Citation Nr: 21067195 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 16-45 726 DATE: November 3, 2021 REMANDED Entitlement to service connection for peripheral vascular disease (PVD) of the left lower extremity is remanded. Entitlement to specially adapted housing is remanded. Entitlement to special monthly compensation based on Aid and Attendance criteria being met since November 1, 2014 is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1963 to August 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from December 2014 and March 2015 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). Specifically, the December 2014 rating decision granted, in part, special monthly compensation based on Aid and Attendance from November 13, 2013 through November 1, 2014, and denied, in part, entitlement to specially adapted housing. In the March 2015 rating decision, the RO denied claims for eligibility for TDIU and service connection for left lower extremity peripheral vascular disease (PVD). Appeals from both decisions were separately and properly perfected. First, the Board notes that during the pendency of this appeal, the Veteran's claim for TDIU was granted in a September 2016 rating decision, effective March 1, 2015; the day after his temporary total evaluation due to surgical convalescence ended. He was also granted service connection for left lower extremity sciatic nerve radiculopathy, effective October 17, 2014. In the September 2016 Form-9 substantive appeal, the Veteran limited his appeal to service connection for PVD in the left lower extremity. Next, the claims for eligibility for specially adapted housing and an additional period of SMC based on Aid and Attendance, as well as the claim for service connection for left lower extremity PVD, were awaiting a Board hearing, first scheduled in February 2019. In a January 2019 statement and again in a February 2019 statement, the Veteran requested that this hearing be canceled due to illness. His hearing was rescheduled for August 2019. Thereafter, in May 2019, he canceled his request for a hearing as he was still healing from lung cancer surgery. As the two appeals were both certified and properly perfected and are no longer waiting a Board hearing, the two appeals are now properly merged for purposes of Board review. Therefore, the Board has appropriate jurisdiction on these matters. Further, the Board notes that the record contains additional pertinent evidence submitted by the Veteran directly to the Board and evidence that was developed by the RO following the 2016 statements of the case, including VA treatment records and examinations. Although the evidence has not yet been considered by the Agency of Original Jurisdiction (AOJ), the RO sent the Veteran a statement in August 2021 as to the additional evidence. In October 2021, the Veteran, through his representative, waived AOJ review of the additional evidence. Therefore, the Board may proceed with appellate adjudication. Finally, the Board acknowledges the Veteran's October 2016 statement, wherein he stated the 2014 rating decision had deferred his claims for TDIU, PVD, and lung disorder with no decision since. However, subsequent to the December 2014 deferred decision, the Veteran was granted service connection for his lung disorder of pulmonary embolism, granted TDIU, and his claim for PVD was pending before the Board as noted above. In addition, the Veteran thereafter filed another claim for lung cancer as due to exposure to herbicide agents, and in a February 2019 rating decision, he was granted service connection for right lower lobe lung cancer associated with herbicide exposure with a 100 percent evaluation effective November 27, 2018. In an October 2021 rating decision, lung cancer was decreased to noncompensable effective January 1, 2022. The Veteran may file a notice of disagreement with this decision as it is within the one-year timeframe of the decision, but this is not in front of the Board at this time. As for the current issues on appeal, although the Board regrets the additional delay, a remand is necessary to ensure due process and proper development regarding the Veteran's claims. 1. Service Connection for PVD Regarding the claim for service connection for left lower extremity PVD, the Board finds proper development and a duty to assist has not been provided to the Veteran. For example, in the December 2014 rating decision, the RO deferred the claim in order to obtain an examination as it was unclear as to whether the diagnosis of PVD was bilateral or right lower extremity only. While the Veteran clearly had right lower extremity PVD, as it led to right below the knee amputation, the record remains unclear as to whether he has PVD in the left lower extremity as well. However, despite the request for an updated examination, none was provided prior to the March 2015 rating decision that denied the claim. Further, the Board notes that the medical records do not explicitly show that the Veteran does not have left lower extremity PVD; the lower extremity examinations clearly indicate he does have moderate severity sciatic radiculopathy related to the service-connected back disability but does not indicate whether the Veteran also has PVD related to service-connected diabetes mellitus II (DMII). For example, in the May 2016 VA examination for diabetes, it was noted the Veteran does have PVD due to DMII, but there was no indication of whether it was in the right lower extremity or in the bilateral lower extremities. While the Veteran stated he had cramps and numbness in his left leg coming from his back and that he did not believe it was due to diabetic neuropathy as his DMII did not appear until a few years later, the Board notes that he is already service connected for those specific symptoms of radiculopathy. Further, under the section for PVD in the examination, the examiner marked that the Veteran's left extremities (emphasis added) have diminished peripheral pulses and trophic changes (thin skin, absence of hair, dystrophic nails). Additionally, in the May 2016 back examination, it was noted that the Veteran's left knee and left ankle have no reflexes, and his left lower leg/ankle and foot/toes have decreased sensation. In addition, the Veteran has since had complications with his left lower extremity, leading to gangrene in his left toes which led to amputation, which then led to left above the knee amputation in 2020. The Board notes that VA has a duty to assist claimants to obtain evidence needed to substantiate a claim and when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Therefore, on remand, an examination and medical opinion is requested to adequately determine whether the Veteran did/does have left lower extremity PVD / peripheral neuropathy as due to service-connected DMII, and whether that led to his limb ischemia and gangrene of the first and fifth digit, and eventually, led to his left above the knee amputation. Additionally, the notes indicated he was in contact with his private provider, and that he has received care and had surgeries outside of VA since 2014 to present. These records must be requested and obtained on remand as they are potentially relevant to his claims. 2. Entitlement to SMC and Specially Adapted Housing As for the claims for eligibility for specially adapted housing and SMC based on aid and attendance, these claims are intertwined with the aforementioned claim that is the subject of the present appeal and remand. Accordingly, adjudication of these ancillary benefits must await development and readjudication of the service connection claim, as claims that are inextricably intertwined with other claims that remain undecided and pending before VA must be adjudicated prior to a final order on the pending claim, so as to avoid piecemeal adjudication. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Further, as for the issue for entitlement to additional SMC based on Aid and Attendance, the RO found that the need for aid and attendance ended in November 2014, the first month after the Veteran was discharged from VA Community Living Centers; it acknowledged that he had revision of the previous stump surgery after November 1, 2014, but that VA treatment records indicated he was discharged home after this surgery. However, this fails to consider the Veteran's private medical records. For example, in November 2014, Dr. T. provided an assessment that the Veteran had a complicated vascular history with non-healing wound that progressed to involve deep tissue. It was determined that a right below knee amputation revision was needed and the Veteran gave consent to proceed with the surgery. Therefore, the evidence indicates that the Veteran did, in fact, have another surgery after November 2014; however, those private medical records were not obtained. Additionally, as noted above, the Veteran has had ongoing lower extremity disabilities and surgeries that may have required aid and attendance, as well as both lower extremities being amputated. Finally, as to the claim for entitlement to specially adapted housing, a certificate of eligibility for assistance in acquiring specially adapted housing under 38 U.S.C. § 2101(a) may be extended when a veteran is permanently disabled from one of the following conditions which is the result of injury or disease incurred in or aggravated during active military service, or for which the veteran is entitled to receive compensation under 38 U.S.C. § 1151: the loss, or loss of use, of both lower extremities, such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; blindness in both eyes, having only light perception, plus the anatomical loss or loss of use of one lower extremity; the loss or loss of use of one lower extremity together with residuals of organic disease or injury which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; the loss or loss of use of one lower extremity together with the loss of use of one upper extremity which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; the loss or loss of use of both upper extremities such as to preclude use of the arms at or above the elbow; or full thickness or subdermal burns that have resulted in contractures with limitation of motion of two or more extremities or of at least one extremity and the trunk. Here, as noted above, the record is clear that the Veteran has loss of use of his right lower extremity as his service-connected disability led to a below the knee amputation. However, as noted, a remand is needed to determine whether service connection is warranted for the left lower extremity PVD and whether that led to his left lower extremity above the knee amputation in which the Veteran would have loss of both lower extremities. The matters are REMANDED for the following action: 1. Obtain VA medical records from March 2021 to the present and associate them with the claims file. 2. Ask the Veteran to identify private treatment records not already of record. Specifically, request records from SW Peace Health Medical Center; the ID Clinic following his left AKA; Dr. C. Lin with Ankle and Foot Physicians and Surgeons; Discovery SNF in Vancouver; and Dr. T. and records from Peace Health Thoracic and Vascular Surgery. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records. 3. After the above records have been obtained, then, schedule the Veteran for an examination by an appropriate clinician as to the Veteran's claim for left lower extremity peripheral vascular disease/peripheral neuropathy, to include as due to service-connected diabetes mellitus type II. The entire claims file must be made available to and be reviewed by the examiner, and it must be confirmed that such records were available for review. The examiner is asked to determine: (a.) Confirm the Veteran had at any point on appeal or currently has a current diagnosis for left lower extremity peripheral vascular disease or peripheral neuropathy, to include as due to diabetes mellitus. (b.) It is at least as likely as not (50 percent or greater probability) that the Veteran's left lower extremity PVD/neuropathy was proximately caused by his service-connected disabilities, to include diabetes mellitus type II? (c.) If not, is it at least as likely as not (50 percent or greater probability) that the Veteran's left lower extremity PVD/neuropathy was aggravated by his service-connected disabilities, to include diabetes mellitus type II? The examiner should specifically cite to any evidence that supports this opinion. The examiner is advised that a "permanent" worsening or increase in severity of the currently diagnosed right knee is NOT required to demonstrate "aggravation." Rather, aggravation is shown if there is any incremental increase in disability, meaning any additional impairment of earning capacity above the degree of disability existing before the increase, in a nonservice-connected disability resulting from a service-connected disability, regardless of its permanence. The examiner is asked to consider the following: That the Veteran is already service connected for left lower extremity radiculopathy due to his back disability (symptoms of numbness); May 2014 examination does not note if peripheral vascular disease affects both lower extremity, or if only the right lower extremity; A May 2015 left leg ultrasound was normal but the doctor noted that the coolness of the left leg is from neuropathy. The 2016 examination noted no diagnosis in the record for diabetic neuropathy, but provided a diagnosis for peripheral vascular disease; The 2016 examination also noted left extremity Diminished peripheral pulses and trophic changes (thin skin, absence of hair, dystrophic nails); The 2016 examination showed left knee and left ankle with no reflexes, and left lower leg/ankle and foot/toes had decreased sensation and the examiner noted the Veteran had moderate severity of left lower extremity radiculopathy in the sciatic nerve; April 2020: X-Rays were taken of his left foot with blood taken for possible infection. The doctor suggested he request a prescription for Gabapentin, "in case my left leg and foot pain is from Diabetic Neuropathy"; May 2020; peripheral arterial occlusive disease with critical limb ischemia of the left leg and gangrene of the first and fifth digit. The Veteran was admitted urgently for a left femoral to below-knee popliteal artery bypass grafting for critical limb ischemia with gangrene of left first and fifth toe; July 2020 post-surgery, his Vascular surgeon noted that he thinks the Veteran has diabetic neuropathy; September 2020, he reported intermittent sharp pain that can be excruciating/waxes/wanes. Hurts to walk on left foot. Pain starts at ankle and radiates to the bottom of his foot to base of toes; September 2020, he had ischemia of left lower extremity with resultant left above knee amputation; and November 2020 VA records noted that the Veteran had one leg amputated above the knee years ago, and had the other leg amputated approximately 60 days ago and then underwent rehab. Rationale must be provided for opinions proffered. 4. After the above development, and any additionally indicated development, has been completed, to include an examination to determine the current severity of his current service-connected disabilities, readjudicate the issues on appeal, to include entitlement to SMC for Aid and Attendance since November 1, 2014, as well as his eligibility to specially adapted housing. Please note that in December 2014, debridement and revision was done, in order to try to prepare for the prosthesis in July of 2015, and he then had left limb ischemia which led to amputation of his first and fifth digits due to gangrene in May 2020, which then led to above the knee amputation in September 2020. M. Mills Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.Hoy, 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.