Citation Nr: 1307260 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 12-35 103 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 20 percent for degenerative disc disease of the cervical spine. 2. Entitlement to special monthly compensation based on the need for regular aid and attendance or at the housebound rate. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. P. Simpson, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1954 to December 1977. These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. REMAND The Board has reviewed the Veteran's claims file and Virtual VA (VA's electronic data storage system). [The records in Virtual VA are either duplicates or records not relevant to the issues on appeal.] The Board finds that additional development is necessary for proper merits adjudication of the issues on appeal. In a March 2011 statement, the Veteran requested that VA obtain his Social Security (SSA) medical records (presumably as pertinent evidence); he indicated he was receiving SSA disability benefits. Such records are not associated with the record. SSA records are constructively of record, and VA is obliged to secure them, particularly if they are alleged to be pertinent. See 38 C.F.R. § 3.159(c)(2). In December 2012, VA received statements from the Veteran indicating that he is now in a nursing home. October to December 2012 records from the facility are associated with the record for review. As updated records of the treatment he receives at the facility may well be pertinent to the claims on appeal, and because the case is being remanded anyway, the updated records must be sought. The Veteran submitted a VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, which was completed in August 2009. As that examination is now dated, and does not reflect the Veteran's current status (he has since been placed in a nursing home), and because the examination report is not clear regarding whether the Veteran's service-connected disabilities cause him to be housebound or to require the aid and attendance of another person, a contemporaneous examination is necessary.. In addition, the Veteran's service connected disabilities include cervical spine degenerative disc disease, neurological symptoms of which may be assigned separate compensable ratings. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). Currently, the disability is rated solely based on limitation of cervical spine motion. The record shows that the Veteran has neurological symptoms involving the upper extremities. It is unclear whether such symptoms are, in fact, attributable to the service-connected cervical disc disease. Private medical records indicate the Veteran had viral encephalitis in 1986 "with associated neurological deficits." See August 2003 private medical record from White-Wilson Medical Center, P.A. A January 2004 record from that same facility notes that electromyography showed multi-level abnormalities. A provider noted, "I was initially concerned for a possible motor neuron disease, however, seeing the MRI of his C[ervical]-spine, I think most of his finding could be attributable to his cervical neck disease." Then, on January 2010 VA examination it was noted that the Veteran had decreased motor function in the upper extremities involving the shoulders and with muscle strength decreased overall to 3/5. However, the diagnosis entered was cervical spine degenerative disc disease with degenerative joint disease "without radiculopathy" [emphasis added.], suggesting that the upper extremity symptoms are not neurological manifestations of the cervical spine degenerative disc disease. This matter must be resolved, as whether or not the neurological symptoms in the upper extremities are service connected may have bearing on the claim seeking SMC. Finally, the most recent private treatment records associated with the record (apart from the nursing care records) are from 2007; records of private treatment since are needed for a complete disability picture. It appears the Veteran does not receive ongoing VA treatment for his service-connected disabilities; in the event that he does, such records are constructively of record; may contain pertinent information, and must be secured. Accordingly, the case is REMANDED for the following : (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO should ask the Veteran to identify the provider(s) of any (and all) additional (i.e. to the treatment records of which are already in the claims file) evaluation or treatment he has received for his service-connected disabilities (left knee, post- replacement; coronary artery disease; cervical spine degenerative disc disease; left foot plantar wart; left eye residual recession superior rectus muscle with diplopia; bilateral hearing loss; and sinusitis.), to specifically include all private treatment since 2007, and to provide any releases necessary for VA to secure records of such private evaluation or treatment. The RO should secure for the record complete records of all identified evaluations and treatment, to specifically include updated (since December 2012) complete records from the Sims VA Nursing Home. 2. The RO should obtain from SSA a copy of the determination on the Veteran's claim for SSA disability benefits, and all records considered in connection with the determination. If such records are unavailable, the reason why that is so must be noted in the record. 3. Thereafter, the RO should arrange for the Veteran to be afforded an examination to determine the nature and current severity of his service-connected cervical spine degenerative disc disease. The Veteran's claims file (to include this remand) must be reviewed by the examiner in conjunction with the examination. The examiner must be provided a copy of the criteria for rating spine disabilities, and the findings reported must be sufficiently detailed to allow for rating under all pertinent criteria. Any indicated studies should be completed; the studies should specifically include range of motion studies of the cervical spine (including restrictions due to pain or on use), and any studies indicated to ascertain whether or not the Veteran's cervical spine disability has compensable neurological manifestations affecting the upper extremities. All orthopedic and neurological symptoms and functional limitations should be described in detail. The examiner must explain the rationale for all opinions. 4. Thereafter, the RO should arrange for a VA aid and attendance/housebound examination of the Veteran. The Veteran's claims folder must be reviewed by the examiner in conjunction with the examination. The examiner should opine whether the Veteran is permanently bedridden or so helpless as to be in need of regular aid and attendance due to his service connected disabilities. The examiner should discuss the Veteran's capability for self-care, and should also indicate whether the Veteran is substantially confined to his dwelling [nursing home] and its immediate premises due to service connected disabilities (noted above). The examiner must explain the rationale for all opinions. 5. The RO should then review the record and re-adjudicate the claims. If either remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). __________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (2012).