Citation Nr: 1605579	
Decision Date: 02/12/16    Archive Date: 02/18/16

DOCKET NO.  13-03 379	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1. Entitlement to disability ratings for degenerative disc disease of the lumbar spine higher than 20 percent prior to November 12, 2014, and 40 percent from November 12, 2014.

2. Entitlement to an initial disability rating higher than 10 percent for lumbar radiculopathy of the right lower extremity.

3. Entitlement to special monthly compensation based on the need for aid and attendance.


REPRESENTATION

Appellant represented by:	Disabled American Veterans



WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

K. J. Kunz, Counsel


INTRODUCTION

The Veteran served on active duty from June 1982 to April 1986.

This matter comes before the Board of Veterans' Appeals (Board) on an appeal from rating decisions issued by the Columbia, South Carolina Regional Office (RO) of the Department of Veterans Affairs. In a November 2009 rating decision, the RO granted service connection, effective March 9, 2009, for degenerative disc disease of the lumbar spine, and assigned a 10 percent disability rating. In a March 2011 rating decision, the RO granted service connection for lumbar radiculopathy of the right lower extremity, and assigned a 10 percent rating. In an October 2012 rating decision, the RO increased the rating for the lumbar spine disability, from March 9, 2009, from 10 percent to 20 percent. In a March 2015 rating decision, the RO increased the rating for the lumbar spine disability from 20 percent to 40 percent effective November 12, 2014. In an October 2015 rating decision, the RO denied entitlement to special monthly compensation based on the need for aid and attendance.

In December 2015, the Veteran had a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is in the Veteran's claims file.

The issue of entitlement to special monthly compensation based on the need for aid and attendance is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. Prior to November 12, 2014, the Veteran's lumbar disc disease was manifested by pain and limitation of motion, without limitation of forward flexion of the thoracolumbar to 30 degrees or less, ankylosis of the entire thoracolumbar spine, or incapacitating episodes.

2. The Veteran's lumbar disc disease has not been manifested by unfavorable ankylosis or by incapacitating episodes.

3. From July 29, 2010, the Veteran's lumbar radiculopathy of the right lower extremity has been manifested by pain, paresthesias, and numbness most nearly approximating moderate incomplete paralysis of the sciatic nerve.


CONCLUSIONS OF LAW

1. Prior to November 12, 2014, the Veteran's lumbar disc disease did not meet the criteria for a rating higher than 20 percent. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242, 5243 (2015).

2. The Veteran's lumbar disc disease has not met the criteria for a rating higher than 40 percent. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242, 5243.


3. From July 29, 2010, the Veteran's lumbar radiculopathy of the right lower extremity has met the criteria for a 20 percent rating. §§ 1155, 5107; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. Under the notice requirements, VA is to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b).

Also, in Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that that the VLJ who conducts a Board hearing fulfill duties to (1) fully explain the issues and (2) suggest the submission of evidence that may have been overlooked.

VA satisfied the duty to notify provisions in a March 2009 letter. In that letter, VA advised the Veteran what information was needed to substantiate claims for service connection. VA also advised him how VA assigns disability ratings and effective dates.

In the December 2015 Board videoconference hearing, the undersigned VLJ fully explained the issues and suggested the submission of evidence that may have been overlooked.


The Veteran's claims file contains service medical records, post-service medical records, reports of VA medical examinations, and a transcript of the December 2015 Board hearing. The Veteran has had VA examinations that provided adequate information about the issues that the Board is deciding at this time.

The Board finds that the Veteran was notified and aware of the evidence needed to substantiate the claims, as well as the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran actively participated in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process, and he has done so.

Degenerative Disc Disease of the Lumbar Spine

The Veteran had treatment in service for low back pain. The RO has described his service-connected low back disability as degenerative disc disease of the lumbar spine. The Veteran appealed the initial and subsequent ratings that the RO assigned for the disability. The present appeal is for ratings higher than 20 percent prior to November 12, 2014, and 40 percent from November 12, 2014.

VA assigns disability ratings by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2.

The Court has indicated that, at the time of the assignment of an initial rating for a disability following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Court also has indicated that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating was filed until a final decision is made. See Hart v. Mansfield, 21 Vet. App. 505 (2007).

When evaluation of a musculoskeletal disability is based on limitation of motion, VA regulations provide, and the Court has emphasized, that evaluation must include consideration of impairment of function due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. 38 C.F.R. §§ 4.40, 4.45, 4.59; see DeLuca v. Brown, 8 Vet. App. 202 (1995). Determination of impairment due to such factors is to be expressed, if feasible, terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. 

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

The RO has evaluated the Veteran's lumbar spine degenerative disc disease under 38 C.F.R. § 4.71a, Diagnostic Code 5242, for degenerative arthritis of the spine. The rating schedule provides for evaluating spine disorders, including intervertebral disc disorders, under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Incapacitating Episodes Rating Formula), whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243.

Under the General Rating Formula, a 20 percent disability rating is assigned if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned if forward flexion of the thoracolumbar spine is 30 degrees or less; or, there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is assigned if for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula.

For VA rating purposes the normal ranges of motion of the thoracolumbar spine are to 90 degrees of forward flexion, 30 degrees of extension, 30 degrees of left and right lateral flexion, and 30 degrees of left and right lateral rotation. The combined range of motion is the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, General Rating Formula, Note (2); 38 C.F.R. § 4.71a, Plate V. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note (1).

Under the Incapacitating Episodes Rating Formula, intervertebral disc syndrome is rated based on the total duration of incapacitating episodes during the preceding twelve months. The rating is 10 percent if the total duration was at least one week but less than 2 weeks, 20 percent if it was at least 2 weeks but less than 4 weeks, 40 percent if it was at least 4 weeks but less than 6 weeks, and 60 percent if it was at least 6 weeks. 38 C.F.R. § 4.71a, DC 5243. 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. 38 C.F.R. § 4.71a, Incapacitating Episodes Rating Formula, Note (1).

In March 2009, the Veteran submitted a claim for service connection for several disorders, including back problems and spastic paraparesis. Private medical records from 2008 forward reflect complaints of impaired and unsteady gait, and findings of spastic paraparesis. The RO granted service connection for degenerative disc disease of the lumbar spine, lumbar radiculopathy of the right lower extremity, and lumbar radiculopathy of the left lower extremity. The RO did not grant service connection for spastic paraparesis. 

Evidence regarding the Veteran's lumbar degenerative disc disease contains information both about problems affecting his back and problems affecting his lower extremities. The Board is addressing the Veteran's appeal of the rating for radiculopathy of the right lower extremity separately in this decision, below. The Board is considering the ratings for his lumbar disc disease based on the symptoms, function, and impairment of the low back.

Records of private treatment of the Veteran in 2008 reflect his reports of low back pain. Lumbar spine MRI performed in February 2008 showed osteophytes and disc space narrowing.

In an August 2009 decision, the United States Social Security Administration (SSA) found that the Veteran had been disabled since April 2009, due to a primary diagnosis of spastic paraparesis and a secondary diagnosis of obesity.

On VA examination in September 2009, the Veteran reported a long history of low back problems, and present symptoms of constant low back pain of varying intensity. He related that the pain sometimes affected his ability to walk, and that he used a cane to aid in walking. He reported that in the preceding twelve months he had not had any incapacitating episodes in which a physician prescribed bed rest. He indicated that he had retired from employment due to a recent diagnosis of multiple sclerosis. The examiner found that the Veteran's thoracolumbar spine had motion to 75 degrees of forward flexion, 15 degrees of extension, lateral flexion to 25 degrees to each side, and rotation to 55 degrees to each side. There was pain throughout each range of motion. The ranges of motion were not additionally limited following repetitive use. There was no spasm on examination. The examiner did not evaluate his gait because he was in a wheelchair.

In VA treatment in April 2010, the Veteran reported ongoing low back pain. Lumbar spine MRI taken in June 2010 showed degenerative changes at the L1 through S1 levels. In August 2010, he reported that his back pain made him unable to straighten his back to replace light bulbs at home.

On VA examination in September 2010, the Veteran reported that every couple of months he had flare-ups of back pain that lasted two or three days. He related that in the preceding twelve months he had not had any incapacitating episodes of back problems in which a physician prescribed bed rest. The examiner examined the Veteran in his wheelchair. In that position, he had rotation of the thoracolumbar spine to 30 degrees to each side. That range did not change with repetitive use. The examiner found that, because of lower extremity weakness related to his spasticity, it was not possible to safely examine forward flexion, extension, or lateral flexion. The back had no spasm on examination. 

In VA treatment in November and December 2010, the Veteran reported persistent back pain. In March 2011, a lumbar spine MRI showed degenerative stenosis at the L1 through S1 levels. MRI of the thoracic spine showed disc bulges. 

On VA examination in July 2011, the Veteran reported ongoing low back pain, with radiation into both legs. He related flare-ups of worse pain that occurred two to three times a week and lasted from a couple of hours to a couple of days. He indicated that during the preceding twelve months he had not had any incapacitating episodes requiring bed rest. The examiner found that his thoracolumbar spine had motion to 50 degrees of forward flexion, 0 degrees of extension, 10 degrees of lateral flexion to each side, and 30 degrees of rotation to each side. There was pain at the end of each range. The ranges were not further limited by repetition. There were paraspinal spasms bilaterally. His gait was broad-based, shuffling, and very slow.

On VA examination in December 2011, the Veteran reported that his low back pain had worsened over time. He indicated that he had difficulty walking, and always used a walker. He stated that during the preceding twelve months he had not had any incapacitating episodes requiring bed rest. On examination, his thoracolumbar spine had forward flexion to 40 degrees, with pain from 30 degrees, extension to 10 degrees, with pain from 5 degrees, lateral flexion to 15 degrees to each side, with pain at 15 degrees, and rotation to 20 degrees to each side, with pain at 20 degrees. Because of pain and instability the Veteran could not perform three repetitions of the motions.

On VA examination on November 12, 2014, the Veteran reported increased low back pain, and flare-ups of severe pain. He indicated that over the preceding twelve months he had not had any incapacitating episodes. On examination, he was in a wheelchair. He unable to safely extend or rotate his spine, and could not safely transfer out of the wheelchair. The range of motion for his thoracolumbar spine was to 20 degrees of forward flexion, with pain from 0 degrees, 0 degrees of extension, with pain at 0 degrees, 10 degrees of lateral flexion to each side, with pain from 0 degrees, and 0 degrees of rotation to each side, with pain at 0 degrees. Ranges of motion were not changes after three repetititions.  The examiner checked the box for favorable ankylosis of the entire thoracolumbar spine. There was guarding of the thoracolumbar spine resulting in abnormal gait or abnormal spinal contour.

In the December 2015 Board hearing, the Veteran reported that his back pain had worsened over time. He stated that he could not stand unless he was holding on to something. He indicated that, when standing, he could not bend forward, or he would fall. He stated that he used a walker to move around at home, and a wheelchair when outside his house. He asserted that the present limitation of motion and other low back functional limitations had been just as severe since 2010.

Prior to November 12, 2014, the forward flexion of the Veteran's thoracolumbar spine was not limited to 30 degrees or less. His entire thoracolumbar spine did not result in ankylosis.  While he had pain on motion and sometimes diminished endurance; those factors did not produce impairment comparable to limitation of forward flexion to 30 degrees or ankylosis. He did not have incapacitating episodes. The disability picture thus did not meet or approximate the criteria for a rating higher than 20 percent.

From November 12, 2014, the forward flexion of the Veteran's thoracolumbar spine has been found to be limited to less than 30 degrees. His thoracolumbar spine has not been found to be in unfavorable ankylosis, however. He has not had incapacitating episodes. Therefore, the disability picture has not met or approximated the criteria for a rating higher than 40 percent.

When there is an exceptional disability picture, such that the rating schedule criteria do not reasonably describe a claimant's disability level and symptomatology, an RO may refer a case to the VA Under Secretary for Benefits or to the Director of the VA Compensation and Pension Service for consideration of an extraschedular rating. See 38 C.F.R. § 3.321(b)(1) (2014); see also Thun v. Peake, 22 Vet. App. 111, 115 (2008). Extraschedular ratings are limited to cases in which it is impractical to apply the regular standards of the rating schedule because there is an exceptional or unusual disability picture, with such related factors as frequent hospitalizations or marked interference with employment. 38 C.F.R. § 3.321(b)(1).

The Veteran's lumbar disc disease has not required frequent hospitalizations. The lumbar disc disease when combined with other non-service-connected disabilities, has markedly interfered with his capacity for employment; but the lumbar disc disease by itself has not interfered with employment to an extent that rises to the level of marked. The rating criteria appropriately address the effects of his lumbar disc disease. Therefore, it is not necessary to refer the issues of the ratings for that disability for consideration of extraschedular ratings. 

The Court has indicated that VA must consider, in an increased rating claim, whether the record indirectly raises the issue of unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). The RO has assigned the Veteran a total disability rating based on individual unemployability (TDIU) effective December 2, 2011. There is evidence that the Veteran became unemployable earlier than December 2011. However, he has not suggested, and the record does not suggest, that his service-connected disabilities, without consideration of disabilities that are not service-connected, made him unemployable earlier than December 2011. The record in this case thus does not indirectly raise the issue of unemployability from an earlier date.

Lumbar Radiculopathy of the Right Lower Extremity

The RO granted service connection for lumbar radiculopathy of the right lower extremity effective July 29, 2010, and assigned a 10 percent rating. The Veteran appealed that initial rating.

The RO has evaluated the right lower extremity radiculopathy under 38 C.F.R. § 4.124a, Diagnostic Code 8520, for disease of the sciatic nerve. With incomplete paralysis of peripheral nerves, when the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Peripheral nerve neuritis and neuralgia are evaluated as analogous to incomplete paralysis. 38 C.F.R. §§ 4.123, 4.124.

The rating schedule provides for an 80 percent rating for complete paralysis of the sciatic nerve, in which the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. Incomplete paralysis is rated at 60 percent if severe, with marked muscular atrophy, at 40 percent if moderately severe, 20 percent if moderate, and 10 percent if mild. 38 C.F.R. § 4.124a, Diagnostic Code 8520.

As noted above, the RO granted service connection for lumbar radiculopathy of the Veteran's lower extremities, but did not grant service connection for spastic paraparesis. Evidence regarding the Veteran's lower extremity radiculopathy and his spastic paraparesis is somewhat intertwined. The assembled medical findings and opinions, however, provide sufficient guidance to allow consideration of the issue of ratings for his right lower extremity radiculopathy.

In private treatment in 2008, the Veteran reported a history of neck surgery. He related present low back pain. He indicated that over the preceding seven years his gait had become progressively unsteady, sometimes causing falls. In February 2008, MRI showed osteophytes and disc space narrowing in the lumbar spine. In September 2008, a neurologist noted balance and gait abnormalities, and found evidence of motor neuron disease affecting the upper and lower extremities and spastic paraparesis affecting the lower extremities.

On VA examination in February 2010, the Veteran reported an unsteady gait since 2001, and significant difficulty with ambulation over the preceding two years. He related intermittent numbness and tingling in both lower extremities. The examiner noted in the right lower extremity significantly abnormal deep tendon reflexes (DTRs) of 4+, with sustained clonus. There was no abnormality of primary sensation. The gait was characterized by scissoring, spasticity, and need for an assistive device for walking a few steps. A wheelchair was needed for long distances. The examiner attributed the impairment to myelopathy from quadriparesis, and found no evidence of radiculopathy.

On VA examination in September 2010, the Veteran reported that low back pain radiated into his right lower extremity. The examiner found evidence of right lower extremity radiculopathy.

On VA examination in July 2011, the examiner found spasticity and unsustained clonus in all four extremities.

On VA examination in December 2011, the examiner provided a diagnosis of lumbar degenerative disc disease with bilateral lower extremity radiculopathy. The examiner found slightly reduced (4/5) muscle strength in the right lower extremity, with no muscle atrophy. Right knee and ankle DTRs were hyperactive without clonus (3+). There was decreased sensation to light touch in the right lower leg, ankle, foot, and toes. The examiner found moderate pain, paresthesias, and numbness in the right lower extremity due to radiculopathy. It was noted that the Veteran ceased his previous employment because he could no longer bear weight for significant periods.

On VA examination in January 2014, the examiner found that the Veteran had bilateral S1 radiculopathy. The examiner stated that the radiculopathy did not explain all of his progressive gait impairment, but that it might be part of a more diffuse degenerative disease process. The examiner found evidence of mild pain and paresthesias in the right lower extremity, and mild incomplete paralysis in the right lower radicular group.

On VA examination in November 2014, the Veteran reported constant moderate pain into his legs. The examiner noted his reports of moderate constant pain, moderate paresthesias, and moderate numbness in the right lower extremity. The examiner found mild incomplete paralysis of the right lower radicular group.

In the December 2015 Board hearing, the Veteran reported intermittent pain in his right lower extremity, and intermittent numbness in the toes of his right foot. He indicated that he had occasional falls, and used a walker at home and a wheelchair outside of his home.

On VA examination in January 2016, the Veteran related a long history of low back pain radiating into the lower extremities. The examining physician reported having reviewed the Veteran's claims file. The examiner stated that the Veteran had lumbar radiculopathy with onset in 2000. The examiner found that from 2001 the Veteran had symptoms of primary lateral sclerosis (PLS), and that PLS was diagnosed in 2013. The examiner found that symptoms in the Veteran's right lower extremity attributable to peripheral nerve conditions included mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness. Muscle strength in the right lower extremity was 4/5 in knee extension, ankle plantar flexion, and ankle dorsiflexion. There was no muscle atrophy. Right lower extremity DTRs were hyperactive without clonus (3+) in the knee and hyperactive with clonus (4+) in the ankle. The examiner found that the Veteran stopped working around 2007 because of the initial signs of PLS. The examiner stated that it is very difficult to separate the Veteran's PLS from his radiculopathy, but he opined that clinical, electrodiagnostic, and MRI evidence show mild to moderate bilateral sciatic neuropathy.

The medical records leave some question as to which part of the right lower extremity problems are due to the service-connected lumbar radiculopathy of the right lower extremity and which part are due to neurological disorders for which service connection has not been established. Nonetheless, from the grant of service connection forward, clinicians findings and opinions sufficiently support attributing to the radiculopathy mild to moderate right lower extremity pain, paresthesias, and numbness. The disability picture meets or most nearly approximates mild to moderate incomplete paralysis of the sciatic nerve. The Board therefore grants an initial 20 percent rating under Diagnostic Code 8520.

The Veteran's right lower extremity radiculopathy has not produced moderately severe or severe incomplete paralysis, nor complete paralysis; and so has not met the criteria for a rating higher than 20 percent. It has not required frequent hospitalizations or, by itself, markedly interfered with employment; so it is not necessary to refer the rating issue for consideration of extraschedular ratings. It has not, by itself, made him unable to secure or follow a substantially gainful occupation. So, the record regarding the right lower extremity radiculopathy rating does not raise the issue of entitlement to a TDIU earlier than the RO assigned one.


ORDER

Entitlement to a disability rating higher than 20 percent for degenerative disc disease of the lumbar spine prior to November 12, 2014, is denied.

Entitlement to a disability rating higher than 40 percent for degenerative disc disease of the lumbar spine is denied.

From July 29, 2010, entitlement to a 20 percent rating for lumbar radiculopathy of the right lower extremity is granted, subject to the laws and regulations controlling the disbursement of monetary benefits.


REMAND

In an October 2015 rating decision, the RO denied the Veteran's claim for special monthly compensation based on the need for aid and attendance. In December 2015, he submitted a notice of disagreement (NOD) with that decision. 

When a claimant files a timely NOD, the agency of original jurisdiction (in this case, the RO) must prepare and send to the claimant a statement of the case (SOC). 38 C.F.R. § 19.26 (2015). The RO has not sent the Veteran an SOC addressing his appeal of the October 2015 rating decision. The Court has indicated that when a claimant submits an NOD, and the RO does not issue an SOC on the issues addressed by the NOD, the Board should remand the issue to the RO for the issuance of an SOC. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The Board therefore remands the issue of special monthly compensation based on the needed for aid and attendance to the RO, for the RO to issue an SOC.

Accordingly, the case is REMANDED for the following action:

Issue to the Veteran and his representative a statement of the case addressing the issue of special monthly compensation based on the need for aid and attendance. Advise the Veteran and his representative of the time limit in which he may file a substantive appeal as to that issue. If appeal of that issue is timely perfected, return the issue to the Board for appellate consideration, if otherwise in order.

The Board intimates no opinion as to the ultimate outcome of the matter that the Board has remanded. The Veteran has the right to submit additional evidence and argument on that matter. 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 2014).




______________________________________________
MATTHEW D. TENNER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs