in support of the claim and the claims file does not contain such information. The record does not show that the Veteran’s spouse is blind or so nearly blind as to have corrected visual acuity of 5/200 or less in both eyes, or concentric contraction of the visual field to 5 degrees or less, or that he is a patient in a nursing home because of mental or physical incapacity. The record also does not show that he has a factual need for aid and attendance, such as the inability to dress himself, feed himself through loss of coordination of the upper extremities or extreme weakness, or attend to the wants of nature. Accordingly, as the preponderance of the evidence is against the Veteran’s claim for spousal aid and attendance, the claim is denied. REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent for lumbar spine disability is remanded. 2. Entitlement to a rating in excess of 30 percent for neurological impairment of the lateral aspect of the right calf and dorsum of the right foot is remanded. 3. Entitlement to a rating in excess of 20 percent for radiculopathy of the left lower extremity is remanded. 4. Entitlement to a compensable rating for lumbar spine surgical scar is remanded. 5. Entitlement to a rating in excess of 10 percent for hypertension is remanded. 6. Entitlement to a rating in excess of 10 percent for left knee disability is remanded. 7. Entitlement to a TDIU is remanded. 8. Entitlement to service connection for left arm closed fracture of the humerus status post surgical repair is remanded. 9. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression, is remanded. Remand of the Veteran’s remaining claims is warranted to obtain outstanding treatment records. In her November 2019 TDIU application, the Veteran reported hospitalization for foot surgery in June 2019 at Aurora BayCare Medical Center. Such records are not in the claims file and may contain information relevant to the Veteran’s claims. In addition, the November 2017 VA examiner and August 2019 VA contract examiner noted the Veteran’s ongoing psychiatric treatment at the Vet Center but the claims file only contains Vet Center records up to August 2017. Accordingly, remand is warranted to obtain these records. As to the Veteran’s claim for service connection for left closed fracture of the humerus, a May 2017 VA examiner opined that such condition is less likely than not due to the Veteran’s service-connected lumbar spine disability. The VA examiner explained that the Veteran reported that she tripped and fell against a stool which twisted and caused her to fall, breaking her left humerus. The VA examiner explained that there is no evidence in the record that her balance is so reduced that she would have difficulty walking safely. The VA examiner further explained that there is no evidence in the record that the Veteran’s mobility is so reduced that she would have difficulty with normal ambulation. However, the May 2017 VA examiner did not specifically opine as to whether the Veteran’s service-connected bilateral lower extremity neurological impairment caused or aggravated her left arm fracture or address evidence of leg weakness from back surgeries. An October 2015 VA treatment record notes an assessment of leg weakness from back surgeries. VA treatment records note the Veteran’s fear of falling due to her right foot drag, the Veteran’s report of numbness and a sense of weakness in both legs, the Veteran’s report of frequent loss of balance episodes, and testing showing decreased strength in the lower extremities. See October 2015, June 2016 VA Treatment Records. In a November 2019 statement, the Veteran reported that her service-connected right leg neurological impairment of the calf and foot causes her to have an altered gait and drag her right foot and that her right leg is very unstable. In a February 2020 vocational assessment, the Veteran reported constant numbness in her left foot and right lower calf and right foot, weakness, and difficulty with balance. Accordingly, remand is warranted to obtain additional VA medical opinion. As to the Veteran’s claim for service connection for psychiatric disorder, the Veteran underwent VA examination in November 2017. The VA examiner noted that the Veteran appeared to have experienced depression and PTSD symptoms in the aftermath of the military sexual trauma (MST) she experienced during service. The Veteran reported that she began thinking about the MST and feeling angry about it in 2016 and sought counseling at the Vet Center to process her feelings. The VA examiner noted that per the Vet Center notes, at the time the Veteran initiated treatment, she presented with symptoms of depression and PTSD related to her MST. The VA examiner explained that the Veteran appeared to have benefitted significantly from treatment at the Vet Center. The VA examiner provided a current diagnosis of bereavement and noted that the Veteran reported her symptoms are primarily related to the loss of her grandchild. However, while the Veteran reported that she believes most of her sadness is grief from the loss of her grandchild, she also reported that sometimes it is related to anger and frustration over her MST. The VA examiner did not opine as to whether it is at least as likely as not that the Veteran’s bereavement diagnosis is related to service, to include her MST. The VA examiner also did not opine as to whether the Veteran had another psychiatric disorder related to service during the claims period that resolved before the November 2017 VA examination, in light of treatment records showing a June 2016 diagnosis of depression and a February 2017 diagnosis of mood disorder. The August 2019 VA contract examiner opined that the Veteran did not have a DSM-5 mental disorder at the time of the examination. However, the VA contract examiner did not opine as to whether the Veteran had a psychiatric disorder related to service during the claims period that resolved before the examination. Accordingly, remand is warranted for additional VA medical opinion regarding whether the Veteran has had a psychiatric disorder related to service at any time during the appeal period, even if resolved. In addition to the above, the Board notes that the Veteran’s claim for a TDIU is intertwined with her claims for higher ratings and will also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). While this matter is on remand, any additional outstanding treatment records should be obtained, including any VA treatment records from July 2019 to the present. The matters are REMANDED for the following action: 1. After securing any necessary authorization, obtain any private treatment records as the Veteran may identify relevant to her claims, to include the June 2019 Aurora BayCare Medical Center treatment records. If the Veteran provides a signed authorization form, make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 2. Obtain any additional VA treatment records, to include VA treatment records from July 2019 to the present and Vet Center records from August 2017 to the present. 3. After obtaining outstanding records to the extent possible, ask the appropriate examiner to review the Veteran’s file. The necessity of an in-person examination is left to the discretion of the examiner. The examiner should opine regarding whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s left closed fracture of the humerus is caused by or aggravated by her service-connected lumbar spine disability, neurological impairment of the lateral aspect of the right calf and dorsum of the right foot disability, or radiculopathy of the left lower extremity disability. Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected condition. The examiner should consider all medical and lay evidence of record, including the Veteran’s report that she tripped and fell against a stool which twisted and caused her to fall and break her left humerus; VA treatment records noting an assessment of leg weakness from back surgeries, the Veteran’s fear of falling due to her right foot drag, the Veteran’s report of numbness and a sense of weakness in both legs, the Veteran’s report of frequent loss of balance episodes, and testing showing decreased strength in the lower extremities; the Veteran’s November 2019 report that her service-connected right leg neurological impairment causes her to have an altered gait and drag her right foot and that her right leg is very unstable; and the Veteran’s report in a February 2020 vocational assessment of constant numbness in her left foot and right lower calf and right foot, weakness, and difficulty with balance. The examiner is asked to explain the reasons behind any opinions expressed. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 4. After obtaining outstanding records to the extent possible, ask the appropriate examiner to review the Veteran’s file. The necessity of an in-person examination is left to the discretion of the examiner. The examiner should identify any psychiatric disability the Veteran has presented during the claim period, even if resolved. For each such disability, the examiner should opine regarding whether it is at least as likely as not (a 50 percent or greater probability) that the disability: (a) had an onset in service; or (b) is otherwise related to service, to include the Veteran’s MST. The examiner should consider all medical and lay evidence of record, including the November 2017 VA examiner’s notation that the Veteran appeared to have experienced depression and PTSD symptoms in the aftermath of the MST she experienced during service, the Veteran’s reports that she began thinking about the MST and feeling angry about it in 2016 and sought treatment, the Veteran’s November 2017 reports that sometimes her sadness is related to anger and frustration over her MST, the Veteran’s June 2016 diagnosis of depression, and the Veteran’s February 2017 diagnosis of mood disorder. The examiner is asked to explain the reasons behind any opinions expressed. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. (Continued on the next page)   5. After the above development, and any other development deemed necessary, readjudicate the claims. If the benefits sought on appeal remain denied, the Veteran and her attorney should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Purcell, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.