Citation Nr: 1314998 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 12-20 808A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to a higher level of special monthly compensation (SMC) based on the loss of use of both legs. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1955 to April 1959. This appeal to the Board of Veterans' Appeals (Board) arises from a July 2010 rating decision in which the RO, in New York, New York, inter alia, granted the Veteran SMC based upon loss of use of his feet. The Veteran was notified of the rating decision in January 2010. In May 2010, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in July 2012, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in August 2012. The Board notes that, although the Veteran originally appealed his increased evaluations to 80 percent bilaterally for his service-connected peripheral neuropathy, on his August 2012 VA Form 9 he indicated that he only wished to appeal the issue of entitlement to a higher SMC evaluation. This was further indicated in the April 2013 Informal Hearing Presentation (IHP) submitted by the Veteran's representative. As such, only the issue of entitlement to a higher evaluation for SMC is properly before the Board and will be adjudicated accordingly. A review of the Virtual VA paperless claims processing system reveals nothing further pertinent to the present appeal. 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 REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. Specifically, a remand is required to 1) obtain the Veteran's SSA records and 2) obtain a new VA examination. First, remand is required to obtain the Veteran's SSA records. A May 2003 SSA Consent for Release of Information indicated that the Veteran was in receipt of SSA benefits and that medical records relating to such benefits were available; however, there are no associated records. There is a reasonable possibility that those records are relevant to the claim addressed on remand. The AMC/RO should contact SSA and obtain any records considered by that agency in their determination. Second, remand is required to obtain a new VA examination. The most recent VA examination for the Veteran's peripheral neuropathy was in July 2008, almost five years ago. The Veteran has indicated in his May 2010 notice of disagreement that he has been having incidences of loss of use of the entire leg, including above the knee, as shown by loss of knee flexion. The April 2013 IHP contended that the Veteran's condition has further worsened, as he currently has a complete loss of use of the knees. It was noted that the July 2008 VA examination had merely noted weakness in the knees, but not loss of use. The Veteran requested that he be provided with a concurrent VA examination in order to accurately assess the worsening of this condition and its relation to SMC levels. The duty to conduct a contemporaneous examination is triggered when the evidence indicates there has been a material change in disability or that the current rating may be incorrect. See Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). Additionally, as this case must be remanded for the foregoing reasons, any recent treatment records, including VA records, should also be obtained. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: (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 Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disability on appeal. After the Veteran has signed the appropriate releases, those records not already on file should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all outstanding VA treatment records. All attempts to procure records should be documented in the file. If the AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. Obtain a copy of any SSA decision awarding disability benefits for the appellant and copies of all medical records upon which any such SSA disability benefit award was based. 3. After any new evidence has been associated with the claims file, the Veteran should be scheduled with an appropriate in-person examination to determine the current severity of the bilateral peripheral neuropathy. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. In particular, the examiner is requested to evaluate the extent of the Veteran's peripheral neuropathy, to include its manifestation in the femoral nerves and distributions above the knees. Comment should be made upon the ability of the Veteran's knee flexion in relation to the neuropathy and the severity of any such limitation. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that 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 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ WAYNE M. BRAEUER 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).