Citation Nr: 21005969 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 17-10 674A DATE: February 3, 2021 ORDER Entitlement to a certificate of eligibility for specially adapted housing is granted. Entitlement to a certificate of eligibility for special home adaptation grant is denied. Entitlement to special monthly compensation (SMC) on account of the need for regular aid and attendance under 38 U.S.C. § 1114(l) is granted. REMANDED Entitlement to service connection for right and left lower extremity meralgia paraesthetica, to include secondary to fibromyalgia, is remanded. Entitlement to service connection for polyneuropathy of the right and left lower extremity, to include secondary to fibromyalgia, is remanded. Entitlement to an effective date earlier than June 9, 2016 for the grant of service connection for dermatitis and lipomas is remanded. Entitlement to an effective date earlier than January 13, 2003 for the grant of service connection for tinnitus is remanded. Entitlement to an effective date earlier than January 13, 2003 for the grant of service connection for fibromyalgia is remanded. Entitlement to an effective date earlier than April 24, 2006 for the grant of service connection for irritable bowel syndrome is remanded. Entitlement to an effective date earlier than June 9, 2016 for the grant of entitlement to service connection for vasomotor rhinitis is remanded. Entitlement to an effective date earlier than June 9, 2016 for a 70 percent rating for posttraumatic stress disorder (PTSD) is remanded. Entitlement to an effective date earlier than June 9, 2016 for a 60 percent rating for chronic fatigue syndrome is remanded. FINDINGS OF FACT 1. The Veteran has a total disability rating due at least in part to loss of use of both lower extremities due to his service-connected fibromyalgia and chronic fatigue disabilities. 2. This Board decision is awarding the Veteran a certificate of eligibility for specially adapted housing, which precludes him from a separate award for a special home adaptation grant. 3. The evidence demonstrates that the Veteran requires the regular aid and attendance of another as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to a certificate of eligibility for specially adapted housing have been met. 38 U.S.C. §§ 3901, 3902, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.809. 2. The criteria for entitlement to a certificate of eligibility for a special home adaptation grant have not been met. 38 U.S.C. §§ 2101(b), 5103, 5107; 38 C.F.R. § 3.809a. 3. The criteria for SMC based on the need for aid and attendance have been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service from January 1981 to January 1984 and from October 1987 to March 1993. The Veteran received a dishonorable discharge following his period of service from April 1993 to July 2002, and he is not entitled to compensation benefits based on this period of service. These matters were remanded by the Board in May 2019 for development and have been returned to the Board for appellate review. The Board notes that in May 2019, the Board remanded the claims for service connection for a Gulf War unexplained chronic multi-symptom illness, dental and oral condition, and traumatic brain injury; and for earlier effective dates for the grants of service connection for vasomotor rhinitis, tinnitus, fibromyalgia, irritable bowel syndrome, and dermatitis, and for the increased ratings for chronic fatigue syndrome and posttraumatic stress disorder for issuance of a statement of the case (SOC) on these issues. A January 2020 SOC was issued to the Veteran on the claims for service connection for dental and oral condition; service connection for unidentified symptoms due to “Gulf War”; and service connection for TBI. The January 2020 SOC did not address the issues of earlier effective dates for the grants of service connection for vasomotor rhinitis, tinnitus, fibromyalgia, irritable bowel syndrome, and dermatitis, and for the increased ratings for chronic fatigue syndrome and posttraumatic stress disorder. The Veteran filed an April 2020 substantive appeal (VA Form-9) on the service connection issues and raised the matter that the January 2020 SOC did not address the claims for earlier effective dates for the grants of service connection for vasomotor rhinitis, tinnitus, fibromyalgia, irritable bowel syndrome, and dermatitis, and for the increased ratings for chronic fatigue syndrome and posttraumatic stress disorder. In a May 2020 correspondence, the Veteran was notified that his April 2020 substantive appeal was not accepted as it was untimely, received more than 60 days after the January 2020 SOC. Significantly, the Veteran filed a notice of disagreement (NOD), VA Form 20-0996 with the May 2020 correspondence and opted into the AMA review. In light of the above, the Board does not have jurisdiction of the claims for service connection for a Gulf War unexplained chronic multi-symptom illness, dental and oral condition, and traumatic brain injury (TBI); thus, these matters are not before the Board on appeal. In a September 2020 rating decision, the agency of original jurisdiction (AOJ) granted service connection for obstructive sleep apnea and service connection for supraventricular arrhythmia. As these represent grants of the full benefits sought, the claims for service connection for sleep apnea and service connection for a heart disorder are no longer before the Board on appeal. The Board notes that in a September 2020 rating decision, the AOJ granted SMC based on housebound criteria being met, from February 14, 2017 and April 30, 2017. However, SMC based on the need of regular aid and attendance under 38 U.S.C. § 1114(l) is paid at a higher rate than the benefit for SMC based on statutory housebound status under 38 U.S.C. § 1114(s). Accordingly, the SMC based on the need of regular aid and attendance remains on appeal. 1. Entitlement to a certificate of eligibility for specially adapted housing is granted. Eligibility for assistance in acquiring specially adapted housing under 38 U.S.C. § 2101(a) may be granted if a Veteran is entitled to compensation for permanent and total disability due to: (1) 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; or (2) blindness in both eyes, having only light perception, plus the anatomical loss or loss of use of one lower extremity; (3) the loss or loss of use of one lower extremity together with residuals of organic disease or injury that so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; (4) the loss or loss of use of one lower extremity together with the loss or 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; (5) the loss or loss of use of both upper extremities such as to preclude use of the arms at or above the elbow; or (6) 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. 38 C.F.R. § 3.809. A certificate of eligibility for assistance in acquiring a special home adaptation grant may be issued to a veteran who served after April 20, 1898; is not entitled to a certificate of eligibility for assistance in acquiring specially adapted housing under 38 C.F.R. § 3.809 ; and has not previously received assistance in acquiring specially adapted housing under 38 U.S.C. § 2101(a); and is entitled to compensation for permanent and total disability which (1) is due to blindness in both eyes, having central visual acuity of 20/200 or less in the better eye with the use of a standard correcting lens; (2) includes the anatomical loss or loss of use of both hands; (3) is due to deep partial thickness burns that have resulted in contractures with limitation of motion of two or more extremities or of at least one extremity and the trunk; (4) is due to full thickness of subdermal burns that have resulted in contractures with some limitation of motion of one or more of the extremities or the trunk, or (5) is due to residuals of an inhalation injury (including, but not limited to, pulmonary fibrosis, asthma, and chronic obstructive pulmonary disease). 38 U.S.C. § 2101(b); 38 C.F.R. § 3.809a. To “preclude locomotion” means that the disability in question requires the need for regular and constant use of a wheelchair, braces, crutches or canes as a normal mode of locomotion although occasional locomotion by other methods may be possible. 38 C.F.R. § 3.809(c). Recently, the United States Court of Appeals for Veterans Claims (Court) has determined that the term “loss of use” in the context of specially adapted housing claims means “a deprivation of the ability to avail oneself of the anatomical region in question. It is a general term, one that can readily accept additional specificity in various circumstances. Adjacent modifiers and, in the case of [special monthly compensation], regulatory efforts create that specificity.” Jensen v. Shulkin, 29 Vet. App. 66 (2017). The Court in Jensen dismissed the concern that “‘every time an individual is prescribed an assistive device in conjunction with a lower extremity disability, he or she would then automatically be eligible to receive’ [specially adapted housing].” Jensen, supra, at 15. Rather, it lays out four elements that must be satisfied to establish entitlement to such benefit: “That individual must (1) have a permanent and total disability (2) due to a disorder that (3) involves both lower extremities and (4) causes a loss of use so severe that it precludes locomotion without the regular and constant use of assistive devices. There are plenty of limitations built into that standard.” Jensen, supra, at 15-16. [Emphasis in original.] The Veteran is in receipt of service connection for PTSD with anxiety and depression; chronic fatigue syndrome with inability to focus; restrictive lung disease with obstructive sleep apnea; fibromyalgia; supraventricular arrhythmia; tinnitus; left ear hearing loss; and vasomotor rhinitides. He has been in receipt of a total disability rating since April 24, 2016. See September 2020 rating code sheet. The Veteran contends that he needs specially adapted housing for entry ramps, bathing, and sleeping. See August 2016 VA form 26-4555. The medical evidence of record indicates that the Veteran has ambulated with the assistance of cane(s). See March 2019 aid and attendance examination report. Significantly, the March 2019 aid and attendance examination report indicated the Veteran had antalgic gait and generalized weakness. He had limitation of range of motion due to pain. He required assistive device of cane(s). The Veteran had poor balance and difficulty leaving the home. Further, the October 2017 VA fibromyalgia examination report indicated the Veteran’s diagnosed fibromyalgia caused symptoms of chronic pain in all of his muscles. Examination of the Veteran revealed widespread muscle pain, stiffness, muscle weakness, fatigue, and paresthesias. Included among his trigger points for pain were the bilateral knees. The October 2017 VA examiner opined the Veteran would have a hard time with physical activity because of muscle aches throughout his whole body. The Veteran’s statements, along with the medical and additional evidence of record, reasonably establishes that the Veteran has deprivation of the ability to avail himself of his lower extremities to the point that it precludes locomotion without his canes on account of his service-connected fibromyalgia and chronic fatigue disabilities. Consequently, he is reasonably shown to have a loss of use so severe that it precludes locomotion without the regular and constant use of assistive devices. Moreover, he has been in receipt of a total disability rating since April 24, 2016. See September 2020 rating code sheet. Therefore, resolving all reasonable doubt in the Veteran’s favor, he has a permanent and total disability due to a disorder(s) that involves both lower extremities and precludes locomotion without the regular and constant use of assistive devices. Accordingly, the Veteran meets all necessary criteria for eligibility for a certificate of entitlement to specially adapted housing and this benefit is granted. 38 C.F.R. §§ 3.102, 3.809. 2. Entitlement to a certificate of eligibility for special home adaptation grant is denied. Because the Veteran is being awarded entitlement to specially adapted housing, the controlling regulations preclude him from additionally receiving a special home adaptation grant. 38 U.S.C. § 2101(b); 38 C.F.R. § 3.809a. Additionally, there is no indication or specific allegation of record that the Veteran meets the specific disability criteria for this award. Consequently, entitlement to a special home adaptation grant must be denied as a matter of law. Id. 3. Entitlement to SMC on account of the need for regular aid and attendance under 38 U.S.C. § 1114(l) is granted. The Veteran seeks entitlement to special monthly compensation based on aid and attendance or housebound status. Under 38 U.S.C. § 1114(l), special monthly compensation is payable if, as the result of service-connected disability, the Veteran has an anatomical loss or loss of use of both feet, or of one hand and one foot; has blindness in both eyes with visual acuity of 5/200 or less; is permanently bedridden; or is so helpless as to be in need of regular aid and attendance of another person. 38 C.F.R. § 1114(l); 38 C.F.R. § 3.350(b). Under 38 C.F.R. § 3.352(a), the following will be accorded consideration in determining the need for regular aid and attendance (§3.351(c)(3): inability of claimant 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 (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of claimant 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 claimant from hazards or dangers incident to his or her daily environment. “Bedridden” will be a proper basis for the determination. For the purpose of this paragraph “bedridden” will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. It is not required that all of the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made. The particular personal functions which the veteran 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 veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that the veteran is so helpless, as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant’s condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others. There is basis to award SMC for aid and attendance purposes based on the Veteran’s service-connected disabilities. In this regard, the October 2017 VA fibromyalgia examination report revealed he Veteran’s fibromyalgia resulted in fatigue, sleep disturbance, paresthesias, headache, widespread muscle pain, stiffness, and muscle weakness. The October 2017 VA examiner opined the Veteran would have a hard time with physical activity because of muscle aches throughout his whole body. Further, the March 2019 aid and attendance examination report indicated the Veteran was disheveled; he is unable to prepare his own meals; and he requires medication management from his wife due to him making multiple errors. Moreover, the Veteran was noted as having memory loss and inability to leave the home. The Board finds the probative evidence of record supports that the Veteran’s service-connected disables have caused or contributed to the requirement of aid and attendance. Resolving reasonable doubt in the Veteran’s favor; SMC based on the need for aid and attendance is granted. REASONS FOR REMAND 1. Entitlement to service connection for right and left lower extremity meralgia paraesthetica, to include secondary to fibromyalgia, is remanded. 2. Entitlement to service connection for polyneuropathy of the right and left lower extremity, to include secondary to fibromyalgia, is remanded. In May 2019 the Board remanded these claims and directed that the AOJ schedule the Veteran for a VA examination with a neurologist to address the nature and etiology of any polyneuropathy, peripheral neuropathy, or meralgia paraesthetica in the lower extremities. Significantly, the Board directed that for each diagnosis, the examiner should address whether it is at least as likely as not that the disorder was (i) caused or (ii) is aggravated (worsened beyond the natural progression) by the Veteran’s service-connected disabilities, to specifically include his fibromyalgia. Thereafter, in a February 2020 VA medical opinion, the VA examiner opined that the Veteran has diagnosed diabetic peripheral neuropathy and meralgia paresthetica of both lower extremities and that it was less likely than not that the condition was incurred in or caused by service and that fibromyalgia does not cause either of these diagnosis as fibromyalgia is a diagnosis of exclusion, not explained by any other disease or diagnosis. However, the examiner did not address “aggravation” as directed in the May 2019 Board remand. As a result, remand is necessary for addendum opinion addressing aggravation. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. Entitlement to an effective date earlier than June 9, 2016 for the grant of service connection for dermatitis and lipomas is remanded. 4. Entitlement to an effective date earlier than January 13, 2003 for the grant of service connection for tinnitus is remanded. 5. Entitlement to an effective date earlier than January 13, 2003 for the grant of service connection for fibromyalgia is remanded. 6. Entitlement to an effective date earlier than April 24, 2006 for the grant of service connection for irritable bowel syndrome is remanded. 7. Entitlement to an effective date earlier than June 9, 2016 for the grant of entitlement to service connection for vasomotor rhinitis is remanded. 8. Entitlement to an effective date earlier than June 9, 2016 for a 70 percent rating for posttraumatic stress disorder is remanded. 9. Entitlement to an effective date earlier than June 9, 2016 for a 60 percent rating for chronic fatigue syndrome is remanded. In May 2019, the Board remanded the claims for earlier effective dates for the grants of service connection for vasomotor rhinitis, tinnitus, fibromyalgia, irritable bowel syndrome, and dermatitis, and for the increased ratings for chronic fatigue syndrome and PTSD in order for the AOJ to issue the Veteran a statement of the case (SOC). See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Thereafter, a January 2020 SOC was issued to the Veteran; however, the January 2020 SOC did not address the issues of earlier effective dates for the grants of service connection for vasomotor rhinitis, tinnitus, fibromyalgia, irritable bowel syndrome, and dermatitis, and for the increased ratings for chronic fatigue syndrome and PTSD. As a result, remand is again, necessary for the AOJ to issue a SOC addressing the claims for earlier effective dates for the grants of service connection for vasomotor rhinitis, tinnitus, fibromyalgia, irritable bowel syndrome, and dermatitis, and for the increased ratings for chronic fatigue syndrome and PTSD. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Issue a Statement of the Case addressing the claims of entitlement to earlier effective dates for the grants of service connection for vasomotor rhinitis, tinnitus, fibromyalgia, irritable bowel syndrome, and dermatitis, and for the grants of increased ratings for chronic fatigue syndrome and posttraumatic stress disorder. Advise the Veteran that the Board will not exercise appellate jurisdiction over any claim that lacks a timely perfected appeal. 2. Obtain outstanding relevant VA treatment records and associate them with the claims file. 3. After associating all records responsive to the above with the claims file, obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s peripheral neuropathy and/or meralgia paresthetica of both lower extremities has at least as likely as not been aggravated by any of his service-connected disabilities, to specifically include service-connected fibromyalgia. A complete rationale addressing aggravation should be provided for any opinion expressed. If any opinion cannot be rendered without resorting to speculation, the clinician 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. 4. After completing the above action and any other necessary development, the claims must be readjudicated. If any claim remains denied, a Supplemental Statement of the Case must be provided to the Veteran and current representative. After the Veteran has had adequate opportunity to respond, the appeal must be returned to the Board for appellate review. Romina A. Casadei Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Schick, 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.