Citation Nr: 21061361 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 13-28 656 DATE: October 1, 2021 ORDER Entitlement to a temporary total rating due to hospitalization in excess of 21 days for treatment of a service-connected disability from August 24, 2012, to October 5, 2012, is granted. Entitlement to a temporary total rating due to hospitalization in excess of 21 days for treatment of a service-connected disability from December 27, 2012, to September 5, 2013, is granted. REMANDED Entitlement to a rating in excess of 10 percent prior to October 22, 2014, and 20 percent prior to May 31, 2017, for a low back disability is remanded. Entitlement to a rating in excess of 10 percent prior to May 31, 2017, for a cervical spine disability is remanded. Entitlement to a rating in excess of 40 percent for sciatic radiculopathy of the right lower extremity is remanded. Entitlement to a rating in excess of 40 percent for sciatic radiculopathy of the left lower extremity is remanded. Entitlement to a rating in excess of 30 percent prior to January 2, 2019, and in excess of 60 percent from January 2, 2019, for radiculopathy of the left upper extremity is remanded. Entitlement to special monthly compensation (SMC) based on loss of use of the bilateral feet is remanded. Entitlement to SMC based on the need for aid and attendance is remanded. Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. The Veteran was a patient at a Department of Veterans Affairs (VA) domiciliary for mental health issues and alcohol abuse from August 24, 2012, to October 5, 2012, and that pursuant to a claim pending from September 12, 2012, service connection for a psychiatric disability was granted retroactively effective while his disability was "under treatment" during the period of hospitalization. 2. The Veteran was a patient at two VA domiciliaries for mental health issues and alcohol abuse from December 27, 2012, to September 5, 2013 CONCLUSIONS OF LAW 1. The criteria for a temporary total rating based on hospitalization have been satisfied for the period from August 24, 2012, to October 5, 2012. 38 U.S.C. § 1155; 38 C.F.R. § 4.29. 2. The criteria for a temporary total rating based on hospitalization have been satisfied for the period from December 27, 2012, to September 5, 2013. 38 U.S.C. § 1155; C.F.R. § 4.29. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1990 to October 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from various rating decisions by a VA Regional Office (RO). At the outset, the Board will briefly review the complex procedural history of this case. This matter was first before the Board in July 2016, at which time the Board remanded the issues for an increased rating for a low back disability and entitlement to temporary total ratings (TTRs) for two separate periods. Subsequently, the Board denied entitlement to these claims in April 2017. The Veteran then appealed the issues the Court of Appeals for Veterans Claims (Court). During the pendency of his appeal, the parties entered into a Joint Motion for Partial Remand (JMPR). Pursuant to the JMPR, the Court vacated and remanded the portion of the April 2017 Board decision that denied entitlement to an increased rating for the back disability and the TTRs. Thereafter, the Board denied a claim for an initial rating in excess of 30 percent for left upper extremity radiculopathy and remanded the low back and TTR issues in a May 2018 decision. To the extent that the Board denied the claim for an increased rating for left lower extremity radiculopathy, the Veteran appealed this decision to the Court. During the pendency of that appeal, the RO increased the Veteran's rating for left upper extremity radiculopathy to 60 percent, effective January 2, 2019, in an April 2019 rating decision. In a June 2019 memorandum decision, the Court vacated and remanded the portion of the Board's decision denying a rating in excess of 30 percent for the left lower extremity radiculopathy. In October 2019, the Board remanded the issues of entitlement to service connection for sleep apnea, increased ratings for a low back disability, a cervical spine disability, radiculopathy of the bilateral lower extremities, radiculopathy of the left upper extremity, and TTRs. More specifically, the Board directed the RO to provide the Veteran with information regarding the credentials of examiners who performed various VA examinations on his low back, cervical spine, and radiculopathy, pursuant to several requests from the Veteran and also the Court's June 2019 memorandum decision, and to obtain new medical opinions with respect to the etiology of his sleep apnea. In April 2020, the Board remanded the issues once again because the RO had not exhausted all reasonable efforts to obtain the requested examiners' credentials. The matter returned to the Board in January 2021, at which time the Board issued another remand because there had not been substantial compliance with the Board's previous remand directives. The matter now returns to the Board once more. This matter has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.800(c). Temporary Total Ratings The Veteran contends that he is entitled to TTRs for the periods between August 24, 2012, and October 5, 2012, and between December 27, 2012, and September 4, 2013. More specifically, he argues that he had hospital treatment in excess of 21 days for his service-connected psychiatric disorder and is thus entitled to TTRs for those periods. The Board notes that he is currently service connected for major depressive disorder with alcohol use disorder from September 12, 2012 (i.e., the date he filed his claim for service connection). A total disability rating will be assigned when it is established that one or more service-connected disabilities 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. If service connection for the disability under treatment is granted after hospital admission, the rating will be from the first day of hospitalization if otherwise in order. 38 C.F.R. § 4.29(b). Relevantly, domiciliary care means the furnishing of: (1) a temporary home to a veteran, embracing the furnishing of shelter, food, clothing and other comforts of home, including necessary medical services; or (2) a day hospital program consisting of intensive supervised rehabilitation and treatment provided in a therapeutic residential setting for residents with mental health or substance use disorders, and co-occurring medical or psychosocial needs such as homelessness and unemployment. In cases where a domiciliary is considered a day hospital program under the second definition above, a veteran would be eligible for benefits under 38 C.F.R. § 4.29 if living in a domiciliary program for purposes of treating a service-connected condition. 1. August 24, 2012, to October 5, 2012 The Veteran's VA treatment records reflect that he was admitted to the VA's psychosocial residential rehabilitation treatment program (PRRTP) on August 24, 2012. An intake note indicates that he was referred to the program by a psychiatrist from the emergency department at the Jesse Brown VA Medical Center following a suicide attempt for stabilization of alcohol abuse and mental health issues, such as symptoms of mania and depression. Hospital notes indicate that he was discharged from the domiciliary program on October 5, 2012. As set forth above, the PRRTP is a domiciliary program. Because the Veteran was living in the program due to his now service-connected psychiatric disorder, he is eligible for a temporary total rating under 38 C.F.R. § 4.29. The Board notes that although the Veteran had not yet been awarded service connection for any psychiatric disability at the time that he was admitted to the PRRTP program, the Board granted service connection for a psychiatric disability. The implementing rating decision assigned an effective date for service connection of September 12, 2012, which was during the time that he was being treated in the PRRTP program. Ultimately, the award of service connection for his psychiatric disability was made effective from a date encompassed within the period of his period of his hospitalization. In other words, the legal requirement that the disability be "under treatment" when service connection is granted has been met, and the criteria for a temporary total rating in excess of 21 days for treatment of his service-connected psychiatric disorder during this timeframe have been met. 38 C.F.R. § 4.29(b). 2. December 27, 2012, to September 5, 2013 Additional records reflect that the Veteran was readmitted to the PRRTP at the Jesse Brown VAMC on December 27, 2012, until January 30, 2013. VA treatment records note that he was admitted due to his mental health issues and alcohol dependence issues. Intake notes confirm that he was admitted to the unit for further stabilization of his mental health issues and alcohol abuse. On January 30, 2013, the same day that he was discharged from the PRRTP domiciliary program, he was transferred to another VA domiciliary program. Intake notes from January 31, 2013, reflect that he was admitted to the other domiciliary program due to homeless, substance abuse issues, and other mental health issues. Treatment goals included continued substance use recovery and rehabilitation, symptom management, and medication management. Additionally, a May 2015 letter indicates that during his time in this domiciliary program, he engaged in services such as group therapy, individual group therapy, medical services, case management, psychiatric care, and discharge planning. VA treatment notes indicate that he was discharged from this domiciliary program on September 5, 2013. As with his initial period of treatment from August 24, 2012, to October 5, 2012, the Veteran was living in the two consecutive domiciliary programs to treat his service-connected psychiatric disorder, as well as to address psychosocial needs such as homelessness. As such, the Board finds that a TTR is warranted for this period as well. REASONS FOR REMAND 1. Increased ratings and sleep apnea As set forth in the October 2019, April 2020, and January 2021 Board remand decisions, the Veteran has challenged the competency of various medical examiners pursuant to Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019). As a result, additional development was deemed necessary to obtain the credentials of VA examiners who performed examinations related to sleep apnea, the low back, the cervical spine, and the bilateral lower and upper left extremities. As noted in the remand instructions, this information included a resume, curriculum vitae, list of publications, and/or list of specialties, as applicable. A review of the record indicates that relevant examinations were performed or signed by Drs. Coulson, Maurice, Pillay, Ogbogu, Carlton, Bray, Steinert, and Grujic. In the January 2021 remand, the Board noted that the RO had issued a July 2020 memorandum stating that the Board's remand orders were "misdirected development" and that "RO employees are not expected to routinely scrutinize or question the credentials of clinical personnel to determine the acceptability of their reports." As the Board noted in its most recent decision, the RO employees had merely been asked to obtain and provide the Veteran with the examiners' credentials, rather than scrutinize or question their credentials. In a May 2021 letter, the RO provided the Veteran with information on the credentials of Drs. Coulson, Maurice, Pillay, and Ogbogu, including their specialties, type of medical degree, education, specialized medical training, specific compensation and pension training, and other relevant information. The Board finds that, with respect to these examiners, the RO has substantially complied with the Board's prior remand directives. Nonetheless, the RO did not supply the Veteran with information regarding Drs. Grujic, Carlton, Bray, or Steinert, who performed examinations or provided opinions in December 2014, June 2016, August 2020, and November 2020, respectively. Moreover, the RO has not issued a formal finding of unavailability with respect to these providers. As there has not been substantial compliance with the Board's remand directives, remand is once again necessary. Stegall v. West, 11 Vet. App. 268 (1998). Additionally, with respect to sleep apnea, the Board notes that the Veteran has submitted a private medical opinion from Dr. J.W.E. However, the report has limited probative value. For instance, Dr. J.W.E. opined that the Veteran's sleep apnea had at least as likely as not begun during his military service. Dr. J.W.E. also indicated that the Veteran's symptoms worsened after he gained significant weight following an in-service motor vehicle accident, which resulted in significant injuries to his spine. Although Dr. J.W.E. stated in his report that he had reviewed the Veteran's service treatment records and post-service medical records, the weight of Dr. J.W.E.'s opinion is significantly diminished because he failed to cite to specific medical evidence to support his opinion. Moreover, Dr. J.W.E. failed to address August 2021 VA treatment records that indicate that he gained over 100 pounds while he was in prison following service, rather than as a result of an in-service motor vehicle accident. Likewise, the VA medical opinion on the etiology of the Veteran's sleep apnea that was obtained following an August 2020 VA examination is flawed. In that report, the examiner stated that the Veteran's service-connected low back and cervical spine disabilities did not cause or aggravate his sleep apnea. The examiner was asked to consider whether the Veteran's low back or cervical spine disabilities had caused him to develop obesity and, if so, whether the sleep apnea would have occurred but for his obesity. The August 2020 examiner opined that obesity was a complex chronic disease manifested by an excess intake of calories relative to the expenditure of energy, as opposed to painful conditions that subjectively limit activity. This opinion, however, is conclusory. Indeed, the examiner takes for granted that the Veteran's service-connected spinal disabilities did not cause him to gain weight without addressing the Veteran's lay statements or citing medical evidence to support his opinion. An opinion is inadequate if it does not consider all relevant evidence of record, including lay evidence. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Moreover, an opinion that is conclusory or that does not provide a sufficiently detailed rationale is inadequate. Stefl v. Nicholson, 23 Vet. App. 320 (2007). As such, in the interest of assembling clear and reliable findings, the Board finds that remand is also necessary to obtain an addendum medical opinion regarding the etiology of the Veteran's sleep apnea. 2. SMC VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). This duty to maximize benefits requires VA to assess all a claimant's disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C. § 1114. See Bradley v. Peake, 22 Vet. App. 280 (2008). Here, the Veteran has explicitly raised the issues of entitlement to SMC for loss of use of his bilateral feet and aid and attendance throughout the period on appeal. However, the outcome of a determination on SMC is inextricably intertwined with the outcome of a decision on whether increased ratings are warranted for his various disabilities. As such, adjudication of the SMC issues must be deferred until the increased rating issues are readjudicated. Harris v. Derwinski, 980 F.2d 37 (Fed. Cir. 1990). Accordingly, the matters are REMANDED for the following action: 1. Provide the Veteran any outstanding information to assess the competency of the VA examiners who performed compensation and pension examinations of his left upper extremity and bilateral lower extremity radiculopathy, lumbosacral spine, cervical spine, and sleep apnea, to include resume, curriculum vitae, list of publications, and/or list of specialties, as applicable. More specifically, provide this information with respect to Drs. Grujic, Carlton, Bray, and Steinert, who performed examinations or rendered medical opinions in December 2014, June 2016, August 2020, and November 2020, respectively. If the RO determines that such records are unavailable, a formal finding of unavailability should be prepared, documenting the attempts made and responses received, and adequate notice should be provided to the Veteran. 2. Obtain an addendum medical opinion on the etiology of the Veteran's sleep apnea. After reviewing the entire claims file, including a copy of this remand, the examiner is asked to answer the following questions: (a.) Is it at least as likely as not (approximately 50 percent or greater probability) that the Veteran's service-connected back disability and/or cervical spine disability caused the Veteran to become obese? (b.) If the answer to (a) is yes, is it at least as likely as not (approximately 50 percent or greater probability) that his obesity was a substantial factor in causing sleep apnea? (c.) If the answer to (b) is yes, is it at least as likely as not (approximately 50 percent or greater probability) that sleep apnea would not have occurred but for obesity? (d.) If the answer to (a) through (c) is no, then is it at least as likely as not that sleep apnea was aggravated beyond its natural progression by his service-connected low back and/or cervical spine disabilities? A thorough rationale should be provided for all opinions rendered. In doing so, the examiner is asked to consider all relevant evidence, including the Veteran's lay statements, the private medical opinion from Dr. J.W.E., and the August 2012 VA treatment records regarding the Veteran's weight gain. (Continued on the next page) If any requested medical opinion cannot be given, the examiner should state the reason(s) why. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Rademacher, Associate 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.