BVA9508427 DOCKET NO. 89-40 836 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for diabetes mellitus. 2. Entitlement to service connection for arteriosclerotic and hypertensive disease with transient ischemic attacks. 3. Entitlement to an increased (compensable) rating for diplopia. 4. Entitlement to an increased (compensable) rating for right calf plexus of veins and bilateral varicose veins. 5. Entitlement to special monthly compensation based on the need for regular aid and attendance or at the housebound rate. 6. Entitlement to a certificate of eligibility for financial assistance in acquiring specially adapted housing or special home adaptations. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Mark J. Swiatek, Counsel INTRODUCTION The veteran served on active duty from September 1959 to March 1972. He has been in receipt of a total schedular rating for Meniere's disease since March 1975. This matter comes before the Board of Veterans' Appeals (Board) from a November 1988 decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. The case was remanded for further development in February 1990, April 1991, July 1992 and August 1993; this included adjudicative development, various medical examination and medical opinion development for various service-connected disabilities and development to ensure compliance with United States Court of Veterans Appeals' decisions. In March 1995, the case was returned to the Board by the RO for further appellate consideration. The case has been referred to the undersigned Member of the Board for further review. The issues of entitlement to service connection for diabetes mellitus and arteriosclerotic and hypertensive disease with transient ischemic attacks, and entitlement to a certificate of eligibility for financial assistance in acquiring specially adapted housing or special home adaptations will be held in abeyance. REMAND The representative contends that the veteran's diplopia is 100 percent disabling rather than noncompensable based on a February 1994 VA examination and should be rated as 5/200 bilaterally and 100 percent rather than 0 percent disabling so as to moot the special monthly compensation issue as to the visual aspect. The VA examination indicated that the monocular diplopia bilaterally was probably due to cataracts, but that the presence of the veteran's advanced bilateral Meniere's disease complicated testing for the presence of an extraocular muscle palsy and that testing to isolate a particular muscle palsy was very inconsistent when repeated. No overt ocular findings were found to indicate damage from the multiple service-related ocular injuries. The veteran, in a September 1992 communication to the RO, asserted, in essence, that Inderal for migraine headaches caused multiple disabilities, including diabetes, cardiovascular diseases, vision defects (other than diplopia) and glaucoma and that he should be given "a service connected disability for everything", including glaucoma. He also states that he now has severe narrowing of the spinal column and arthritis. He asserts, in essence, that his service-connected disabilities are so severe that he requires the regular assistance of another person and is rendered housebound. The Board, regretfully, must point out that the development of the issue has not been satisfactory to allow for an informed decision. Initially, the Board observes that the appellant has not been examined by the VA for an aid and attendance or housebound benefit determination. A medical evaluation of criteria listed in VA Form 21-2680 is required. Another deficiency appears in the initial statement of the case furnished to the veteran in December 1989, wherein he was not provided the criteria assessed in the aid and attendance determination found at 38 C.F.R. § 3.352(a) (1994). None of the subsequently issued supplemental statements of the case correct this procedural deficiency. The Board observes that communications to the RO in June 1988 and August 1991 set forth the basis for the veteran's need for claim for increased benefits due to the need for the regular aid and attendance of his wife. Regarding the claim for an increased rating for bilateral varicose veins with right calf plexus of veins, the Board observes that in the February 1990 remand, the RO was directed to obtain a current examination to permit the Board to make an informed assessment of the extent of the disability. In April 1991, the Board ordered a re-examination after a May 1990 examination was deemed inadequate. On a May 1991 examination, the examiner reported that varicose veins were not found, but that some minor areas of spider varicosities were present. In April 1992, the representative argued that the RO's use of the examination in denying the veteran's claim was "incredible". The examinations obtained by the RO pursuant to the Board's July 1992 and August 1993 remands do not provide additional findings for rating the varicose veins. This is unfortunate, since we are inclined to agree with the representative's characterization of the May 1991 examination. In addition to being ambiguous, it does not address the relevant criteria for higher ratings provided under 38 C.F.R. § 4.104, Diagnostic Code 7120. At a minimum, a description whether the varicosities are unilateral or bilateral and are located above and below the knee is necessary. With respect to the veteran's diplopia, the Board observes that in August 1993, the Board granted service connection for diplopia and remanded the case for an examination to assess the extent of the diplopia and to reconsider the claim for special monthly compensation based on need of regular aid and attendance or on account of housebound status in view of the grant of service connection. After a February 1994 examination, the RO, in September 1994, assigned a noncompensable evaluation for diplopia under Code 6090. The October 1994 supplemental statement of the case did not include any pertinent regulations for rating diplopia. The representative's March 1995 written presentation reasonably raises the issue of entitlement to a higher rating based on the examination findings, to include entitlement to a total disability rating. The issue is inextricably intertwined here with the claim for special monthly compensation. The Board notes that the veteran is in receipt of a 30 percent rating for migraine, in addition to the 100 percent rating for Meniere's disease. The development requested herein may affect the independent ratings assigned for other service-connected disabilities. Though not specifically claimed by the veteran, the RO is required to review a claim for special monthly compensation as an inferred issue. Akles v. Derwinski, 1 Vet.App. 118, 120-21 (1991). The Adjudication Procedures Manual, M21-1, provides, in Part VI, paragraph 3.19, for independent consideration of entitlement to special monthly compensation on a basis other than the need for aid and attendance or housebound status. In view of the foregoing, and in order to ensure that the VA has met its duty to assist the appellant with regard to developing the facts pertinent to a claim, and ensure due process, it is the opinion of the Board that further development as set forth below is desirable. Accordingly, the case is REMANDED to the RO for the following action: 1. The RO should request the appellant provide the names and addresses of all health care providers who have treated him recently any service-connected disability. The RO should attempt to obtain copies of those treatment records identified by the appellant which have not been previously secured. This should include copies of VA treatment records since October 1988 at the Topeka, Kansas, VA Medical Center. 2. Following completion of the above development, the appellant should be afforded a VA medical examination for the purpose of determining housebound status or permanent need for regular aid and attendance. The claims folder should be made available to the examiner prior to the examination. All indicated tests or special examinations should be accomplished to obtain an accurate assessment of the veteran's ability to care for himself or live alone. The examination should be recorded on VA Form 21-2680, if available. 3. Unless an eye examination is ordered in connection with the examination for determining the need aid and attendance or housebound status, the veteran should be scheduled for an examination by a board- certified ophthalmologist, if available, to determine the current severity of the veteran's diplopia. The claims folder should be made available to the examiner prior to the examination. The examination should be conducted in accordance with 38 C.F.R § 4.77. 4. The veteran should also be scheduled for a comprehensive VA examination of his varicose veins of the lower extremities. The claims folder should be made available to the examiner prior to the examination. All indicated tests or special examinations should be accomplished. 5. When the above development has been completed, the RO should readjudicate the issues of entitlement to an increased (compensable) rating for diplopia, right calf plexus of veins and bilateral varicose veins, and entitlement to special monthly compensation based on the need for regular aid and attendance or on being housebound. The RO should also consider any entitlement to special monthly compensation independent of the need for regular aid and attendance or housebound status. If any benefit sought is not granted to the veteran's satisfaction, he and his representative should be furnished with a supplemental statement of the case and they should then be afforded the applicable time to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The appellant need take no action until he is further informed. The purpose of this REMAND is to obtain additional information and assure due process of law. No inference should be drawn regarding the final disposition of the claim as a result of this action. _____________________ SAMUEL W. WARNER Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994).