Citation Nr: 1318287 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 05-35 840A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an initial rating greater than 60 percent for chronic low back pain with degenerative disc disease and history of arachnoiditis, effective July 24, 1995. 2. Entitlement to an effective date earlier than January 29, 2007 for the grant of entitlement to special monthly compensation based on the need of aid and attendance of another person. 3. Entitlement to an effective date earlier than November 3, 2005 for the grant of service connection for peripheral neuropathy of the bilateral lower extremities. REPRESENTATION Appellant represented by: Paralyzed Veterans of America WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran had active military service from April 1975 to July 1976. This matter comes to the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The RO granted the Veteran's claim for benefits pursuant to 38 U.S.C.A. § 1151 for chronic low back pain with history of arachnoiditis in March 2004, assigning a 20 percent rating, effective July 24, 1995. Thereafter, a May 2007 rating decision granted a higher initial rating of 60 percent for the lumbar spine disability, effective July 24, 1995. The Veteran and his wife testified at an RO hearing in May 1996 regarding his initial claim for additional back disability caused by VA surgery in February 1995, pursuant to 38 U.S.C.A. § 1151. In January 2008, the RO granted entitlement to special monthly compensation based on aid and attendance criteria, effective January 29, 2007; and also granted service connection for peripheral neuropathy of the bilateral lower extremities, effective November 3, 2005. The Board remanded this case in January 2011. The directives of the Board's remand have been substantially complied with. The Board notes that the Veteran's representative has submitted statements seeking entitlement to a higher level of aid and attendance. Review of Virtual VA records shows that the RO denied this claim in an April 2012 rating decision. As there is no record that the Veteran has appealed the April 2012 rating decision, this matter is not before the Board. The issues of entitlement to an initial rating higher than 60 percent for chronic low back pain with history of arachnoiditis, and an effective date earlier than November 3, 2005 for the grant of service connection for peripheral neuropathy of the bilateral lower extremities are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran filed his claim for special monthly compensation for aid and attendance of another person that was received by the RO on November 3, 2005. 2. The medical evidence does not establish that prior to November 3, 2005, the Veteran was unable to dress or undress himself or to keep himself ordinarily clean and presentable; frequently needed adjustment of any special prosthetic or orthopedic appliance which by reason of the particular disability cannot be done without aid; was unable to feed himself through loss of coordination of upper extremities or through extreme weakness; was unable to attend to the wants of nature; or had physical or mental incapacity, which required care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. CONCLUSION OF LAW The criteria for an effective date of November 3, 2005, but no earlier, for the award of special compensation based on the need of aid and attendance of another person have been met. 38 U.S.C.A. §§ 1114(l), 5110, 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.400, 3.401(a)(1), 3.350(b), 3.352(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). An RO letter dated in April 2006 informed the Veteran of all of the elements required by 38 C.F.R. § 3.159(b), as stated above, regarding his original claim for special monthly compensation based on aid and attendance. The Veteran was also notified again regarding his claim for an earlier effective date for his special monthly compensation benefits in a January 2011 letter. The claim was readjudicated in a July 2012 supplemental statement of the case, thereby curing any timing defect regarding the notice. As such, the April 2006 and January 2011 letters satisfied VA's duty to notify. Regarding the duty to assist, the RO has obtained the Veteran's service and VA treatment records. The Veteran has submitted copies of private medical evidence. The RO also has provided him a VA examination addressing his special monthly compensation claim. The examination report obtained contains sufficient information to decide the issue on appeal and further examination is not necessary. See Massey v. Brown, 7 Vet. App. 204 (1994). Accordingly, the duty to assist has been satisfied and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating his claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. II. Effective Date for Special Monthly Compensation In January 2008, the RO granted entitlement to special monthly compensation based on aid and attendance criteria, with an effective date of January 29, 2007. 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b). The Veteran appealed this rating decision asserting entitlement to an effective date earlier than January 29, 2007 for the assignment of special monthly compensation for aid and attendance. He specifically noted on an April 2008 notice of disagreement that he requested retroactive pay for aid and attendance, effective the date of a VA examination dated December 6, 1999. He also referenced a private medical opinion from Dr. Bash in October 2005, who noted that the Veteran's spouse had advanced medical care training and had provided a significant amount of skilled bedside care for the past decade. In addition the Veteran referenced an October 2000 VA examination report. Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final allowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. The method of determining the effective date of an increased evaluation is set forth in 38 U.S.C.A. § 5110(a) and (b)(2), and 38 C.F.R. § 3.400(o). The general rule with respect to the effective date of an award of increased compensation is that the effective date of such award "shall not be earlier than the date of receipt of application thereof." 38 U.S.C.A. § 5110(a). This statutory provision is implemented by regulation which provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). An exception to the rule applies, however, under circumstances where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. In that regard, the law provides that the effective date of the award "shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date, otherwise the date of receipt of the claim." 38 U.S.C.A. § 5110 (b)(2). See 38 C.F.R. § 3.400(o)(2). The phrase "otherwise, date of receipt of claim" applies only if a factually ascertainable increase in disability occurred more than one year prior to filing the claim for an increased rating. Harper v. Brown, 10 Vet. App. 125 (1997). Moreover, the term "increase" as used in 38 U.S.C.A. § 5110 and 38 C.F.R § 3.400 means an increase to the next disability level. See Hazan v. Gober, 10 Vet. App. 511 (1997). In addition, 38 C.F.R. § 3.401(a)(1) provides that awards of aid and attendance or housebound benefits, will be effective except as provided in § 3.400(o)(2), the date of receipt of claim or date entitlement arose, whichever is later. However, when an award of pension or compensation based on an original or reopened claim is effective for a period prior to the date of receipt of the claim, any additional pension or compensation payable by reason of need for aid and attendance or housebound status shall also be awarded for any part of the award's retroactive period for which entitlement to the additional benefit is established. The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). A claim is a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. §§3.1(p); 3.155. The regulation which governs informal claims, 38 C.F.R. §3.155, provides that any communication or action, indicating an intent to apply for one or more benefits under the laws administered by [VA], from a claimant...may be considered an informal claim. Such informal claim must identify the benefit sought. Id. When a claim has been filed that meets the requirements of 38 C.F.R. § 3.151 or 3.152, an informal request for increase or reopening will be accepted as a claim. Further, under 38 C.F.R. §3.157(b)(1), an informal claim may consist of a VA report of examination or hospitalization. Under this regulatory provision, the date of the VA outpatient examination or hospital admission will be accepted as the date of receipt of a claim if such a report relates to examination or treatment of a disability for which service connection has previously been established. Special monthly compensation is payable to individuals who are permanently bedridden or are so helpless as a result of service-connected disability as to be in need of the regular aid and attendance of another person under the criteria set forth in 38 C.F.R. § 3.352(a). 38 U.S.C.A. § 1114(l) (West 2002); 38 C.F.R. § 3.350(b) (3) (2012). Determinations as to need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to such conditions as the following: 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 appliance which by reason of the particular disability cannot be done without aid; 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. 38 C.F.R. § 3.352(a). In Turco v. Brown, 9 Vet. App. 222 (1996), the Court held that it was not required that all of the disabling conditions enumerated in the provisions of 38 C.F.R. § 3.352(a) be found to exist to establish eligibility for aid and attendance and that such eligibility required at least one of the enumerated factors be present. The Court added that the particular personal function which the Veteran was unable to perform should be considered in connection with his or her condition as a whole and that it was only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Special monthly compensation is also payable where the veteran has a single service-connected disability rated as 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas 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. § 1114(s); 38 C.F.R. § 3.350(i). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). In addressing this matter, it is noted that historically, the Veteran filed a claim for benefits pursuant to the provisions of 38 U.S.C.A. § 1151 on July 24, 1995, based on a back surgery at the Iowa City VAMC in February 1995. A May 1995 private medical report notes that he had initially injured his back in a work-related incident in August 1993. As he was not able to work due to back pain so he underwent a surgery in October 1993. The May 1995 medical record notes the surgery in 1993 was recorded as decompression laminectomy at the level of L4-5 and also foraminotomy of L5 nerve root, as well as discectomy at L4-5 and L5 neurolysis. He continued to have low back pain primarily on the left side and had difficulty in engaging in multiple activities. A CT scan in October 1994 revealed a left hemilaminectomy at L3 level and central bulging disc at L3-4, and also L4-5, worse on the left side. There also was left bulging disc at L4-5 with narrowing of the intervertebral foramen as well as an impingement of the nerve roots at this level and spinal stenosis that seemed to correlate with the Veteran's symptoms. He was evaluated at the VAMC in Iowa City and in February 1995 underwent a left hemilaminectomy at L4-5 with a diagnosis of recurrent herniated disc. Postoperatively he initially experienced some relief but then began to complain of severe low back pain radiating to both lower extremities, worse on the left side with numbness and weakness of both legs and feet. He also had progressive difficulty with sexual function and bowel and bladder function. The Veteran noted in an August 1995 statement that his wife drove him to all of his appointments. Initially the RO denied the Veteran's claim for additional back disability under the provisions of 38 U.S.C.A. § 1151 in February 1996, but the Veteran appealed the matter to the Board, which remanded the claim several times. Eventually the RO granted the Veteran's claim for benefits pursuant to 38 U.S.C.A. § 1151 for chronic low back pain with history of arachnoiditis in March 2004, assigning a 20 percent rating, effective July 24, 1995. The Veteran appealed this rating decision. In his June 2004 notice of disagreement, he asserted entitlement to a 100 percent rating essentially arguing that his back disability was permanent. He also asserted that he had filed a claim for entitlement to a total disability rating based on individual unemployability (TDIU) as part of his original claim in July 1995. In an October 2005 statement of the case, the RO granted a higher initial rating of 40 percent for chronic low back pain with history of arachnoiditis and degenerative disc disease, effective July 24, 1995. The Veteran filed a VA Form 9 received on November 3, 2005 noting that the 40 percent rating was still incorrect. He stated that he had suffered from his surgically-induced spinal arachnoiditis caused by the February 21, 1995 spine surgery at the VAMC in Iowa City, which had left him 100 percent disabled and unemployable. He thus argued that he should be awarded payment as of February 21, 1995. On a VA Form 9 received November 3, 2005, the Veteran further argued that he was entitled to retroactive aid and attendance for his care as his spouse was involved in providing him transportation to and from medical appointments, always attended his appointments, made his appointments, obtained his medicine, helped him in and out of the car into wheelchairs, and pushed him at every appointment, as well as the care she provided at home. In addition the Veteran referenced an October 2005 medical opinion from private physician, Dr. Bash, who noted that the Veteran's rating was incorrect and that his neurological problems were most consistent with a 60 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5293 (effective prior to September 26, 2003), since a 1995 spine surgery; or an 80 percent rating under 38 C.F.R. § 4.124a for his foot pathology and for loss of use of his feet as he used a wheelchair; whichever rating was most favorable to the Veteran. Dr. Bash argued that the Veteran had been unemployed since 1995 due to his spine and upper gastrointestinal problems (which Dr. Bash asserted were secondary to his long-standing pain medication for his back). Dr. Bash further noted that the Veteran's spouse had advanced medical training and therefore had provided a significant amount of skilled bedside care as per the Veteran's report, and that the Veteran therefore should be assigned a retroactive aid and attendance diagnostic code, as his spouse had been taking care of him for over a decade. Thereafter, the Veteran underwent an aid and attendance VA examination on January 29, 2007, which indicated that the Veteran was in need of the aid and attendance of another person due to his severe spine condition and other conditions such as his peripheral neuropathy, which stemmed from the spine condition. The report noted that the Veteran's imbalance affected his ability to ambulate constantly (or nearly constantly), which put him at risk and affected his ability to protect himself from the daily environment. His inability to sense temperature in his feet also was a hazard or risk in self protection. In addition the Veteran was unable to perform self-care skills such as dressing and undressing, bathing, and grooming. It was noted that the Veteran only could leave the home for medical care and that his functional impairment was permanent. He reportedly had normal functioning of the lower extremities and had a broad based antalgic gait. The RO initially denied entitlement to special monthly compensation for aid and attendance in a March 2007 rating decision. The RO also denied entitlement to special monthly compensation based on housebound status. However, the RO granted entitlement to a TDIU in the March 2007 rating decision, with an effective date of September 28, 1998. In May 2007, the RO assigned an earlier effective date of July 24, 1995 for the assignment of a TDIU. The RO also granted an increased rating of 60 percent for the chronic low back pain with degenerative disc disease and history of arachnoiditis, effective July 24, 1995. Thereafter the Veteran submitted another medical opinion from Dr. Bash dated in May 2007 asserting entitlement to a higher rating for the Veteran's back disability for issues stemming from the back disability including erectile dysfunction and bowel and bladder problems. Dr. Bash also asserted that the Veteran was entitled to separate ratings for peripheral neuropathy of the lower extremities in addition to loss of use of his feet, as he was in a wheelchair. It was further mentioned that the Veteran was in need of aid and attendance and could not clean, cook, or do his activities of daily living safely. As previously noted, in January 2008, the RO granted entitlement to special monthly compensation based on aid and attendance criteria, with an effective date of January 29, 2007. 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b). In the same rating decision, the RO also, in pertinent part, granted service connection for peripheral neuropathy of the bilateral lower extremities, secondary to his service-connected back disability, assigning 20 percent ratings each, effective November 3, 2005, and 40 percent ratings each, effective January 29, 2007. However, the RO determined that the Veteran did not have loss of use of his lower extremities as a result of his peripheral neuropathy. In addition the RO granted service connection for erectile dysfunction, secondary to the service-connected back disability assigning a 0 percent rating, effective January 29, 2007; and granted an increased rating of 20 percent for urinary incontinence, effective January 29, 2007, and 40 percent, effective December 28, 2007. In the January 2008 rating decision, the RO noted that entitlement to special monthly compensation for aid and attendance was warranted based on a January 29, 2007 VA examination report indicating that the Veteran was in need of the aid and attendance of another person due to his severe spine condition and other conditions such as his peripheral neuropathy, which stemmed from the spine condition. It was further noted that the effective date was assigned based on the date of the January 29, 2007 VA examination establishing a higher evaluation for peripheral neuropathy of his lower extremities. The RO noted that with respect to the effective date that aid and attendance could not be considered unless his service-connected condition combined to a 100 percent rating and that his increased rating for peripheral neuropathy of the lower extremities caused him to reach this threshold to 100 percent. (The Board notes parenthetically, however, that in the March and May 2007 rating decisions, the Veteran had been granted a TDIU under 38 C.F.R. § 4.16(a) solely for his service-connected back disability, effective July 24, 1995, the date of his original grant of service connection for the back disability. The U.S. Court of Appeals for Veterans Claims has held that 38 U.S.C. § 1114(s) for housebound benefits does not limit "a service-connected disability rated as total" to only a schedular rating of 100 percent, and that 38 C.F.R. § 3.350(i) permits a TDIU rating based on a single disability to satisfy the statutory requirement of a total rating. Bradley v. Peake, 22 Vet. App. 280, 293 (2008).). The January 2008 rating decision also granted entitlement to special monthly compensation based on loss of use of a creative of organ, effective January 29, 2007, pursuant to 38 U.S.C.A. § 1114(k); 38 C.F.R. § 3.350(a). The Veteran appealed the aid and attendance issue, but did not appeal the special monthly compensation award based on loss of use of a creative organ. Therefore, the RO's decision concerning the award of special monthly compensation based on loss of use of a creative organ is final and not before the Board. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. On an April 2008 notice of disagreement the Veteran stated that he requested retroactive pay for aid and attendance (in addition to peripheral neuropathy of the right and left lower extremities) dating back to a VA examination dated December 6, 1999. He also referenced the October 2005 medical opinion from a private physician, Dr. Bash, who noted that the Veteran's spouse had advanced medical care training and had provided a significant amount of skilled bedside care for the past decade per an attached report. In addition the Veteran submitted a copy of an October 2000 VA examination report. In addressing this claim, the Board notes that initially it must be determined which came first, entitlement to special monthly compensation based on the need of aid and attendance, or the date of the claim for special monthly compensation based on need for aid and attendance. In this case, the Veteran filed an informal claim for special monthly compensation based on the need of aid and attendance of another person on his VA Form 9 that was received by the RO on November 3, 2005. At that time the Veteran submitted that his wife had to care for him and took him to his medical appointments, took care of picking up his medicine and making appointments, helped him in and out of his wheelchair, and also provided care at home. The next inquiry is when entitlement to special monthly compensation based on the need of aid and attendance of another person arose. As noted, one of the criteria for establishing whether the Veteran needs aid and attendance of another person is if he requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. The Veteran points to a December 6, 1999 VA treatment record as evidence of entitlement to an earlier effective date for his special monthly compensation benefits. The report actually notes that the Veteran reported that he was completely impaired as a result of his lumbar spine disability but that he was able to feed himself and go to the bathroom himself. This report does not demonstrate evidence that the Veteran was in need of aid and attendance. Also, none of the medical evidence prior to the December 6, 1999 VA examination report demonstrates that the Veteran was in need of aid and attendance of another person. However, the Veteran also points to an October 2000 VA examination report as evidence that he needed aid and attendance of another person. This report notes the Veteran's history of back surgery and his continued complaints of pain. He reported difficulty sleeping and having to put a pillow between his legs and reposition himself. He also could not walk more than one block. The examiner diagnosed the Veteran with chronic low back pain probably due to arachnoiditis and determined that it was probable that the Veteran's functional deterioration was due to back pain and that his status had deteriorated after his surgery at the Iowa VAMC. This report, while demonstrating significant impairment associated with the Veteran's back disability, does not address whether the Veteran was in need of the aid and attendance of another person at that time. The Veteran further referenced Dr. Bash's independent medical statements dated from June 2000 to present. It appears that this is more in reference to his claim for a higher rating for the lumbar spine disability; but to the extent that the Veteran was asserting that these opinions reflected entitlement to an earlier effective date for the special monthly compensation based on the need for aid and attendance of another person, the Board does not find that these opinions are supportive of this, but rather address the impairment associated with the Veteran's lumbar spine. In addition, the Board has considered the October 2005 medical statement from Dr. Bash, which noted that the Veteran's wife had advanced medical training and had been providing skilled bedside care for the past 10 years. Dr. Bash referenced an October 2005 statement from the Veteran that his wife had to help him reposition pillows at night and help him in and out of his wheelchair for traveling any prolonged distances. The Veteran noted trouble with his bowels and urinary incontinence but did not indicate any help was needed using the bathroom. He also noted that his wife would prepare cans of Ensure for him to consume as he could not eat solid foods due to his stomach problems. The October 2005 statement from the Veteran does not indicate that he needed the aid and attendance of another person at that time. Needing help in and out of a wheelchair for going long distances (while being able to walk short distances) and repositioning pillows does not amount to needing someone for every day basic needs or needing protection from every day hazards. Also Dr. Bash's statement that the Veteran's spouse had been providing significant bedside care for the past decade is not supported by the medical record. In an August 1995 statement, the Veteran noted that his wife had to transport him to all of his appointments because of his back disability. However, none of the medical evidence from 1995 to 2005 indicates that the Veteran needed aid and attendance of another person. He was not noted to need help with eating or attending to the wants of nature. It was noted that his wife made cans of Ensure for him, but there is no evidence that he was otherwise unable to do so himself. The Veteran specifically stated on the December 1999 VA examination report that he was able to feed himself and go to the bathroom himself. He was not shown to be unable to protect himself from every day hazards. While he could not walk long distances, he could walk short distances, and could, for instance, leave his house, in the event of a hazard occurring in the household. Therefore, the probative value of Dr. Bash's medical statement is undermined by the fact that there is no supporting medical evidence to support his statement. A medical opinion must support its conclusions with analysis. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). "Neither a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connection or rating context if it contains only data and conclusions [without reasoning or rationale]." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Therefore, the medical evidence does not establish that entitlement to special monthly compensation arose prior to the date of the Veteran's claim on November 3, 2005, or demonstrate that it was factually ascertainable within one year prior to the November 3, 2005 claim that the Veteran was in need of aid and attendance of another person. See 38 C.F.R. §§ 3.400(o)(2), 3.401(a)(1). Subsequent to the Veteran's November 2005 claim, an aid and attendance VA examination was provided in January 2007. The examiner noted that the Veteran was accompanied to the appointment by his wife who seemed to be knowledgeable about his problems, treatment, and his care. The interaction between the Veteran and his wife was caring and cooperative. They said that the Veteran did not leave the house except for medical appointments because he was so uncomfortable. He was in a wheel chair and was only able to walk short distances. His gait was antalgic. The examiner noted that the Veteran's problems with pain, mobility, and bowel and bladder function would mandate that he have assistance and care on a regular basis. The examiner further noted that she did not believe that the Veteran could live alone. Her opinion would be that the Veteran did need regular aid and attendance and was for the most part housebound due to his service-connected intervertebral disc syndrome and arachnoiditis. The report further noted that the Veteran's imbalance affected his ability to ambulate constantly (or nearly constantly), which put him at risk and affected his ability to protect himself from the daily environment. His inability to sense temperature in his feet also was a hazard or risk in self protection. In addition the Veteran was unable to perform self-care skills such as dressing and undressing, bathing, and grooming. It was noted that the Veteran only could leave the home for medical care and that his functional impairment was permanent. He reportedly had normal functioning of the lower extremities and had a broad based antalgic gait. Although the January 2007 VA examination report was the first medical opinion of record that demonstrated that the Veteran was in need of aid and attendance, the Board will resolve all doubt that the Veteran also was in need of aid and attendance at the time he filed his claim on November 3, 2005. At that time it had already been established that the Veteran needed help with traveling long distances, that he was having bowel and bladder trouble, and that his wife would prepare meals for him. Therefore, the Board assigns the date of the Veteran's claim, i.e., November 3, 2005, as the date entitlement arose for special monthly compensation based on the need of aid and attendance of another person. An effective date prior to November 3, 2005 is not warranted for the reasons outlined above, namely that the medical evidence did not demonstrate that entitlement to special monthly compensation based on aid and attendance was warranted prior to this date. The Board notes that the evidence also demonstrates that the Veteran is housebound as set forth under 38 U.S.C.A. § 1114(s). However, a Veteran may receive special monthly compensation either by reason of being housebound OR based on the need for regular aid and attendance, but may not receive both simultaneously. Furthermore, regular aid and attendance is the greater monetary award. Compare 38 U.S.C.A. § 1114(l) with 38 U.S.C.A. §1114(s). Normally, the effective date for an increase in compensation is the later of the two, the date of the claim, or the date entitlement arose. In this case, the Board resolves all doubt in the Veteran's favor that entitlement to special monthly compensation based on aid and attendance of another arose coincident with the date of his claim for benefits on November 3, 2005. To the extent that an even earlier effective date for entitlement to special monthly compensation based on the need of aid of attendance is not warranted, the preponderance of the evidence is against the claim. ORDER Entitlement to an effective date of November 3, 2005, but no earlier, for the award of special monthly compensation based on the need of aid and attendance of another person is granted, subject to the law and rules governing payment of monetary benefits. REMAND The Board remanded the initial rating claim for the lumbar spine disability in January 2011 so that a VA examination could be provided to address the present severity of the disability. It was noted that the Veteran had last been evaluated for compensation and pension purposes for his lumbar spine disability in April 2007 and that more recent evidence indicated that the severity of the disability had since worsened. Thereafter, the Veteran was scheduled for an examination in February 2011, but failed to report for the examination. In March 2013, the Veteran and his representative submitted statements requesting that he be rescheduled for another examination for his back disability, as the Veteran had reportedly not been receiving his mail on a timely basis at that time and believed he might have overlooked the appointment. He asserted that he was aware of the importance of his examination and felt that medical evidence could be supportive of his claim. Upon review of the record, the notice letter that was sent to the Veteran addressing his upcoming appointment to evaluate his lumbar spine disability is not on file or in Virtual VA records. As the Board cannot verify that the letter was sent to the Veteran's last known address of record, the Board will grant the Veteran's request for a new examination for his lumbar spine disability. Regarding the matter of an earlier effective date for the grant of service connection for peripheral neuropathy of the bilateral lower extremities, the RO granted this benefit in a January 2008 rating decision and assigned an effective date of November 3, 2005. In an April 2008 statement the Veteran requested retroactive pay for his peripheral neuropathy of the bilateral lower extremities. The Board construes this statement as a notice of disagreement with the effective dates that were assigned for the bilateral lower extremity peripheral neuropathy disabilities in the January 2008 rating decision. The RO has not issued a statement of the case or supplemental statement of the case which addresses this issue and the Board finds that a remand for this action is necessary. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 19.26, 19.29, 19.30; Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain all relevant records concerning the Veteran's lumbar spine disability from the VAMC in Iowa City dated since April 2012. 2. Thereafter, schedule the Veteran for an orthopedic examination for his low back condition, to ascertain any and all current disabilities he has in connection with his service-connected low back condition and the current level of severity of each condition. Include a copy of the letter notifying the Veteran of the examination in the claims file (or associate with Virtual VA records) and notify the Veteran of the consequences for failure to appear at the examination. The examiner must conduct all necessary tests to ascertain the orthopedic manifestations, if any, of the Veteran's low back condition. The examiner must be instructed to review the entire claims folder, to include prior VA examinations and a copy of this decision, prior to rendering an opinion. The examiner is further requested to specifically opine whether the Veteran has ankylosis of the spine. The examiner should also provide a medical opinion with regard to what overall effect, if any, the Veteran's service-connected back condition has on his ability to obtain and retain employment; that is, whether it would preclude an average person from obtaining, or retaining, substantially gainful employment. The examiner should provide a complete rationale for any opinion given without resorting to speculation resolving any conflicting medical opinions. 3. The RO should issue a statement of the case to the Veteran and his representative addressing the effective date assigned for the grant of service connection for peripheral neuropathy of the bilateral lower extremities. The statement of the case should include all relevant law and regulations pertaining to the claim. The Veteran must be advised of the time limit in which he may file a substantive appeal. See 38 C.F.R. § 20.302(b). Thereafter, if an appeal has been perfected, this issue should be returned to the Board. 4. Thereafter, readjudicate the Veteran's claims. If the claims remain denied, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, which includes notice and consideration of the old and new spine rating criteria, and they should be given an opportunity to respond, before the case is returned to the Board. 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). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs