Citation Nr: 21070908 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 17-65 098 DATE: November 26, 2021 REMANDED Entitlement to an increased rating in excess of 10 percent for right knee disability, from June 17, 2013, is remanded. Entitlement to an increased initial rating in excess of 10 percent for a left knee disability, from June 17, 2013, is remanded. Entitlement to an increased rating in excess of 10 percent for a cervical spine disability, from June 17, 2013, is remanded. Entitlement to an increased initial rating in excess of 30 percent for radiculopathy, left upper extremity, from June 17, 2013 is denied. REASONS FOR REMAND The Veteran served on active duty from November 1981 to May 2002. The Veteran died on January [REDACTED], 2017. The appellant is the Veteran's surviving spouse and is a properly certified substitute pursuant to an August 2017 Administrative Decision. This case comes before the Board of Veterans' Appeals (Board) on appeal from an May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Denver, Colorado RO now has jurisdiction because the nature of this appeal are four substituted claims that existed at the time of the Veteran's death. The Board notes a January 2019 opt-in form signed by the appellant seeking to move this appeal into the modernized system of the Appeals Modernization Act (AMA), and also the RO's response that same month that the appeal, as a substituted appeal following the Veteran's death, was not eligible for the AMA. See 38 C.F.R. §§ 3.2400, 19.2. As such, this appeal remains under legacy procedures. The appellant previously claimed but was denied service connection cause of death in a May 2017 rating decision, and he did not appeal that decision. As such, that issue is not before the Board at this time. The Veteran's death occurred after October 10, 2008, and so 38 U.S.C. § 5121A and implementing regulation 38 C.F.R. § 3.1010 are applicable, and the appellant's claim is not one for accrued benefits, but includes the Veteran's original claim, into which she is substituted in his stead. See Reliford v. McDonald, 27 Vet. App. 297 (2015). The appellant testified at a hearing before the undersigned Veterans Law Judge (VLJ) in August 2021. A transcript of that hearing is of record. The Veteran at the time of his death was represented by the Disabled American Veterans (DAV), and that representation ended with his death. The appellant, the Veteran's surviving spouse, has obtained his own representation with the DAV as noted in the header of this decision. By way of background, in an October 2017 rating decision, the evaluation for the left upper extremity radiculopathy was increased to 30 percent disabling, effective June 17, 2013. The grant of an increased rating during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran and now the appellant is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim is still in controversy and on appeal. Id. When a Veteran files a claim for an increased rating, he or she is presumed to be seeking the maximum benefit under any applicable theory, including a total disability evaluation based on individual unemployability (TDIU). See Rice v. Shinseki, 22 Vet. App. 447, 45354 (2009). In light of this principle, entitlement to special monthly compensation (SMC) has been found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). As the Veteran did not assert that his service-connected disabilities prevent him from gaining and maintaining employment, and the Veteran's claims file closed as of his death, the Board is unable in any event to infer a claim for TDIU at this time. See 38 C.F.R. § 3.1000(d)(4). There is no further lay or medical evidence the Veteran is housebound in fact, requires aid and attendance, or that his disabilities result in loss of use of a limb, blindness or deafness. 38 U.S.C. §§ 1114(s), (l), (k); 38 C.F.R. § 3.350(a), (b), (i). As such, the Board will not infer the issue of entitlement to SMC at this time. Qualification as a Surviving Spouse As noted above, the appellant in this case is the surviving spouse of the late Veteran. The marriage occurred on February 5, 2016, per the marriage license from the State of Hawaii in the claims file. Given the Veteran died on January [REDACTED], 2017, the requirement that the marriage occur one year or more prior to the Veteran's death is not satisfied on its face. 38 U.S.C. § 103(a); 38 C.F.R. § 3.52. A surviving spouse is a person who: (1) was the spouse of the Veteran at the time of the Veteran's death; (2) lived with the Veteran continuously from the date of marriage to the date of the Veteran's death; and, (3) has not remarried or, since the death of the Veteran and after September 19, 1962, lived with another person and held themselves out openly to the public as the spouse of another person. 38 U.S.C. § 101(3). Marriage" means a marriage valid under the law of the place where the parties resided at the time of marriage, or the law of the place where the parties resided when the right to benefits accrued. 38 C.F.R. § 3.1(j). While VA statutes and regulations defining the terms "spouse" and "surviving spouse" still include the requirement that a person be a member of the opposite sex in order to qualify as a "surviving spouse," that portion of the definition is no longer enforced to the extent that it would deny DIC or other benefits to lawful same-sex marriages. VAOPGCPREC 3-2014 (June 17, 2014); VAOPGCPREC 4-2014 (June 17, 2014); see also Cardona v. Shinseki, 26 Vet. App. 472, 481 (2014) (dismissing the case as moot due to the Secretary's official change in policy with regard to 38 U.S.C. § 101(31)). Both General Counsel Opinions are based on the Supreme Court's decision in United States v. Windsor, 570 U.S. 744 (2013), and the then-administration's directive that the Executive Branch cease enforcement of definitions of surviving spouse in Title 38 to the extent that they would limit recognition of marital status to opposite sex couples. Further guidance has not been provided following the Supreme Court's decision in Obergefell v. Hodges. 576 U.S. 644 (2015) (holding that state laws excluding same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples violate the equal protection clauses of the Fourteenth Amendment). However, despite the lack of further guidance the opinions in Windsor and Obergefell make it clear that the attempted use of the "opposite sex" language to deny a same-sex surviving spouse benefits to which they would otherwise be entitled would be unconstitutional. See, e.g., Cooper-Harris v. United States, 965 F. Supp. 2d 1139 (C.D. Cal. 2013) (finding that in light of the Supreme Court's decision in Windsor the same-sex requirement in 38 U.S.C. § 101(3) violated the Fifth Amendment of the U.S. Constitution and awarding summary judgment to the plaintiffs). The marriage certificate submitted by the surviving spouse shows the Veteran and surviving spouse married on February 5, 2016. Therefore, the requirement that the marriage occur one year or more prior to the Veteran's death is not satisfied. However, the Veteran retired from active service in the Air Force on May 31, 2002, which is within fifteen years of the date of marriage. Although the evidence regarding the prior marriages for the Veteran is incomplete, the surviving spouse, the appellant, has stated that he knew of no legal impediment of his marriage to the Veteran at the time of marriage. In addition, he verified that he and the Veteran lived together for the entire marriage until the Veteran's passing. No other person has filed a claim for VA benefits or established entitlement as the surviving spouse of the Veteran. The surviving spouse is listed as both the informant and surviving spouse at the time of death on the Veteran's death certificate. The Board thus confirms the earlier March 2017 analysis of the VA RO and Pension Maintenance Center of St. Paul, Minnesota and finds that since all the conditions under 38 C.F.R. § 3.205 and 38 C.F.R. § 3.52 have been met, the claimed marriage between the Veteran and the appellant is deemed valid for VA purposes. Substitution Substitution is when an eligible claimant steps into the shoes of a deceased claimant and picks up a pending claim or appeal where it was at the time of the deceased claimant's death for the purposes of processing the claim to completion. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. As noted above, the appellant is considered a valid substitute for the purposes of this appeal. Id.; see Reliford v. McDonald, 27 Vet. App. 297 (2015). However, the Board notes that the substituted appellant must be seeking a claim that was pending at the time of the Veteran's death. In this regard, a "claim for VA benefits pending on the date of death" means a claim filed with VA that had not been finally adjudicated by VA on or before the date of death. 38 C.F.R. §§ 3.1000(d)(5), 3.1010(g)(1)(i). A claim is also considered to be pending if, at the time of the claimant's death, the agency of original jurisdiction has made a decision on the claim, but the claimant has not filed a notice of disagreement, and the period allowed by law for filing a notice of disagreement has not expired. Id. Here, at the time of the Veteran's death in January 2017, his June 2013 claim had been decided in a May 2014 rating decision, and the Veteran, while still alive, filed a notice of disagreement with that rating decision, also in May 2014. The appellant sought and was recognized as a substituted appellant by the RO in August 2017. The Board thus considers the requirements of 38 U.S.C. § 5121A and 38 C.F.R. § 3.1010 to be satisfied, and will proceed with the appellant's claim as the valid substitute for his late Veteran spouse. The appellant also filed a claim for DIC with VA. DIC is a monthly monetary benefit that is payable to a surviving spouse, child, or parent because of the service-connected death of a Veteran. 38 U.S.C. § 101(14) (2012); 38 C.F.R. § 3.5(b). The Board notes that the RO has already decided those claims in a May 2017 decision and that there is no other appellate issue related to DIC or other VA benefits such as a burial benefit before the Board at this time. 1. Entitlement to an increased rating in excess of 10 percent for right knee disability, from June 17, 2013, is remanded. 2. Entitlement to an increased initial rating in excess of 10 percent for a left knee disability, from June 17, 2013, is remanded. 3. Entitlement to an increased rating in excess of 10 percent for a cervical spine disability, from June 17, 2013, is remanded. 4. Entitlement to an increased initial rating in excess of 30 percent for radiculopathy, left upper extremity, from June 17, 2013, is remanded. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994); see also Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995). The Veteran himself stated in his May 2014 notice of disagreement that the evaluator from an April 2014 VA examination, the most recent on record for the claimed disabilities, didn't take into account the daily pain associated with the disabilities. He noted the pain interrupts his sleep and affects his ability to manage daily activities. He also mentioned that each of his knees becomes weak and restless when he sits down and his knees are in a bent position. A new examination is appropriate when there is an assertion (and indication) of an increase in severity since the last examination. Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007). Also, where the Veteran claims that a disability is worse than when originally rated, VA must provide a new examination. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). In addition, the appellant and the Veteran before him have noted multiple times regarding medical treatment and the existence of medical records at a "John Muir" hospital, and the Board notes references from VA medical records regarding a John Muir Health System in Walnut Creek, California. Since these records are not presently in the claims file, VA should upon this remand seek those records and add them to the claims file. The Board finds it necessary to remand for a retrospective opinion to consider whether other medical evidence in the claims file for this period affect or alter the previous evaluations of the Veteran's cervical spine, left upper extremity radiculopathy, and bilateral knee disabilities. See Chotta v. Peake, 22 Vet. App. 80, 84 (2008) (If a disability rating "cannot be awarded based on the available evidence," VA must determine whether a medical opinion, including a retrospective opinion, "is necessary to make a decision on the claim." Id. at 85; (emphasis in the original); see also Vigil v. Peake, 22 Vet. App. 63 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the time period being rated). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In addition, the Board notes VA's schedule of musculoskeletal rating changes, found in 38 C.F.R. § 4.71a, was modified with the changes in effect on February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020). Absent any Congressional intent or directive with regard to new or revised regulations, when a claim originates prior to the effective date of the new language but is decided after the effective date, as here, VA will use the version that provides the Veteran a greater benefit. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Therefore, this appeal is remanded for a retrospective opinion to address the evidence in the claims file pertaining to the Veteran's service-connected cervical spine, left upper extremity radiculopathy, and bilateral knee disabilities. The matters are REMANDED for the following action: 1. Contact the appellant and request that he identify any pertinent private treatment records not already identified and obtained and, with the appropriate authorization, attempt to obtain those records and associate them with the claims file, with special emphasis on records from the John Muir hospital in Walnut Creek, and any other facility the appellant can identify. 2. After those records are obtained and added to the claims file, obtain a retrospective opinion from a VA medical professional with expertise in orthopedics to address the nature and severity of the Veteran's cervical spine disability, left upper extremity radiculopathy, right knee disability, and left knee disability. The claims file, to include the Veteran's service treatment records, lay statements and testimony, and treatment records, should be reviewed by the examiner. A note that it was reviewed should be included in the report. A detailed rationale supporting the examiner's retrospective opinion should be provided. In forming the opinion, the examiner must consider all lay statements of record. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required or the examiner does not have the needed knowledge or training). Jones v Shinseki, 23 Vet. App. 382 (2010). Attention is invited to the new and modified ratings criteria in 38 C.F.R. § 4.71a for the Veteran's disabilities, and the evaluator should use whatever criteria, old or new, gives the Veteran the greater benefit. 3. Thereafter, readjudicate the issues on appeal as noted above. If the determination remains unfavorable to the appellant, he and his representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The appellant and his representative should be afforded the applicable time period 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). CONTINUED ON NEXT PAGE 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. §§ 5109B, 7112 (2012). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Setter, 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.