Citation Nr: 22018981 Decision Date: 03/31/22 Archive Date: 03/31/22 DOCKET NO. 16-39 941 DATE: March 31, 2022 REMANDED Entitlement to a disability rating in excess of 40 percent for intervertebral disc syndrome, lumbar spine, status-post surgery is remanded. Entitlement to an initial compensable disability rating for scar, status-post lumbar surgery, is remanded. Entitlement to a disability rating in excess of 20 percent for bursitis of the right shoulder is remanded. Entitlement to a disability rating in excess of 20 percent for bursitis of the left shoulder is remanded. Entitlement to a disability rating in excess of 50 percent for status-post total knee replacement with degenerative joint disease of the left knee is remanded. Entitlement to aid and attendance for the Veteran's wife is remanded. Entitlement to a disability rating in excess of 60 percent prior to March 11, 2017, and a rating in excess of 30 percent as of March 11, 2017, for degenerative joint disease, status-post total knee replacement of the right knee is remanded. Entitlement to service connection for bilateral hip disability is remanded. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities is remanded. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities is remanded. Entitlement to a certificate of eligibility for an automobile and adaptive equipment, or for adaptive equipment only is remanded. Entitlement to an initial compensable disability rating for residual scar of the right knee is remanded. Entitlement to an initial compensable disability rating for residual scar of the left knee is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. REASONS FOR REMAND At the outset the Board wants to acknowledge the unique way the increased rating claim for the right knee disability appears on the title page. The increased rating claim specific to the right knee disability was received July 25, 2016, via a VA 21-526b Supplemental Claim form. The Regional Office (RO) accepted the filing as of June 24, 2016, the date the VA 21-526EZ Fully Developed Claim was received. In a March 2017 rating decision (RD) the RO decreased the rating from 60 percent to 30 percent, with an effective date of March 11, 2017. There is no indication in the RD to explain why the RO assigned the stated effective date. Looking at the evidence considered there is not one record, medical, or otherwise dated March 11, 2017. In fact, the only document dated March 11, 2017, appears to be the RD. Nonetheless, as the appeal period commences June 2016 and the rating was not decreased until March 2017, the increased rating claim is characterized as such on the title page. The Board recognizes that after the issuance of the July 2019 statement of the case (SOC) the Veteran submitted VA Form 20-0996, stating that he never received this statement of the case. Unfortunately, there is nothing in the record to indicate that any development was done or that the Veteran actually received the July 2019 statement of the case. As such, the Board accepts limited jurisdiction over the service connection claim for obstructive sleep apnea for the sole purpose of requesting that the RO take reasonable steps to ensure that the Veteran receives a copy of the July 2019 SOC. See 38 C.F.R. §§ 19.26, 19.29; See Manlincon v. West, 12 Vet. App. 238. There are four separate appeal streams. The increased rating claims for the scar of the low back, low back disability (IVDS), left knee disability, the bilateral shoulder disabilities, and the aid and attendance allowance claim for the Veteran's spouse stem from a December 2014 rating decision. The increased rating claim for the right knee and service connection claim for bilateral hip disability are on appeal from a March 2017 rating decision. The increased rating claims for the scar of the right knee and of the left knee are on appeal from an October 2017 rating decision. The service connection claims for peripheral neuropathy of the bilateral upper and lower extremities and the automobile claim come before the Board on appeal from a March 2018 rating decision. The Board acknowledges that the March 2018 rating decision also denied the aid and attendance allowance claim for the Veteran's spouse. However, this claim was already in an appellate status as referenced above. Of note, the Veteran is in receipt of a 100 percent schedular rating since April 27, 2007, and a TDIU from January 23, 1992 to April 27, 2007. He is also in receipt of special monthly compensation (SMC) subsection (s) since April 1, 2010, and SMC subsection (l) since January 19, 2012. Additionally, he has SMC for loss of use of a creative organ since December 21, 2012. In the March 2022 informal hearing presentation (IHP), the Veteran's representative did not provide any additional argument in support of the claim and indicated it supports the Veteran's right to appeal these issues. Increased rating claims The Veteran has consistently appealed his claims, in an attempt to get favorable decisions since 2014, 2016, and 2017 respectively. The last VA examinations performed in connection to the increased rating claims on appeal are dated November 2014 and November 2016. The Veteran has essentially contended worsening symptomatology. Further, as several years has passed, the examinations of record may not accurately illustrate the current level of severity of the Veteran's service-connected disabilities. Therefore, a remand is needed to afford the Veteran VA examinations. It is also important to acknowledge that during the pendency of the appeal, the criteria for evaluating musculoskeletal disorders were revised, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 38C.F.R. §4.71a, Diagnostic Codes 5003, 5010, 5055, and 5257. As such, the Board will request that the VA examiner consider the new criteria in addition to the criteria in effect prior to February 7, 2021. Service connection claims A review of VA treatment record illustrates complaints of and treatment for the hips. VA records dated February 2017, January 2019, May 2019, and June 2019 show a diagnosis of osteoarthritis of the hips. A VA examination has not been provided regarding the Veteran's bilateral hip disability. As such, a remand is needed to confirm all current diagnoses of a hip disability and for an opinion as to its etiology. As there is a current diagnosis of peripheral neuropathy, a medical opinion would be helpful, to first confirm whether it is a separate and distinct disability from the service-connected radiculopathy of the bilateral upper extremities and of the bilateral lower extremities, and if so, whether it is related to service or his service-connected disabilities. Aid and attendance The Veteran submitted a September 2014 VA Form 21-2680 prepared by a private physician, in support of his claim for SMC based on the need for regular aid and attendance for his wife, M.O.-V. Although the report notes how impactful M.O.-V.'s psychiatric disorder is, so much so that she may require nursing home care during exacerbated states, it does not clearly indicate whether she is in need of regular aid and attendance. As such, a VA examination is required. Automobile and adaptive equipment The Board recognizes that the automobile claim that is before the Board is also being adjudicated under the modernized review system, also known as the Appeals Modernization Act (AMA). Despite that the Board has jurisdiction of the appeal as a Legacy appeal. The determinative issue is whether the Veteran's service-connected disabilities cause "loss or permanent loss of use of one or both feet" for purposes of entitlement to automobile and /or adapted equipment. Unfortunately, the 38C.F.R. §§3.808 regulation does not further define the phrase "loss or permanent loss of use," and the Court has not yet provided caselaw to define what "loss or permanent loss of use" means in the context of automobile and adaptive equipment, or for adaptive equipment only claims. Therefore, on remand, the Board will request opinions from the examiner that can assist in determining whether the Veteran's service-connected disabilities equates to "loss or permanent loss of use of one or both feet" or "loss or permanent loss of use of one or both hands" as contemplated for SMC claims as well as the less restrictive definition of the phrase as written into 38 U.S.C. § 2101 and 38 C.F.R. § 3.809 regarding specially adapted housing. In the precedential case of Jensen v. Shulkin, the Court of Appeals for Veterans Claims clarified that "loss of use" in the context of specially adapted housing benefits is defined by the adjacent modifier, "such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair." See Jensen v. Shulkin, 29 Vet. App. 66, 78-79 (2017). The matters are REMANDED for the following action: 1. Send the Veteran and his representative the July 2019 statement of the case that addresses the issue of service connection for obstructive sleep apnea. Provide the Veteran with written instruction on perfecting his appeal to the Board. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration 2. The Agency of Original Jurisdiction (AOJ) should schedule the Veteran for a VA examination by an appropriate clinician to determine the current severity of his low back disability and scar. The examiner should identify all current disabilities related to the Veteran's low back disability to include the lumbar scar and IVDS found at any time during the appeal period (from July 2014). The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If the examiner is unable to perform any of the requested testing, the examiner must clearly indicate why such testing could not be performed and attempt to provide an assessment based on the medical evidence of record. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran's low back disability alone and discuss the effect of his low back disability on any occupational functioning and activities of daily living. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or whether it is due to the examiner not having the knowledge or training. Specifically, if arthritis of the lumbar spine is found the examiner should determine whether as of February 7, 2021, the arthritis documented is degenerative arthritis or post-traumatic arthritis. The examiner should also indicate whether the Veteran has any ankylosis or symptoms approximating ankylosis of the lumbar spine; and, if so, the extent of any such ankylosis, and whether the ankylosis is favorable or unfavorable. 3. The AOJ should schedule the Veteran for a VA examination by an appropriate clinician to determine the current severity of his service-connected right shoulder and left shoulder disabilities. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's shoulder disabilities under the rating criteria. To the extent possible the examiner should opine as to the level of severity of the Veteran's right shoulder and left shoulder disabilities throughout the appeal period (from July 2014). The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If the examiner is unable to perform any of the requested testing, the examiner must clearly indicate why such testing could not be performed and attempt to provide an assessment based on the medical evidence of record. The examiner should attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or whether it is due to the examiner not having the knowledge or training. To the extent possible, the examiner should identify any symptoms and functional impairments due to the right shoulder disability alone and discuss the effect of the Veteran's right shoulder disability on any occupational functioning and activities of daily living. To the extent possible, the examiner should identify any symptoms and functional impairments due to the left shoulder disability alone and discuss the effect of the Veteran's left shoulder disability on any occupational functioning and activities of daily living. Specifically, the examiner should determine whether the Veteran has or has ever had, as of February 7, 2021, limitation of motion midway between side and shoulder level (flexion and/or abduction loss of motion limited to 45 degrees), or flexion and or abduction limited to 25 degrees from side. Also, if arthritis is found the examiner should determine whether as of February 7,2021, the arthritis documented is degenerative arthritis or post-traumatic arthritis. 4. The AOJ should schedule the Veteran for a VA examination by an appropriate clinician to determine the current severity of his left knee and right knee disabilities and any scars. The examiner is requested to identify all current left knee and right knee disabilities throughout the appeal period (from August 2014 and from June 2016, respectively), to include residuals of status-post total knee replacement and scars. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disabilities of the left knee and right knee under the rating criteria, to include assessing the levels of severity of the residuals of status-post total knee replacement of the left knee and of the right knee and severity of the scars. To the extent possible the examiner should opine as to the level of severity of the Veteran's left knee disabilities, to include the residuals of status-post total knee replacement and scars throughout the appeal period (from August 2014). To the extent possible the examiner should opine as to the level of severity of the Veteran's right knee disabilities, to include the residuals of status-post total knee replacement and scars throughout the appeal period (from June 2016). The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If the examiner is unable to perform any of the requested testing, the examiner must clearly indicate why such testing could not be performed and attempt to provide an assessment based on the medical evidence of record. The examiner should attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or whether it is due to the examiner not having the knowledge or training. To the extent possible, the examiner should identify any symptoms and functional impairments due to the left knee disabilities alone and discuss the effect of the Veteran's left knee disabilities on any occupational functioning and activities of daily living. To the extent possible, the examiner should identify any symptoms and functional impairments due to the right knee disabilities alone and discuss the effect of the Veteran's right knee disabilities on any occupational functioning and activities of daily living. Additionally, the examiner should determine whether the Veteran has or has ever had, as of February 7, 2021, unrepaired or failed repair of complete ligament tear or sprain, incomplete ligament tear, or repaired complete ligament tear that causes persistent instability, and or a diagnosed condition involving the patellofemoral complex with recurrent instability. Also, if arthritis is found the examiner should determine whether as of February 7,2021, the arthritis documented is degenerative arthritis or post-traumatic arthritis. 5. The AOJ should schedule the Veteran's wife, M.O.-V., for a VA aid and attendance/housebound examination. The claims folder, including a copy of this remand, should be made available to the examiner for review prior to the examination. After a review of the file and examination of the Veteran's wife, the examiner should respond to the following: (a.) Identify the extent to which her disabilities impact her capability for self-care. The examiner's assessment must include, but is not limited to, evaluation of such conditions as: her ability or inability to dress or undress herself or to keep herself ordinarily clean and presentable, her ability or inability to feed herself; her ability or inability to attend to the wants of nature; and any incapacity, physical or mental, which requires care or assistance on a regular basis to protect her from hazards or dangers incident to her daily environment. (b.) In responding to this inquiry, the examiner should question the Veteran's wife in detail about her usual daily activities, and how she moves about (inside and outside the home) and address any observations and/or relevant test findings from the examination. (c.) In making this determination, the examiner is asked to discuss the Veteran's assertions that his wife requires assistance with basic activities of daily living due to her psychiatric disorder. (d.) Identify all visual aids and their purposes used by the Veteran's wife in her daily living. (e.) The examiner must provide reasons for all opinions, addressing the relevant medical and lay evidence, including the September 2014 private examination report for housebound status or permanent need for regular aid and attendance. A complete and fully explanatory rationale must be provided. If any opinion 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. 6. The AOJ should schedule the Veteran for an appropriate VA examination to confirm all current hip disabilities and provide opinions as to their etiology. The claims folder, including a copy of this remand, should be made available to the examiner for review prior to the examination. The examiner should identify all current disabilities of the hips found at any time during the appeal period (from June 2016). Note: pain in it of itself may constitute a disability for VA purposes if it results in functional impairment. For each diagnosed disability of the hip or functional impairment, the examiner should provide opinions that respond to the following: (a.) Whether it is at least as likely as not (i.e., probability of 50 percent) that the left hip or right hip disabilities manifested during active service; or is otherwise related to an event, injury, or disease incurred during active service. (b.) Whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's left hip or right hip disabilities are proximately due to or caused by his service-connected disabilities, to include his service-connected low back disability and his service-connected radiculopathy of the bilateral lower extremities. (c.) Whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's left hip or right hip disabilities, were aggravated (worsened in severity beyond a natural progression) by his service-connected disabilities, to include his service-connected low back disability and his service-connected radiculopathy of the bilateral lower extremities. The examiner is advised that separate rationale specific to causation and separate rationale specific to aggravation is required. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is advised that the Veteran is competent to report observable symptoms. If the examiner rejects the Veteran's reports of symptomatology a reason for doing so must be provided. The examiner is further advised that the mere absence of treatment records is not wholly dispositive as to whether the Veteran had ongoing problems with his hips since service. Any opinion offered must be supported by complete rationale. 7. The AOJ should schedule the Veteran for an appropriate VA examination to confirm any current diagnoses of peripheral neuropathy and provide opinions as to their etiology. The examiner must be provided with a copy of the claims file, to include all medical records, and this remand to assist in understanding the questions presented in this matter. The examiner should identify any peripheral neuropathy found at any time during the appeal period, to include peripheral neuropathy of the bilateral upper extremities and of the bilateral lower extremities (from December 2017). For each diagnosis of peripheral neuropathy, the examiner is requested to provide an opinion as to whether each diagnosed peripheral neuropathy is a symptom of the Veteran's service-connected low back disability, or his service-connected radiculopathy of the bilateral lower extremities, or whether each disorder is a distinct disability. For each diagnosis of peripheral neuropathy that is determined to be a distinct disability, the examiner should provide the following opinions: (a.) Whether it is at least as likely as not (i.e., probability of 50 percent) that the Veteran's disability manifested during active service; or is otherwise related to an event, injury, or disease incurred during active service. (b.) Whether it is at least as likely as not (i.e., probability of 50 percent) that the Veteran's disability is proximately due to or caused by his service-connected disabilities, to include his service-connected low back disability, and his service-connected radiculopathy. (c.) Whether it is at least as likely as not (i.e., probability of 50 percent) that the Veteran's disability was aggravated (worsened in severity beyond a natural progression) by his service-connected disabilities, to include his service-connected low back disability and his service-connected radiculopathy. The examiner is asked to provide an opinion as to both causation and aggravation. The examiner is asked to provide a detailed rationale for any opinions reached. 8. The AOJ should schedule the Veteran for a VA examination to determine the current severity of his service-connected disabilities as they relate to his ability to use his hands, upper extremities, and lower extremities, as well how his currently non-service-connected hip disability relates to his balance and propulsion. The Veteran's claims file should be made available to the examiner (including this remand). The examiner should be provided with a list of the Veteran's service-connected disabilities. After reviewing the evidence of record, the Veteran's lay statements, and the results of any testing performed at the examination, the examiner should provide opinions as to the following: (a.) Whether it is at least as likely as not that the Veteran's service-connected disabilities, alone, are of such severity as to preclude him from walking without the use of an ambulatory device. In responding to this question, the examiner should address whether and how frequently the Veteran must use an ambulatory device (cane, wheelchair, crutches, brace, etc.) in order to walk and get around (both within and outside his home). Answers to questions such as the following may prove helpful: What ambulatory aids does the Veteran use for locomotion, and with what frequency? How far, if at all, is the Veteran able to walk independently? Does the Veteran use ambulatory devices inside the home, and if so, what type and how frequently? (b.) Whether it is at least as likely as not that the Veteran's disabilities of the lower extremities to include his service-connected low back disability, service-connected bilateral knee disabilities, and service-connected radiculopathy of the bilateral lower extremities and bilateral upper extremities, limit his ability to use his feet or legs, or his hands or arms to such an extent that he would be equally well-served by amputation with use of appropriate prosthetic. (c.) Whether it is at least as likely as not that the Veteran's service-connected disabilities equate to loss of use of one hand, both hands, one foot, and or both feet. 1. In responding to this question, the examiner is asked to provide a detailed description of the type and extent of functional limitations due to the low back disability, bilateral knee disability, radiculopathy of the bilateral lower extremities, and of the bilateral upper extremities as it affects the Veteran's ability to perform various activities of daily living/functions. (d.) The examiner should indicate whether the Veteran's service-connected disabilities affect his functions of balance and propulsion. (e.) The examiner should indicate whether the Veteran's currently non-service-connected bilateral hip disability affects his functions of balance and propulsion. The examiner should consider all medical and lay evidence of record when making his or her determinations. Any opinion offered must be supported by a complete rationale. If the clinician feels that the requested opinion cannot be rendered without resorting to speculation, he or she 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 current medical science and the known facts); by a deficiency in the record (i.e. additional facts are required); or by a deficiency in the examiner (i.e. the examiner does not have the needed knowledge or training). H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Talamantes, 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.