Citation Nr: 1702357 Decision Date: 01/27/17 Archive Date: 02/09/17 DOCKET NO. 12-12 564 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES Entitlement to special monthly compensation in excess of the rate payable under 38 U.S.C.A. § 1114(p) (West 2014). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran had active service from September 1991 to January 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Nashville, Tennessee, Regional Office (RO) of the Department of Veterans Affairs (VA) which denied special monthly compensation based on the need for regular aid and attendance. In September 2011, the RO granted special monthly compensation under 38 U.S.C.A. § 1114(1) based on the loss of use of both feet, effective October 27, 2010. In July 2013, the RO determined that its September 2011 rating decision was clearly and unmistakably erroneous in failing to grant special monthly compensation under 38 U.S.C.A. § 1114(p) based on the loss of use of both feet due to multiple sclerosis with additional disabilities due to multiple sclerosis including right upper extremity impairment, bowel impairment, left side facial paralysis, a left ankle disability, memory impairment, and bladder incontinence; bipolar disorder; and polycystic ovaries independently ratable at 50 percent effective as of October 27, 2010. The Veteran appeared at a November 2013 hearing before the undersigned Veterans Law Judge at the RO. A hearing transcript is of record. In June 2014, the Board remanded the appeal for additional development. In April 2016, the RO increased the rating for bladder incontinence from 40 percent to 60 percent, the rating for memory impairment with bipolar disorder from 30 percent to 50 percent, and the rating for right upper extremity impairment from 10 percent to 30 percent, effective January 8, 2016. REMAND The Board's June 2014 Remand instructions requested that the RO issue a rating decision adjudicating the claims of entitlement to increased ratings for bladder incontinence, memory impairment with bipolar disorder, and right and left upper extremity disabilities. The RO has not subsequently adjudicated the issue of entitlement to increased rating for left upper extremity impairment. The April 2016 supplemental statement of the case stated that "a higher evaluation for the left upper extremity is not warranted ... the 30% evaluation is continued at this time." The Board notes that in a a supplemental statement of the case cannot be used to announce decisions by the RO on an issue not previously addressed in a statement of the case. 38 C.F.R. § 19.31 (a) (2016). Compliance with the Board's remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998). In April 2016, the RO increased the rating for right upper extremity impairment from 10 percent to 30 percent. In a May 2016 Statement of Accredited Representative in Appealed Case (VA Form 646), the accredited representative stated that "the Veteran contends that her bilateral UEs have become worse;" "she should be rated higher for her bilateral UEs, which in turn would trigger the higher level of SMC;" and "the examinations were not adequate and would attend additional examinations if needed." While clearly expressing disagreement with the 30 percent rating assigned for right upper extremity impairment, the accredited representative did not submit a Notice of Disagreement on VA Form 21-0958 as required. In such situations, the RO is to provide the claimant with written information on how to obtain VA Form 21-0958 and to inform her that VA regulations require the timely submission of a VA Form 21-0958 in order to submit an appeal of the decision at issue. The completed VA Form 21-0958 must be submitted within one year of the date of the decision notice sent to her on the issues she is intending to appeal. VA will take no further action until a completed VA Form 21-0958 is received. M21-1, Part I, Chapter 5, Section B.3.h. The RO has not taken the appropriate action in response to the disagreement with the rating assigned for right upper extremity impairment. The issue of the rating of the right upper extremity impairment is inextricably intertwined with the certified issue of entitlement to special monthly compensation in excess of the rate payable under 38 U.S.C.A. § 1114(p) (West 2014). Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Adjudicate the issue of entitlement to a rating in excess of 30 percent for left upper extremity impairment. Notify the Veteran and representative of the decision and her appellate rights. That issue is not on appeal unless there is a timely notice of disagreement (VA Form 21-0958) and a timely substantive appeal as to the issue. 2. Provide the Veteran with VA Form 21-0958 and inform her that VA regulations require the timely submission of a VA Form 21-0958 to submit an appeal from the assignment of a 30 percent rating for right upper extremity impairment. The completed VA Form 21-0958 must be submitted within one year of the date of the decision notice sent to her on that issue. VA will take no further action on the issue until a completed VA Form 21-0958 is received. 3. Then readjudicate the claim on appeal for higher level of special monthly compensation. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then return the case to the Board. The Veteran 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 that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2016).