Citation Nr: 22016356 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 16-55 560 DATE: March 22, 2022 ORDER Entitlement to a benefit under the Home Improvement and Structural Alteration (HISA) program, pursuant to 38 C.F.R. §§ 17.3100, et seq., is granted. REMANDED Entitlement to an increased evaluation in excess of 30 percent from January 1, 2016, for arteriosclerotic heart disease is remanded. Entitlement to service connection for a separate rating for cardiac pacemaker implementation is remanded. FINDINGS OF FACT 1. The Veteran's obstructive sleep apnea required the use of assistive devices that were considered life-sustaining by his treating medical provider. 2. VA internal directives regarding the Home Improvement and Structural Alteration (HISA) program, pursuant to 38 C.F.R. §§ 17.3100 et seq., specify that examples of modifications that meet the scope of HISA include but are not limited to updates to electrical systems and whole-house generators to support of "Life Sustaining Equipment." CONCLUSION OF LAW The criteria for entitlement to a benefit under the Home Improvement and Structural Alteration (HISA) program have been met. 38 U.S.C. § 1717 (2012); 38 C.F.R. §§ 17.3100-17.3130 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1970 to December 1972. This matter comes before the Board of Veterans' Appeals (Board) from an April 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Philadelphia, Pennsylvania RO now has jurisdiction. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in a Board hearing in November 2021. A transcript of that hearing is of record. The Veteran submitted additional evidence in support of his claim after the most recent Statement of the Case (SOC) of November 2018, along with a waiver of review of such evidence by the agency of original jurisdiction. As such, the Board may properly consider such evidence at this time. See 38 C.F.R. §§ 19.37, 20.800, 20.1304(c); Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). 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 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). The Veteran has indicated that he is now retired, and that he has been awarded a TDIU in a February 2011 rating decision, effective from October 1, 2009, the first day after the Veteran last worked. The Board thus considers that further TDIU is not inferred by the record. The Veteran has already been awarded SMC for loss of a creative organ in an October 2021 rating decision. 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 further entitlement to SMC at this time. Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2021). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct. 3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Benefits Under the Home Improvement and Structural Alteration (HISA) pursuant to 38 C.F.R. §§ 17.3100, et seq. The Veteran is seeking for VA to provide him with a "whole-house-generator" for his home because he asserts that his sleep apnea, for which he uses a bilevel positive airway pressure (BiPAP) device to assist in breathing at night, can be dangerous if and when his house loses electrical power. The Veteran has asserted under oath during his November 2021 hearing with the undersigned VLJ that he lives in a very remote area and that he loses electrical power for days, weeks, and months at a time. The Veteran is seeking this benefit pursuant to the Home Improvements and Structural Alterations (HISA) program through the Veterans Health Administration, which provides for structural improvements and alterations to a veteran's residence such as those needed to allow entrance to or exit from the residence, use of essential lavatory and sanitary facilities, accessibility to kitchen or bathroom sinks or counters, improving entrance paths or driveways in immediate area of the home to facilitate access to the home through construction of permanent ramping, improving plumbing or electrical systems made necessary due to installation of home medical equipment, and other modifications specified under the regulation. See 38 U.S.C. §§ 1710 (a), 1717(a)(2); 38 C.F.R. § 17.3100. The Veteran originally applied for his HISA benefit in September 2018, and the benefit was denied by the Prosthetics and Sensory Aids Service of the Veterans Health Administration (VHA) in October 2018, after no document was received from the Veteran's prescribing sleep specialist. The signing official from the local VAMC noted that updates to home electrical systems and whole-house generators under the scope of HISA must be considered "Life Sustaining Equipment." The Veteran provided a notice of disagreement in November 2018, and the Prosthetic committee which reviewed the original application considered but denied the Veteran's appeal. In the letter to the Veteran explaining the denial, the VA physician, who was the chief of staff of the Veteran's local VAMC, noted the appeal was denied because the Veteran's sleep specialist had not provided a letter "stating that [the Veteran's] sleep equipment is life sustaining," and thus the reviewing committee had not concluded that the Veteran's current clinical situation warranted the provision of a whole-house-generator. In December 2018, VHA provided a statement of the case (SOC) to the Veteran explaining the reasons for the denial, stating that the HISA committee required evidence to show that the generator requested by the Veteran for his BiPAP sleep apnea device was a "life sustaining device." In that SOC, the Chief of the Prosthetics and Sensory Aids Service did note that the Veteran's sleep apnea was a condition that required regular treatment, but that in the Veteran's case, lack of treatment for periods of time during a power outage is not "imminently life threatening." This VA official did offer to provide a short-term alternative of a marine deep cycle battery with the appropriate power cables that would power the BiPAP machine. This SOC cited, as a regulatory source of authority, VHA Handbook 1173.14. In April 2019, the prescribing medical provider provided a statement noting that the Veteran's BiPAP machine for his sleep apnea had been prescribed in November 2018, and that the Veteran was being seen in this private internal medicine practice for "multiple complex problems, including obstructive sleep apnea." This provide specifically noted that this "diagnosis requires him to use a BiPAP machine on a nightly basis and disruption of his electrical service would be detrimental to his health." This medical provider continued, saying that the Veteran's sleep apnea device "is life sustaining, [and] prevents heart attack and/or stroke." The Board takes notice of VHA Directive 1173.14, dated December 26, 2017, which notes under paragraph 7, Examples of Home Improvements and Alterations Project(s), in pertinent part: "a. Examples of modifications that meet the scope of HISA include but not limited to: . . . (6) updates to electrical systems and whole-house generators to support of Life Sustaining Equipment." (Emphasis added.) The Board also notes in this particular case that it is bound by applicable statutes in the United States Code, regulations of the Department of Veterans Affairs in the Code of Federal Regulations, and precedent opinions of the General Counsel of the Department of Veterans Affairs. The Board is not legally bound by internal Department manuals, circulars, or similar administrative issues, to include the VHA Directive noted above. 38 C.F.R. § 20.105 (2021) (formerly 38 C.F.R. § 19.5 in 2018 and earlier). Nevertheless, the Board notes that the VHA committee that disapproved the Veteran HISA request for the whole-house generator relied solely on that authority of VHA Directive 1173.14. Therefore, while noting for the record that this VHA Directive does not carry the weight of federal law and regulation, the Board finds that the Veteran's application for his generator to satisfy the electrical requirements of sleep apnea device has met the requisite standards under United States Code and the Code of Federal Regulations, which are legally binding, and the internal VHA Directive 1173.14. Section 7, paragraph (6) of the latter regulation specifically notes "Updates to electrical systems and whole-house generators to support of Life Sustaining Equipment" as an example of HISA home improvement and alteration projects. The Veteran's prescribing sleep specialist specifically noted that his sleep apnea device is "life sustaining, [and] prevents heart attack and stroke." The Board finds no other authority that leads to a different outcome. Therefore, the Board considers the source of law, regulation, and the applicable VHA directive to be guiding in this particular appeal, and thus finds that the Veteran's appeal for his HISA application for a "whole-house generator" should be granted as a matter of law. Where the law is dispositive, the claim must be granted on the basis of legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS FOR REMAND 1. Entitlement to an increased evaluation in excess of 30 percent from January 1, 2016, for arteriosclerotic heart disease is remanded. 2. Entitlement to service connection for a separate rating for cardiac pacemaker implementation is remanded. In November 2015, the Veteran filed an increased rating claim for his service-connected arteriosclerotic heart disease, with pacemaker placement and history of coronary artery bypass grafting, under Diagnostic Code 7005, arteriosclerotic heart disease (coronary artery disease), currently rated as 30 percent disabling, effective from January 1, 2016, after a period of a temporary total evaluation. The RO provided a VA examination in December 2015, with an addendum opinion in February 2016. That VA examination noted a left ventricular ejection fraction of 55 percent and metabolic equivalents (METs), as measured on a stress test, of great than three but less than five. The addendum opinion of February 2016 noted that the Veteran also had been diagnosed with restrictive lung disease, diagnosed at the time as chronic obstructive pulmonary disorder (COPD), which also affected his METs scores. Under Diagnostic Code 7005, a 10 percent rating is warranted for a workload of greater than 7 METs but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or continuous medication required. A 30 percent rating is warranted if a workload between 5 and 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or if there is evidence of cardiac hypertrophy or dilatation. A 60 percent rating is warranted if there had been more than one episode of acute congestive heart failure in the past year; or if a workload between 3 and 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or if there is left ventricular dysfunction with an ejection fraction of 30-50 percent. A 100 percent rating is warranted if there is chronic congestive heart failure; or if a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope; or if there is left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, DC 7005 (2021). The Veteran testified before the undersigned VLJ in a Board hearing in November 2021. During his sworn testimony, the Veteran stated that he believed he was entitled to a separate rating for the implantation of his cardiac pacemaker, which he contended, pursuant to the rating criteria under 38 C.F.R. § 4.104. He also testified that he believed the METs used to evaluate his cardiac disability in April 2016 were not accurate. The Board notes that the December 2015 VA examiner, along with the addendum of February 2016, noted the Veteran's METs evaluations would be affected by his non-service-connected chronic lung disease, to include COPD, and that a medical determination must be made as to the impact of the Veteran's service-connected cardiac disabilities and if it can be distinguished from the impact of the Veteran's non-service-connected lung disorders. If the conditions cannot be sufficiently distinguished, entitlement to the benefit sought is determined based on the overlapping symptoms, which are attributed in whole to the service-connected disability. 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181 (1998). 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). Additionally, VA's duty to assist the Veteran includes obtaining a thorough and contemporaneous examination where necessary to reach a decision on the claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Reexamination will be requested whenever VA determines that there is a need to verify the current severity of a disability. 38 C.F.R. § 3.327(a). Prior to the examination, up-to-date treatment records should be obtained. VA must provide an examination that is adequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). If VA undertakes to provide an examination, even if not required to do so, the examination must be adequate, or the Veteran informed as why one cannot or will not be provided. Daves v. Nicholson, 21 Vet. App. 46, 52 (2007). The Veteran has not had a VA compensation and pension examination since December 2015. The Board thus finds that a new, updated VA examination that evaluates the Veteran's current cardiac disorders is necessary to evaluate his increased rating claim. Because both issues are related, the increased rating claim and the claim for a separate rating for the pacemaker implantation, the Board finds that any determinations with respect to the increased rating claim for the arteriosclerotic heart disease would materially affect a determination concerning the claim for a separate rating for the implantation of the cardiac pacemaker. As such, it is inextricably intertwined with the increased rating and service connection claims being remanded, and must therefore be remanded as well. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matters are REMANDED for the following action: 1. Make appropriate efforts to obtain and associate with the claims file any updated VA medical records of the Veteran not previously obtained. Contact the Veteran 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. 2. Schedule the Veteran for the appropriate VA examination by a VA medical professional with expertise in cardiology to determine the nature and severity of the Veteran's cardiac disabilities. The electronic claims file, to include the Veteran's service treatment records, lay statements and testimony, and treatment records, should be reviewed by the examiner. In assessing the Veteran's current metabolic equivalents (METs), the examiner is asked to differentiate, if possible, the degree of disability from the cardiac disabilities, which are part of the current appeal, and the non-service-connected COPD and other restrictive lung disease, which are not. The Board notes that if the conditions cannot be sufficiently distinguished, entitlement to the benefit sought is determined based on the overlapping symptoms, which are attributed in whole to the service-connected disability. 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181 (1998). In addition to assessing the Veteran's current diagnoses of his cardiac disabilities, the examiner and the RO adjudicator are also asked to consider the possibility of a separate rating for the Veteran's cardiac pacemaker implementation pursuant to Diagnostic Code 7018 or any other pertinent diagnostic code relevant to this disability. 3. Thereafter, readjudicate the issues on appeal as noted above. If the determination remains unfavorable to the Veteran, 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 Veteran 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.