Citation Nr: 21063908 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 14-41 204A DATE: October 18, 2021 ORDER Entitlement to special monthly compensation (SMC) based on the need for the regular aid and assistance of another person is granted. REMANDED Entitlement to a rating in excess of 10 percent for right knee prior to June 15, 2021 and a rating in excess 40 percent for limitation of extension and 20 percent for instability of the right knee injury with degenerative joint disease thereafter is remanded. Entitlement to a total disability rating for individual unemployability (TDIU) due to service-connected disabilities prior to June 15, 2021 is remanded. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran is so helpless as to be in need of regular aid and attendance due to her service-connected disabilities. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for SMC based on the regular need for the aid and attendance of another person are met. 38 U.S.C. § 1114 (l); 38 C.F.R. §§ 3.350 (b), 3.352(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1978 to March 1979. In February 2018, the Veteran testified at a video conference hearing (hearing) before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. This matter was previously remanded by the Board of Veterans Appeals (Board) in May 2018 and November 2020 for additional development. It now returns for further appellate review. While on remand, the Regional Office (RO) granted TDIU effective June 15, 2021. The Board notes that TDIU is considered part and parcel of the increased rating claim on appeal and, pursuant to Harper v. Wilkie, the Board has considered whether TDIU is warranted prior to June 15, 2021. See Harper v. Wilkie, 30 Vet. App. 356 (2018) (holding that a grant of TDIU for a portion of the appeal period does not bifurcate the appeal and, therefore, is considered a partial grant of the benefit sought); see also Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, the issue of entitlement to a TDIU prior to June 15, 2021 remains on appeal. The Board also notes that the July 2021 rating decision granted a 20 percent rating for right knee instability and 40 percent rating for limitation of extension of the right knee effective June 15, 2021. However, the issue of an increased rating for right knee remains on appeal as the grant does not cover the entire period on appeal which dates back to July 2011. See AB v. Brown, 6 Vet. App. 35, 38 (1993)(The Veteran is presumed to seek the maximum available benefit for a disability.) SMC The issue of entitlement to SMC based on the need for regular attendance was raised by the record and is part and parcel of the increased rating claim on appeal. Specifically, the Veteran testified that her niece and nephews assist her with shopping for groceries, laundry, and with her daily needs. See February 2018 Hearing Transcript. She further testified that she keeps a portable toilet near her bed. Id. Legal Criteria SMC at the aid and attendance rate is payable when a veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or 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. See 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). Determinations as to the need for regular aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to the following: inability of the veteran to dress or undress himself or to keep himself 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 the veteran to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the veteran from the hazards or dangers inherent in his daily environment. It is only necessary that the evidence establish that the veteran is so helpless as to need regular aid and attendance, not that there be a constant need. 38 C.F.R. § 3.352(a). Determinations that a veteran is so helpless as to be in need of regular aid and attendance will not be based solely upon an opinion that her condition is such as would require her to be in bed. They must be based on the actual requirement of personal assistance from others. See 38 C.F.R. § 3.352 (a). Relevant Facts and Analysis As of July 13, 2011, the Veteran was service connected for the following disabilities: right knee injury with degenerative joint disease rated as 10 percent disabling; right foot injury residuals rated as noncompensable, and left knee osteoarthritis rated as 10 percent disabling. See March 2019 Rating Decision Codesheet. During a September 2011 VA examination, the Veteran reported that she experienced knee pain on a daily basis which interfered "with all activities that require walking, standing, going up and down stairs." See September 2011 VA Compensation and Pension Examination Report for the Knee and Lower Leg. A March 2012 VA physical therapy consult noted that the Veteran was independent in carrying out her activities of daily living (ADL) "but with significant difficulty with lower body dressing." See March 2012 VA Physical Medicine Rehabilitation Consult in CAPRI received March 2012. The Veteran's VA treatment records also indicate that she was morbidly obese, experienced chronic bilateral knee pain, used a cane for ambulation, and lived with her niece and nephew who assisted her with laundry and grocery shopping. See March 2015 VA Primary Care Outpatient Note in CAPRI received September 2020. VA treatment records from April 2019 confirmed that the Veteran required assistance with her ADLs including moving around indoors (even with cane, walker, or scooter), transferring from bed, preparing meals, performing housework, shopping, and transportation. See April 2019 VA Continuum of Care Note in CAPRI received December 2019. The VA case worker indicated that the "direct care staff does NOT think the Veteran is capable of increased independence in ADLs, independent ADLs-, and/or mobility." Id. The Veteran reported she fell out of bed while trying to sit on the bed because "her legs slipped out from under her" during an August 2020 VA pain management consult. See August 2020 Pain Medicine Note in CAPRI received September 2020. The VA clinician indicated that the Veteran was significantly limited in performing ADLs. Id. Additionally, the Veteran reported falling due to unsteady gait and transfer difficulty several times. See i.e., May 2019 VA Preventative Medicine Outpatient Note in CAPRI received December 2019; October 2020 VA Pain Medicine Note in CAPRI received November 2020 (reporting a traumatic fall from a slight turn). The Board remanded the claim in November 2020 to obtain a VA a medical opinion to address whether the Veteran is entitled to SMC due to service-connected disabilities. Consequently, a medical opinion was obtained in April 2021. See April 2021 VA Medical Opinion Disability Benefits Questionnaire (DBQ). The examiner indicates that the Veteran was service-connected for bilateral knee degenerative joint disease and a right foot injury. He states that "x-rays from Aug[ust] 2019 showed significant degenerative changes. She has been advised that she needs bilateral knee replacement surgery, which is being delayed due to her obesity. Id. He further noted that the Veteran reported her pain medications and injections for her knee pain did not adequately alleviate her symptoms. He also stated that the Veteran "ambulates with a cane or walker and describes her gait as unsteady. She has had multiple falls and is at risk for future falls based on her rehab medicine notes." Id. Based on these findings the examiner opined that "it is likely that she requires assistance in the performance of a number of her daily activities such as cooking, cleaning, ect." Id. He also concluded that the Veteran's service-connected disabilities "as a whole without consideration of other disabilities, result in such impairment that it would require a higher level of care consisting of daily personal health care services of a skilled provider without which the veteran would require hospital, nursing home or other institutional care." Id. Based on the foregoing evidence, the Board finds, that the evidence is at least evenly balanced as to whether the Veteran requires assistance in accomplishing the activities of daily living and is unable to protect herself from the hazards and dangers of his daily environment on account of her service-connected disabilities. The Board acknowledges, at the outset, that the Veteran has not suffered the anatomical loss or loss of use of both feet or one hand and one foot, and is not service-connected for blindness in both eyes. The evidence also indicates she experiences impairment in her mobility due to symptoms caused by some non-service-connected disabilities such as lumbar and hip disabilities. Nevertheless, the evidence indicates that she also requires assistance with feeding, cleaning, and other ADLs due to limited mobility caused by her service-connected bilateral knee and right ankle disabilities. She testified and VA treatment records confirm that she lived with her niece and nephew, who provide assistance in cooking, cleaning, and grocery shopping. Additionally, the record demonstrates that the Veteran has fallen several times and was at a high fall risk due to her service-connected disabilities and was significantly impaired in independently performing her ADLs. Significantly, the April 2021 VA examiner opined that the Veteran "would require a higher level of care consisting of daily personal health care services of a skilled provider" due to her service-connected disabilities alone. See April 2021 VA Medical Opinion DBQ. In light of the above, the Board finds that the evidence is at least evenly balanced as to whether the Veteran is in need of regular aid and attendance of another person due to the manifestations of his service-connected bilateral knee and right ankle disabilities (particularly limited mobility which impairs her ability to attend to her ADLs independently), which require care or assistance on a regular basis to perform some daily activities. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran entitlement to SMC based on the regular need for the aid and attendance of another person is warranted under 38 U.S.C. § 1114(l) and 38 C.F.R. § 3.352 is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990) REASONS FOR REMAND 1. Right Knee Injury with Degenerative Joint Disease Although further delay is regrettable, the Board finds a remand is necessary because the current evidence of record does not contain the necessary information to properly rate the Veteran's service-connected right knee injury with degenerative joint disease (right knee disability) as further discussed below. The Board remanded the claims for increased rating in May 2018 and November 2020 in order to obtain a new VA examination and retrospective opinions that addressed the current severity of the Veteran's bilateral knee disabilities and for an examination that complied with the holdings of Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Specifically, the Board requested retrospective opinions regarding the Veteran's functional impairments and estimated range of motion findings pursuant to Correia and Sharp based on review of the October 2011 and August 2019 VA examination reports. See November 2020 Board Decision. The Board also stated that the examiner should provide an explanation if s/he was unable to provide a retrospective opinion. Id. Consequently, the Veteran was provided a VA examination in June 2021. See June 2021 VA Knee and Lower Leg Conditions DBQ. The examiner conducted an examination and provided current findings related to the Veteran's right knee disability. However, the examiner did not provide a retrospective opinion or explanation addressing why he could not provide retrospective findings for the October 2011 and August 2019 VA examinations. Accordingly, the June 2021 VA examination report does not comply with the November 2020 Board remand directive which requested a retrospective opinion of the Veteran's right knee disability. See Stegall v. West, 11 Vet. App. 268, 271 (1998)(A remand by the Board confers on the claimant, as a matter of law, a right to compliance with the remand orders.) Additionally, the Board requested an opinion clarifying whether the Veteran's right knee disability involved a meniscal condition. See November 2020 Board Decision. Specifically, the Board notes that the Veteran underwent a partial medial meniscectomy in January 1999. Id. citing January 1999 Roseland Surgery Center Operative Report. A Magnetic Resonance Imaging (MRI) report from November 2006 also confirmed moderate-to-severe degenerative change involving the posterior horn of the lateral meniscus, and severe derangement of medial meniscus. See November 2006 Central Imaging Associates MRI Report. Finally, a December 2016 operative report confirms that the Veteran was diagnosed with right knee torn medial meniscus. See December 2016 St. Michael's Medical Center Operative Report. The Veteran underwent an arthroscopy with partial medial meniscectomy in 2006. Id. The June 2021 VA examiner noted that a magnetic resonance imaging (MRI) was pending but found that the Veteran did not have a right knee meniscal condition based on the evidence of record. See June 2021 VA Knee and Lower Leg Conditions DBQ. It is unclear whether an MRI was obtained during or following the July 2021 VA examination as the claims file does not include a recent right knee MRI. Additionally, the June 2021 VA examiner did not address the prior indications of a right knee meniscal condition as noted above. Accordingly, a remand is necessary to comply with the November 2020 Board remand requesting clarification on the Veteran's right knee disability, and to obtain the MRI results for the Veteran's right knee. Thus, based on the foregoing the claim is remanded to obtain a retrospective opinion with particular attention to the VA examinations of record from October 2011 and August 2019, regarding the Veteran's additional functional or ROM loss in compliance with Correia and Sharp. On remand, the examiner should also address whether the Veteran's right knee disability involves a meniscal condition including obtaining an MRI of the Veteran's right knee. 2. TDIU is remanded. As noted in the introduction, the issue of entitlement to TDIU prior to June 15, 2021 remains on appeal, as part and parcel of the increased rating claim. The Board finds that the issue of TDIU is inextricably intertwined with the increased rating claim on appeal, and the Board will defer adjudication of the TDIU claim until the development directed on that claim has been completed. Notably, the analysis of TDIU claim is dependent on the combined disability rating assigned to all of the Veteran's service-connected disabilities. 38 C.F.R. § 4.16(a). Consequently, as these issues are inextricably intertwined, the TDIU claim must be remanded as well. Harris v. Derwinski, 1 Vet. App. 180 (1991)( The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim.) Accordingly, the claim for TDIU prior to June 15, 2021 is remanded. The Board notes the claims file reflects that the Veteran has been receiving treatment from the East Orange VA Medical Center (VAMC), and that records dated through February 2021 are associated with the file; however, more recent records may exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). The matters are REMANDED for the following action: 1. Obtain the Veteran's comprehensive VA treatment records for the period from February 2021 to the present, to include from VA medical centers, clinics, counseling centers, hospitals, and outpatient treatment centers. See 38 C.F.R. § 3.159(c)(3) (2020). The Board observes that the Veteran has been treated at East Orange VAMC. 2. Obtain and associate with the claims file the MRI report taken in connection with the June 2021 VA examination. If an MRI was not completed, please ensure the Veteran is provided an MRI for her right knee and the results should be associated with the claims file. 3. Forward the claims file to the June 2021 VA examiner for an addendum medical opinion. If the June 2021 VA examiner is not available, please provide the claims file to a different examiner with appropriate experience in diagnosing or treating orthopedic and/or knee disabilities. 4. The examiner is also asked to specifically provide an opinion on whether the Veteran's right knee disability involves a meniscal condition. (a.) In so doing, the examiner is asked to address the following information to provide his or her opinion: The Veteran underwent a partial medial meniscectomy in January 1999. See January 1999 Roseland Surgery Center Operative Report. A Magnetic Resonance Imaging (MRI) report from November 2006 also confirmed moderate-to-severe degenerative change involving the posterior horn of the lateral meniscus, and severe derangement of medial meniscus. See November 2006 Central Imaging Associates MRI Report. Finally, a December 2016 operative report confirms that the Veteran was diagnosed with right knee torn medial meniscus. See December 2016 St. Michael's Medical Center Operative Report. The Veteran underwent an arthroscopy with partial medial meniscectomy in 2006. Id. 5. Based on the review of the Veteran's medical record and October 2011 and August 2019 VA examination reports, PROVIDE RETROSPECTIVE OPINIONS that comply with the requirements of Correia and Sharp. The examiner is asked to address provide the following. (a.) Pursuant to Correia PROVIDE A RETROSPECTIVE OPINION FOR OCTOBER 2011 AND AUGUST 2019 VA EXAMINATIONS to include estimated results of range of motion testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing. If a joint cannot be tested on "weight-bearing," then the examiner must specifically indicate why that testing cannot be done. (b.) Pursuant to Sharp, PROVIDE A RETROSPECTIVE OPINION FOR OCTOBER 2011 AND AUGUST 2019 VA EXAMINATIONS. The examiner is instructed to inquire whether there are periods of flare-ups. If the answer is "yes," the examiner should state their severity, frequency, and duration. The examiner must also name the precipitating and alleviating factors. The examiner must also estimate, "per [the] veteran," to what extent, if any, they affect functional impairment. 6. IF UNABLE TO PROVIDE THE RETROSPECTIVE TESTING, THE EXAMINER SHOULD STATE WHY AND PROVIDE A REASONED EXPLANATION FOR THE DETERMINATION. 7. Please PROVIDE A RETROSPECTIVE OPINION FOR OCTOBER 2011 AND AUGUST 2019 VA EXAMINATIONS based a detailed clinical history from the Veteran and identify any symptoms and functional impairments due to the Veteran's right knee disability alone and discuss the effect of the Veteran's right knee disability on any occupational functioning and activities of daily living. The presence of objective evidence of pain, excess fatigability, incoordination and weakness should also be noted, as should any additional disability (including additional limitation of motion) due to these factors. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 8. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. (Continued on the next page) IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Lilly, 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.