Citation Nr: 0505433 Decision Date: 02/28/05 Archive Date: 03/04/05 DOCKET NO. 02-00 107A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Whether there was clear and unmistakable error in an April 1973 rating decision that denied service connection for an allergy to bee sting and mosquito bites. 2. Whether there was clear and unmistakable error in a November 1973 rating decision that denied service connection for the residuals of mononucleosis. 3. Entitlement to service connection for the loss of use of both legs, to include as secondary to the appellant's service-connected low back disability. 4. Entitlement to service connection for a cervical spine disability, to include as secondary to the appellant's service-connected low back disability. 5. Entitlement to service connection for the skin conditions of disseminated superficial actinic porokeratoses, actinic keratoses, and bacterial folliculitis (claimed as a skin rash), to include as secondary to Agent Orange exposure. 6. Entitlement to an increased rating for a low back disability, currently rated as 40 percent disabling. 7. Entitlement to an effective date prior to July 18, 1991, for the grant of service connection for post-traumatic stress disorder. 8. Entitlement to special monthly compensation based on the need for the regular aid and attendance of another person or on being housebound. 9. Entitlement to a certificate of eligibility for financial assistance in the purchase of an automobile and adaptive equipment, or for adaptive equipment only. 10. Entitlement to a certificate of eligibility for financial assistance in acquiring special home adaptations. 11. Entitlement to a certificate of eligibility for financial assistance in acquiring specially adapted housing. 12. Entitlement to a prestabilization rating from the date of separation from active military service in January 1973. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The appellant had active military service from May 1966 to March 1967, and from June 1969 to January 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2001 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in Louisville, Kentucky. In regard to the appellant's increased rating claim, the Board notes that by the September 2001 rating action, the RO denied the appellant's claim for entitlement to a rating in excess of 20 percent for a low back disability. The appellant subsequently filed a timely appeal. In e-mail correspondence from the appellant to the RO, dated in November 2002, the appellant stated that he was seeking a 40 percent rating for his service-connected low back disability. By a September 2003 rating action, the RO increased the disability rating for the appellant's low back disability from 20 percent to 40 percent disabling. At that time, the RO indicated that the 40 percent rating assignment constituted a complete grant of the increased rating claim, and that that claim was no longer in appellate status. However, in an October 2004 hearing which was conducted at the RO before a Member of the Board, the appellant testified that his November 2002 e-mail correspondence had been misinterpreted, and that he had not indicated that he would be satisfied with a 40 percent disability rating for his low back disability. In addition, the appellant stated that he felt that he deserved a 60 percent disability rating. In this regard, the Board notes that a veteran is generally presumed to be seeking the maximum benefit allowed by law and regulation, and a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35 (1993). Therefore, in light of the above, and given that 40 percent is not the maximum benefit available under the law, the increased rating issue remains on appeal, and is characterized as described on the first page of this decision. With the exception of the clear and unmistakable error (CUE) claims, the remainder of the issues listed on the title page will be discussed in the Remand portion of this decision; these issues are remanded to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. The April 1973 rating decision, which denied service connection for an allergy to bee sting and mosquito bites, was supportable by the evidence then of record, and was consistent with the applicable law and regulations extant at that time. 2. The November 1973 rating decision, which denied service connection for the residuals of mononucleosis, was supportable by the evidence then of record, and was consistent with the applicable law and regulations extant at that time. CONCLUSIONS OF LAW 1. The April 1973 rating decision, which denied service connection for an allergy to bee sting and mosquito bites, did not contain CUE. 38 U.S.C.A. § 5109A (West 2002); 38 C.F.R. § 3.105(a) (2004). 2. The November 1973 rating decision, which denied service connection for the residuals of mononucleosis, did not contain CUE. 38 U.S.C.A. § 5109A (West 2002); 38 C.F.R. § 3.105(a) (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). Regulations implementing the VCAA have also been published. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA redefines VA's duty to assist and enhances the duty to notify claimants about information and evidence necessary to substantiate a claim. The VCAA also eliminates the requirement that a claim be well grounded. The United States Court of Appeals for Veterans Claims (Court) has held that because CUE claims are not conventional appeals, but rather are requests for revisions of previous decisions, provisions of the VCAA are not applicable thereto. See Livesay v. Principi, 15 Vet. App. 165, 178-79 (2001). Although this holding pertains to an allegation of CUE in a decision by the Board, the Board concludes that this judicial construction is equally applicable when the issue involves an allegation of CUE in an otherwise final decision by the Regional Office. As a consequence, VA's duties to notify and assist contained in the VCAA are not applicable to the veteran's CUE claims. Thus, a remand for further technical compliance with the provisions of the VCAA is not necessary. Pertinent Law and Regulations Under applicable criteria, RO decisions that are final and binding will be accepted as correct in the absence of clear and unmistakable error. See 38 C.F.R. § 3.105(a). The question of whether clear and unmistakable error is present in a prior determination is analyzed under a three-pronged test. First, it must be determined whether either the correct facts, as they were known at the time, were not before the adjudicator (that is, more than a simple disagreement as to how the facts were weighed and evaluated) or the statutory or regulatory provisions extant at that time were incorrectly applied. Second, the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made." Third, a determination that there was clear and unmistakable error must be based on the record and the law that existed at the time of the prior adjudication in question. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). According to the Court, clear and unmistakable error is a very specific and rare kind of error. "It is the kind of error, of fact or law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be, ipso facto, clear and unmistakable." Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993) (citing Russell at 313). The Court has defined clear and unmistakable error as administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. See Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1992). However, the mere misinterpretation of facts does not constitute clear and unmistakable error. See Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). The Court has also held that the failure to fulfill the duty to assist does not constitute clear and unmistakable error. See Crippen v. Brown, 9 Vet. App. 412, 424 (1996); Caffrey v. Brown, 6 Vet. App. 377 (1994). CUE in the April 1973 rating decision I. Factual Background The veteran's service medical records show that in March 1970, the veteran was treated for a bee sting allergy. At that time, it was noted that the veteran had experienced an allergic reaction to a bee sting in approximately 1968 or 1969. The diagnosis was hymenoptera hypersensitivity, and it was indicated that the veteran was non-deployable to Vietnam for the next six months "for desensitization." The records also include a DA Form 3349 (Medical Condition - Physical Profile Record), dated in August 1970, which shows that at that time, it was noted that the veteran was medically qualified for duty with permanent assignment limitations because he was hypersensitive to hymenoptera. It was further indicated that the veteran was not to be assigned to heavily wooded areas or isolated areas where definitive medical care was unavailable. According to the records, in August 1970, the veteran was hospitalized for approximately two days. Upon admission, it was reported that the veteran had developed an anaphylactic shock as a result of a bee sting in 1968. It was also noted that the veteran had a subsequent reaction, which was milder than the first one, and was later assigned to Vietnam where he developed a moderate reaction to different insect bites. While he was hospitalized, the veteran was given a shot for his desensitization program. Upon his discharge, the diagnosis was hypersensitivity to hymenoptera. It was noted that the veteran was discharged to duty with a permanent P-3 profile to read, "no assignment to heavy wooded areas; no assignment to tropical areas." In addition, a Clinical Record Cover Sheet, dated in August 1970, shows that at that time, the veteran was diagnosed with a bee sting allergy, which was contracted in the line of duty ("LOD-yes"). The veteran's service medical records also reflect that in November 1971, the veteran was treated for an allergic reaction secondary to an insect bite, probably a mosquito. At that time, the examiner stated that the veteran had a valid P3 profile which indicated that the veteran was not to be assigned to a tropical area. The examiner noted that given that the veteran was currently stationed in Vietnam, the limitations of his profile had been violated. Thus, the examiner recommended that the veteran receive an administrative transfer to the United States, which was subsequently granted. The records further show that in November 1972, approximately two months prior to the veteran's separation from the military, the veteran underwent a physical examination. At that time, the examiner noted that the veteran had a bee sting and mosquito bite allergy. In February 1973, the veteran filed a claim for entitlement to service connection for an allergy to bee sting and mosquito bites. A VA examination was conducted in March 1973. At that time, the veteran stated that he was allergic to bee stings and mosquito bites. Following the physical examination, the pertinent diagnosis was history of allergic reaction to bee and mosquito stings, with no current manifestations. By an April 1973 rating action, the RO denied the veteran's claim for service connection for an allergy to bee sting and mosquito bites. At that time, the RO stated that there was no notation of an allergy to bee sting or mosquito bites in the veteran's available service medical records. Thus, the RO concluded that a bee sting and mosquito bite allergy was claimed by the veteran, but was not shown by the evidence of record. In a rating action, dated in November 1973, the RO again denied the veteran's claim for service connection for an allergy to bee sting and mosquito bites. At that time, it was noted that the veteran's service medical records contained evidence of extensive treatment because of an allergy to bee stings. The appellant did not file a timely appeal with respect to either the April or the November 1973 rating action, and as such, both decisions became final. In the veteran's October 2004 Travel Board hearing, the appellant testified that while he was in the military, he received treatment for an allergy to bee sting and mosquito bites. Thus, the appellant maintained that the April 1973 rating decision, which denied service connection for an allergy to bee sting and mosquito bites, contained CUE. II. Analysis At the outset, the Board notes that in correspondence from the veteran to the RO, received in April 2001, the veteran stated that following his discharge from the Army, he filed a claim for service connection for an allergy to bee sting and mosquito bites. The veteran indicated that his claim was denied by the RO on the basis that an allergy to bee sting and mosquito bites was not shown by his service medical records. However, the veteran maintained that his service medical records actually did reflect treatment for an allergy to bee sting and mosquito bites. Thus, it was the veteran's contention that the rating which denied him service connection for an allergy to bee sting and mosquito bites, contained CUE. In support of his CUE claim, the veteran submitted copies of his service medical records, which showed treatment for an allergy to bee sting and mosquito bites, and a copy of the notice letter from the RO to the veteran, which was mailed to the veteran following the April 1973 rating decision and informed the veteran that his claim for service connection for an allergy to bee sting and mosquito bites had been denied. In the letter, it was noted that evidence of a bee sting and mosquito bite allergy was not found in the veteran's service medical records, or elsewhere. Thus, in this case, the Board recognizes that the veteran's claim for service connection for an allergy to bee sting and mosquito bites was denied in an April 1973 decision, and again by a November 1973 decision. The Board also recognizes that although the veteran did not specifically state which of the two rating decisions he believed involved CUE, nevertheless, given that he submitted a copy of the notice letter which was sent to him by the RO following the April 1973 rating decision, and that it was only in the April 1973 rating decision where it was found that there was no evidence of an allergy to bee sting or mosquito bites in the appellant's available service medical records, the Board finds that the veteran's CUE claim only involves the April 1973 rating action. As is true today, VA regulations in 1973 provided that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. See 38 C.F.R. § 3.303. In addition, the regulations contemplated in 1973, as they do today, that seasonal and other acute allergic manifestations subsiding on the absence of or removal of the allergen generally were to be regarded as acute diseases, healing without residuals. See 38 C.F.R. § 3.380 (1973) (2003). Based on the evidence of record, the Board finds that the April 1973 rating decision denying service connection for an allergy to bee sting and mosquito bites was not clearly and unmistakably erroneous. In making the April 1973 rating decision, the RO considered the pertinent evidence of record at that time, which included the veteran's service medical records and the March 1973 VA examination report. In this regard, the veteran's service medical records show that the veteran was treated numerous times for an allergy to bee sting and mosquito bites, and was given a P3 profile which indicated that he was not to be assigned to heavily wooded or tropical areas. Nevertheless, in the April 1973 rating action, the RO incorrectly stated that there was no notation of an allergy to bee sting or mosquito bites in the veteran's available service medical records. Thus, the Board notes that the correct facts were actually before the RO at the time of the decision (the veteran's service medical records did show treatment for an allergy to bee sting and mosquito bites); however, the RO did not recognize the correct facts, and instead, incorrectly reported that the veteran's service medical records were negative for any findings of an allergy to bee sting or mosquito bites. Nevertheless, regardless of the RO's incorrect finding that the veteran's service medical records were negative for any evidence of an allergy to bee stings and mosquito bites, there was a tenable basis for the decision. In this regard, although the veteran's service medical records show treatment for an allergy to bee sting and mosquito bites, and that he underwent a desensitization program, the Board notes that in the veteran's March 1973 VA examination, following the veteran's discharge from the military, the pertinent diagnosis was history of allergic reaction to bee and mosquito stings, with no current manifestations. Thus, at the time of the March 1973 VA examination, no complaint or residual of either a bee sting or a mosquito bite was noted. As such, there was no evidence of any residual disability or permanent harm resulting from any in-service bee sting and/or mosquito bite. As previously stated, pertinent VA regulations in 1973 provided that seasonal and other acute allergic manifestations subsiding on the absence or removal of the allergen were generally to be regarded as acute diseases, healing without residuals. See 38 C.F.R. § 3.380. Accordingly, upon a review of the March 1973 VA examination report, although a history of an allergy to bee sting and mosquito bites was noted, the examiner reported that there were no current manifestations. Therefore, at the time of the April 1973 rating, there was no evidence of record showing a current diagnosis of an allergy to bee sting and mosquito bites, and as such, the RO denied the veteran's service connection claim. Thus, the result would not have been manifestly different but for this error. To the extent that the veteran's claim is a disagreement with how the RO weighed or evaluated the evidence that was of record, it must fail. CUE must be more than a simple disagreement as to how the facts were weighed or evaluated. Regardless of the fact that the RO incorrectly stated that the veteran's service medical records were negative for any findings of an allergy to bee sting and mosquito bites, nevertheless, the RO concluded that there was no current diagnosis of an allergy to bee sting and mosquito bites. While the rating decision did not provide specific citations to statutory or regulatory provisions, the language used in the decision indicates all laws applicable to the veteran's service connection claim were appropriately considered. The regulations contemplated in 1973, as they do today, that inherent in the matter of establishing service connection was the presence of a current disability. See 38 C.F.R. § 3.303. Absent such, as it was in this case at the time of the April 1973 rating action, there was no valid claim. Id. Thus, even if the RO had correctly stated that the veteran's service medical records showed treatment for an allergy to bee sting and mosquito bites, nevertheless, given that the basis of the RO's decision was that there was no current disability, the result then would not have been manifestly different. While the Board finds that reasonable minds might differ as to whether the RO reached the correct determination as to the disposition of the veteran's claim in the April 1973 rating decision, the fact that adjudicators made a determination on a question on which reasonable minds might differ is an insufficient basis upon which to predicate a finding of CUE. See Thompson v. Derwinski, 1 Vet. App. at 253-54. In short, the Board concludes that the April 1973 rating decision does not include the kind of error of fact or law which would compel a conclusion that the result would have been manifestly different but for the alleged error, and there is no basis upon which to find CUE in this decision. CUE in the November 1973 rating decision I. Factual Background The veteran's service medical records show that on January 10, 1973, the veteran was diagnosed with mononucleosis. At that time, it was reported that he was to be on light duty for two weeks. The veteran's DD Form 214, Report of Separation from the Armed Forces of the United States, shows that the veteran was discharged from the military on January 12, 1973. In March 1973, the veteran filed a claim for entitlement to service connection for the residuals of mononucleosis. A VA examination was conducted in June 1973. The examination report was negative for any complaints or findings of residuals of mononucleosis. In a rating action, dated in November 1973, the RO denied the veteran's claim for service connection for the residuals of mononucleosis. At that time, the RO stated that the veteran's service medical records showed that in January 1973, the veteran was diagnosed with mononucleosis, with apparent full recovery. According to the RO, residuals of mononucleosis were not found on the veteran's last VA examination. The veteran did not appeal this decision, and it became final. In correspondence from the veteran to the RO, received in April 2001, the veteran stated that he was diagnosed with mononucleosis just two days prior to his discharge from the military, and that he continued to suffer from the residuals of his mononucleosis following his separation. Thus, it was the veteran's contention, in essence, that the November 1973 rating decision, which denied his claim for service connection for the residuals of mononucleosis, involved CUE. In the veteran's October 2004 Travel Board, he restated his contentions that he was treated for mononucleosis while he was in the military, and that he continued to experience the residuals of his mononucleosis after his discharge. Therefore, the veteran maintained that the November 1973 rating decision denying his claim for service connection for the residuals of mononucleosis, contained CUE. II. Analysis As is true today, VA regulations in 1973 provided that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. See 38 C.F.R. § 3.303. After carefully reviewing the evidence, the Board finds that the veteran has not made any assertions with any degree of specificity as to what error of fact was made or how a different application of law and regulations would dictate a "manifestly different" result. Fugo, 6 Vet. App. at 44. The effect of the veteran's primary contention is that he is merely asserting disagreement with how the RO evaluated the facts before it in November 1973. In other words, he is merely asserting that the RO should have viewed the evidence differently. This is an assertion that is inadequate to raise a CUE claim. Id. Furthermore, in its November 1973 decision, the RO recognized that according to the veteran's service medical records, in January 1973, he was diagnosed with mononucleosis. However, the RO stated that residuals of mononucleosis were not found on the veteran's last examination. In this regard, the Board observes that at the time of the November 1973 rating action, the veteran's last VA examination was in June 1973, and that the June 1973 VA examination report was negative for any complaints or findings of residuals of mononucleosis. Thus, the RO's determination was a reasonable exercise of rating judgment and in accordance with applicable criteria. While the rating decision did not provide specific citations to statutory or regulatory provisions, the language used in the decision indicates all laws applicable to the veteran's service connection claim were appropriately considered. At the time of the rating action, there was no evidence of record showing a current diagnosis of residuals of mononucleosis, and as such, the RO denied the veteran's service connection claim. The regulations contemplated in 1973, as they do today, that inherent in the matter of establishing service connection was the presence of a current disability. Absent such, as it was in this case at the time of the November 1973 rating action, there was no valid claim. See 38 C.F.R. § 3.303. Therefore, the Board finds that it was not unreasonable for the RO to conclude, as it did in November 1973, based on all the evidence, that there was no evidence of record of a current diagnosis of residuals of mononucleosis. The Board reiterates that to establish CUE in the 1973 RO decision, the veteran must demonstrate that the correct facts, as they were known at the time, were not before the adjudicator or that the law in effect at that time was incorrectly applied. The veteran has not done so. Rather, he is essentially asserting a disagreement with how the facts were evaluated by the RO in its November 1973 decision. A dispute as to how the RO weighed the evidence cannot constitute CUE. Fugo, 6 Vet. App. at 40, 43. The correct facts were before the RO in 1973, and the file shows that the RO properly considered the evidence and law when making its 1973 decision. Based on the record and criteria in effect at the time of the November 1973 RO decision, it cannot now be said that all reasonable adjudicators would have reached a different result or that there was undebatable error in denying the claim. The Board finds that the November 1973 RO decision was not based on CUE. 38 C.F.R. § 3.105(a). ORDER The April 1973 rating decision denying service connection for an allergy to bee sting and mosquito bites was not clearly and unmistakably erroneous, and the appeal is denied. The November 1973 rating decision denying service connection for the residuals of mononucleosis was not clearly and unmistakably erroneous, and the appeal is denied. REMAND On November 9, 2000, the VCAA was signed into law. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). Under regulations implementing the VCAA, VA's duty to notify and duty to assist have been significantly expanded. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2003). First, VA has a duty to provide notice of any information necessary to complete the claim, if it is incomplete. 38 C.F.R. § 3.159(b)(2). Second, VA has a duty to notify the claimant of any information and evidence needed to substantiate a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 C.F.R. § 3.159(b)(1); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate the claim. 38 C.F.R. § 3.159(c). In this case, a review of the claims file shows that in May 2001, the RO sent the appellant a letter in which he was notified of the VCAA, the types of evidence he needed to submit, and the development the VA would undertake. However, the Board observes that the July 2002 letter only addressed the appellant's claims for service connection on a secondary basis. There was no discussion of the appellant's underlying service connection claims for the loss of use of both legs, a cervical spine disability, and for skin conditions of disseminated superficial actinic porokeratoses, actinic keratoses, and bacterial folliculitis; his claim for entitlement to an effective date prior to July 18, 1991, for the grant of service connection for post-traumatic stress disorder; his claim for entitlement to special monthly compensation based on the need for the regular aid and attendance of another person or on being housebound; his claims for (1) a certificate of eligibility for financial assistance in the purchase of an automobile and adaptive equipment, or for adaptive equipment only, (2) a certificate of eligibility for financial assistance in acquiring special home adaptations, and (3) a certificate of eligibility for financial assistance in acquiring specially adapted housing; and his claim of entitlement to a prestabilization rating from the date of separation from active military service in January 1973. Thus, the appellant has not been sent any VCAA type notice that relates directly to the aforementioned claims. Additionally, he has not been informed as to what evidence he is to submit and what evidence VA will obtain. Therefore, the Board will remand the aforementioned claims to ensure full and complete compliance with the enhanced duty- to-notify and duty-to-assist provisions of the VCAA. In regard to the appellant's claim for service connection for a skin disability (claimed as a skin rash), the Board notes that in the appellant's October 2004 Travel Board hearing, the appellant testified that during his second tour of duty in Vietnam, he noticed that he had developed some red "scaling, itchy blotches" on his arms, back, buttocks, and legs. The appellant stated that after his discharge, he continued to experience the aforementioned symptoms. He noted that at present, he had sores that would "come up into an open pus sore," and then they would heal and flake off. According to the appellant, he experienced such symptoms approximately four to five times a year. The appellant maintained that his current skin problems were due to Agent Orange exposure while he was in the military. In this regard, the Board notes that the current record contains diagnoses of numerous skin disabilities, to specifically include disseminated superficial actinic porokeratoses, actinic keratoses, and bacterial folliculitis. The Board further observes that the evidence of record shows that the appellant served in Vietnam, and, as such, he is presumed to have been exposed to herbicides. 38 U.S.C.A. § 1116(f) (West 2002). Thus, in light of the above, the Board is of the opinion that a VA examination, as specified in greater detail below, should be performed in order to determine the nature and etiology of any current skin disability. In regard to the appellant's increased rating claim, the Board notes that the appellant is currently receiving a 40 percent disability rating under Diagnostic Code 5293 (intervertebral disc syndrome) for his service-connected low back disability. In this regard, the Board notes that effective September 23, 2002, the regulation governing the evaluation of intervertebral disc syndrome, 38 C.F.R. § 4.71a, Diagnostic Code 5293, was revised. See 67 Fed. Reg. 54,345-54,349 (August 22, 2002). The RO correctly advised the appellant of the change in the rating criteria in its September 2003 rating action. Nevertheless, the Board observes that effective September 26, 2003, the rating criteria applicable to the diseases and injuries of the spine under 38 C.F.R. § 4.71a, were amended by VA, including the criteria for rating intervertebral disc syndrome and lumbosacral strain. See 68 Fed. Reg. 51,454 (August 27, 2003). In this case, the new regulatory criteria used for the evaluation of diseases and injuries of the spine have not yet been provided to the appellant. In addition, given that VA must apply the old criteria prior to the effective date of the new regulation, the Board finds that the appellant should be specifically advised by the RO of the new and the old criteria for rating spine disabilities. See 38 U.S.C.A. § 5110(g) (West 2002); see also Green v. Brown, 10 Vet. App. 111, 116-119 (1997) (where compensation is awarded pursuant to any Act or administrative issue, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the Act or administrative issue). Moreover, the appellant should be afforded a new VA examination which evaluates his symptomatology in terms pertinent to the rating criteria that were in effect when he filed his claim, as well as the rating criteria as amended two times during the pendency of his appeal. See 38 C.F.R. § 4.71a (2002); 68 Fed. Reg. 51,454 (August 27, 2003). In regard to the appellant's claim for special monthly compensation based on the need for the regular aid and attendance of another person or on being housebound, the Board notes that under applicable criteria, a veteran of a period of war who is permanently and totally disabled, and who is in need of regular aid and attendance or is housebound, is entitled to increased pension. 38 U.S.C.A. §§ 1502, 1521 (West 2002); 38 C.F.R. § 3.351(a)(1) (2003). To establish entitlement to special monthly pension based on the need for regular aid and attendance, the veteran must be a patient in a nursing home on account of mental or physical incapacity; or be blind or so nearly blind as to have corrected visual acuity in both eyes of 5/200 or less or concentric contraction of the visual field to 5 degrees or less; or have a factual need for the regular aid and attendance of another person. See 38 U.S.C.A. §§ 1502, 1521; 38 C.F.R. § 3.351. 38 C.F.R. § 3.352(a) provides for the following basic considerations in determining the need for regular aid and attendance of another person: 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 daily environment. It is not required that all of the above described disabling conditions be found to exist before a favorable rating may be made. The particular personal functions that the claimant is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establishes that the claimant is so helpless as to need regular aid and attendance, not that there is a constant need. Id. Determinations that the claimant is so helpless as to be in need of regular aid and attendance of another will not be based solely on an opinion that his condition is such as would require him to be in bed. They must be based on the actual requirement of personal assistance from others. Id. In Turco v. Brown, 9 Vet. App. 222 (1996) the Court held that in order to be awarded special monthly compensation on the basis of the need for aid and attendance, the record must show at least one of the enumerated factors in 38 C.F.R. § 3.352(a) (2003). Id. at 224. In the case of a veteran entitled to pension who does not qualify for increased pension based on need of regular aid and attendance, an increase in the rate of pension is authorized where the veteran has certain additional severe disabilities or is permanently housebound. The requirement for this increase in pension will be considered to have been met where, in addition to having a single permanent disability rated as 100 percent disabling, the veteran (1) has additional disability or disabilities independently ratable at 60 percent or more, separate and distinct from the permanent disability rated as 100 percent disabling and involving different anatomical segments or bodily systems, or (2) is substantially confined as a direct result of his or her disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical area and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 U.S.C.A. §§ 1502, 1521; 38 C.F.R. § 3.351. In this case, the Board observes that in March 2001, the appellant was evaluated by a physician for the purpose of determining whether the appellant was housebound and/or needed regular aid and attendance. The physician concluded that the appellant required the daily personal health care services of a skilled provider. As the record stands, however, it is unclear whether the appellant's service- connected disabilities, alone, render him in such need. In the March 2001 examination report, the physician referred to the appellant's service-connected disabilities, including his post-traumatic stress disorder and low back disability, as well as his non-service-connected disabilities, including his cervical spine disability, before concluding that the appellant was in need of aid and attendance. Thus, a remand is necessary to determine whether the appellant's service- connected disabilities, alone, render him in need of regular aid and attendance. Accordingly, this case is remanded to the RO for the following actions: 1. The RO must review the claims folder and ensure that all VCAA notice and duty to assist obligations have been satisfied. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126. The appellant should be specifically told of the information or evidence he needs to submit to substantiate his claims and what evidence VA will obtain. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). In this regard, the RO should specifically request that the appellant identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for the loss of use of both legs, a cervical spine disability, and/or skin conditions of disseminated superficial actinic porokeratoses, actinic keratoses, and bacterial folliculitis, at any time following military service, and for his low back disability in recent years. With any necessary authorization from the appellant, the RO should attempt to obtain copies of pertinent treatment records identified by the appellant in response to this request, which have not been previously secured. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the appellant and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; and (c) describe any further action to be taken by the RO with respect to the claims. The appellant and his representative must then be given an opportunity to respond. 2. After any additional evidence has been obtained and added to the record, the RO should schedule the appellant for the following examinations: (A) A comprehensive VA dermatological examination to determine the nature and etiology of any skin disability, to specifically include disseminated superficial actinic porokeratoses, actinic keratoses, and/or bacterial folliculitis. The claims folder and a copy of this remand must be made available to the examiner for review in conjunction with the examination. The examiner is specifically requested to review the appellant's service medical records, which show that in January 1967, the appellant was given acne lotion for his face and lanolin for his skin. The records also reflect that in November 1972, the appellant was treated for complaints of a rash on his neck. The impression was sycosis barbae. The examiner is further requested to review the VA Medical Center (VAMC) outpatient treatment records, from January 1988 to October 1991, which show that in July 1991, the appellant was diagnosed with chronic folliculitis. In addition, VAMC outpatient treatment records, from September 1997 to May 1998, reflect that in October 1997, the appellant was treated for disseminated superficial actinic porokeratoses, actinic keratoses, and bacterial folliculitis. The records further show that in November 1997, the appellant was diagnosed with pruritis and chronic rash. The examiner is also requested to review the appellant's April 1992 and February 1993 VA Agent Orange examinations. The April 1992 VA Agent Orange examination shows that at that time, it was noted that the appellant had slight "scaliness" of the bilateral forearms and one papular lesion of the left forearm. In the February 1993 VA Agent Orange examination report, the appellant was diagnosed with folliculitis of the back, buttocks, and forearms. Moreover, the examiner is further requested to review the August 1992 VA examination report, which shows that at that time, the appellant was diagnosed with folliculitis, and the examiner noted that there were no acneform lesions of chloracne. All necessary special studies or tests are to be accomplished. After a review of the examination findings and the entire evidence of record, the examiner should render an opinion as to whether any currently diagnosed skin disability, to specifically include disseminated superficial actinic porokeratoses, actinic keratoses, and/or bacterial folliculitis, is related to the appellant's period(s) of active military service, to include his in-service diagnosis of sycosis barbae, and his in- service herbicide exposure that may be presumed. If no disability is found, or no link to military service is found, such findings and conclusions should be affirmatively stated and explained and a complete rationale for any opinion expressed should be included in the examination report. If the requested opinions cannot be provided without resort to speculation, the examination report should so state. The report prepared should be typed. (B) a VA neurological examination to determine the severity of the appellant's service-connected low back disability. The claims folder and a copy of this remand must be made available to the examiner for review in conjunction with the examination. The examiner is specifically requested to review the appellant's previous VA examination report, dated in May 2001, and the magnetic resonance imaging (MRI) report, dated in April 2001. In the April 2001 MRI report, it was noted that the appellant's lumbar spine MRI was interpreted as showing bilateral L5 pars defects, with mild grade I spondyloytic spondylolisthesis. A broad-based left paracentral and foraminal disc protrusion produced moderate to severe left L5 foraminal stenosis, with possible nerve root impingement. No central stenosis was seen. All indicated testing should be conducted. In regard to the appellant's service-connected low back disability, the examiner should fully set forth all current complaints, pertinent clinical findings, and diagnoses. It is further requested that the examiner specifically report the absence or presence, to include severity and frequency, of any symptoms compatible with any neuropathy with characteristic pain, demonstrable muscle spasm, or other neurological findings appropriate to the site of any affected vertebral disc. The examiner should then identify any nerve(s) affected by the appellant's service-connected low back disability, and indicate whether the neurologic disability caused by the appellant's service-connected low back problem is best described as mild, moderate, severe, or pronounced. The examiner should also indicate the frequency and duration of incapacitating episodes and attacks over the past 12 months. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. For each nerve affected, the examiner should indicate whether the appellant has complete paralysis, or mild, moderate, or severe incomplete paralysis, neuralgia, or neuritis. A complete rationale for all opinions should be provided. Any report prepared should be typed. (C) a VA orthopedic examination to determine the current severity of the appellant's service-connected low back disability. The claims folder and a copy of this remand must be made available to the examiner for review in conjunction with the examination. The examiner is specifically requested to review the appellant's previous VA examination report, dated in May 2001, and the April 2001 MRI report. All indicated testing should be conducted, and current X-rays of the low back should be obtained. In regard to the appellant's service- connected low back disability, the examiner should conduct a thorough orthopedic examination of the lumbosacral spine. The orthopedic examiner should conduct range of motion studies on the lumbosacral spine, to specifically include forward flexion, extension, left and right lateral flexion, and left and right lateral rotation. The examiner should note that for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. The examiner should first record the range of motion observed on clinical evaluation, in terms of degrees. If there is clinical evidence of pain on motion, the orthopedic examiner should indicate the degree of motion at which such pain begins. Then, after reviewing the appellant's complaints and medical history, the orthopedic examiner should render an opinion, based upon his or her best medical judgment, as to the extent to which the appellant experiences functional impairments, such as weakness, excess fatigability, incoordination, or pain due to repeated use or flare-ups, etc. Objective evidence of loss of functional use can include the presence or absence of muscle atrophy and/or the presence or absence of changes in the skin indicative of disuse due to the service-connected back disorder. In addition, the examiner should provide an opinion as to whether the appellant's service-connected low back disability, including any noted tenderness, pain on use, weakness, excess fatigability, and/or coordination, results in an overall disability picture which is best equated with moderate, severe, or pronounced intervertebral disc disease. The examiner should also provide an opinion on whether the appellant's complaints of pain and any demonstrated limitation of motion are supported by the objective evidence of low back pathology. A complete rationale for all opinions should be provided. Any report prepared should be typed. (D) a VA "Examination for Housebound Status or Permanent Need for Regular Aid and Attendance." The examiner(s) are asked to describe all the appellant's health problems due to service connected disorders, both mental and physical, and their impact on his ability to perform the functions of daily living. The claims folder and a copy of this remand must be made available to the examiner(s) for review in conjunction with the examination(s). All indicated tests and studies should be done, and all subjective complaints and objective findings should be reported in detail. In particular, the examiner(s) are requested to evaluate whether, due solely to service connected disabilities, the appellant is unable to keep himself clean and presentable, is unable to perform normal activities of daily living without assistance, and is unable to protect himself from the hazards and dangers incident to his daily environment. Specifically, the examiner(s) are requested to determine whether the appellant essentially requires the services of another on a daily basis, and if so, the specific rationale for such a determination, including which specific conditions are responsible and the extent to which each is responsible. In addition, the examiner(s) are requested to determine whether the appellant is confined to his dwelling as a result of service-connected disabilities, and whether this confinement will continue during his lifetime. Finally, the examiner(s) should state whether the appellant's service-connected disabilities are subject to improvement through appropriate treatment. The examiner(s) should complete the examination report, responding to all questions therein, including whether the appellant is able to feed, dress himself, attend to the wants of nature, ambulate outside the home without assistance, protect himself from dangers in his environment, etc., and specify what disabilities are implicated in his inability to perform such self-care tasks. 3. The appellant is hereby notified that it is his responsibility to report for the examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2004). In the event that the appellant does not report for the aforementioned examinations, documentation should be obtained which shows that notice scheduling the examinations was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 4. Thereafter, the RO should review the claims file and take all other proper measures to ensure full and complete compliance with the duty-to-notify and duty-to-assist provisions of the VCAA. The RO should also ensure that the VA examination reports address all actions requested. If they do not, they must be returned to the examiner(s) for corrective action. 5. The RO should then review and re- adjudicate the issues on appeal. If any such action does not resolve each claim to the appellant's satisfaction, the RO should provide the appellant and his representative a supplemental statement of the case and an appropriate period of time should be allowed for response. Thereafter, the case should be returned to this Board for appellate review. No action is required by the appellant until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs