Citation Nr: 21025950 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 14-39 440 DATE: April 29, 2021 REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a left lower extremity and foot disability is remanded. Entitlement to service connection for a right lower extremity and foot disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for human immunodeficiency virus/acquired immunodeficiency syndrome (HIV/AIDS) is remanded. Entitlement to Specially Adapted Housing (SAH) is remanded. Entitlement to Special Home Adaptation (SHA) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1977 to January 1980. This case is before the Board on appeal from March 2011 and July 2016 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2012, the Veteran had a hearing before a Decision Review Officer and a transcript has been associated with the record. In May 2018, the Board remanded the case for additional development and it now returns for appellate review. The Board notes that, in May 2019, the RO issued a statement of the case (SOC) that continued the denial of the Veteran’s claim for SHA/SAH. On June 24, 2019, the Veteran filed a Higher-Level Review (HLR) on VA Form 20-0996, and on June 27, 2019, the Veteran submitted a Form 9. The Form 9 was certified to the Board in August 2019. The Board finds that the issues of SHA and SAH are properly before the Board under the Legacy System. In this regard, VA requires that the S/SOC opt-in box be checked or that the Veteran submit a letter that specifically expresses a desire to leave the Legacy System, neither of which was done by the Veteran. Therefore, such issues are properly before the Board. The Board further notes that, in an April 2020 rating decision, the RO granted service connection for glaucoma with foveal pit. In June 2020, the Veteran submitted a VA Form 10182 Decision Review Request: Board Appeal and requested a higher rating for his glaucoma with foveal pit. However, this issue will be addressed in a separate Board decision. Additionally, following the issuance of the May 2019 SOC and June 2019 SSOC, additional evidence has been received. As the case is being remanded, the Agency of Original Jurisdiction (AOJ) will have the opportunity to review the additional evidence on remand. 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to service connection for a left lower extremity and foot disability. 4. Entitlement to service connection for a right lower extremity and foot disability. 5. Entitlement to service connection for a right hip disability. 6. Entitlement to service connection for a left hip disability. The Veteran contends that his bilateral hip disability, bilateral lower extremity and foot disability, and bilateral knee disability are related to over-exertion and walking in service. See September 2012 DRO Hearing Transcript. In accordance with the May 2018 Board remand, the Veteran was afforded a VA examination in May 2019 in order to determine the nature and etiology of his bilateral hip disability, bilateral lower extremity and foot disability, and bilateral knee disability. At such time, the examiner noted that the Veteran complained of sore feet in a November 1977 service treatment record. He also complained of right knee pain in November 1978, and in his August 1979 separation examination, he complained of swollen and painful joints. The examiner opined that the Veteran’s bilateral lower extremity and foot disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the examiner explained that the Veteran’s service treatment records noted some complaints of foot pain, but such complaints were isolated events and did not demonstrate a chronic disabling condition. The examiner further explained that a review of post service treatment records revealed intermittent complaints of pain. The examiner also stated that the Veteran had pain with palpation of his feet and symptoms of neuropathy, which appeared to be causing more of his complaints and his neuropathic pain could be related to his diabetes and or medications. With regard to the Veteran’s bilateral hip disability, the examiner opined that the such disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the examiner explained that the Veteran’s service treatment records were silent for any hip complaints in service. With regard to the Veteran’s bilateral knee disability, the examiner opined that the such disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the examiner explained that the Veteran complained of right knee pain during service, but his examination was normal, and it was not until 2014 that he was found to have mild degenerative changes of the knees. The examiner further explained that his disability was most likely due to weight and time, and obesity has been shown to contribute to osteoarthritis of knees. However, it does not appear that the VA examiner considered the Veteran’s reports of symptomatology since service. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the veteran’s report of in-service injury but relied on the service medical records to provide a negative opinion). In this regard, the Veteran reported that his knee, hip, foot, and lower extremity symptoms were related to over-exertion and walking in service. Moreover, while in service, he complained of sore feet, knee pain, and swollen or painful joints. Consequently, the Board finds that addendum opinions are necessary to decide this claim. 7. Entitlement to service connection for HIV/AIDS. The Veteran contends that his HIV/AIDS is due to his military service. In this regard, he reported that he was raped in January 1978 by a group of four men and he did not seek medical attention until two weeks later when he began vomiting, and bleeding from the rectum. The Veteran’s service treatment records noted that he was treated for pharyngitis and tonsillitis in April 1980, with complaints of some bleeding from the mouth. The Veteran further reported that no formal charges or complaints regarding the in-service assault were made. In accordance with the May 2018 Board remand, the Veteran was afforded a VA examination. At such time, the examiner indicated that the Veteran was diagnosed with HIV in 1980, but he was not treated until the 1990s. The examiner noted the Veteran’s report that his HIV status was from being raped while in service. The examiner further noted that the Veteran had a disruptive flag and caution was made during the examination of not to agitate the Veteran with too many intrusive questions (even though they may be pertinent to the examination). The examiner concluded that it was less likely than not that the Veteran’s condition was incurred in or caused by the claimed in-service injury, event or illness. As rationale, the examiner explained that the Veteran’s service treatment records were silent for any diagnosis or suggestion of HIV. The examiner further explained that a review of the records showed that the Veteran had anal intraepithelial carcinoma (condyloma accuminata), which occurred with anal sex. The examiner also stated that the Veteran had a history of substance abuse and incarceration, which could increase his risk for HIV. The examiner explained that infectious disease notes only documented a history of HIV but did not document his risk factors. However, it does not appear that the VA examiner considered the Veteran’s reports of symptomatology during and since service. See Dalton, supra. In this regard, the Veteran has continuously reported that his symptoms of vomiting and bleeding from the rectum began in service. Additionally, the Veteran’s service treatment records noted that he was treated for pharyngitis and tonsillitis in April 1980, with complaints of some bleeding from the mouth. Moreover, the VA examiner noted that the Veteran was diagnosed with HIV in 1980. Consequently, the Board finds that a clarifying addendum opinion is necessary to decide this claim. 8. Entitlement to Specially Adapted Housing. 9. Entitlement to Special Home Adaptation. The Veteran contends that he is entitled to a special home adaptation grant or specially adapted housing due to his service-connected disability. In this regard, the Veteran is service connected for paranoid schizoaffective and glaucoma with foveal pit. He has a 100 percent total and permanent rating. In an April 2016 VA 21-2680 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, the examiner noted that the Veteran was legally blind, and he had difficulty with planning and preparing meals, which was a safety risk. The examiner also stated that the Veteran had mobility issues that resulted in an unsteady balance, a gait/fall risk, and he was wheelchair bound. The examiner noted that the upper extremity weakness and required assistance with personal care. The examiner further noted that the Veteran’s severe bilateral hip pain, avascular necrosis of the right hip, extremity weakness, unsteady balance and gait/fall risk, mobility issues, and legal blindness preluded his ability to safely perform self-care and travel independently. In an August 2016 VA 21-2680 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, the examiner noted that the Veteran had problems with cognition and poor concentration. The examiner also noted that the Veteran had limited function of the upper extremities and he had to use a wheelchair. The Board notes that service connection is not in effect for a bilateral hip disability, bilateral lower extremity and foot disability, and bilateral knee disability. As stated above, the Veteran is solely service connected for paranoid schizoaffective and glaucoma with foveal pit. However, as stated above additional development is needed for the Veteran’s service connection claims for a bilateral hip disability, bilateral lower extremity and foot disability, and bilateral knee disability. The current record does not provide a sufficient basis for a determination that functional impairment from the Veteran’s service-connected disabilities, alone, meets the necessary criteria for eligibility for assistance in acquiring specially adapted housing or special home adaptation grant. On remand, a VA examination and medical opinion should be provided. The matters are REMANDED for the following action: 1. Return the record to an appropriate VA examiner in order to provide opinions for the Veteran’s bilateral hip disability, bilateral lower extremity and foot disability, bilateral knee disability, and his HIV/AIDS disability. The claims file and this Remand should be reviewed by the examiner. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. (A) Identify all right and left lower extremity, knee, hip, and foot disorders that have that existed during the appeal period, even if resolved. (B) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s bilateral lower extremity and foot disability had its onset in, or is otherwise related to, his military service, to include his in-service duties? (C) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s bilateral hip disability had its onset in, or is otherwise related to, his military service, to include his in-service duties? (D) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s bilateral knee disability had its onset in, or is otherwise related to, his military service, to include his in-service duties? (E) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s HIV/AIDS disability had its onset in, or is otherwise related to, his military service, to include his in-service duties? The examiner must address the Veteran’s statements that he contracted HIV from an in-service assault. In rendering an opinion, the VA examiner should specifically review and consider the lay statements of the Veteran concerning the activities he performed in service affecting his legs, knees, hip, and feet, as well as the onset and recurrence of his symptoms. Specifically, the examiner should consider the Veteran’s testimony that his symptoms were due to over-exertion and walking in service and they have continued since such time. The examiner must also consider that the Veteran has continuously reported that his symptoms of vomiting and bleeding from the rectum began in service. Additionally, the Veteran’s service treatment records noted that he was treated for pharyngitis and tonsillitis in April 1980, with complaints of some bleeding from the mouth. Moreover, the VA examiner noted that the Veteran was diagnosed with HIV in 1980. The examiner is further advised that the sole basis of a negative opinion cannot be the fact that the Veteran’s service treatment records are silent as to any treatment or diagnosis of such disabilities. 2. Schedule the Veteran for a VA examination to determine the functional impairment caused by his service-connected disability as it relates to his claim seeking eligibility for specially adapted housing or special home adaptation grant. The Veteran's claims file should be made available to the examiner, and any essential tests and studies should be accomplished. The examiner should opine as to whether it is at least as likely as not that the Veteran’s service-connected disabilities cause: (A) loss of use of both lower extremities so as to make necessary the regular and constant use of a wheelchair, brace(s), crutches, or cane(s) as a normal mode of locomotion, although occasional locomotion by other methods may be briefly possible; (B) 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 make necessary the regular and constant use of a wheelchair, brace(s), crutches, or cane(s) as a normal mode of locomotion, although occasional locomotion by other methods may be possible; or, (C) 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 make necessary the regular and constant use of a wheelchair, brace(s), crutches, or cane(s) as a normal mode of locomotion, although occasional locomotion by other methods may be possible. The examiner should consider all medical and lay evidence of record when making his or her determination, including the April and August 2016 Aid and Attendance or Housebound Examination Reports. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brennae L. Brooks, 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.